Russell Silverstein

The applicant sought an order appointing counsel under section 684 of the Criminal Code for a late appeal.

The Crown consented to the extension of time but opposed the appointment of counsel, conceding the applicant lacked sufficient financial means but arguing the appeal was not arguable.

The applicant's principal ground of appeal challenged the trial judge's ruling on a KGB application regarding the admissibility of statements.

The court found no merit in the arguments that the trial judge erred in admitting the statements as substantive evidence and found no merit in other grounds advanced.

The court declined to appoint counsel, finding it was not in the interests of justice to do so.

The appellant appealed his conviction, challenging the trial judge's admission of evidence of a firearm found in a vehicle he was operating.

The appellant argued he was arbitrarily detained and that police violated his Charter rights by failing to immediately advise him of the reason for detention and his rights to counsel.

The trial judge found the detention was not arbitrary, as police had reasonable suspicion of criminal activity based on the cumulative behavior of the occupants, and found Charter violations but admitted the evidence under the R. v. Grant test.

The Court of Appeal upheld the conviction, finding no error in the trial judge's decision.

The accused pleaded guilty to internet child luring.

Following his arrest, police issued a media release that disclosed his HIV-positive status, which they had learned from a lawful search of his vehicle.

At trial, the judge found the disclosure violated the accused's section 7 Charter rights, refused a stay of proceedings, but imposed a conditional sentence below the mandatory minimum as a section 24(1) remedy.

On appeal, the Court of Appeal upheld the refusal of the stay but found the trial judge erred in finding a section 7 breach, as the disclosure did not have a serious and profound effect on the accused's psychological integrity beyond the stress of the charges themselves.

The Court also held that a sentence reduction below the statutory minimum was not an appropriate remedy.

The Crown's sentence appeal was allowed, and the sentence was varied to one year of imprisonment, but stayed as the accused had already served the conditional sentence.

The appellant appealed his conviction for second degree murder following his third trial for the offence.

He argued the trial judge erred by failing to conduct an inquiry into juror bias after receiving a note expressing safety concerns, by giving inadequate instructions on eyewitness identification, and by refusing to grant a mistrial over the Crown's closing remarks.

The Court of Appeal dismissed the appeal, finding that the jury's withdrawal of the note negated the need for an inquiry, the identification instructions were adequate, and the trial judge properly exercised his discretion in addressing the Crown's remarks with an ameliorative instruction.

The appellant was convicted of assault causing bodily harm, sexual assault with a weapon, theft under $5,000, and breach of probation.

He appealed his convictions and sentence, arguing the trial judge misunderstood the evidence, improperly took judicial notice regarding the complainant's underwear, and misapplied the rule in Browne v. Dunn.

The Court of Appeal dismissed the appeal, finding the trial judge did not take judicial notice but rather rejected the appellant's speculative suggestion, and properly applied Browne v. Dunn by noting the defence failed to cross-examine the complainant on their theory.

The accused brought a motion seeking a stay of proceedings on the grounds that his Charter right under section 11(b) to be tried within a reasonable time had been breached.

The total delay from arrest to anticipated trial date was approximately 20.5 months, none attributable to the defence.

The delay resulted from delayed disclosure by the Crown and institutional delays.

The court found that the delay exceeded the 18-month ceiling established in R. v. Jordan for provincial court trials.

The Crown failed to establish that the transitional exceptional circumstance applied, as the case was straightforward, the jurisdiction was not plagued by systemic delays, and the Crown's reliance on the seriousness of charges was not reasonable given the disclosure failures.

The charges were stayed.

The appellant appealed his conviction and sentence but died prior to the release of the decision.

The Court of Appeal considered whether to exercise its discretion to hear the appeal despite the general rule of abatement upon death.

Finding no issue of general importance or special circumstances, the court held that the appeal abated and dismissed it.

The appellant appealed his conviction, arguing the trial judge erred in accepting the complainant's testimony despite contradictions and memory gaps, and that he should have had his trial in French.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility assessment and noting the appellant had consented to a trial in English.

The appellant appealed his convictions for sexual offences involving a young person, arguing the trial judge applied different standards of scrutiny to the evidence, misapprehended evidence, and failed to properly apply the W.(D.) test.

The appellant also sought to introduce fresh evidence regarding his pubic hair colour.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility assessments or application of the W.(D.) test.

While the trial judge misapprehended some evidence, it did not play an essential part in the reasoning process.

The fresh evidence application was dismissed for failing to meet the Palmer test.

The applicants, charged with bookmaking and criminal organization offences, brought a pre-trial application challenging the constitutional validity of the gaming and criminal organization provisions of the Criminal Code and related regulations.

They argued that the gaming provisions were ultra vires Parliament's criminal law power, that the regulation deeming gaming offences as 'serious offences' violated section 7 of the Charter due to overbreadth and gross disproportionality, and that the bookmaking prohibition violated freedom of expression and association under section 2 of the Charter.

The court dismissed the application, finding the provisions were a valid exercise of the criminal law power, did not violate the Charter, and in any event, would be saved under section 1.

The appellant was convicted of attempted murder and possession of a loaded restricted firearm.

At trial, the Crown cross-examined the appellant extensively about his knowledge of four other shootings in his neighbourhood to test his memory of when he heard about the shooting in this case.

The appellant appealed, arguing the cross-examination was unfair and amounted to trial by innuendo.

The Court of Appeal agreed, finding the cross-examination had very low probative value but high prejudicial effect, as it insinuated the appellant was involved in a violent subculture.

The appeal was allowed and a new trial ordered, with the court declining to apply the curative proviso because the unfair cross-examination resulted in a miscarriage of justice.

During the sentencing hearing for two accused convicted of terrorism offences, amicus and the Crown sought a psychiatric assessment of one of the accused to determine his fitness.

The court held that there is no jurisdiction under the Criminal Code to order a fitness assessment after a verdict has been rendered.

However, the court found reasonable grounds to order a further psychiatric assessment under s. 21 of the Ontario Mental Health Act, noting flaws in a previous psychiatric report that had improperly modified the legal test for fitness.

The appellant appealed his conviction and sentence for dangerous driving causing death.

He argued the trial judge erred in assessing the mens rea, that his language rights were violated, and that a probation condition banishing him from Prince Edward County was unreasonable.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the objective mens rea standard from R. v. Beatty, the appellant had explicitly waived a French trial, and his counsel had consented to the banishment condition at sentencing.

The appellant appealed his convictions for possession of a restricted firearm, arguing that the trial judge erred in refusing to set aside his guilty pleas prior to sentencing.

He claimed he lacked the cognitive capacity to understand the pleas due to medical issues and that he received ineffective assistance from both his original trial counsel and the counsel who brought the application to set aside the pleas.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the 'limited cognitive capacity' test and that the appellant failed to demonstrate any prejudice resulting from the alleged ineffective assistance of counsel.

The appellant appealed his sentence, seeking enhanced credit for pre-sentence custody at a rate of 1.5:1.

Following a review of the sentencing transcript, it was revealed that the original joint submission did not account for the appellant's lost eligibility for early release.

Relying on the Supreme Court of Canada's decision in R. v. Summers, the Crown conceded that the appellant was entitled to the enhanced credit.

The Court of Appeal allowed the appeal and granted the appellant 806 days of pre-sentence custody credit.

The appellant appealed his conviction for forgery-related offences concerning a forged consent to set aside a vexatious litigant order.

He argued the trial judge erred by failing to stay the proceedings for unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal upheld the trial judge's finding that, after attributing 19 months of the delay to the appellant and finding no actual prejudice, a stay was not warranted.

The Court also found no error in the trial judge's conclusion that the appellant forged and presented the consent document.

The appeal was dismissed.

The appellant appealed his convictions for three counts related to child prostitution and his sentence of four and a half years.

He argued the trial judge erred in refusing an adjournment to call a witness and that the trial judge's conduct created a reasonable apprehension of bias.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly exercised his discretion regarding the adjournment and conducted the trial impartially.

The sentence appeal was also dismissed, as the trial judge properly applied the principle of totality and the Tang factors, resulting in a fit sentence.

Sentencing following convictions for multiple counts of touching a person under 16 for a sexual purpose involving elementary school students.

The offender, an occasional teacher, engaged in repeated inappropriate touching of several grade three girls in classroom settings while in a position of authority.

The court considered aggravating factors including multiple complainants, breach of trust, grooming behaviour, and psychological harm to the victims, while mitigating factors included the offender’s lack of prior record and community contributions.

Emphasizing denunciation and general deterrence for sexual offences against children, the court imposed a custodial sentence.

A global sentence of 12 months’ imprisonment followed by two years’ probation was ordered, along with ancillary prohibitions and sex offender registration.

In a criminal proceeding involving allegations of sexual offences against students, the accused sought to introduce evidence that he offered to take a polygraph test during a police interview.

The defence argued that the offer demonstrated consciousness of innocence and constituted admissible after-the-fact conduct.

The court reviewed the governing principles from appellate authority concerning prior consistent statements and the limited probative value of offers to take polygraph tests.

It held that such an offer, particularly where the accused had received legal advice and the results would be inadmissible, was essentially a self-serving protestation of innocence with no meaningful probative value.

The court concluded that the evidence would risk prejudicing the trial process and dismissed the application to admit it.

In a criminal prosecution involving multiple sexual offence allegations against a teacher, the defence sought to admit the accused’s out-of-court statements to police as evidence of his reaction to the accusations pursuant to the exception recognized in R. v. Edgar.

The court considered whether the statements qualified as spontaneous prior consistent statements capable of admission for credibility purposes.

Applying appellate authority, the court held that the spontaneity requirement was not met where the accused had significant time to reflect, consult others, receive legal advice, and prepare a written account before speaking to police.

Because the statements were not made upon first confrontation with the allegation and were preceded by hours of deliberation, they could not be admitted under the Edgar exception.