Russell Silverstein

The Crown brought a similar fact application in a criminal trial involving allegations that an elementary school teacher sexually touched several young students.

The Crown sought to have the testimony of certain complainants admitted as circumstantial evidence supporting the allegations of other complainants.

Applying the framework from R. v. Handy, the court considered whether the proposed evidence had sufficient probative value to outweigh its prejudicial effect.

The court found that many of the alleged incidents were only generically similar and therefore did not meet the threshold for admissibility.

However, evidence of three specific incidents involving classroom demonstrations and physical manipulation of students was sufficiently similar and reliable to be admitted as similar fact evidence.

The accused was charged with driving a motor vehicle with a blood alcohol level over the legal limit contrary to section 253(1)(b) of the Criminal Code.

The accused applied for a stay of proceedings based on a violation of his Charter right to be tried within a reasonable time under section 11(b).

The total delay from charge to scheduled trial was approximately 22.5 months.

The court found that the combined institutional delay and delay caused by Crown actions totaled 12.5 months, exceeding the Brampton guideline of 8-9 months by 3.5 months.

The court also found actual prejudice to the accused, including stress, anxiety, and significant financial hardship to his family resulting from the need to pay counsel twice due to the case not being reached on the first scheduled trial date.

The court granted the application and ordered a stay of proceedings.

The appellant pleaded guilty to break and enter, robbery, forcible confinement, and assault resist arrest following a home invasion involving an 86-year-old victim.

He was sentenced to eight years in addition to nine months of pre-trial custody.

On appeal, he argued the sentence was unfit because it exceeded the Crown's requested eight-year range.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered a mental health and risk assessment report indicating a high risk to re-offend, and that the sentence fell within the established range for home invasions.

The appellant appealed his conviction, arguing that similar fact evidence was improperly admitted and that the jury charge was inadequate regarding potential 'tainting' of evidence.

The Court of Appeal dismissed the appeal, finding the similar fact evidence admissible, particularly given the defence evidence concerning semen stains.

The court also held the jury charge was adequate, noting the lack of objection from the defence at trial.

The appellant was convicted of assault causing bodily harm and assault with intent to resist arrest following a physical altercation with police during his arrest.

At trial, a blended voir dire and trial was held to address the appellant's section 7 Charter application alleging excessive police force.

The trial judge dismissed the Charter application and immediately convicted the appellant without separately analyzing whether the Crown had proven the offences beyond a reasonable doubt.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred by failing to separate the burdens of proof for the Charter application (balance of probabilities) and the trial proper (beyond a reasonable doubt).

The appellant pled guilty to production of marijuana and possession for the purpose of trafficking, involving a substantial commercial enterprise with over 6,000 plants across multiple locations.

He was sentenced to five years' imprisonment.

On appeal, he argued the sentencing judge erred in valuing the drugs, finding him the controlling mind, and imposing a manifestly unfit sentence.

The Court of Appeal dismissed the appeal, finding the sentence was within the acceptable range given the gravity and scale of the operation.

The appellant appealed a decision of the Ontario Review Board under Part XX.1 of the Criminal Code, alleging that the hospital report contained falsehoods.

The Court of Appeal dismissed the appeal, finding that the disposition was well-founded on the evidence and that the Board's decision was reasonable.

The appellant was a passenger in a vehicle stopped for traffic violations.

During the stop, an officer directed the appellant to place his hands on the seat in front of him, asked for his name, and ran a background check.

The officer subsequently noticed a handgun protruding from a knapsack next to the appellant.

The appellant was convicted of multiple firearms offences and sentenced to nine years in prison.

On appeal, the appellant argued his Charter rights under ss. 8, 9, and 10(b) were violated and that his Aboriginal status was not properly considered in sentencing.

The Court of Appeal found that while the appellant was psychologically detained, there was no breach of ss. 9 or 10(b).

Assuming a s. 8 breach occurred during the background check, the court held the firearm was still admissible under s. 24(2).

The sentence appeal was also dismissed, as the trial judge appropriately weighed the appellant's Aboriginal background against the mandatory minimum sentence and aggravating factors.

The applicant was charged with unlawful production of marijuana and possession of marijuana for the purpose of trafficking.

He brought an application under section 24(1) of the Canadian Charter of Rights and Freedoms alleging that his right to a trial within a reasonable time under section 11(b) had been infringed.

The court found that the applicant had suffered Crown delay of approximately two months, institutional delay of approximately 14 months and 13 days, and actual prejudice to both his liberty and security interests.

The operative delay of 16 months and 13 days exceeded the Morin guidelines by approximately six and a half months.

Balancing all factors, including the seriousness of the offences against the applicant's prejudice and the institutional failures to expedite the proceedings, the court granted the application and stayed the charges.

The appellant appealed his convictions for attempted murder and related offences arising from a stabbing incident.

At trial, the appellant relied on self-defence, calling a witness who testified the victim attacked the appellant with a baseball bat.

The trial judge rejected this evidence and convicted the appellant.

On appeal, the appellant argued the trial judge applied unequal scrutiny to the witnesses and misapprehended evidence.

The Court of Appeal found no palpable or overriding error in the trial judge's credibility assessments or factual findings, concluding the evidence overwhelmingly weighed against self-defence.

The appeal was dismissed.

The appellant sought leave to appeal his conviction for assault with a weapon, arguing the trial verdict was unreasonable.

The conviction arose from a domestic dispute where the appellant held a knife in his wife's direction while demanding money, an event witnessed by their son.

The Court of Appeal denied leave, finding no clear error or question of law of general significance, as there was direct evidence supporting the conviction.

The appellant was convicted of drug offences after being found with cocaine and cash.

During deliberations, the jury asked a question about whether they could draw an adverse inference from the absence of witnesses to corroborate the appellant's explanation for the cash.

Before the trial judge answered the question, the jury indicated they had reached a verdict, which the judge accepted without answering the question.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by failing to instruct the jury that they should attach no evidentiary significance to the appellant's failure to call witnesses, as the question reflected a potential misapprehension of the burden of proof.

The appellant appealed his conviction for first-degree murder of his wife, arguing a lack of motive, improper jury instructions, and insufficient evidence of planning and deliberation.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's instructions to the jury.

The court held that the verdict was reasonable based on the totality of the evidence, which included the appellant arriving at the home dressed as a construction worker, bringing a knife, and attempting to kill an eyewitness by stabbing her 13 times.

The accused was charged with perjury under s. 131 of the Criminal Code for allegedly falsely testifying at a preliminary inquiry that he suffered from a medical condition affecting his memory and that he was receiving treatment from doctors for that condition.

The Crown relied on inconsistencies between the accused’s testimony at the preliminary inquiry and at a later murder trial, as well as medical evidence from physicians who had treated the accused shortly before the preliminary inquiry.

The defence argued that the Crown failed to prove the falsity of the statements or that the accused knew them to be false, emphasizing that heavy marijuana use can affect memory and that the accused may have believed his symptoms were medically related.

The court found that although the accused appeared to be a reluctant witness and may have exaggerated memory loss, the Crown failed to prove beyond a reasonable doubt that the accused did not believe he had a medical condition affecting his memory.

As that essential element of the indictment was not proven, the charge of perjury could not stand.

On a criminal appeal from fraud convictions, the court considered whether trial counsel’s comment invited an impermissible adverse inference from a co-accused’s silence and whether the trial judge’s charge required an explicit remedial direction under s. 4(6) of the Canada Evidence Act.

The majority held that a trial judge may affirm the right to silence when there is a realistic risk of misuse, but found the charge as a whole adequately conveyed that silence is not evidence.

The court also found the erroneous admission of hearsay did not create a realistic possibility of a different verdict.

The conviction was upheld under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

The appellant appealed his convictions for producing marijuana and possession of marijuana for the purpose of trafficking.

Police discovered a marijuana grow operation in an apartment leased to the appellant.

The appellant argued that the trial judge's verdict was unreasonable and that the reasons for judgment were insufficient.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion was supported by strong circumstantial evidence, including the appellant's rental application and supporting documents.

The Court also held that while the reasons could have been more comprehensive, the basis for the finding was apparent from the record, satisfying the requirements for appellate review.

The Crown sought an adjournment of a scheduled Not Criminally Responsible (NCR) hearing on the grounds that its key psychiatric witness, Dr. McDonald, was unavailable.

The court denied the adjournment, finding that the Crown had failed to exercise due diligence in securing the witness's attendance despite having known the hearing date for eight months.

The court noted that the accused had made significant progress in treatment and rehabilitation since his release on bail, and that the Crown had failed to meet the established test for adjournment under R. v. Darville.

The court proceeded to sentencing based on the accused's guilty pleas.

The accused was charged with unlawful production of cannabis, two counts of possession of cannabis for the purpose of trafficking, and fraud under $5,000 of electricity.

The defence brought a Charter application alleging unreasonable delay under section 11(b) and seeking a stay of proceedings.

The court applied the framework from R. v. Morin, considering the length of delay, waiver, reasons for delay, and prejudice to the accused.

The total delay was approximately 16 months from the information being sworn to the trial date.

The court found that while the Crown caused approximately 1 month and 18 days of delay in providing initial disclosure, the remainder of the delay was attributable to inherent time requirements of the case, including the complexity of the charges, the need for a judicial pre-trial, and the time required for counsel preparation.

The court dismissed the application.

The appellant was convicted of first degree murder after discharging his trial counsel near the end of the Crown's case.

The trial judge refused the appellant's request for a lengthy adjournment to retain his former preliminary inquiry counsel, finding the request was a sham designed to secure a 'mouthpiece' who would follow unethical instructions.

The trial judge then appointed the discharged trial counsel as amicus curiae.

On appeal, the Court of Appeal upheld the trial judge's discretionary decisions, finding no error in the refusal of the adjournment or the appointment of former counsel as amicus curiae.

The appellant appealed his convictions, arguing that the verdicts were unreasonable, that the trial judge erred in allowing cross-examination regarding another file involving abuse allegations, and that he suffered prejudice because the complainant's doctor did not testify.

The Court of Appeal dismissed the appeal, finding that the verdicts were reasonable and well-founded, the trial judge properly assessed credibility, the cross-examination issue was first raised by the defence and not relied upon by the trial judge, and the defence had waived the need for the doctor's testimony.