Shawn D. Porter

The Crown sought leave for eight organizations and groups to intervene in an appeal concerning the role of systemic racism and background factors in sentencing of racialized, non-Indigenous offenders and the use of judicial notice and social context evidence in sentencing proceedings.

The motions judge granted leave to all proposed interveners, finding that the issues transcended the interests of the parties and were of significance to the administration of criminal justice.

The interveners were well-recognized organizations with relevant expertise and could offer perspectives different from those of the Crown and respondent.

The appellant appealed his conviction for first degree murder on two grounds: (1) that the trial judge erred in finding his second statement to police was voluntary because the police failed to advise him he was a suspect and had reasonable and probable grounds to arrest him for murder, and (2) that the trial judge erred in instructing the jury on the use of post-offence conduct evidence regarding the appellant's failure to perform CPR or call 911 after the shooting.

The Court of Appeal rejected both grounds of appeal, finding that the police caution adequately conveyed the salient points to allow the appellant to make a meaningful choice whether to speak, and that the post-offence conduct was properly used as evidence relevant to the mental element of murder.

The appellant was convicted after a two-week jury trial of possession of a prohibited firearm without a license, possession of an over-capacity magazine, possession of a firearm with a defaced serial number, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime.

He was sentenced to nine years and three months' imprisonment.

On appeal, the Court of Appeal found that the trial judge erred in failing to provide limiting instructions to the jury regarding photographs of a firearm found on the appellant's cell phone, and in failing to provide a W.(D.) instruction regarding the testimony of the appellant's brother.

The Court set aside the convictions on the firearm-related counts and ordered a new trial on those counts, while upholding the drug and proceeds convictions.

The appellant was convicted of second degree murder for the shooting death of Troy Hutchinson.

The Crown's theory was that the appellant was the actual shooter, but the jury was also instructed on liability as an aider or abettor.

The Court of Appeal found that the trial judge misdirected the jury on the mens rea required for aiding or abetting murder.

Specifically, the jury was not properly instructed that an aider or abettor must know that the principal actor has subjective foresight of death.

The error was repeated multiple times throughout the charge and was compounded by an incorrect definition of recklessness and an inadequate answer to the jury's final question.

The curative proviso was not applied because the jury's final question demonstrated that at least one juror had a reasonable doubt about the appellant being the principal actor, making it impossible to conclude that conviction was inevitable.

A new trial was ordered.

The appellant appealed his convictions for possession of child pornography and making child pornography available, as well as his sentence.

The appellant raised four grounds of appeal: (1) the trial judge erred in not providing reasons for dismissing his section 11(b) Charter application; (2) the trial judge erred in not finding a breach of section 8 Charter rights; (3) the trial judge erred in credibility assessments of defence witnesses; and (4) the trial judge erred in not applying the Kienapple principle to stay one conviction.

The Court of Appeal dismissed the appeal on all grounds, though it acknowledged that the trial judge had erred in failing to provide reasons for the section 11(b) decision and that the Crown's warrantless request for Internet subscriber information violated section 8 rights.

However, the Court found that the evidence should not be excluded under section 24(2) given the seriousness of the offences and society's interest in adjudicating the case on its merits.

The appellant appealed his conviction for aggravated assault arising from injuries sustained by his cellmate at a correctional facility.

The appellant challenged the trial judge's admission of expert evidence regarding footwear impressions on the victim's face, the jury charge regarding inconsistencies in the appellant's statements, and the trial judge's response to a jury question on reasonable doubt.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's evidentiary rulings or jury instructions.

The appellant was convicted by jury of robbery, use of an imitation firearm, and masking his face, and was sentenced to a global sentence of twelve years' imprisonment.

He appealed his sentence, seeking leave to appeal and relying on fresh evidence regarding his personal history, including his status as a Crown ward and his victimization by physical and sexual abuse while in state care.

The Crown conceded that the sentencing judge committed an error in principle by failing to obtain or consider information about the appellant's personal circumstances.

The Court of Appeal allowed the appeal and reduced the sentence to ten years' imprisonment, finding that the sentencing judge's error impacted the fitness of the sentence and that the appellant's personal circumstances were relevant to assessing his moral blameworthiness.

The appellant was charged with speeding under the Highway Traffic Act and was assisted by his brother-in-law, an unlicensed non-lawyer, in proceedings before a justice of the peace.

A stay of proceedings was granted due to the prosecutor's failure to provide proper disclosure in violation of Charter rights.

On appeal to the Ontario Court of Justice, the appeal judge refused to permit the brother-in-law to continue representing the appellant based on general concerns about non-licensed persons representing defendants in provincial offence matters.

The appeal judge set aside the stay.

The Court of Appeal allowed the appeal, finding the appeal judge erred by failing to apply the proper legal test for disqualifying a representative and by relying on a blanket concern rather than examining the particular circumstances and competence of the representative.

Application for release from custody pending a new trial ordered by the Court of Appeal.

The applicant was convicted of second degree murder in connection with the death of a young man following an assault in an Ottawa bar on New Year's Eve 2005.

The Court of Appeal allowed the appeal and ordered a new trial based on fresh expert evidence regarding the mechanism of death.

The applicant had previously been released pending appeal but breached his recognizance by contacting a Crown witness.

The Crown opposed release on secondary and tertiary grounds.

The court granted the application, finding that the applicant had demonstrated his detention was not necessary for public protection or to maintain confidence in the administration of justice, despite the serious nature of the charge and the prior breach.

The appellant sought leave to appeal his sentence of nine and a half years imprisonment for armed robbery convictions.

He abandoned his conviction appeal and argued two errors: first, that the trial judge failed to impose a sentence as short as necessary for a youthful offender's first penitentiary sentence, and second, that the trial judge granted insufficient enhanced credit for pre-sentence custody.

The Court of Appeal allowed the appeal in part, granting the conceded reduction of 7½ months for pre-sentence custody credit but dismissing the argument regarding the length of the sentence itself.

The final net sentence was reduced to 7 years and 4½ months.

The appellant appealed his conviction for dangerous driving causing bodily harm.

The Crown's case relied on evidence that the appellant was driving at a very high rate of speed (40-50 km/h above the speed limit) and possibly racing another vehicle when he entered an intersection where a collision occurred with a vehicle making a left turn.

The appellant argued he was driving only somewhat over the speed limit and that the accident resulted from the other driver's illegal left turn.

The Court of Appeal dismissed all four grounds of appeal, finding the trial judge's instructions on the fault component of dangerous driving were consistent with R. v. Roy, the expert evidence was properly admitted, the instruction regarding Highway Traffic Act convictions was harmless, and the verdict was reasonable.