Stephen A. Whitzman

Following the allowance of the appellant's sentence appeal, the Court of Appeal issued an addendum to finalize the terms of the conditional sentence and probation orders.

The Court ordered house arrest for the duration of the conditional sentence with a specific exception for gym attendance, and imposed optional probation conditions including a weapons prohibition and no-contact orders.

The appellant appealed a manslaughter conviction arising from a fatal single blow delivered with a wooden board during a late-night confrontation on his porch, arguing that the only reasonable verdict was lawful self-defence under s. 34 of the Criminal Code.

The Court of Appeal held that a properly instructed jury could reasonably conclude beyond a reasonable doubt that the force used against a smaller unarmed person was not reasonable in the circumstances, and dismissed the conviction appeal and the related production motion.

On sentence, however, the court found procedural unfairness and error in principle where the sentencing judge treated supposed alternative responses available to the appellant as aggravating factors.

Re-sentencing afresh, the court held that the appellant’s moral blameworthiness was modest, that strong mitigating factors attenuated the gravity of the unlawful killing, and that a conditional sentence of two years less a day followed by three years’ probation was fit and legally available under s. 742.1.

The appellant appealed his convictions for possession of fentanyl for the purpose of trafficking, possession of the proceeds of crime, and obstruction of a peace officer.

He argued the trial judge failed to properly scrutinize the evidence of an unsavoury witness, improperly refused to draw an adverse inference against the Crown for failing to call a witness, and improperly used his silence at trial.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed the witness's credibility, identified confirmatory evidence, and correctly applied the law regarding the accused's decision not to testify.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The appellant, Connor Davison Gibson, brought a motion under section 683(1)(a) of the Criminal Code and rule 12(8) of the Criminal Appeal Rules for an order directing that the wooden board used to cause the deceased’s death (Exhibit 26 at trial) and the audio of the appellant’s 911 call be sent to the Court of Appeal and produced at the hearing of the appeal.

The Crown opposed, arguing that photographs of the board and a transcript of the 911 call were already in the record.

The court dismissed the motion, finding that the actual board and audio would not add anything meaningful to the panel’s deliberations, but noted the panel retains authority to require production of these exhibits if needed.

The Court of Appeal for Ontario dismissed Denim Henderson’s conviction and sentence appeals arising from the death of nine-month-old Kaleb McKay.

The appeal addressed whether charges for aggravated assault and failing to provide necessaries of life were properly joined with a second degree murder charge, and whether a discreditable conduct instruction was required.

The court held that the indictment was valid under s. 589 of the Criminal Code, as the charges arose from the same transaction.

The court also found no error in the trial judge’s instructions and concluded that the jury’s verdict was not tainted by improper propensity reasoning.

The Court of Appeal for Ontario dismissed the appeals of David Beak and Yostin Murillo from their convictions for first degree murder and sexual assault in the killing of Rhoderie Estrada.

The court found that the trial judge’s instructions to the jury on constructive first degree murder, post-offence conduct, and the handling of evidence and objections were accurate and complete.

The grounds of appeal advanced by both appellants, including issues of causation, post-offence conduct, jury instructions, and procedural fairness, were all rejected.

The Court of Appeal for Ontario dismissed Arsenije Lojovic’s conviction appeal but allowed his sentence appeal, reducing his sentence from 10 years to 8 years (less pre-trial custody).

The court found that the trial judge erred by treating Lojovic’s bipolar disorder as an aggravating factor rather than a mitigating one.

The decision reviews the proper approach to NCR (not criminally responsible) assessments and the role of mental illness in sentencing, emphasizing that mental health conditions can reduce moral blameworthiness and the weight of deterrence and denunciation.

The appellant was convicted of drug trafficking and possession for the purpose of trafficking after police, without a warrant, used an arrested drug dealer's seized cellphone to impersonate him and continue a text message conversation with the appellant, luring him to deliver heroin laced with fentanyl.

The majority of the Supreme Court dismissed the appeal, holding that while the appellant had a reasonable expectation of privacy in the text message conversation, the warrantless search was justified by exigent circumstances under s. 11(7) of the Controlled Drugs and Substances Act because the police faced an urgent situation calling for immediate action to prevent the imminent trafficking of fentanyl to protect public safety and it was impracticable to obtain a warrant.

Karakatsanis, Martin and Moreau JJ. dissented, finding no exigent circumstances and that the evidence should have been excluded under s. 24(2) of the Charter.

The appellant, convicted of manslaughter, brought a motion before the Court of Appeal seeking an order to examine a juror for a reasonable apprehension of bias.

The appellant's mother, Chair of a district school board, asserted that a juror, a vice-principal within the same board, may have been influenced by this professional connection.

The Court dismissed the motion, finding the claim speculative and lacking a sufficient credible foundation to warrant an examination.

The Court emphasized the strong presumption of juror impartiality and the sanctity of jury secrecy, reiterating that an examination cannot be used to create the foundation for such a challenge.

The appellant appealed his conviction for robbery with a firearm and his 7-year mandatory minimum sentence.

The conviction appeal grounds included inadequate jury instructions on eyewitness identification (including recognition and in-dock ID), insufficient caution on after-the-fact conduct, and inflammatory Crown closing remarks.

The sentence appeal grounds challenged the finding that the unrecovered gun was a "firearm" and the imposition of a consecutive sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible errors given the trial context and the evidence.

The appellant, Jorge Berganza-Zaldana, appealed his conviction for possession of child pornography.

Police found child pornography on a digital backup of his phone on a desktop computer.

The appellant argued the Crown failed to prove knowledge and intent, suggesting the backup was created automatically and without his knowledge.

The trial judge, relying on circumstantial evidence and *R. v. Villaroman*, found the only reasonable inference was that the appellant intentionally created the backup with knowledge.

The Court of Appeal dismissed the appeal, finding the trial judge's inferences were reasonable and supported the conviction, upholding the application of the circumstantial evidence standard.

The appellant appealed her conviction for impaired driving, arguing ineffective assistance of counsel and challenging the trial judge's Charter rulings.

She claimed her trial counsel failed to advise her of the option to testify only on the voir dire, leading her to make damaging admissions during the trial proper.

The summary conviction appeal judge dismissed the appeal, finding that trial counsel's strategic decisions did not fall below the standard of reasonable professional assistance and did not result in a miscarriage of justice.

The appeal judge also upheld the trial judge's decisions to deny a stay of proceedings for lost video evidence and to admit the police officers' observations despite Charter breaches.

The appellant appealed his conviction for sexual assault with a weapon, sexual assault causing bodily harm, and sexual assault, and sought leave to appeal his five-year sentence.

The appeal challenged the trial judge's credibility and reliability findings, arguing they were flawed and inconsistent, particularly regarding the complainant's capacity to consent and alleged motive to fabricate due to a herpes diagnosis.

The Court of Appeal dismissed the appeal, upholding the trial judge's credibility findings and finding ample evidentiary support for the conclusion that the complainant lacked the capacity to consent.

Leave to appeal sentence was also denied as no error in principle was asserted.

The accused was tried for second-degree murder after stabbing the deceased 28 times following a meeting arranged online.

The accused admitted to the killing but claimed she acted in self-defence or, alternatively, was provoked by an unwanted sexual advance and a threat with a knife.

The court rejected the accused's version of events due to significant credibility and reliability issues, finding the response entirely disproportionate to any potential threat.

The court concluded the Crown proved the requisite intent for murder and disproved both self-defence and provocation beyond a reasonable doubt, resulting in a conviction for second-degree murder.

The appellant, Fazal Nagir, appealed his conviction for operating a motor vehicle while over 80, raising two grounds: a violation of his s. 10(b) right to counsel and an error by the trial judge in misapprehending evidence regarding mouth alcohol, leading to ss. 8 and 9 Charter violations.

The Superior Court of Justice dismissed the appeal, finding that police efforts to facilitate access to counsel were reasonable and diligent, and that the trial judge did not misapprehend evidence regarding mouth alcohol, thus upholding the reliability of the Approved Screening Device (ASD) test and the grounds for arrest.

The applicant sought bail pending an application for leave to appeal his conviction for possessing heroin mixed with fentanyl for the purpose of trafficking to the Supreme Court of Canada.

The Court of Appeal had previously dismissed his conviction and sentence appeal.

The motion judge applied the three-part test for bail pending appeal under s. 679(3) of the Criminal Code, considering whether the leave application was frivolous, if the applicant would surrender, and if detention was necessary in the public interest.

While the applicant satisfied the surrender criterion and the leave application was deemed not frivolous (though with low prospects), the court found that the public interest, particularly the enforceability of the sentence for a serious drug trafficking offense, outweighed the reviewability interest, especially after the conviction had been affirmed by the Court of Appeal.

The application for bail pending leave to appeal was denied.

The appellant appealed his conviction for 'Over 80', arguing the trial judge erred in dismissing his s. 10(b) Charter application.

The appellant contended that an 8-minute delay at the roadside before being informed of his right to counsel, and the police officer's decision to delay access to counsel until arriving at the station, violated his rights.

The Superior Court of Justice dismissed the appeal, upholding the trial judge's finding that the brief delay to secure the scene and the decision to wait for a private environment at the station were reasonable.

The court further held that even if a breach occurred, the evidence would not be excluded under s. 24(2).

This decision addresses a Charter application and sentencing for an individual found guilty of committing an indecent act and exposing his genitals to a child for a sexual purpose.

The Charter application, alleging ss. 7 and 8 violations due to a Level-2 search conducted while the defendant was in his underwear, was dismissed.

The court found the search was a lawful incident to arrest, justified by safety concerns and police policy, and conducted reasonably given the defendant's choice of attire.

For sentencing, the court considered aggravating factors including the persistent nature of the offences in the presence of multiple children, significant victim impact, and the offender's lack of insight.

Mitigating factors included no prior criminal record, steady employment, willingness to attend counselling, and collateral immigration consequences.

The court imposed a sentence of 90 days jail, two years probation, a DNA order, and a three-year prohibition order from public swimming areas and positions of trust with persons under 16.