Susan Ficek

The appellant appealed his conviction and sentence for offences involving a child complainant.

The appeal focused on the trial judge's credibility findings, which heavily favoured the complainant over the appellant and the child's mother.

The Court of Appeal dismissed the appeal, holding that the trial judge's detailed credibility findings were entitled to a high degree of deference and revealed no error.

The appellant also failed to establish an adequate basis for the production of third-party records under section 278.2 of the Criminal Code.

The appellant appealed his sentence for impaired driving and driving while disqualified, arguing the sentencing judge failed to apply the 'step' and 'gap' principles and erred by not granting 1:1 credit for time spent in a rehabilitation centre while on bail.

The Court of Appeal dismissed the appeal, finding the 24-month sentence reasonable given the appellant's extensive record of similar offences.

The court held that because the sentencing judge had already reduced the sentence length to account for the appellant's rehabilitation efforts, she was not required to grant additional pre-sentence custody credit for the time spent in rehab.

The appellant appealed his convictions arising from an armed robbery, arguing the trial judge erred by using his pre-trial silence upon arrest to reject his exculpatory testimony.

The Court of Appeal agreed that using the appellant's constitutionally protected silence to assess credibility was a serious error in law.

However, the Court applied the curative proviso and dismissed the appeal, finding that the Crown's circumstantial case was overwhelming and the appellant's testimony was entirely implausible, such that no reasonable trier of fact could have reached a different verdict.

The appellant appealed his conviction for first degree murder, arguing the trial judge erred in dismissing a motion for a directed verdict of acquittal on first degree murder, in her jury instructions regarding the timing of the victim's injuries, and in failing to give a limiting instruction on post-offence conduct.

The Crown's theory was that the appellant killed the victim while forcibly confining him.

The Court of Appeal found no error in the trial judge's application of the Arcuri test for a directed verdict, nor in the jury instructions when read as a whole.

The appeal was dismissed.

The Crown appealed the respondent's acquittal on weapons offences after the trial judge excluded a sawed-off shotgun and ammunition found in his rooming house basement apartment.

The evidence was discovered during the execution of a search warrant related to a murder investigation involving another tenant.

The trial judge found the Information to Obtain (ITO) the search warrant was insufficient and intentionally confusing, violating the respondent's s. 8 Charter rights, and excluded the evidence under s. 24(2).

The Court of Appeal allowed the appeal, holding that the trial judge misapprehended and failed to consider relevant evidence.

The majority concluded that the cumulative facts in the ITO provided sufficient reasonable grounds for the authorizing justice to issue the warrant.

The acquittals were set aside and a new trial was ordered.

The applicant, awaiting a retrial for first-degree murder, had his bail revoked after failing to report to police on Christmas Eve.

He applied for a review of the revocation order under s. 680 of the Criminal Code.

The Court of Appeal admitted fresh evidence showing the applicant had been acquitted of the failure to comply charge because he simply forgot to report.

Finding the failure was not deliberate, the Court set aside the revocation order and reinstated the applicant's bail on the original conditions.

The appellant was convicted of second degree murder following a stabbing during an altercation.

He appealed the conviction, arguing the trial judge erred in summarizing the pathologist's evidence regarding the deceased's mobility after being stabbed, and in instructing the jury on self-defence.

The Court of Appeal allowed the appeal, finding the trial judge's summary of the pathologist's evidence left an inaccurate impression and constituted reversible error.

The Court also found the trial judge erred by failing to instruct the jury that a person defending themselves cannot be expected to weigh to a nicety the exact measure of necessary defensive action.

A new trial was ordered.

The appellant was convicted of first degree murder in the shooting death of his wife, who had recently left him.

On appeal, he argued the trial judge erred in admitting the deceased's ante mortem statements about her fear of him, in instructing the jury on eyewitness identification and gunshot residue evidence, in restricting cross-examination about third-party suspects, in allowing re-examination of an investigator, and in dismissing a mistrial application for late disclosure.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's evidentiary rulings or jury instructions, and concluding that the late disclosure did not impair the right to make full answer and defence.

The appellant appealed his convictions for break, enter and theft, breach of probation, and breach of recognizance, as well as his global sentence of 44 months.

He argued the trial judge erred in the jury charge on identification evidence, restricted cross-examination on the Sophonow report, misdirected the jury on inferences from a cell phone call, and failed to grant two-for-one credit for pre-trial custody.

The Court of Appeal found no reversible errors in the trial judge's instructions or evidentiary rulings.

The court also upheld the sentencing judge's discretionary decision to deny two-for-one credit based on the appellant's history of disobeying court orders.

The appeal from conviction and sentence was dismissed.

The appellant appealed his convictions and sentence for fraud and possession of credit card data.

The Court of Appeal found that the trial judge's conclusion that data was misappropriated by modifying point of sale equipment was unreasonable, leading to the quashing of two counts.

The court rejected the argument that possession of blocked credit card data could not support a conviction under s. 342(3) of the Criminal Code.

Fresh evidence was not admitted.

The sentence was reduced from 3.5 years to 2 years.

The appellant in a first-degree murder appeal brought a motion for leave to file an 86-page factum, exceeding the standard 30-page limit.

The Crown consented on the condition that it could also file an 86-page factum.

The motion judge rejected the proposed 86-page factum as excessively long, noting that the grounds of appeal were not fact-based and did not require a 30-page recitation of facts.

The court emphasized that consent between counsel does not override the court's discretion to enforce page limits.

The appellant was granted leave to file a factum not exceeding 40 pages, while the Crown was restricted to the standard 30 pages.

The appellant appealed his sentence of 9 years for attempted murder and 90 days consecutive for breach of probation, following 14 months of pre-trial custody.

The Court of Appeal found the effective sentence of over 11 years excessive, noting the offence was not planned and deliberate, and the appellant was intoxicated.

The Court also considered fresh evidence akin to a Gladue report detailing the appellant's abusive upbringing and progress in rehabilitation.

The sentence for attempted murder was reduced to 6 years, while the consecutive sentence for breach of probation was upheld.

The appellant was convicted of first-degree murder based in part on DNA evidence and a statement he made to police.

On appeal, he argued his s. 10(b) Charter right to counsel was breached when police questioned him before he had a reasonable opportunity to consult his counsel of choice.

The Court of Appeal agreed, finding the police failed to hold off questioning after the appellant indicated he was still trying to reach his lawyer.

The court concluded the statement was conscriptive evidence that should have been excluded under s. 24(2) of the Charter.

The appeal was allowed and a new trial ordered.

The appellant appealed a decision of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Charter issues raised were bound by previous decisions and that the Board's decision was reasonable on the record.

The Court also held that the Board did not err by failing to initiate its own inquiries beyond the material placed before it.

The appellant challenged a conviction and penitentiary sentence arising from a historical sexual assault in which consent was the central issue.

The appeal focused on whether the trial judge improperly used prior consistent statements and post-offence conduct to bolster the complainant’s credibility, misapprehended evidence, applied an uneven standard of scrutiny, and gave insufficient reasons.

The court held that the impugned statements were admissible and were used only to assess consistency of conduct placed in issue by the defence, not for their truth.

The proposed fresh evidence relating to a post-trial statement by the complainant did not meet the admissibility test because it could not reasonably be expected to have affected the verdict.

Leave to appeal sentence was granted, but the sentence appeal was dismissed.

The appellant appealed his conviction for second degree murder, arguing the trial judge erred by removing the possibility of an acquittal from the jury's consideration and directing them that they must, at a minimum, convict him of manslaughter.

The Court of Appeal allowed the appeal, relying on Supreme Court of Canada jurisprudence establishing that a trial judge cannot direct a jury to convict absent a formal admission of all essential elements of an offence.

Since the appellant's formal admissions did not cover all essential elements of manslaughter, he was deprived of his right to a jury trial.

The conviction was quashed and a new trial ordered.

The Crown appealed a decision of the summary conviction appeal judge, who had acquitted the respondent of a zoning by-law infraction on the basis that notice and an opportunity to comply were preconditions to prosecution.

The respondent conceded this was an error in law.

The Court of Appeal agreed, rejected the respondent's alternative arguments regarding officially induced error and the trial justice's treatment of expert evidence, allowed the appeal, and restored the conviction.

The appellant appealed his convictions for sexual offences.

The Court of Appeal found that the trial judge made unsupported findings regarding the appellant's memory and improperly enhanced the complainant's credibility by accepting bizarre and improbable allegations as probably true.

Combined with the Crown's failure to disclose evidence relevant to the complainant's mental state, these errors raised fairness concerns.

The appeal was allowed, the convictions were set aside, and a new trial was ordered on all counts.

The appellant appealed his convictions, including criminal harassment, and his sentence.

He argued the trial judge improperly based the harassment conviction solely on conduct from other counts and erred in addressing the Crown's failure to call a witness.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly considered prior threatening phone calls and correctly addressed the absent witness given the ample confirmatory evidence.

The sentence appeal was dismissed as moot.

The appellant appealed a finding of civil contempt and a two-month term of imprisonment imposed for flagrant disregard of multiple court orders in a family law dispute.

The orders required him to pay funds into court, freeze accounts, and provide an accounting of dissipated funds.

The Court of Appeal confirmed it had jurisdiction, holding that a finding of contempt is a final order.

The court dismissed the appeal, finding the contempt finding amply supported by the record and the 60-day sentence fit given the appellant's deliberate breaches.