Thomas F. Balka

The appellant, Sarah Richer, appealed her conviction for trafficking fentanyl and the four-year sentence imposed.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge’s refusal to leave the defence of duress with the jury and holding that, while the trial judge erred in his similar fact evidence instruction regarding prior drug purchases, the error caused no substantial wrong given the overwhelming evidence.

However, the Court allowed the sentence appeal, finding that the trial judge erred in principle by downplaying the appellant’s rehabilitation and failing to consider the impact of incarceration on her family.

The sentence was reduced to three years.

The appellant, D.S., appealed his conviction for sexual assault and his sentence of two years less a day.

The conviction appeal challenged the trial judge's admission of evidence regarding a prior incident of unwanted sexual contact with the complainant, which occurred when the appellant was a youth.

The appellant argued this evidence was highly prejudicial and had low probative value, and that the Youth Criminal Justice Act (YCJA) principles should have factored into its admissibility.

The sentence appeal argued for a conditional sentence.

The Court of Appeal dismissed both appeals, finding no error in the trial judge's balancing of probative value and prejudicial effect for the prior incident evidence, noting its relevance to the appellant's state of mind regarding consent.

The court also found that YCJA principles did not impede the admissibility of such evidence in this context.

The sentence was upheld as proportionate, despite mitigating factors, due to significant aggravating features.

The appellant, Darryl Rusaw, appealed his conviction for sexual assault.

The trial judge had convicted him of sexually assaulting the complainant S.S. after acquitting him on another charge.

Rusaw argued the trial judge misapprehended evidence regarding his post-incident conversation with a witness and erred in rejecting the defence of honest but mistaken belief in consent.

The Court of Appeal found no fault with the trial judge's assessment of the witness's evidence and upheld the rejection of the mistaken belief defence, citing the trial judge's finding that the appellant took no reasonable steps to ascertain consent from the sleeping complainant.

The appeal was dismissed.

Joshua Burton was convicted by a jury of two counts of second-degree murder for stabbing his mother and grandmother to death.

This decision concerns the sentencing, specifically determining the period of parole ineligibility.

The Crown sought 18 years, while the defence sought 15 years.

The court considered the nature of the offences, the circumstances surrounding their commission (including the brutality, disposal of bodies, and impact on victims), the offender's character (lack of prior record, but also lack of insight and empathy), and the divided jury recommendations.

The judge imposed a concurrent parole ineligibility period of 17 years for each count, along with ancillary orders.

Tristan Piper pleaded guilty to manslaughter in the death of his four-month-old son, Liam, who died from blunt force head trauma and other injuries inflicted by Piper.

The court considered aggravating factors, including the breach of trust by a parent, the vulnerability of the child, and Piper's failure to seek medical attention or disclose the true cause of injuries.

Mitigating factors included his guilty plea, remorse, and lack of prior criminal record.

The court imposed a nine-year penitentiary sentence, reduced by pre-sentence custody credit.

J.S. appealed his sentence for possession of child pornography and voyeurism, arguing the sentencing judge erred by not considering a conditional sentence, misassessing *Friesen* factors, and not giving enough weight to injuries suffered in custody.

The appeal court dismissed all grounds, finding the sentencing judge implicitly rejected a conditional sentence, correctly applied *Friesen* factors, and adequately considered the collateral consequences of the appellant's injuries by imposing a sentence at the low end of the range.

The court affirmed the original sentence and recommended protective custody for the appellant.

The Crown brought an application to admit statements made by the accused during a nine-month 'Mr. Big' undercover operation, as well as a subsequent post-arrest statement, in a trial for manslaughter and indignity to a human body.

The accused had admitted to undercover officers that the victim died of a drug overdose and that he buried her body.

Applying the framework from R. v. Hart, the court found that the probative value of the undercover statements outweighed their prejudicial effect, noting the lack of coercion and the presence of markers of reliability.

The court also found the post-arrest statement to be voluntary under the confessions rule, rejecting arguments that the police created an atmosphere of oppression or offered inducements.

Both statements were ruled admissible subject to editing for discreditable conduct.

The Crown brought a motion to introduce evidence of prior discreditable conduct and ante-mortem hearsay statements in a trial for manslaughter.

The Crown sought to admit statements made by the deceased indicating she wanted to leave the accused and that he had previously choked her, as well as evidence of the accused's post-offence suicide attempt.

The court admitted the statements regarding the deceased's desire to leave the relationship and one specific recounting of a choking incident, finding them sufficiently reliable and probative of motive and animus.

Other hearsay statements regarding prior assaults were excluded due to insufficient reliability or excessive prejudicial effect.

The evidence of the suicide attempt was also ruled admissible.

The accused, charged with manslaughter, brought a motion to exclude evidence obtained from his cell phone and associated tower records, arguing his s. 8 Charter rights were breached when police seized his phone without a warrant following a polygraph test.

The court found that while the police had grounds to seize the phone, they created the exigent circumstances, resulting in a s. 8 breach.

However, applying the Grant framework, the court declined to exclude the phone's contents under s. 24(2), noting the police acted in good faith and the impact on the accused's privacy was minimal since the phone was not searched until a warrant was obtained.

The court also held that the tower records were not obtained in a manner that infringed the Charter and were admissible.

L.P., a young person, was found guilty of sexually assaulting H.B. The Crown sought a six-month custody and supervision order, 12 months probation, a two-year weapons prohibition, and a DNA order.

The defence argued for a probation order.

The court found the sexual assault to be a violent offence causing serious bodily harm, opening the gateway for a custodial sentence under the Youth Criminal Justice Act (YCJA).

Considering L.P.'s lack of remorse and insight into the harm caused, the court imposed a six-month custody and supervision order (four months open custody, two months community supervision) followed by 18 months probation, a two-year weapons prohibition, and a DNA order.

The accused, Coady Grant, was charged with impaired operation and "80 plus" care or control of a motor vehicle.

The defence conceded impairment, leaving the sole issue as whether Mr. Grant was in care or control of the vehicle.

The Crown relied on circumstantial evidence, including Mr. Grant's ownership of the truck, possession of keys, bizarre interactions with the vehicle at a gas station, immediate departure from the truck upon police arrival, and video evidence of him paying for gas.

Applying the R. v. Villaroman test for circumstantial evidence, the court found that the only reasonable and inescapable inference was that Mr. Grant drove the truck to the gas station and was in care or control of it.

Mr. Grant was found guilty of both offences, with the "80 plus" charge stayed under the Kienapple principle.

The appellant, Thomas Zakos, appealed his convictions for cocaine trafficking and possession of proceeds of crime, arguing police entrapment.

The core issue was whether Detective Constable Green provided an opportunity to traffic before forming reasonable suspicion.

The Court of Appeal distinguished between exploratory questions and an actual opportunity to commit an offence.

It found that the question "U good for powder?" was merely exploratory, and reasonable suspicion was formed when the appellant responded "How much were you looking for?".

The subsequent question "How much for a b?" constituted the opportunity to traffic, by which point reasonable suspicion existed.

The Court dismissed the appeal, finding no entrapment and distinguishing the facts from R. v. Williams (SCC), where the opportunity was provided without prior reasonable suspicion.

The youth accused was charged with sexually assaulting a fellow student at his home.

The complainant testified that she walked the accused home and went inside briefly, where he pulled off her clothes and had sexual intercourse with her despite her repeatedly saying no and trying to push him off.

The accused testified that the sexual activity was consensual.

The court applied the W.(D.) framework to assess credibility, finding the complainant's evidence credible and corroborated by her extreme emotional distress and immediate prior consistent statements to friends that she had been raped.

The court rejected the accused's evidence as evasive and illogical.

The court found the Crown proved both the actus reus and mens rea of sexual assault beyond a reasonable doubt, resulting in a finding of guilt.

Nathan Forsellino was convicted by a jury of sexual assault.

The Crown sought a penitentiary sentence of three and a half years, while the defence sought a conditional sentence of two years less a day or, alternatively, nine months.

The court, exercising its fact-finding role under s. 724(2) of the Criminal Code due to jury ambiguity, found beyond a reasonable doubt that the defendant forced sexual intercourse upon the victim, A.G., despite her objections and physical resistance, including placing a hand on her throat.

The court considered aggravating factors, such as the forced sexual intercourse and severe victim impact, and mitigating factors, including the defendant's lack of criminal record, strong community support, and low risk of re-offending.

The court determined that a conditional sentence was inappropriate due to the need for denunciation and deterrence in sexual assault cases.

The constitutional challenge to s. 742.1(f)(iii) was not addressed.

During a sexual assault trial, the accused brought an application to exclude photographs of an Instagram conversation and testimony regarding a deleted text message.

The accused argued the Instagram photos lacked authentication under the Canada Evidence Act and the text message testimony was hearsay.

The court dismissed the application, admitting the Instagram photos because the Crown met the modest threshold for authentication through the anticipated testimony of the witness.

The court also allowed the testimony regarding the deleted text message, ruling it was not hearsay as it was being led to prove the request was made, not for the truth of its contents.

Marshall Davidson was charged with impaired driving.

His defence argued that breath test evidence should be excluded due to Charter violations.

The court found that police violated Davidson's s. 8 Charter rights by unlawfully entering his family home without valid consent and his s. 10(b) rights by delaying the right to counsel and making an invalid roadside screening demand.

Applying the Grant factors, the court determined that the seriousness of the police misconduct, particularly the officer's reckless disregard for Charter obligations and the significant impact on Davidson's privacy, outweighed society's interest in admitting the evidence.

Consequently, the breath test results were excluded, and Davidson was found not guilty.

In a judge-alone first-degree murder trial, the Crown sought to admit discreditable conduct evidence from former sexual partners, acquaintances, and material found on the accused's electronic devices to support an inference of violent sexual propensity relevant to the alleged murder during sexual assault or unlawful confinement.

Applying the similar fact evidence framework, the court held that the proposed evidence showed, at most, an interest in BDSM activities including choking, with significant consensual components, and did not establish a specific propensity to engage in non-consensual violent sexual conduct as alleged.

The court found the inferential chain from prior consensual or mixed sexual practices to the charged non-consensual homicidal conduct was logically flawed and insufficiently probative of the actus reus of first-degree murder.

The application was dismissed, and the court added that any limited probative value would in any event have been outweighed by prejudice through distraction from the core trial issues.

The accused, charged with two counts of first-degree murder, brought multiple Charter applications seeking the exclusion of evidence.

He alleged violations of his s. 10(b) right to counsel regarding initial utterances to police, his s. 9 right against arbitrary detention regarding his arrest for one of the murders, and his s. 8 right against unreasonable search and seizure regarding the forensic re-testing of a seized knife and freezer, as well as the use of a general warrant to obtain Google data.

The court dismissed all applications, finding no Charter breaches.

The court held the accused was not detained prior to his arrest, the police had reasonable and probable grounds for the arrest, no residual privacy interest remained in the lawfully seized physical items, and the general warrant was appropriately issued.

The Crown brought a motion to vacate a preliminary inquiry scheduled for September 23, 2019, arguing that new amendments to the Criminal Code restricting preliminary inquiries to offences with maximum penalties of 14 years or more should apply retrospectively to eliminate the court's jurisdiction to conduct the inquiry.

The accused had validly requested the preliminary inquiry in December 2018 under the former law.

The court held that the amendments should not apply retrospectively to cases where the right to request a preliminary inquiry had already vested prior to the legislative change.

The Crown's motion was dismissed and the preliminary inquiry proceeded as scheduled.

A 16-year-old youth was charged with assault causing bodily harm after punching two individuals during a basketball game at a school.

The youth intervened to protect his cousin and struck one victim in the face, causing a broken jaw requiring surgery, and struck another victim in the teeth.

The youth pleaded guilty to the charge.

The Crown sought two years' probation with conditions, 120 hours of community service, a weapons prohibition, and a DNA order.

The defence sought a conditional discharge to preserve scholarship opportunities.

The court imposed a conditional discharge with terms of discharge including reporting to a youth worker, no contact with victims, anger management counselling, 120 hours of community service, a weapons prohibition, and a DNA order, balancing rehabilitation principles with accountability.