Tracy Lee Kozlowski

The appellant was convicted of second degree murder after strangling the victim.

He appealed, arguing the trial judge erred in jury instructions regarding intent and the partial defence of provocation, and that the Crown improperly cross-examined him on his right to silence.

The Court of Appeal found no error in the cross-examination but held that the trial judge erred by instructing the jury that the appellant's after-the-fact conduct (hiding the body and lying) could be used to infer the requisite intent for murder without proper qualification.

The trial judge also erred in the provocation instruction by attributing the appellant's size and athletic ability to the 'ordinary person' test.

The curative proviso could not be applied, and a new trial was ordered.

The appellant appealed his indeterminate sentence and dangerous offender designation, arguing the sentencing judge failed to properly apply the principles from Gladue and Ipeelee regarding Aboriginal offenders.

The Court of Appeal found that the sentencing judge had thoroughly reviewed the appellant's history, the Gladue report, and expert psychiatric evidence.

The court concluded the sentencing judge properly applied the relevant principles and reasonably found no evidence that the appellant's risk to reoffend could be controlled in the community.

The appeal was dismissed.

The appellant was convicted of sexually assaulting his stepdaughter.

At trial, the complainant's mother, who was a police officer, testified that she used trickery to obtain an admission from the appellant.

The trial judge accepted this evidence and found the mother was acting as a police officer, but no voir dire was held to determine the voluntariness of the statement.

The Court of Appeal held that given the trial judge's finding that the mother was acting as a person in authority, a voir dire was required.

The appeal was allowed and a new trial ordered.

The appellant was convicted of multiple fraud-related offences arising from a credit and debit card scheme.

At trial, the Crown relied heavily on the testimony of four former co-accused who had previously pled guilty based on agreed statements of fact implicating the appellant.

When these witnesses recanted their statements at trial, the trial judge admitted their prior statements for the truth of their contents under the K.G.B. framework.

The appellant appealed, arguing the statements should not have been admitted and that the trial judge's Vetrovec warning was inadequate.

The Court of Appeal held that while the statements met the test for threshold reliability, the Vetrovec warning failed to adequately explain to the jury the witnesses' strong motives to lie in their prior statements to obtain lenient sentences.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for extortion, attempted extortion, and criminal harassment against three of his employees, as well as his three-year custodial sentence.

The appellant had falsely accused the employees of theft and threatened to call the police or immigration authorities unless they paid him large sums of money, obtaining almost $50,000 in total.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's jury instructions regarding the relation of evidence to issues, similar fact evidence, or the law of extortion and harassment.

The court also dismissed the sentence appeal, finding the three-year sentence fit given the serious nature of the threats, which included leveraging alleged associations with the Iranian Revolutionary Guard.

The appellant was convicted of theft and fraud-related offences for stealing computer source code from his former employer and using it to sell competing software.

He appealed his convictions and 30-month sentence, arguing that his Charter rights under ss. 11(a) and 11(b) were violated due to an eight-year delay between the laying of charges and his arrest, and subsequent delays in bringing him to trial.

The Court of Appeal dismissed the appeal, finding no actual or inferred prejudice to his fair trial rights under s. 11(a), and concluding that the post-arrest delay under s. 11(b) was largely attributable to the appellant's own actions and waivers.

The court also upheld the sentence, noting the massive scale of the fraud.

The appellant appealed his convictions for robbery with an imitation firearm, disguise with intent, and possession of a weapon for a purpose dangerous to the public peace.

The Crown's case was entirely circumstantial, relying heavily on DNA evidence found on a balaclava and toy gun retrieved from a garbage bin near the scene of the bank robbery.

The appellant argued the trial judge failed to consider the whole of the evidence, reversed the burden of proof regarding his testimonial silence, provided insufficient reasons, and reached unreasonable verdicts.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the law regarding the accused's silence and that the circumstantial evidence reasonably supported the convictions.

In a criminal appeal motion, the applicant sought an order compelling a trial witness to attend and provide a voice sample for use by a defence expert in support of an anticipated fresh evidence application.

The Court of Appeal held that s. 683(1)(a) of the Criminal Code authorizes production of existing material connected with the proceedings, not the creation of new material.

It further held that s. 683(1)(b) permits compelling a compellable witness to attend and be examined as a witness, but not to assist in creating material for expert analysis.

The motion was dismissed for lack of jurisdiction.

The Crown appealed sentence in a criminal matter involving serious conduct in a domestic context.

The Court of Appeal held that substantial deference was owed to the sentencing judge and rejected submissions that denunciation and deterrence had been insufficiently emphasized or that rehabilitation had been overemphasized.

The court further held that the sentence, while perhaps at the low end of the range, was not demonstrably unfit.

The sentence appeal was dismissed.

The appellant appealed convictions for sexual assault and choking in relation to sexual assault following a judge-alone trial.

He argued that the verdicts were inconsistent because the trial judge acquitted on one count while convicting on others, and that the judge scrutinized his evidence more strictly than the complainant's.

The court held that the verdicts were not irreconcilable on any realistic view of the evidence and that there was an evidentiary basis for the choking conviction apart from the acquitted incident.

The court also found no unfairness in the trial judge's credibility analysis.

The appeal from conviction was dismissed.

The Crown appealed a trial judge's order staying charges against the respondents due to unreasonable delay under s 11(b) of the Charter.

The Crown argued the trial judge made several errors in attributing delay and assessing prejudice.

The Court of Appeal dismissed the appeal, finding the trial judge's analysis consistent with the Supreme Court's decision in Godin.

The Court emphasized deference to the trial judge's knowledge of local court practices and her strong factual findings regarding the prejudice suffered by the respondents over the 25-month delay.

The appellant appealed a disposition of the Ontario Review Board denying her an absolute discharge.

The appellant argued there was no evidence she would stop taking her medication if discharged.

The Court of Appeal dismissed the appeal, finding the Board's conclusion was reasonable and supported by evidence of the appellant's missed psychiatric appointments, lack of insight, and past omissions to take medication.

The appellant was convicted by a jury of aggravated assault and assault with a weapon after stabbing an unarmed victim.

He appealed his convictions on several grounds, including allegations of juror coercion and outside influence, the trial judge's failure to instruct the jury on self-defence under section 37 of the Criminal Code, and the trial judge's review of the evidence.

The Court of Appeal dismissed the appeal, finding that the juror's allegations of coercion were protected by juror secrecy, the alleged outside influence was not capable of influencing the jury, and there was no air of reality to a self-defence claim under section 37.

The appellant appealed convictions entered by a jury.

The Crown conceded the appeal.

The Court of Appeal agreed with the Crown's concession, allowed the appeal, quashed the convictions, and ordered a new trial without addressing the other grounds.

The appellant appealed a conviction entered by a jury.

The Court of Appeal found the jury verdict unreasonable, as the conclusion that the appellant was a party to the offence relied on mere speculation that the transaction was fraudulent from the outset or that the appellant aided the transaction after it was shown to be fraudulent.

The appeal was allowed, the conviction set aside, and an acquittal entered.

The appellant appealed his conviction and sentence.

He argued the jury charge was misleading regarding credibility findings across counts, the consent instructions should have been tailored, and the trial judge erred in findings of fact for sentencing.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions were adequate and standard.

The court also granted leave to appeal the sentence but dismissed the appeal, holding the trial judge's findings of fact were well explained and open to him.

The youth appellant appealed his conviction, arguing the trial judge provided inadequate reasons and erred in admitting a hearsay statement.

The Court of Appeal agreed, finding the trial judge's reasons were too brief to reveal the basis for resolving conflicting evidence.

Furthermore, the hearsay statement lacked reliability, as the declarant had a motive to fabricate and the evidence required cross-examination.

The appeal was allowed and a new trial ordered, subject to the Crown's discretion given the appellant had almost completed his probation.

The appellant appealed his conviction for impaired operation, which had been upheld by a summary conviction appeal judge.

The Court of Appeal allowed the appeal, finding that while the verdict was not unreasonable, the trial judge failed to mention or apply the W.(D.) principles regarding credibility and the burden of proof, and failed to address defence evidence bearing on culpability.

The conviction was set aside and a new trial ordered.

The appellant appealed his convictions and sentence for historical sexual and physical offences committed against his two former wives and two daughters.

He argued the trial judge erred by failing to resolve his first daughter's earlier recantation of her allegations and by relying on her evidence to support other complainants.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed credibility and was not required to resolve every discrete factual issue.

The sentence appeal was also dismissed, as the four-year and three-month sentence was not demonstrably unfit for an offender in a position of trust who sexually abused children over a substantial period.

The appellant appealed his convictions for sexual assault, gross indecency, and sexual exploitation of a young relative, as well as his three-year sentence.

The Court of Appeal found no error in the trial judge's credibility assessments or reliance on corroborative evidence.

The court also upheld the sentence, noting the trial judge correctly identified the minimum three-year range for sexual offences against a child by an adult in a position of trust, and appropriately weighed mitigating factors.