Xenia Proestos

The offender, a 41-year-old first offender with significant health issues, was found guilty of possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime.

The Crown sought a 15-month custodial sentence, while the defence sought a conditional sentence of the same length.

The court considered the principles of sentencing, including restraint and rehabilitation, and found that the offender posed very little risk of re-offending.

The court imposed a 15-month conditional sentence, followed by one year of probation, along with a firearms prohibition and a DNA order.

The appellant appealed his conviction on the sole ground that the trial judge erred in refusing to grant an order under s. 530 of the Criminal Code that his trial be held in English.

The appellant sought this order to challenge jurors for language competency under s. 638(1)(f).

The Court of Appeal dismissed the appeal, agreeing with the trial judge that there was no basis for a s. 530 order because the appellant's trial was already scheduled to be held in English.

The appellant was convicted of marijuana production and firearms offences based on circumstantial evidence found at a house he co-owned.

On appeal, he argued the trial judge misapplied the rule in Hodge's Case by requiring alternative explanations to be based on 'proven facts' rather than available inferences.

The Court of Appeal agreed, finding the trial judge improperly shifted the burden of proof.

The Court also found the firearms convictions unreasonable, as the evidence did not exclude the possibility that another person involved in the grow operation hid the handgun without the appellant's knowledge.

The appeal was allowed, with a new trial ordered for the grow operation charges and acquittals entered for the firearms charges.

The appellant appealed a jury conviction for importing cocaine, arguing that the trial judge improperly admitted evidence from a border services officer explaining why the appellant was referred to secondary inspection and improperly instructed the jury on that evidence.

The Court of Appeal held that the prior authority relied on by the appellant did not bar admission of an officer’s personal observations and permissible non-expert opinion evidence.

The officer’s use of the term 'indicator' was found to be merely descriptive in context and did not amount to profile evidence or impermissible opinion on knowledge.

The charge to the jury, read as a whole, did not invite the jury to treat the officer’s suspicions as proof of knowing importation.

The conviction appeal was dismissed.

In a large fraud prosecution involving alleged diversion of payroll source deductions, the accused brought a pre‑trial application alleging that tax authorities improperly used civil audit powers to gather evidence for a criminal investigation, contrary to the principles in R. v. Jarvis.

The Crown moved to summarily dismiss the application under Rule 34.02 of the Criminal Proceedings Rules.

The court held the accused lacked standing to challenge searches and production orders affecting third parties because they had no reasonable expectation of privacy in those locations or records.

The court further found there was no evidentiary basis to support the allegation that the tax authority’s audit powers were used for a predominant criminal investigative purpose.

The application was therefore dismissed without a full hearing.

The accused brought a pre‑trial application seeking a stay of fraud charges on the basis of issue estoppel and abuse of process.

She argued that a prior civil tax proceeding in the Tax Court of Canada, resolved by consent judgment in her favour concerning liability for unremitted source deductions, determined the same central issue as the criminal prosecution.

The court held that issue estoppel requires a prior judicial determination on the merits and that a consent judgment does not constitute such a determination.

The court also found the record insufficient to establish that the civil and criminal proceedings addressed identical issues.

As the prerequisites for issue estoppel were not met, the application for a stay was dismissed.

The accused, charged with fraud relating to alleged diversion of payroll source deductions owed to the Canada Revenue Agency, brought a motion to quash a subpoena issued to their former solicitor requiring the production of files.

They argued the subpoena process violated their s. 8 Charter rights and that the Crown was required to obtain the documents through a search warrant complying with the guidelines in R. v. Lavallee.

The court held that the subpoena did not constitute a search or seizure because the documents remained in the lawyer’s custody and were merely brought before the court without state access.

Alternatively, the court held that a subpoena is a valid mechanism for compelling production of records from a lawyer’s office and may constitute a less intrusive alternative to a search warrant, provided protections for solicitor‑client privilege are respected.

The accused applied under s. 24(2) of the Charter to exclude evidence obtained during the execution of a search warrant at his residence for narcotics offences under the Controlled Drugs and Substances Act.

He argued that the Information to Obtain relied on a confidential informant whose information was not compelling, credible, or sufficiently corroborated and contained misleading or prejudicial material.

The court held that the informant’s information was detailed, first‑hand, and supported by prior reliability and police corroboration through surveillance and database checks.

The issuing justice had reasonable and probable grounds to authorize the warrant and no breach of s. 8 of the Charter was established.

In any event, applying the Grant framework, the evidence would not be excluded because the police acted in good faith and the evidence was reliable and central to the prosecution.

The appellant was convicted of drug-related offences based on evidence obtained through wiretap authorizations.

On appeal, he argued that the trial judge erred in refusing leave to cross-examine the affiant of the supportive affidavits, that he was improperly named as a 'known' person in the authorizations, and that the authorizations required live monitoring at all locations.

The Court of Appeal dismissed the appeal, finding that the appellant had abandoned his application to cross-examine the affiant at trial, that the standard for naming a 'known' person under s. 185(1)(e) of the Criminal Code was met, and that the live monitoring requirement was properly restricted to specific locations.

The Crown sought to prevent the accused from re‑litigating two pre‑trial rulings made during an earlier jury trial that ended in a mistrial after the trial judge recused himself for a reasonable apprehension of bias arising from a personal tax dispute with the Canada Revenue Agency.

The Crown relied on s. 653.1 of the Criminal Code, which presumes that evidentiary and Charter rulings from a mistrial remain binding at a new trial unless the interests of justice require otherwise.

The court held that although the provision creates a presumption favouring preservation of prior rulings, the circumstances of the recusal and the trial judge’s own comments suggesting that earlier rulings might appear influenced by the conflict undermined confidence in those decisions.

Given that concern, the interests of justice required that the impugned motions be re‑litigated before the new trial judge.

The Crown’s application to bind the parties to the earlier rulings was dismissed.

The appellant appealed his conviction and eight-year sentence for cocaine importation.

He argued that his s. 11(b) Charter rights were violated, that the Crown's cross-examination and closing address were improper, and that the trial judge erred in discharging a juror.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's interventions cured any potential prejudice from the Crown's conduct and that the s. 11(b) delay was not unreasonable.

The sentence appeal was also dismissed, as the eight-year sentence was within the appropriate range for a sophisticated courier.

The appellant was stopped for speeding.

During the stop, an officer noticed a box in the vehicle and suspected it contained contraband cigarettes.

The officer asked the appellant about the box without advising him of his right to counsel.

A subsequent authorized search under the Tobacco Tax Act revealed unmarked cigarettes and marijuana.

The appellant was convicted of possession for the purpose of trafficking.

On appeal, the Court of Appeal held that the appellant's s. 10(b) Charter rights were violated when the questioning shifted from the traffic stop to a regulatory investigation.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter and entered an acquittal.

The applicants sought an order in the nature of certiorari to quash their committal to stand trial on a charge of production of Ephedrine.

They argued the preliminary hearing judge exceeded his jurisdiction by finding the added count arose from the same transaction as the original charges and by finding sufficient evidence for committal.

The Superior Court of Justice dismissed the application, holding that the preliminary hearing judge correctly applied the 'same transaction' rule under s. 548(1)(a) of the Criminal Code and properly assessed the circumstantial evidence in determining there was sufficient evidence to commit the applicants to trial.

The applicant, charged with tax fraud, brought an application under s. 11(b) of the Charter seeking a stay of proceedings due to unreasonable delay.

The total time from the laying of charges to the anticipated end of the trial was approximately 85 months.

The court applied the Morin framework and found that the delay was not unreasonable given the extreme complexity of the case, the voluminous electronic disclosure, the involvement of multiple co-accused, and the applicant's waiver of earlier trial dates to retain her preferred counsel.

The application was dismissed.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking, arguing the verdict was unreasonable, inconsistent with his acquittal on a proceeds of crime charge, and that the trial judge failed to properly instruct the jury on police note collaboration.

The Court of Appeal dismissed the appeal, finding it was open to the jury to convict based on the totality of the evidence and that the trial judge's instructions adequately addressed the risks of police collaboration.

The appellant was convicted of tax evasion after failing to disclose income or pay taxes from 1993 to 1997, based on his belief that federal income tax was unconstitutional.

He appealed his conviction and his sentence of one year in jail.

The Court of Appeal dismissed the conviction appeal, finding he had the requisite mens rea and the trial judge properly handled a juror issue.

However, the Court allowed the sentence appeal, finding the trial judge erred by treating the absence of a conditional sentence in tax evasion cases as an absolute rule and by mischaracterizing aggravating factors.

The jail sentence was varied to a one-year conditional sentence.

The Crown appealed from a sentencing decision declining to impose a $4.7 million fine on an offender convicted of customs fraud involving the same amount.

The Supreme Court held that under s. 734(2) of the Criminal Code, a fine may be imposed only where the court is satisfied on a balance of probabilities that the offender is able to pay it.

Past receipt of illegally obtained funds may support an inference of present ability to pay, but it does not shift a formal evidentiary or persuasive burden to the offender, nor does it compel the sentencing judge to draw that inference.

On the record, the sentencing judge made no reviewable error in concluding she was not satisfied that the offender could pay the fine.

The appellant appealed his convictions for possession of crack cocaine for the purpose of trafficking and breach of probation.

He argued the trial judge erred in rejecting a defence witness's testimony and in admitting evidence obtained during a search of his residence that violated s. 8 of the Charter.

The Court of Appeal found no error in the trial judge's credibility assessment.

Applying the newly released framework from R. v. Grant, the Court held that although the search was a serious breach of the appellant's privacy, the police acted in good faith and in accordance with the law regarding confidential informants.

The evidence was highly reliable and essential to the Crown's case.

The Court concluded that admitting the evidence would not bring the administration of justice into disrepute and dismissed the appeal.

The Crown appealed the sentence imposed by the trial judge, arguing the respondent had the ability to pay a fine.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude the respondent lacked the ability to pay based on the record.

At the Crown's request, a $1,600 victim surcharge was quashed.

The applicant sought bail pending his appeal against conviction for selling cocaine.

The applicant argued that the trial verdict was unreasonable and that the trial judge made errors in analyzing the evidence.

The Court of Appeal dismissed the application, finding no merit in the appeal given the overwhelming identification evidence from undercover and surveillance officers, the recovery of marked money, and the seizure of the cell phone used to arrange the drug buys.