Zachary Kerbel

The appellants sought leave to appeal their first-degree murder convictions and sought to introduce fresh evidence in the form of a recantation by key Crown witness Ronnie Khananisho.

The Court of Appeal dismissed the motion to admit the fresh evidence and confirmed the prior panel's dismissal of the appellants' appeals from conviction.

The court found that while the recantation was admissible and the due diligence requirement was satisfied, the evidence failed the cogency test.

The recantation suffered from serious credibility issues, including implausible origins involving contact with the incarcerated appellant's former girlfriend, and could not reasonably be expected to have affected the trial verdict given that the central witnesses were Jorge Restrepo and Jorge Acosta, whose testimony was corroborated by powerful independent evidence including cellphone records and medical evidence.

The appellants were convicted of first degree murder in the shooting death of Joel Waldron.

The Crown could not prove which appellant was the shooter but argued both were guilty as one was the shooter and the other aided or abetted the killing.

The appellants appealed on grounds that the trial judge's charge to the jury was deficient in relating evidence to the elements of aiding and abetting and planning and deliberation.

The Court of Appeal found the jury charge was factually unbalanced and failed to properly relate evidence to the necessary legal elements, particularly regarding aiding and abetting.

While the court did not find the verdict unreasonable, it quashed the convictions and ordered a new trial due to the deficiencies in the charge.

The appellant appealed a conviction entered by Justice Chapin of the Ontario Court of Justice on July 15, 2014.

The appeal was allowed on consent.

The conviction was quashed and an acquittal was entered.

Appeal from conviction and sentence for conspiracy to import a narcotic.

The appellant was convicted of conspiring to import cocaine from St. Maarten to Montreal.

The appeal raised three grounds: whether the verdict was unreasonable, whether the jury charge was inadequate, and whether the trial judge erred in dismissing a Charter s. 11(b) application regarding delay.

The court dismissed all grounds of appeal, finding the evidence supported the conviction, the jury instructions were adequate, and the delay was justified under both the Jordan framework and transitional exceptional circumstances.

The sentence of nine years was upheld as fit.

The appellant appealed his conviction and sentence imposed by the Superior Court of Justice.

The Court of Appeal upheld the conviction and the 33-month sentence as fit, finding no error in principle regarding the trial judge's characterization of the sentencing range.

However, the court varied the sentence by modifying the firearms prohibition from a lifetime ban under s. 109(2) to a ten-year ban, considering the appellant's youth and absence of prior firearm misuse.

The appellant sought leave to appeal his conviction for driving over the legal limit, arguing that his statements to police at the accident scene were statutorily compelled under the Highway Traffic Act and violated his section 7 Charter rights.

The Court of Appeal dismissed the application for leave to appeal, finding that the smell of alcohol alone justified the approved screening device demand and the police had established the driver's identity without relying on the appellant's statements.

The proposed appeal did not raise a question of law of significance to the administration of justice beyond the case.

The applicant, convicted of sexual assault, applied under s. 684 of the Criminal Code for the appointment of counsel for his appeal after being denied Legal Aid on financial grounds.

A previous application was denied based on his girlfriend's income, but new evidence clarified she could not assist him.

The Court of Appeal granted the application, finding the applicant lacked sufficient means, had an arguable case regarding the trial judge's credibility findings, and could not effectively present the nuanced legal issues without counsel.

The appellant appealed his convictions for unauthorized possession of a prohibited weapon and other firearm-related offences.

The Crown conceded that the indictment incorrectly charged possession of a 'prohibited weapon' instead of a 'prohibited firearm' and requested an amendment.

The Court of Appeal granted the amendment under section 683(1)(g) of the Criminal Code, finding no prejudice to the appellant.

The appellant also argued the trial judge erred in finding the stolen firearms were operable.

The Court dismissed this ground, noting the owner's testimony and photographic evidence supported the finding of operability.

The appeal was dismissed.

The appellant appealed his convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80.

He argued that his statement to police and the officer's observations of the smell of alcohol were inadmissible under section 7 of the Charter, as he was statutorily compelled to report the accident under the Highway Traffic Act.

The Superior Court of Justice dismissed the appeal, finding that the officer's observations were not conscriptive evidence and that the appellant failed to establish an honest and reasonably held belief that he was required by law to make the statement.

The appellant, a former gym teacher and basketball coach, appealed his conviction for historical sexual assault against a former student.

The trial judge's decision rested entirely on a credibility assessment of the complainant and the appellant.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge made material errors by misapprehending the appellant's evidence regarding his post-practice monitoring routine and by placing undue weight on the appellant's demeanour while testifying.

The appellant appealed his convictions for impaired driving and driving 'over 80' on the ground that the trial judge's reasons were insufficient.

At trial, the appellant and the arresting officer provided conflicting testimony regarding the appellant's driving and signs of impairment, which formed the basis of a Charter application challenging the breath demand.

The trial judge dismissed the Charter application and convicted the appellant without explaining how he resolved the contradictory evidence or why he preferred the officer's testimony.

The Superior Court of Justice allowed the appeal, finding the trial judge's reasons manifestly insufficient to permit meaningful appellate review, set aside the convictions, and ordered a new trial.

The appellant appealed his convictions for firearms and drug trafficking offences, arguing the trial judge erred in dismissing his s. 8 Charter application.

He challenged the validity of search warrants executed at his apartment, arguing there was insufficient evidence to support the general warrant after excising unreliable informant information, and that the warrant's terms were too broad.

The Court of Appeal found the trial judge reasonably accepted the police officer's opinion that surveillance corroborated the informant's information.

The court also held the warrant contained sufficient terms and conditions.

The appeal was dismissed.

On a summary conviction appeal from a sexual assault conviction, the appellant argued that the trial judge misapplied the burden of proof in a case turning on credibility and conflicting evidence arising from the Crown's own witnesses.

The appeal court held that the trial judge erred in law by stating that no W.(D.) analysis was required because the accused did not testify, and by failing to recognize that defence-favourable evidence in the Crown's case could still raise a reasonable doubt.

The reasons did not adequately demonstrate that the reasonable doubt standard was applied to vital credibility conflicts, including evidence bearing on whether the alleged assault could have occurred as described.

The conviction was set aside and a new trial ordered before a different trial court.

The appellant was convicted of second degree murder following a street fight in which the victim was fatally stabbed.

On appeal, the appellant argued that the trial judge's verdict was unreasonable due to reliance on unreliable eyewitness evidence identifying her as the person who brought the knife to the fight, and that the trial judge misapprehended exculpatory evidence by failing to consider other participants as the possible stabber.

The Court of Appeal dismissed the appeal, finding that the trial judge was alive to the frailties of eyewitness identification, his factual findings were amply supported by the evidence, and he did not misapprehend the evidence regarding alternate suspects.

The appellants were convicted of two counts of first-degree murder following a home invasion and robbery of a drug dealer, during which two victims were unlawfully confined and shot to death.

On appeal, the appellants argued the trial judge erred in his jury instructions regarding the defence of alibi, a third-party suspect, the correction of defence counsel's closing address, the failure to give timely notice of an alibi witness, and the elements of accessorial liability for constructive first-degree murder.

The Court of Appeal dismissed the appeals, finding no reversible error in the jury instructions.

The Court held that there was sufficient evidence to leave constructive first-degree murder to the jury for the non-shooter as an aider and abettor, and concluded that the verdicts were not unreasonable.

The appellants, a real estate agent and his co-accused, were convicted of conspiracy to produce marijuana and related offences.

During the trial, the trial judge interrupted the Crown's cross-examination of the real estate agent to ask if he knew what perjury was and suggested his counsel advise him on its consequences.

The appellants appealed, arguing this intervention created a reasonable apprehension of bias.

The Court of Appeal agreed, finding the trial judge's comments indicated he had prejudged the accused's credibility before hearing all evidence, fatally compromising the fairness of the trial for both accused.

The appeals were allowed and new trials ordered.

The accused pleaded guilty to counselling to make child pornography and counselling to transmit child pornography.

The Crown and defence reached a joint submission on sentence, but disagreed on whether a weapons prohibition under s. 110 of the Criminal Code was appropriate.

The court imposed a three-year weapons prohibition, finding that offences involving child pornography inherently constitute violence against persons within the meaning of s. 110(1)(a), and that the accused's conduct included implicit threats of sexual violence against children.

The appellant appealed his conviction for spousal sexual assault, arguing the trial judge erred in his credibility findings and seeking to introduce fresh evidence.

The Court of Appeal dismissed the grounds relating to the trial judge's reasons but allowed the appeal based on fresh evidence.

The fresh evidence included post-conviction allegations made by the complainant and undisclosed police reports that supported the defence theory that the complainant fabricated the allegations to gain sole custody of their children.

The Court found the undisclosed evidence met the Stinchcombe threshold and impaired the appellant's right to make full answer and defence.

The appeal was allowed and a new trial ordered.

The appellant was arrested on the street and found in possession of cocaine, marijuana, and cash.

At trial, the judge found there were grounds to detain and eventually arrest the appellant, and convicted him of drug offences.

On appeal, the Court of Appeal found the trial judge erred by conflating the grounds for detention with the grounds for arrest.

The Court held that the arresting officer lacked objectively reasonable grounds to arrest the appellant based merely on observing a hand gesture and the appellant holding his hand closed.

Finding a breach of section 9 of the Charter, the Court applied the Grant framework and excluded the drug evidence under section 24(2), quashing the convictions and entering acquittals.

The appellant appealed jury convictions for multiple sexual offences arising from allegations by several complainants in circumstances involving crack cocaine use and alleged coercive sexual conduct.

The Court of Appeal held that, although the similar fact evidence was admitted, there was at least an air of reality to possible inadvertent collusion through media reports, rumours, and street communications, and the jury should have been left to assess that possibility when weighing the evidence.

The court also held that, after severing counts involving one complainant to preserve the accused’s ability to testify only on those counts, the trial judge erred in then admitting that complainant’s evidence as similar fact evidence, effectively undermining the accused’s right to silence and control of the defence under ss. 7 and 11(c) of the Charter.

The combined errors required a new trial.