Credit to the team at Supreme Advocacy
Granted
Criminal Law: Fitness to Stand Trial
Bharwani v. R., 2023 ONCA 203 (40781)
After several years of deteriorating mental health, the Applicant moved into a basement apartment with other tenants. Five days later, the Applicant attacked one of the other tenants by striking her with a fireplace poker and then strangling her to death. The Applicant called 9-1-1 saying that he wanted to turn himself in because he had just “killed a girl.” When police arrived at the scene, he reiterated his desire to turn himself in, surrendered into custody, and was interrogated by police. He admitted to killing the victim and explained how he had hit and strangled her. In May 2016, a jury found the Applicant unfit to stand trial and he was sent to an in-patient treatment facility to see if he could become fit. At a second hearing in August 2016, after spending over three months in hospital, a second jury reversed the first, finding the Applicant fit to stand trial. After a trial by judge and jury, the Applicant was convicted of first-degree murder. The Ont. C.A. dismissed his conviction appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is granted.”
Criminal Law: Homicide; Attempted Homicide
R. v. Pan, et al., 2023 ONCA 362 (40839)
In a home invasion, three armed men shot Jennifer Pan’s parents. Mrs. Pan was killed and Mr. Pan seriously wounded. The Crown’s theory at trial before a jury was that Jennifer Pan conspired with Mr. Wong and Mr. Crawford to pay Mr. Mylvaganam and two other other men for the killings. The jury convicted all accused of first degree murder of Mrs. Pan and attempted murder of Mr. Pan. The Ont. C.A. set aside the convictions for first degree murder of Mrs. Pan and ordered a new trial. The Ont. C.A. dismissed appeals from the convictions for the attempted murder of Mr. Pan. “The motion for an extension of time to serve and file a reply on cross-appeal, filed by Lenford Crawford, is granted. The application for leave to appeal and the applications for leave to cross-appeal…are granted.”
Criminal Law: Non-Jury Trials; Prosecutorial/Judicial Discretion
Varennes v. R., 2023 QCCA 136 (40662)
The Applicant was charged with the second degree murder of his spouse. Before his trial, a Québec Superior Court judge allowed his motion for the trial to take place before a judge alone, in accordance with s. 473(1) of the Criminal Code, despite the absence of consent from the Respondent prosecutor. The judge was of the opinion that a prosecutor’s decision to consent to a trial before a judge alone does not fall within the core of prosecutorial discretion but is instead a tactical decision subject to a court’s authority to control its own processes. Considering the particularities of the case, the judge was of the view that the Applicant had discharged his burden of demonstrating that the prosecutor’s decision was unreasonable or unfair in the circumstances. After a trial without jury, the Applicant was acquitted of second degree murder, but convicted of manslaughter. The Qué. C.A. allowed the Respondent’s appeal and ordered, among other things, that a new trial be held before a jury on the charge of second degree murder. The court was of the opinion that the trial judge had erred by applying the unreasonableness standard in her review of the prosecutor’s refusal to consent despite the fact that the Applicant had to prove that this refusal constituted an abuse of process. The Qué. C.A. found that the Applicant had failed to prove this and that the impugned judgment was therefore vitiated by an error of law that had the effect of granting the Superior Court jurisdiction that it did not have; the Respondent’s trial was therefore a nullity. “The application for leave to appeal…is granted. The Chief Justice took no part in the judgment.”
Criminal Law: Wrongful Conviction
Bouvette v. R.,2023 BCCA 152 (40780)
The Applicant was babysitting a 19-month old baby who died while having a bath. An autopsy was conducted by Dr. Matshes. The Applicant was charged with second degree murder. The Applicant pleaded guilty to criminal negligence causing death. The B.C.C.A. concluded that a body of relevant information was within the possession of the Crown and/or police and was not disclosed to the Applicant’s counsel. Most significantly, the undisclosed evidence pertained to the reliability of the evidence and opinions of Dr. Matshes. The B.C.C.A. held that the conviction must be set aside as the product of a miscarriage of justice, as the evidence and circumstances establish a reasonable possibility that the Applicant would not have pleaded guilty to criminal negligence causing death had full disclosure been made. The B.C.C.A. admitted the fresh evidence, allowed the appeal, vacated the guilty plea, set aside the conviction and entered a stay of proceedings. “The application for leave to appeal…is granted.”
Dismissed
Criminal Law: Private Informations
Corinne Marie Pereira v. Attorney General of British Columbia, 2023 BCCA 31 (40631)
Certain information not available to the public, in the context of private informations sworn against various individuals. “The motion to adduce fresh evidence is dismissed. The application for leave to appeal…is dismissed.”
Criminal Law: Statements to Police
Lee v. R., 2023 ONCA (40911)
The Crown’s theory was that Mr. Lee murdered Ms. Hua when she threatened to expose him for having gambled away money she had given him to invest. The Crown’s evidence included two statements to police by Mr. Lee which were admitted at trial without a voir dire into their admissibility. A jury convicted Mr. Lee of first degree murder. The Ont. C.A. dismissed an appeal. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had such motion been granted, the application for leave to appeal…would have been dismissed.”
Criminal Law: Human Trafficking
S.M v. R., 2023 ONCA 417 (40899)
There is a publication ban in this case, certain information not available to the public, in the context of human trafficking charges. “The application for leave to appeal…is dismissed.”
Criminal Law: Search and Seizure
Ondo-Mendame v. R., 2023 QCCA 107 (40663)
A vehicle driven by the Applicant, Mr. Ondo-Mendame, in which there were two passengers, was stopped by police officers from the Service de police de la Ville de Québec (“SPVQ”) on the basis of information transmitted on SPVQ radio concerning a fraud. The three individuals were detained for investigative purposes and ultimately arrested. The vehicle was then searched. The Applicant was charged with several criminal offences relating to fraud and conspiracy. He applied under s. 24(2) to exclude all the evidence collected after he was stopped by the SPVQ officers, who, he argued, had not acted in compliance with the powers and duties conferred on them by the common law. The Superior Court granted the motion in part and declared that the Applicant’s constitutional rights had been infringed but that, in the circumstances, the infringements did not bring the administration of justice into disrepute within the meaning of s. 24(2), the items seized admitted into evidence. The Applicant was convicted of the offences charged. The Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”