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Our Appellate Cases

Derstine Penman has had a well-recognized and successful appeal practice for many years. We are and have been counsel on numerous appeals in the Ontario Court of Appeal as well as the Supreme Court of Canada.  Below is a small list of our appellate cases.

4 Counts of Sexual Assault
R v K.S 2017 ONCA 307 

Accused was found not guilty of four counts of sexual offences, each involving same complainant. Crown appealed. Appeal dismissed. Review of trial judge’s reasons did not support claim that she failed to apply proper principles in assessing complainant’s evidence.  …Read More


Sexual Assault, Voyeurism and Breach of Probation
R v Perkins 2017 ONCA 152

Accused was convicted of domestic assault and two counts of breach of probation was sent to 8 months in jail. Accused was subsequently convicted for sexual assault, voyeurism and breach of probation. Accused was sentenced to 6 years in jail. Convictions for domestic assault and breach of probation were overturned. Accused submitted that court should find that it had jurisdiction to re-open his sentence appeal based on the fresh evidence of his domestic assault conviction having been quashed. Accused submitted that he should be credited a further eight months of pre-sentence custody toward his sentence on the sexual assault/voyeurism conviction, the portion of his pre-sentence custody that was used up on the domestic assault conviction. He further argued that the trial judge on the sexual assault/voyeurism case considered the domestic assault conviction as an aggravating factor in determining sentence on the sexual assault/voyeurism conviction and would have come to a different result, had the domestic assault conviction not been considered. Court did not have jurisdiction to re-open the sentence appeal. No support in jurisprudence for accused’s suggestion that the scope of power to re-open appeals decided on the merits should be expanded. …Read More


Possession of Controlled Substances for Purpose of Trafficking
R v Lloyd
2016 1 SCR 130

This case followed the principles established in R. v. Nur and found the mandatory minimum sentence for Possession of Controlled Substance for the Purpose of Trafficking to be unconstitutional. Dirk Derstine was asked by the Criminal Lawyers assn to intervene for them at the Supreme Court of Canada. …Read More


Two counts of Counselling Murder
R v Hall 2016 ONCA 13

Accused was charged with 2 counts of counselling murder. Trial judge excluded a statement made to the police by the common law spouse of the accused and certain intercepted communications between the accused and Dwayne Utman. Trial judge acquitted. Crown appealed. The Crown relied on assumed non-compellability to establish necessity prerequisite to the admission of her out-of-court statement. Absent other evidentiary basis for a finding of necessity, the trial judge could not have admitted the common law spouse’s statement. Trial judge properly assessed continued validity of authorizations, did not err in setting aside wiretap authorizations, did not overstate seriousness of police misconduct – omissions from the affidavit as “intentional” or “grossly negligent” was reasonable.
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Section of Criminal Code struck down by SCC
R v Nur 2015 SCC 15

Landmark case in Canadian criminal law. The section of the criminal code imposing a mandatory minimum sentence for possession of an unregistered restricted firearm was struck down by the Supreme Court of Canada who found that its effect could be cruel and unusual contrary to s.12 of the Charter of Rights. The case has given rise to many other cases striking down mandatory minimum sentences …Read More 


17 Charges Against Accused
R v Salmon 2013 ONCA 203

Crown appealed from ruling of trial judge staying 17 charges against accused for variety of offences, including human trafficking, living on the avails of prostitution and offences relating to possession and use of forged identification. Trial judge found police fabricated evidence to make it appear that 2 pieces of fabricated evidence to make it appear that two pieces of false ID in name of complainant was found in accused’s wallet. Trial judge did not make palpable and overriding error in findings of fact and credibility.  ...Read More


Unlawful possession and storage or loaded handgun, possession of cocaine, and possession of cocaine and ecstasy for the purpose of trafficking
R v Murphy 2012 ONCA 573

Appeal by accused from convictions for unlawful possession and storage or loaded handgun, possession of cocaine, and possession of cocaine and ecstasy for the purpose of trafficking. Police executed search warrant, accused and two others were present. Police seized narcotics and related paraphernalia, cash, a replica handgun and loaded handgun. Crown theorized that accused had knowledge and control over drugs and handgun, and other two were merely drug users. Accused sought to call witness who was expected to testify that the gun and drugs belonged to him rather than accused. Trial judge ruled that evidence was inadmissible as no evidence linked third party suspect to the crime. Trial judge misapprehended nature of the proposed evidence and misapplied test for admission. Evidence was sufficiently probative and relevant that the defence ought to not have been precluded from calling it. …Read More


Robbery, Assault with a Weapon and Uttering Death Threats
R v Horan 2008 ONCA 589

Accused was charged with robbery, assault with a weapon and uttering death threats. Trial judge acquitted. Crown appealed. Case turned on credibility of the two complainants. Appeal dismissed. Jury was not prepared to convict accused in face of evidence proffered. Had a certain physician’s additional evidence as to collapsed lung been admitted verdict would not necessarily been different. …Read More


2 counts of criminal negligence causing death arising out of a motor vehicle accident
R v Davies 2008 ONCA 209

Accused appealed convictions and sentence for two counts of criminal negligence causing death arising out of a motor vehicle accident in which he was impaired. Appeal dismissed with respect to conviction, and allowed in part with respect to sentence. Sentencing judge erred when he denied accused two-for-one credit due to his after-the-fact conduct of leaving Canada.
…Read More


Unlawful possession of a prohibited firearm, carrying a concealed weapon and possession of a prohibited device
R v Watson 2004 ONCA

Accused was convicted of unlawful possession of a prohibited firearm, carrying a concealed weapon and possession of a prohibited device following a police stop of a vehicle in which accused was passenger. Conviction for possession of a prohibited weapon was stayed on basis of Kienapple principle. Accused appealed and submitted that trial judge erred in improperly interjecting at trial during defence counsel’s cross examination of police officers and during submissions, in rejecting the accused’s s.9 Charter challenge by failing to find that the stop of the vehicle was unlawful and motivated by racial profiling, and in finding that the breach of the accused’s rights under s.8 of the Charter was not serious. Challenged interjections in the case were not isolated or limited in number. Gave rise to tainted trial. New trial was ordered on basis of appearance of trial unfairness, unnecessary to consider other grounds of appeal. …Read More


Interventions by trial judge were numerous and discourteous
R v Pozo 2004 ONCA

Accused appealed conviction. Interventions by trial judge were numerous and discourteous. Reasonably minded person who was present throughout trial could conclude that accused did not receive a fair trial. Interventions by trial judge during cross examination of police officers undermined integrity of counsel and suggested that he was less than competent. New trial was ordered. …Read More


R v Multani 2004 ONCA

Crown appealed acquittal. R. v. Handy made clear that similar fact evidence ought, in general, to form no part of the case which the accused is called on to answer. Trial judge delivered detailed reasons for excluding two episodes tendered by the Crown. She carefully weighed the probative value of this evidence against its prejudicial effect. She did not require that the probative value rise to the level required in an identity case. …Read More


First Degree Murder
R v Husbands

Appeal from the conviction for second degree murder of the shooter in the Eaton Centre case. Appeal allowed, matter remanded for a new trial on charges     of second degree murder.