Aidan Seymour-Butler

The Court of Appeal for Ontario dismissed Gerrard De Souza’s appeal from convictions for indecent assault and sexual assault.

The appellant raised three grounds of appeal, all relating to the trial judge’s assessment of credibility and reliability.

The Court found no error in the trial judge’s approach, holding that her findings were grounded in the evidence and not in stereotypes or improper reasoning.

The Court also found no error in the trial judge’s handling of inconsistencies in the complainant’s evidence or in her rejection of the defence theory of motive to fabricate.

The conviction appeal was dismissed.

The appellant, D.R., appealed convictions for sexual assault, assault with a weapon, assault, and uttering threats, as well as the imposition of a lifetime SOIRA order.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge’s reasoning or credibility assessments.

The court granted leave to appeal the sentence but dismissed the sentence appeal, holding that the evidentiary record was insufficient to substitute a 20-year SOIRA order for the lifetime order.

The appellant retains the right to apply to the Superior Court to vary the SOIRA order’s length.

The appellant was convicted of firearms offences and sentenced to nine years' imprisonment.

He appealed his sentence, arguing the sentencing judge failed to adequately quantify the mitigating effect of harsh pretrial conditions (Duncan credit) and sought a further reduction based on the sentence's impact on his family.

The Court of Appeal dismissed the appeal, affirming that under R. v. Marshall, harsh pretrial conditions are a mitigating factor to be weighed holistically, not a mathematical deduction.

The court also rejected the family impact argument due to insufficient evidence and the appellant's history.

The appellant appealed his conviction and sought leave to appeal his sentence for offences related to the possession of a loaded handgun.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's determination of reasonable suspicion for investigative detention or the subsequent pat-down search of a satchel.

While the trial judge erred in considering discoverability under the first branch of the Grant analysis for a s. 10(b) Charter breach, the Court found this error did not impact the s. 24(2) analysis, as the evidence would still be admissible.

The Court granted leave to appeal sentence but dismissed the sentence appeal, agreeing that the trial judge erred in relying on a confidential informant tip for an aggravating factor but concluding this error did not impact the sentence imposed, which was at the low end of the range.

The appellant, Akshay Prasad, sought to reopen his appeal from conviction for cocaine trafficking, based on fresh expert evidence concerning the unreliability of digitally enhanced audio recordings and transcripts due to "priming" and listener bias.

The Court of Appeal for Ontario dismissed the motion, finding the proposed expert evidence inadmissible at trial as it was not necessary and usurped the trier of fact's role.

The court also found the evidence not cogent and that due diligence was not met for its admission as fresh evidence on appeal, concluding there was no clear and compelling case of a miscarriage of justice to warrant reopening the appeal.

The appellant, David Holden, appealed his conviction for fraud over $5,000 and money laundering, and his 12-year sentence, in relation to a multi-million dollar Ponzi scheme.

The conviction appeal argued the trial judge impermissibly inferred guilt from fabricated evidence.

The sentence appeal challenged the application of aggravating factors and sought a reduction due to COVID-19 incarceration conditions.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's reasoning regarding the conviction and upholding the sentence as fit given the extensive aggravating circumstances, including the large scale of the fraud, its devastating impact on victims, and the appellant's history of similar offenses.

The Crown appealed a two-year global sentence for aggravated assault and breach of probation, arguing it was manifestly unfit.

The respondent had a history of escalating violent offences, and the current incident involved life-threatening injuries to the victim and the use of weapons while on probation.

The Court of Appeal found the original sentence demonstrably unfit due to the sentencing judge's failure to properly weigh aggravating factors, including the respondent's repeat violent offending and the concurrent nature of the sentences.

The Court varied the global sentence to three years and six months imprisonment.

However, considering the respondent's significant rehabilitative progress since his release, the remaining custodial portion of the sentence was stayed, and an 18-month probation order with specific conditions was imposed instead.

The appellant, Benjamin MacAdam, appealed his conviction for possession for the purpose of trafficking and his sentence.

The appeal centered on the trial judge's handling of expert evidence regarding the quantity of drugs seized (112 grams of cocaine) and whether it was consistent with trafficking or personal use.

The Court of Appeal found that while the police officer expert was properly qualified, the trial judge erred by misapprehending the expert's testimony.

Specifically, the trial judge failed to adequately consider the expert's concession that the seized quantity could be consistent with personal use for a heavy user in a remote area, and improperly required the defence to establish hypothetical scenarios with proven facts to raise reasonable doubt.

The court concluded that the Crown had not discharged its burden of proving trafficking beyond a reasonable doubt.

The appellant, Harris Haidary, appealed his sexual assault conviction.

The Court of Appeal found that the trial judge erred by relying on an impermissible inference that Mr. Haidary had "tailored" his testimony to conform to the Crown's evidence.

This form of reasoning is legally wrong, absent exceptional circumstances not present here.

Furthermore, the trial was rendered unfair because Mr. Haidary was not given notice that such an inference could be drawn against him, depriving him of the opportunity to address it.

The court declined to apply the curative proviso.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant, Joshua Rodrigues, appealed his conviction for unreasonable verdict and his sentence regarding a victim fee surcharge.

The conviction appeal argued that the trial judge used illogical reasoning to reject the appellant's testimony.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were detailed, comprehensive, and not illogical or inconsistent with the evidence.

The appeal against sentence, specifically concerning the $1,800 victim fee surcharge, was allowed on consent, and that portion of the sentence order was set aside.

The appellant, Andrew Campbell, appealed his convictions for kidnapping, pointing a firearm, and assault causing bodily harm, and his sentence.

The conviction appeal grounds included the trial judge's failure to recharge the jury on the reasonable doubt standard (R. v. W.(D.)) and failure to charge on the racial and cultural context of post-offence conduct.

The Court of Appeal dismissed the conviction appeal, finding no error in the jury charge or the decision not to recharge.

The sentence appeal challenged the calculation of credit for restrictive bail conditions (Downes credit).

The Court found no error in principle or calculation regarding the Downes credit and dismissed the sentence appeal.

Rudolf Karicka, a Czech citizen of Roma ancestry, sought judicial review of the Minister of Justice's surrender order to the Czech Republic, where he faced a mandatory minimum two-year sentence for theft, violation of domestic freedom, and property damage, having been convicted in absentia.

He argued that surrender would shock the conscience or violate his s. 7 Charter rights due to alleged discrimination against Roma people, egregious delay, harshness of the sentence, and personal circumstances.

The Court of Appeal, applying a reasonableness standard, upheld the Minister's decision, finding no justification to refuse surrender as it was not contrary to the extradition treaty, unjust, oppressive, or a breach of Charter rights.

The court found the Minister reasonably addressed concerns regarding discrimination (noting improvements and lack of evidence of persecution), delay (attributable to the applicant's absconding), sentence severity (not shocking to Canadian conscience given Canadian equivalents), and personal circumstances (accommodations for health, balancing family interests with treaty obligations).

The appellant, Robert Freedland, appealed his conviction for counselling extortion.

The Crown's case relied heavily on the testimony of a key witness, Mr. James, whose credibility was central.

The Court of Appeal considered two main issues: the admissibility of non-expert opinion evidence from a store clerk and the trial judge's failure to provide a limiting instruction regarding Mr. James's prior consistent statements.

The court found that while the error regarding the non-expert opinion evidence was harmless, the failure to instruct the jury on the limited use of prior consistent statements constituted non-direction amounting to misdirection, which was not salvageable by the curative proviso.

The appeal was allowed, and a new trial was ordered.

This is an appeal from a sexual assault conviction.

The appellant challenged the verdict, arguing the trial judge misapprehended DNA evidence, leading to an unreasonable verdict.

The complainant had no memory due to extreme intoxication.

DNA tests revealed the appellant could not be excluded as the source of DNA found on the complainant's breast, external genitalia, and vagina.

While the trial judge accepted non-sexual transfer for some DNA, she rejected the submission that there was a rational basis to explain the DNA found inside the complainant’s vagina other than direct contact.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's conclusion regarding the DNA evidence and affirming the reasonableness of the verdict.

A sentence appeal was also dismissed as abandoned.

The appellant was convicted of dangerous driving and aggravated assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal and the sentence appeal for dangerous driving.

However, the sentence imposed for aggravated assault was found to be unlawful due to a postponed commencement of the jail term.

The court allowed the sentence appeal for aggravated assault, varying it to a suspended sentence, considering the appellant's positive contributions, employment, and successful completion of a prior conditional sentence and probation.

The applicant, Andrew Campbell, sought bail pending appeal after being convicted of kidnapping, pointing a firearm, and assault causing bodily harm, and sentenced to seven years' imprisonment.

The Crown opposed the application, arguing that his detention was necessary in the public interest.

The court assessed the public safety, reviewability, and enforceability interests.

While the applicant's amended release plan addressed public safety concerns, the court found that the enforceability interest significantly outweighed the reviewability interest, as the grounds of appeal did not "clearly surpass" the minimal "not frivolous" standard, and the offences were very serious.

The applicant's delay in bringing the application and unwillingness to commit to a prompt appeal perfection date also weighed against release.

The application for bail pending appeal was dismissed.