Andrew Benjamin Cappell

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated May 25, 2017.

The appellant challenged the Board's removal of the possibility of community living from her disposition conditions.

The Board had acted on a joint position to detain the appellant in the secure unit with potential transfer to the general forensic unit but not to the community.

The appellant's treating physician testified that community living was not a realistic goal given the appellant's recent incidents of unauthorized absence and violence towards hospital staff, and that the frustration of an unattainable condition had contributed to the appellant's anger and violent behavior.

The Court of Appeal upheld the Board's decision, finding it entirely reasonable to remove the community living condition based on the evidence.

The appellant was convicted of ten counts relating to possession of a prohibited firearm and ammunition following a search warrant execution at a boarding house where a shotgun and ammunition were found in his basement apartment.

A partial palm print was found on a plastic bag containing shotgun shells.

The Crown called expert evidence on friction ridge analysis to connect the print to the appellant.

The trial judge permitted the Crown to recall a witness to provide additional expert opinion on the same issue after the first expert's testimony was deemed unsatisfactory.

The appellant appealed on two grounds: (1) that the trial judge erred in allowing the Crown to recall the witness, and (2) that the trial judge misapprehended the expert evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to permit the witness recall and no misapprehension of the expert evidence regarding the friction ridge analysis.

The appellant appealed his sentence of eight years imprisonment for sexually assaulting his girlfriend's daughter over a period of approximately one year beginning when the victim was 12 years old.

The appellant sought leave to appeal and argued that the sentencing judge erred by failing to adequately consider his guilty plea, rehabilitative potential, and Aboriginal background under the Gladue principles.

The Court of Appeal found that while the sentencing judge erred in requiring a causal connection between the appellant's Aboriginal background and the offences, the sentence remained fit given the gravity of the crimes and their devastating impact on the victim.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 24, 2017.

The appellant sought a conditional discharge, arguing it was the least onerous and least restrictive disposition necessary to protect the public.

The Court of Appeal upheld the Board's decision to impose a detention order with community living privileges at the discretion of the hospital, finding that the Board reasonably determined this was the least onerous and least restrictive disposition given the appellant's admitted risk to public safety, history of non-compliance with medication, alcohol use, and pattern of rule violations.

The appellant appealed his convictions for sexual assault and sexual touching of a thirteen-year-old cousin.

The primary ground of appeal was that the appellant received ineffective assistance from trial counsel.

The Court of Appeal rejected this argument, noting that trial counsel had conducted an extensive and rigorous cross-examination of the complainant.

The trial judge had provided detailed reasons for disbelieving the appellant and accepting the complainant's evidence, finding consistency on core issues.

The Court found no basis to suggest that a different approach by trial counsel would have led to a different result.

The appeal was dismissed.

The appellant appealed his conviction on the grounds that the trial judge made a palpable and overriding error in rejecting his evidence as lacking credibility and defying logic.

The appellant specifically challenged three of the trial judge's six reasons for rejection.

The Court of Appeal found no palpable and overriding error in the trial judge's assessment of the evidence and dismissed the appeal.

The appellant's conditional sentence resumed operation effective November 8, 2017.

The appellant appealed his conviction for sexual assault, arguing that the loss of a video recording of the complainant's statement violated his fair trial rights.

The Court of Appeal held that the trial judge's finding of no unacceptable negligence was reasonable and that the loss of the recording was not so prejudicial as to impair the appellant's fair trial rights.

The court found that contemporaneous and detailed police notes provided a sufficient substitute for the lost recording, and that the defence failed to demonstrate actual prejudice.

The appellant appealed his sentence of 5.5 years (66 months) less 25 months credit for time in predisposition custody, resulting in a net sentence of 41 months in federal penitentiary.

The appellant pleaded guilty to possession of a prohibited firearm with readily accessible ammunition, dangerous operation of a motor vehicle, flight from police, and possession of marijuana for trafficking purposes.

The appellant contended the trial judge erred in principle by failing to apply restraint as a first-time offender and by imposing a sentence outside the range for similar offenders.

The Court of Appeal dismissed the appeal, finding the sentence fit and appropriate given the serious nature of the offences.

The appellant appealed his conviction for assault entered by Justice Quinlan of the Superior Court of Justice on September 23, 2011.

The appellant raised two grounds of appeal: first, that the trial judge shifted the burden of proof by assuming the assault occurred as a basis for rejecting a defence argument; and second, that the trial judge erred in failing to explain how she could convict given her comment that the defence theory regarding how some injuries were caused was "equally plausible." The Court of Appeal rejected both arguments and dismissed the appeal.

The appellant was convicted of one count of indecent assault and one count of gross indecency relating to a complainant (TS) for events that occurred in 1978 when the complainant was 16 years old and the appellant was her skating coach.

He received a 12-month conditional sentence.

On appeal, the appellant challenged the trial judge's credibility findings and the admission of reply evidence from the complainant's boyfriend.

The Court of Appeal upheld the convictions, finding no palpable and overriding error in the credibility assessments and determining that the reply evidence was properly admitted as it addressed a live issue that arose from the defence case.

The appellant appealed his conviction for home invasion-related charges involving a firearm, including armed robbery, aggravated assault, assault with a weapon, discharge of a firearm with intent to endanger life, and unlawful confinement.

The trial judge convicted the appellant on April 8, 2015, and imposed a global sentence of nine years and six months, less three years and four months credit for pre-sentence custody on June 30, 2015.

The Court of Appeal upheld both the convictions and the sentence, finding no error in the trial judge's assessment of identification evidence and rejecting the argument that the sentence was too harsh for a youthful offender.

The appellant, a half-sibling of the complainant, appealed a conviction for sexual abuse.

The trial judge found it dangerous to convict on most of the complainant's allegations but convicted on one incident (the basement incident) where the complainant provided detailed testimony corroborated by the parents' observations.

The appellant challenged the conviction on two grounds: first, that the parents' evidence contained inconsistencies with the complainant's account, and second, that the conviction was unreasonable given witness inconsistencies.

The Court of Appeal upheld the conviction, finding the trial judge properly assessed the evidence and was entitled to accept the complainant's detailed account despite minor inconsistencies attributable to the passage of eight years.

Appeal from a sentence imposed by the Ontario Court of Justice following a conviction.

The appellant challenged the trial judge's assessment of whether section 8 Charter rights were breached during a search.

The trial judge found that a level 3 search was reasonable except for the "squat and cough" procedure, which was deemed unreasonable.

The trial judge reduced the sentence as a remedy under section 24(1) of the Charter.

The appellant sought a stay of proceedings, arguing systemic deficiencies.

The Court of Appeal upheld the trial judge's decision, finding no error in her findings and determining that the sentence reduction was an appropriate remedy for the breach.

The appellant sought leave to appeal from a Summary Conviction Appeal Court decision dismissing his appeal of an assault conviction.

The appellant had been represented at trial by a law student from a legal aid clinic and argued on appeal that he received ineffective legal representation because his counsel failed to raise Charter issues regarding a strip search conducted after his arrest.

The Court of Appeal dismissed the application for leave to appeal, finding that the Summary Conviction Appeal Court Judge's determination regarding the reasonableness of the legal representation was a case-specific determination that did not extend beyond the four corners of the case and was not clearly wrong.

The other issues raised by the appellant also failed to meet the test for leave to appeal.

A police sergeant was charged with assault causing bodily harm under Section 267(b) of the Criminal Code for striking a complainant in the face during an arrest at a police station.

The complainant had attended the station to dispute a traffic ticket, became agitated, made threatening statements about arsons, and physically resisted arrest by locking his shoulder and keeping his hands apart to prevent handcuffing.

The sergeant delivered an open-hand distraction strike to the complainant's face, causing dental injuries.

The court found the sergeant's use of force was reasonable and necessary under Section 25 of the Criminal Code, as the complainant was actively resisting arrest and the second handcuff had not been fully secured at the time of the strike.

The charge was dismissed.

Two Ottawa police constables were charged with assault causing bodily harm after taking an intoxicated man to the ground during a street response.

The Crown relied heavily on eyewitness testimony from two civilian witnesses who observed the incident from across the street.

The court found the civilian witnesses' evidence to be extremely unreliable due to credibility issues, inconsistencies, memory problems, bias, and potential collusion.

The court found that the officers lawfully used force in self-defence and in the execution of their duties under the Criminal Code when they took the intoxicated man to the ground after he made aggressive arm motions toward them.

The charges were dismissed.