Andrew J. Hotke

The appellant, convicted of second-degree murder, brought a motion under s. 683(1)(a) of the Criminal Code for the production of police records relating to the officer in charge of his homicide investigation.

The officer had a history of misconduct, including stealing opiate drugs from evidence lockers and crime scenes.

The Court of Appeal granted the motion in part, ordering the Toronto Police Service and Ontario Provincial Police to produce records relating to the officer's conduct in the appellant's specific investigation to the court for review.

The court dismissed the request for records relating to unrelated investigations, finding it speculative.

The officer was granted limited intervener status to assert privacy interests in the records.

This was a sentence appeal concerning an agreed error in the calculation of pre-sentence custody credit.

The parties agreed that the appellant was entitled to 101 additional days of pre-sentence custody, amounting to 152 days after applying 1.5 to 1 credit.

The Court of Appeal granted leave to appeal sentence, allowed the appeal, and reduced the sentence accordingly.

Given that only 18 days remained to be served after the correction, the court stayed the balance of the custodial sentence in the absence of any public interest in requiring re-surrender.

The appellant appealed an order dismissing his application under s. 490 of the Criminal Code for the return of a seized cell phone.

The Court of Appeal held there was no error in the application judge’s refusal to order the phone returned, particularly because the appellant’s criminal trial was ongoing and the issue of ultimate return could be addressed by the trial judge.

The court further held it had no jurisdiction to entertain the appellant’s request for access to and copies of material from the detained phone because s. 490(15) bars an appeal from decisions concerning access to and examination of detained items.

The appeal was dismissed, while noting that a more particularized future application for access might be available.

The appellant challenged a second degree murder conviction arising from a targeted fatal stabbing proved primarily by circumstantial identification evidence, including surveillance video, shoe DNA evidence, clothing evidence, vehicle evidence, and recognition evidence from a recanting witness.

The Court of Appeal held that the trial judge did misapprehend the defence position by stating that all parties agreed the appellant was not the driver of the van, but found the misapprehension immaterial because the conviction rested on affirmative circumstantial evidence identifying the appellant as the stabber.

The court rejected arguments based on Villaroman, insufficient reasons, and unreasonable verdict doctrine, holding that the proposed innocent inferences were speculative and that the reasons, read functionally in context, clearly rejected the blood-transference theory.

The court also upheld the limited reliance placed on the recanting witness's recognition evidence after proper Vetrovec and Hudson analysis.

The Crown appealed the accused's acquittals for child luring and obtaining sexual services from a minor.

The trial judge had excluded text messages found on the minor complainant's phone, ruling that the accused had a reasonable expectation of privacy in those messages.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the accused had no reasonable expectation of privacy in text messages sent to a minor to facilitate sexual offences, particularly where the messages were voluntarily provided to police by the minor and her parent.

The youth appellant was convicted of manslaughter following a group assault.

At trial, the judge disbelieved the appellant's exculpatory testimony and concluded he had fabricated his account to deflect blame, using this disbelief as circumstantial evidence of guilt.

On appeal, the Court of Appeal found the trial judge erred by failing to identify independent evidence of fabrication before using the disbelieved testimony as circumstantial evidence of guilt, contrary to the framework in R. v. Iqbal.

The appeal was allowed and a new trial ordered.

The applicant sought release pending appeal from manslaughter conviction and sentence.

The court accepted the appeal was not frivolous, surrender and safety concerns were manageable, and public confidence favored review before immediate enforcement in the circumstances.

Release pending appeal was ordered on agreed terms.

The applicant sought release pending appeal from convictions and an eight-year sentence for sexual offences.

The court accepted that the appeal was not frivolous and that attendance and safety concerns were manageable, and then found the grounds clearly surpassed the non-frivolous threshold when balancing enforceability and reviewability in the public-interest analysis.

Release pending appeal was granted.

The appellant, David Kawal, appealed his convictions for attempt murder, robbery with a restricted or prohibited weapon, and kidnapping with a restricted or prohibited weapon.

The Court of Appeal for Ontario dismissed all grounds of appeal, finding the jury verdicts reasonable and the trial judge’s instructions proper.

The court found no merit in arguments regarding the reasonableness of the verdicts, the instructions on circumstantial evidence, eyewitness identification, or the elements of the offences.

The sentence appeal was previously abandoned.

This decision concerns the continued effect of a non-publication order under section 517 of the Criminal Code and section 110 of the Youth Criminal Justice Act in the context of an appeal.

The Court confirms that the publication ban remains in effect and that the full decision will only be made publicly available once the order ceases to apply.

In the meantime, the decision is available for inspection at the Registry of the Court of Appeal for Ontario.

The appellant, Igor Kononenko, appealed his conviction for sexual assault.

The Court of Appeal reviewed the trial judge’s treatment of prior consistent statements, the use of the complainant’s out-of-court utterances, and the application of the W.(D.) framework.

The court found no error in the trial judge’s approach to the evidence or reasoning, and dismissed the appeal.

The Court of Appeal for Ontario allowed the appeal of Barrington Grant’s conviction for possession of a loaded firearm.

The appellant had challenged the admissibility of evidence obtained under a warrant, but his application was dismissed at trial.

After his conviction, related proceedings involving the same information to obtain (ITO) resulted in stays due to disclosure issues.

The Crown conceded the appeal in light of these developments and a prior Court of Appeal decision in R. v. Khamo, which quashed a conviction based on the same evidence.

The court set aside the conviction, ordered a new trial, and entered a stay of proceedings.

On a criminal appeal as of right, the central issue was whether a handgun found in the appellant’s car met the Criminal Code definition of “firearm” under s. 2.

The trial judge had acquitted on several firearms counts after concluding operability required special expertise, considerable time, and parts not readily available.

The appellate court set aside acquittals, entered convictions on two firearms offences, and ordered a new trial on remaining firearms counts.

The Court held the handgun was a firearm and substantially agreed with the appellate reasons, including that the trial judge failed to assess all evidence on the ultimate issue of guilt or innocence.

The appeal was dismissed and the convictions and new trial order were upheld.

The appellant was convicted of robbery following a home invasion and sentenced to four years' imprisonment.

On appeal, he argued the trial judge erred by relying on the rejected testimony of a co-accused and failing to caution himself about unsavoury witness evidence.

He also sought to introduce fresh DNA evidence and appealed his sentence based on the parity principle.

The Court of Appeal dismissed the appeals and the fresh evidence motion, finding no error in the trial judge's assessment of the circumstantial evidence or the differing sentences imposed on the co-accused based on their respective moral culpability.

The appellant, an 18-year-old Indigenous man, shot and killed his father and best friend, and attempted to kill his father's girlfriend while highly intoxicated.

Following a trial, he was convicted of two counts of second degree murder and one count of attempted murder.

The trial judge accepted a joint recommendation from counsel and imposed concurrent life sentences with an 18-year parole ineligibility period.

On appeal, the Court of Appeal dismissed the conviction appeal but allowed the sentence appeal.

The Court held that the stringent Anthony-Cook test for departing from joint submissions does not apply to joint recommendations made after a contested trial.

Finding the 18-year period demonstrably unfit due to the trial judge's failure to properly weigh the appellant's youth, intoxication, immediate remorse, and the systemic impacts of colonization, the Court reduced the parole ineligibility period to 13 years.

The appellant, Kevin Hyde, appealed convictions for dangerous driving causing death and impaired driving causing death, and sought leave to appeal his sentence of 6.5 years.

The Court of Appeal for Ontario dismissed the conviction appeal, finding no legal error or material misapprehension of evidence by the trial judge, who had reasonably rejected the appellant's medical condition defence.

The court also dismissed a motion to file fresh accident reconstruction evidence due to a lack of due diligence.

While leave to appeal the sentence was granted, the sentence appeal was dismissed as the appellant failed to demonstrate that the sentence was manifestly unfit or based on errors in principle.

The appellant, Peter Knelsen, appealed his convictions for sexual assault, sexual interference, and child luring.

The central issue was whether the trial judge erred in admitting text messages between the appellant and the complainant, which the trial judge found were obtained in violation of the appellant's s. 8 Charter rights but admitted under s. 24(2).

The Court of Appeal dismissed the appeal, finding that the trial judge erred in concluding the appellant had standing to assert his s. 8 rights, as he had no objectively reasonable expectation of privacy in the text messages exchanged with the 15-year-old complainant, especially given the messages constituted the offence of child luring.

The appellant appealed his conviction for second-degree murder of his intimate partner, arguing he lacked the capacity to form the requisite intent due to a cocaine-induced psychosis.

The trial judge rejected the defence psychiatric expert's opinion, finding it lacked objectivity and was inconsistent with the appellant's purposeful actions before, during, and after the shooting.

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

The appellant, convicted of first-degree murder, appealed his conviction on two grounds: improper cross-examination by the Crown regarding blood spatter evidence and improper cross-examination regarding a gun.

The Court of Appeal found no error or unfairness in the first ground, ruling that the Crown was entitled to challenge the appellant's version of events with contradictory reliable evidence.

Regarding the second ground, while the Crown conceded the questions should not have been asked, the court found no trial unfairness given the brevity of the exchange, the lack of objection from defence counsel, and proper jury instructions on the burden of proof.

The appeal was dismissed.

The Crown appealed the acquittals of the respondent on various firearm offences.

The central issue was whether the handgun found in the respondent's possession was a "firearm" as defined in s. 2 of the Criminal Code.

The trial judge had found it was not, reasoning that making it operational required special expertise, considerable time, and parts not readily available.

The Court of Appeal found that the trial judge erred by failing to consider all evidence, including the presence of a magazine in the handgun and the respondent's admission of having previously fired it.

The court affirmed that a handgun capable of firing when loaded, even if a magazine is required, is a firearm.

The appeal was allowed, acquittals set aside, convictions entered for some counts, and a new trial ordered for others.