Andrew J. Hotke

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.

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, 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.

The appellant, Mark Cameron, appealed his conviction for break and enter, firearm offences, and cocaine possession, arguing several Charter violations related to his detention, arrest, and search.

The Court of Appeal for Ontario dismissed the appeal, finding no errors in the trial judge's Charter ruling.

The court upheld the lawfulness of taking keys during investigative detention, the sufficiency of information provided, the reasonable and probable grounds for arrest based on cumulative circumstances, the lawfulness of the incidental search, and the justified delay in advising the right to counsel due to officer safety concerns.

The appellant appealed his conviction for sexual assault and sought leave to appeal his three-year imprisonment sentence.

The appellant argued the conviction was unreasonable due to forensic evidence contradicting the complainant's account and that the trial judge erred in sentencing by attempting to reconstruct the jury's path to conviction and providing insufficient reasons.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding the verdict reasonable and the trial judge's fact-finding for sentencing to be independent and sufficiently reasoned.

The Crown appealed the acquittal of the respondent on child pornography charges.

The lower court had excluded evidence, finding the search warrant invalid due to an expired commissioner of oaths stamp on the Information to Obtain (ITO) and a misleading description of the videos.

The Court of Appeal found that the expired stamp was a curable facial defect, as extrinsic evidence confirmed the commissioner's valid appointment.

Furthermore, the Court determined that the affiant's description of the videos, despite minor inaccuracies, was sufficient to establish reasonable and probable grounds for child pornography, and that the videos themselves met the statutory definition.

The appeal was allowed, the evidence admitted, and a trial ordered.

The appellant appealed convictions for impaired driving causing death, arguing Charter violations (s. 8 and s. 10(b)) related to police conduct at the hospital, which he claimed necessitated the exclusion of blood alcohol concentration (BAC) results under s. 24(2) of the Charter.

The Court of Appeal dismissed the appeal, finding that the police smelling the appellant's breath in the emergency room did not constitute a s. 8 Charter breach, nor was the appellant detained for s. 10(b) purposes.

The court held that the BAC results were properly admitted as they were obtained via valid warrants based on untainted information.

The Crown appealed a summary conviction appeal court decision that ordered a new trial for sexual touching due to insufficient reasons from the trial judge regarding whether the touching was over or under clothing.

The Court of Appeal for Ontario admitted a Digital Court Recording (DCR) as fresh evidence to clarify the complainant's testimony.

The Court found that the trial judge's conclusion that the touching was under clothing was apparent from the record, despite not being explicitly articulated in the reasons for conviction.

The Court allowed the Crown's appeal, restored the conviction, and remitted the matter to the summary conviction appeal court to address remaining grounds of appeal, including intent and sentence.

The Crown appealed the conditional sentence imposed on R.S. for violent sexual assault and choking, arguing it was demonstrably unfit and below the appropriate penitentiary range.

The majority of the Court of Appeal agreed the sentence was demonstrably unfit, finding a 3-year penitentiary term would have been proportionate.

However, the appeal was dismissed to avoid reincarceration and to preserve the probation order, as R.S. had completed the conditional sentence.

A concurring judge found the original sentence fit, emphasizing the significant mitigating impact of Gladue principles on the offender's moral culpability and the deference owed to trial judges in sentencing.

The appellant appealed his convictions and sentence, which were based on communications intercepted under judicial authorization.

At trial, a Garofoli motion challenging the authorization's validity due to redacted affidavits and inadequate summaries was dismissed, leading to conviction.

Subsequently, in two other prosecutions arising from the same investigation, the Crown conceded that further disclosure was necessary for the accused to make full answer and defence, which they could not provide without compromising confidential informants, resulting in stays of proceedings under s. 24(1) of the Charter.

The Court of Appeal admitted evidence from these subsequent proceedings, finding it in the interest of justice.

Given the Crown's concessions in related cases, the court determined that fairness required the appellant's prosecution also be stayed.

The appellant, Robert Lavergne, appealed his 17-month global sentence for sexual assault and sexual exploitation, arguing the sentence was unfit and that post-sentence changes to conditional sentencing law (Bill C-5) required reconsideration, including the constitutionality of the mandatory minimum sentence for sexual exploitation.

The Court of Appeal granted leave to appeal but dismissed the appeal.

The court found that the changes in law did not compel a reconsideration of the sentence or the constitutional challenge, as the trial judge's imposed sentence was fit and exceeded the minimum, and a conditional sentence would not have been imposed even under the new law.

The sentences were not demonstrably unfit, considering the profound psychological harm to the victims and the appellant's abuse of trust as a teacher.

Allison Dent appealed her conviction for publishing defamatory libel against Troy Lalonde, arguing the verdict was unreasonable due to misapprehensions of evidence and erroneous "profile" analysis.

The Crown cross-appealed her sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's decision reasonable and solidly grounded in evidence, despite a conceded error regarding an adopted admission by silence which was deemed harmless.

The Court granted leave to appeal the sentence, finding the trial judge erred by giving undue weight to the impact of incarceration on the appellant's child and failing to adequately consider denunciation and deterrence for a "worst-case example" of criminal defamation.

The Court substituted the conditional sentence with a two-year less a day term of incarceration.

The appellant appealed his conviction for second-degree murder and sought leave to appeal his sentence of life imprisonment with 13 years parole ineligibility.

The conviction appeal raised three grounds: error in jury instruction on after-the-fact conduct evidence for provocation, error in not compelling the Crown to call a witness, and error in not permitting the defence to call that witness.

The sentence appeal argued the trial judge erred by not properly considering the appellant’s immigration status and certainty of deportation in determining parole ineligibility.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the jury instructions or the witness ruling, and upholding the sentencing decision as entitled to deference.

The appellant, Robert Sowell, appealed his dangerous offender designation and indeterminate sentence for child luring, transmitting explicit material to a child, possessing child pornography, and failing to comply with a recognizance.

The sole ground of appeal was the sufficiency of the sentencing judge's reasons for rejecting a determinate sentence followed by a long-term supervision order in favour of an indeterminate sentence.

The Court of Appeal found the sentencing judge's reasons, though brief, were sufficient and responsive to the key issue of the intractability of the appellant's risk and treatability in the community, particularly regarding his willingness and ability to take sex drive reducing medication.

The appeal was dismissed.

The appellant, Ersan Buakasa, appealed his conviction for firearm-related offences, arguing that the gun and ammunition found in his car should have been excluded as evidence due to violations of his Charter rights (ss. 8, 9, 10(a), 10(b)).

The trial judge had found the warrantless search of the car justified as a stand-alone safety search, and while finding breaches of ss. 10(a) and (b), did not exclude the evidence under s. 24(2).

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the search was a lawful and justified safety search.

The court affirmed that the police officer had reasonable grounds to believe there was an imminent threat to public safety, justifying the search, and that the evidence should not be excluded even if there were Charter breaches.