Andrew J. Hotke

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 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 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, 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.

The applicant sought an extension of time to file a notice of appeal, leave to appeal sentence, and a release order pending appeal.

The primary issue was the court's jurisdiction to grant a release order under s. 679 of the Criminal Code, as the applicant had already been released under an invalid Superior Court order.

The court initially refused the release order, holding that the applicant was not in "custody" for the purposes of s. 679 while released under the invalid order.

The court granted the release order only after the applicant surrendered into physical custody, clarifying that an invalid release order remains binding until negated by due process or surrender.

The appellant was charged with manslaughter and firearms offences in December 2015.

Trial was scheduled within the Jordan ceiling but delays arose when the Crown refused to consent to a judge-alone trial, causing the net delay to reach approximately 35 months, exceeding the 30-month ceiling.

The trial judge denied a stay of proceedings by applying a transitional exceptional circumstance, finding the parties had reasonably relied on pre-Jordan law.

The Supreme Court held that no transitional exceptional circumstance applied: after Jordan was decided in July 2016, the parties could not have reasonably relied on the prior state of the law, and the delay was attributable to the Crown's refusal to adapt rather than insufficient time for the system to do so.

The Court also rejected a bright-line rule that would characterize all delay following defence counsel's rejection of a court-offered date as defence delay.

The appellant was convicted of accessing child pornography following the execution of a search warrant at his residence where police obtained passwords for electronic devices and seized digital evidence.

The trial judge found multiple Charter breaches but admitted most of the seized evidence, excluding only material obtained from a cellphone.

On appeal, the court held that the trial judge erred by characterizing the s. 8 breach as minimal despite findings that officers routinely sought passwords without valid consent, reflecting systemic misconduct.

Applying the Grant framework anew, the court excluded the contents of a computer but admitted evidence from a USB thumb drive and photographs taken during the search.

The conviction was set aside and a new trial ordered.

The appellant, Subeer Bakal, appealed his convictions for firearm offences and breaches, and sought leave to appeal his sentence.

He also sought to introduce fresh evidence.

The Court of Appeal for Ontario dismissed the appeal against conviction, finding that the trial judge correctly applied the principles for assessing evidence, including circumstantial evidence (R. v. W.(D.) and R. v. Villaroman).

The court also denied the application to admit fresh evidence, finding it lacked cogency and was implausible.

Finally, the court granted leave to appeal the sentence but dismissed the sentence appeal, concluding that the trial judge properly considered sentencing principles, including the totality principle, time spent on bail, and the issue of anti-Black racism.

The appellant, a former high school teacher, appealed his convictions for sexual assault and sexual exploitation involving two former students (D.R. and L.G.).

The appeal focused on alleged misapprehensions of evidence by the trial judge concerning L.G.'s and a corroborating witness's testimony, and a misdirection on the reasonable doubt standard, particularly regarding the R. v. W.(D.) principles.

The Court of Appeal found that the trial judge's errors in summarizing evidence were not material and that, despite a misstatement of the W.(D.) steps, the trial judge properly applied the reasonable doubt standard to all allegations.

The conviction appeal was dismissed.

The appellant, Gurkirat Rai, appealed his conviction following guilty pleas to multiple driving-related offences, including dangerous operation and driving while disqualified, which resulted in a permanent licence suspension by the Ministry of Transportation under the Highway Traffic Act.

The appellant argued his pleas were uninformed because his counsel erroneously advised him that his licence could be reinstated after 10 years, and he was unaware of the automatic lifetime suspension under the HTA or the cumulative effect of consecutive two-year suspensions.

The Court of Appeal granted leave to admit fresh evidence but dismissed the appeal, finding that the appellant failed to establish subjective prejudice.

The court concluded that it was not credible that the appellant would have acted differently had he received accurate advice, given his primary motivation to be released from pre-trial custody quickly, his willingness to plead guilty despite knowing a lifetime Criminal Code prohibition was possible, the strong Crown case, and his subsequent conduct of re-offending.

This is an appeal from convictions for firearm offences.

The appellants argued Charter breaches (s. 8, 9, 10(b)) and unreasonable verdicts based on misapprehension of evidence.

The Court of Appeal found no Charter breaches, disagreeing with the trial judge's s. 8 finding.

However, it allowed both conviction appeals, finding that the trial judge's conclusion regarding an "exchange of gunfire" was based on a fundamental misapprehension of evidence, and that the use of cellphone photographs to infer possession was improper due to lack of similarity and risk of propensity reasoning.

Ahmed's convictions were quashed and acquittals entered, while Yusuf's convictions were quashed and a new trial ordered.

The appellant appealed his conviction and sentence for multiple firearm-related charges, arguing that his Charter rights under sections 8 and 9 were breached due to an unlawful arrest and subsequent search, and that the trial judge erred in admitting the seized evidence.

The Court of Appeal dismissed the appeal, finding that the police had reasonable and probable grounds for the arrest and search incident to arrest, based on the totality of the circumstances including confidential informant information, observed drug transactions, and the dynamic nature of the situation.

The court also found no error in the sentence imposed.

The Attorney General for Ontario applied ex parte for certiorari with mandamus to quash a Justice of the Peace's refusal to issue a production order against textPlus, Inc., a US-based company with a virtual presence in Canada.

The Superior Court found that the Justice of the Peace committed jurisdictional errors and errors of law by concluding that the order could not be enforced and by failing to follow binding horizontal precedent regarding virtual presence.

The Court granted the application, quashed the refusal, and compelled the Ontario Court of Justice to issue the production order.

The appellant pleaded guilty to theft over $5,000 after taking $317,000 from his elderly godmother.

He was sentenced to 12 months' imprisonment followed by two years of probation.

He appealed the sentence, arguing the sentencing judge erred in finding a conditional sentence was inappropriate given his restitution, remorse, and loss of professional license.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's conclusion that the objectives of deterrence and denunciation could not be met by a conditional sentence.

The appellant appealed his convictions for firearms trafficking, arguing the trial judge erred by using the doctrine of abandonment to dismiss his s. 24(2) Charter application following a s. 10(b) breach.

The Court of Appeal agreed the trial judge erred in using abandonment as an absolute bar to s. 24(2) relief, but conducted its own analysis and found the evidence should not be excluded.

The court held that while there was a serious s. 10(b) breach due to a delay in facilitating the right to counsel, the impact on the appellant's Charter-protected interests was minimal and society's interest in adjudicating the serious firearms charges on the merits favoured admission.

The appellant, Davoud Tohidy, sought to lay an information against Premier Doug Ford alleging Criminal Code offences related to the provincial government's COVID-19 pandemic response.

After a justice of the peace refused to receive the information and the Superior Court summarily dismissed his application for mandamus and other relief, Mr. Tohidy appealed to the Court of Appeal.

The Registrar referred the appeal for summary dismissal under s. 685(1) of the Criminal Code and r. 17 of the Criminal Appeal Rules.

The Court of Appeal agreed with the reviewing judge's reasons, finding the appeal meritless, frivolous, and vexatious, and dismissed it without a full hearing.