Andrew J. Hotke

The Crown appealed a summary conviction appeal decision that had set aside convictions for firearms offences on the grounds that amendments to the information were statute-barred by the six-month limitation period in section 786(2) of the Criminal Code.

The respondent was charged with two hybrid firearms offences under section 86 of the Criminal Code.

The Crown elected to proceed summarily and sought to amend the information to substitute different offences that better conformed to the evidence at trial.

The summary conviction appeal judge found the amendments were barred by the limitation period.

The Court of Appeal held that amendments to an information do not constitute the institution of new proceedings and therefore are not restricted by the limitation period in section 786(2).

The court emphasized that proceedings are instituted by the laying of an information, not by amendments thereto.

The appellant appealed his conviction for fraud over $5,000, arguing that his guilty plea was neither voluntary nor fully informed due to ineffective assistance of counsel and his compromised mental state resulting from a prior motor vehicle accident.

The appellant pleaded guilty to a single count of fraud involving receipt of social services benefits to which he was not entitled over a period of more than four and one-half years.

He was sentenced to 12 months imprisonment to be served in the community and ordered to pay restitution of $52,027.36.

The Court of Appeal dismissed the appeal, finding that the plea was voluntary and informed, that the appellant had the requisite mental capacity to enter a valid plea, and that trial counsel's performance was not deficient.

The appellant appealed his conviction for sexual touching of a minor.

The trial proceeded on the basis of an acknowledged emotional intimacy between the appellant and the complainant, with the central issue being whether that intimacy extended to physical contact.

The appellant raised four grounds of appeal challenging the trial judge's jury instructions regarding the use of certain evidence, including out-of-court statements by the appellant, prior consistent statements by the complainant, and evidence of an uncharged incident.

The Court of Appeal dismissed all grounds of appeal, finding that while some instructions could have been more complete, the charge as a whole adequately conveyed the burden of proof and credibility issues to the jury, and no substantial wrong or miscarriage of justice resulted from the omissions.

The appellant appealed an order of Forestell J. concerning the jurisdiction of a trial judge to issue a bench warrant to compel the personal attendance of the accused in summary conviction proceedings.

The appellant filed a motion seeking to compel the attendance of three individuals to provide testimony regarding whether the appellant appeared in court on September 15, 2017.

The Court of Appeal dismissed the motion as the evidence sought had no relevance to the issue on appeal, which concerned the trial judge's jurisdiction to issue the bench warrant.

The court ordered the appellant to perfect her appeal by August 31, 2018, with no extensions permitted, and warned that failure to do so would result in dismissal of the appeal without further notice.

The appellant was convicted of two counts each of sexual touching and invitation to sexual touching involving his then nine-year-old granddaughter.

He was sentenced to 30 months concurrent.

On appeal, the appellant challenged the trial judge's credibility findings regarding the grandmother's testimony and alleged inconsistencies between the complainant's and her mother's evidence regarding disclosure.

The appellant also sought leave to appeal the sentence based on fresh evidence regarding the victim impact statement.

The Court of Appeal dismissed all grounds of appeal, finding no palpable and overriding error in the trial judge's credibility assessments, no error in the trial judge's analysis of inconsistencies and collusion allegations, and that the fresh evidence was inadmissible and would not have affected the sentence.

The appellant appealed a conviction for sexual assault entered by a trial judge sitting without a jury.

The appellant raised two grounds of appeal: first, that the trial judge erred in law by considering both parties' failure to climax as part of his credibility assessment; and second, that the trial judge failed to consider potential collusion between the complainant's family members who testified.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of the evidence against common sense understanding of human behaviour was not an error, and that collusion was neither alleged at trial nor had any air of reality.

The appellant appealed a decision of the Superior Court of Justice dismissing his application for certiorari to quash a committal to trial for robbery.

The Court of Appeal upheld the lower court's decision, finding that the preliminary inquiry judge properly concluded there was sufficient evidence for a trier of fact to infer the appellant was the robber.

The video evidence of the robbery combined with DNA evidence linking the appellant to t-shirts worn during the robbery was found to be sufficient to support the committal.

The appellant was convicted of theft over $5,000, break and enter, two counts of possession of property for the purpose of trafficking, and one count of possession of property obtained by crime.

He appealed his convictions on grounds that the trial judge failed to properly apply the W.(D.) test, applied stricter scrutiny to the defence case, provided insufficient reasons, and misapprehended evidence.

The appellant also argued that two convictions should be stayed under Kienapple as included offences.

The Court of Appeal dismissed most grounds of appeal but allowed the appeal in part, staying two convictions as included offences.

The appellant appealed his convictions for three historical sexual offence charges on the basis that the trial judge erred in denying two s. 11(b) Charter applications regarding unreasonable delay.

The first application was decided under the Morin test, and the second under the Jordan test.

The Court of Appeal found that the trial judge erred in calculating the delay period and in assessing the relevant factors.

The trial judge incorrectly attributed delay to the defence when much of it was attributable to Crown disclosure practices and procedural issues.

The properly calculated delay of over 17 months substantially exceeded the Morin guideline of 8-10 months for provincial trials.

The case was not complex, and the prejudice to the accused was not modest as the trial judge had found.

The appeal was allowed, convictions were set aside, and the proceedings were stayed.

Application for appointment of counsel under s. 684 of the Criminal Code for an appeal of conviction and sentence.

The applicant was convicted of sexual assault causing bodily harm and forcible confinement following a two-day trial and sentenced to 48 months' imprisonment.

Legal Aid Ontario refused to fund the appeal based on lack of merit.

The applicant established lack of financial means but failed to meet the necessity threshold for appointment of counsel.

The court found that while some grounds of appeal were arguable, the applicant could effectively advance them without counsel, the record was manageable, and the court could properly decide the appeal without defence counsel assistance.

The appellant appealed a sentence imposed for assault against her child and assault of a police officer for the purpose of resisting arrest.

The summary conviction appeal court judge had upheld the sentence on the basis of deference to the trial judge.

The Court of Appeal found that deference was not owed because the conviction appeal was allowed on the assault charges, which were the sole focus of sentencing submissions, and the trial judge provided no reasons for the assault police charge.

The Court allowed the appeal and substituted a conditional discharge with a three-year probationary period, which had already been served in full.

The Crown appealed directed verdicts of acquittal on three firearms charges.

The trial judge had granted the respondent's application for a directed verdict, concluding that the evidence was insufficient for a jury to consider whether the respondent possessed an operational firearm.

The appellate court found that the trial judge made three errors of law: applying the wrong test for directed verdicts, improperly weighing competing inferences in favour of the respondent, and assessing the respondent's credibility when she was not entitled to do so.

The court allowed the appeal and ordered a new trial.

The Crown appealed an acquittal on charges of impaired driving and driving over 80 milligrams of alcohol per 100 millilitres of blood.

The trial judge acquitted on both counts, finding the Crown could not prove impairment and could not rely on the presumption of identity in s. 258(1)(c) to establish the blood alcohol level at the time of driving.

The Crown sought to rely on the included offence of care or control over 80, but the trial judge rejected this, holding that s. 258(1)(c) applied only to the charged offence.

The summary conviction appeal judge upheld the acquittals on fairness grounds.

The Court of Appeal allowed the Crown's appeal on the included offence issue, holding that the presumption of identity applies to included offences and that it is not unfair to convict on an included offence arising from the same facts as the charged offence.

The appellant was convicted of criminal harassment under s. 264(1) and (2)(d) of the Criminal Code for creating a private Yahoo!

Group website that portrayed the complainant in a false and sexually degrading manner.

The sole ground of appeal was whether the trial judge erred in finding that the actus reus of the offence had been established.

The appellant argued that establishing the actus reus requires proof of subjective intent to engage in threatening conduct.

The Court of Appeal upheld the conviction, holding that the actus reus of threatening conduct under s. 264(2)(d) is assessed objectively, not subjectively, and does not require proof of the accused's specific intent to instil fear.

The appellant sought bail pending appeal following conviction on four counts: sexual assault, sexual interference, incest, and assault against his biological daughter when she was 13-14 years old.

He was sentenced to eight years in penitentiary.

The Crown opposed bail on public interest grounds, arguing that the seriousness of the offence and length of sentence warranted detention.

The Court of Appeal granted bail, finding that the grounds of appeal were sufficiently strong to meet the threshold under s. 679(3) of the Criminal Code, particularly given the incomplete reasons for conviction and the appellant's lengthy history of bail compliance without incident.

The appellant appealed her sentence for contempt of court, imposed for refusing to testify at her father's perjury trial.

The father was charged with perjury for allegedly lying under oath at a previous trial of the appellant's fiancée.

The appellant had been sentenced to one year imprisonment consecutive to time already being served for perjury convictions related to testimony given at the fiancée's earlier trial.

The Court of Appeal dismissed the sentence appeal, finding the sentence was not unfit.

The appellant appealed his conviction for sexual interference and sought leave to appeal his sentence of 22 months imprisonment, less credit for pre-sentence custody.

The appellant raised issues regarding DNA testing of the complainant's underwear and challenged the trial judge's credibility findings regarding his alibi.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's detailed reasons for rejecting the appellant's evidence.

On sentencing, the Court found the trial judge erred in principle by treating the absence of remorse as an aggravating factor, but concluded the error did not justify a lesser sentence given the victim's young age, the breach of trust, the serious impact on the victim, and the appellant's prior criminal record.

The appellant sought leave to appeal his sentence for assault against his girlfriend.

The appellant was convicted under s. 265 of the Criminal Code and received a suspended sentence with nine months of probation.

The Summary Conviction Appeal Court dismissed his appeal.

The appellant argued that leave to appeal should be granted because the Summary Conviction Appeal Court erred in relying on aggravating factors not considered by the sentencing judge and in misapplying the law regarding immigration consequences.

The Court of Appeal denied leave to appeal, finding that any errors were inconsequential and that both the sentencing judge and Summary Conviction Appeal Court properly considered the appellant's immigration status.