Benita Wassenaar

The appellant appealed his sentence for aggravated assault, arguing the trial judge erred in her approach to rehabilitation.

The appellant had stabbed the victim four times.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to consider the appellant's failure to recognize the connection between his extensive use of alcohol and marijuana and the offence.

The appellant was convicted of second-degree murder following the stabbing death of his former intimate partner.

On appeal, the appellant argued that the trial judge erred in the final instructions to the jury, specifically regarding the 'rolled-up' instruction on the intent for murder, the assessment of the appellant's evidence, and the defence of provocation.

The Court of Appeal found that the 'rolled-up' instruction was inadequate because it failed to draw together relevant factors, such as the deceased's provoking words and conduct, and failed to instruct the jury to consider the cumulative effect of this evidence on the appellant's state of mind.

Concluding that the errors in the final instructions were not overcome by the overwhelming nature of the prosecution's proof, the Court allowed the appeal, set aside the conviction, and ordered a new trial.

The appellant was convicted of incest and 46 counts of forgery.

The Crown alleged that the appellant's co-accused and husband was actually her son, and that they had fathered children together, including a deceased child.

The appellant appealed, arguing that DNA warrants used to compare their blood with the deceased child's blood violated her Charter rights, and that the trial judge erred in failing to give a W.(D.) charge regarding exculpatory defence evidence.

The Court of Appeal held that while the DNA comparison between the two accused breached section 8, the evidence should not be excluded under section 24(2).

Furthermore, although the trial judge erred in the jury charge regarding reasonable doubt and credibility, the curative proviso applied due to the overwhelming evidence of guilt.

The appeal was dismissed.

The Crown appealed the sentence of two years less a day plus probation imposed on the respondent for serious offences committed while in a position of trust.

The sentencing judge recognized that the primary sentencing goals were denunciation and general deterrence, and that the usual range was a penitentiary term in the mid to upper single digits, but identified particular circumstances justifying the lower sentence.

The Court of Appeal found no error in principle or improper weighing of factors and dismissed the appeal.

The appellant appealed his convictions for breaching his bail recognizance and probation orders by indirectly communicating a threat to his former probation officer.

The appellant argued the trial judge misapprehended his evidence and erroneously based a finding of wilful blindness on a concession made in hindsight.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded the appellant had actual knowledge that the threat would inevitably be conveyed to its intended target.

The sentence appeal was also dismissed.

The Crown appealed the accused's acquittal on a charge of uttering a threat to cause bodily harm.

The trial judge had found that the accused's threat to 'assault' his former probation officer did not necessarily include bodily harm.

The Court of Appeal held that the trial judge erred by failing to consider the surrounding circumstances, which included the accused's violent history, mental instability, and anger towards the victim.

A reasonable person would conclude the threat was to cause bodily harm.

The acquittal was set aside, a conviction entered, and a concurrent sentence of 349 days was imposed.

The appellant appealed his convictions for dangerous driving, possession of stolen property, and resisting arrest, arguing that his right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The total delay between the laying of charges and the retrial following a mistrial was 30 months.

The Court of Appeal found that the trial judge erred in allocating delay from a disclosure request to the defence and in placing too much weight on the absence of specific prejudice.

The Court held that the Crown failed in its duty to schedule the retrial without further delay.

The appeal was allowed, the convictions were quashed, and a stay of proceedings was entered.

The appellant appealed his convictions and sentence for sexual offences, including child pornography, involving a 15-year-old complainant.

He argued the trial judge erred in assessing the complainant's actions regarding consent, failed to properly apply the W.(D.) framework for credibility, and misused recent complaint evidence.

The Court of Appeal dismissed the appeal, finding the trial judge adequately explained why the complainant's trauma negated consent, properly rejected the appellant's evidence, and correctly admitted the recent complaint as narrative and demeanour evidence.

The conviction for child pornography was upheld as the trial judge rejected the appellant's claim that the complainant said she was 18.

The sentence appeal was also dismissed.

The appellant appealed his conviction, arguing that his trial counsel provided ineffective assistance.

The Court of Appeal dismissed the appeal, finding that the claim failed on the prejudice arm of the ineffective assistance of counsel test.

The court concluded that the proposed fresh evidence and cross-examination on inconsistencies in the complainant's statements could not reasonably have been expected to affect the result at trial.

The appellant pleaded guilty to arson and was sentenced to nine months' imprisonment, probation, and a $40,537.50 restitution order in favour of the insurance company.

He appealed the restitution order.

The Court of Appeal held that while an insurance company can be the subject of a restitution order under s. 738(1)(a) of the Criminal Code, the sentencing judge erred by failing to consider the appellant's inability to pay and the unfairness of the order given that the co-perpetrators who initiated the arson and received the insurance money were not ordered to pay restitution.

The appeal was allowed and the restitution order was set aside.

The appellants appealed their convictions for a home invasion, arguing that the trial judge erred in her jury instructions regarding circumstantial evidence, specifically the victim's description of the perpetrators' accents and the continuity of a durag found at the scene.

The Court of Appeal dismissed the appeal, finding that the trial judge properly instructed the jury on how they could use the victim's statements and fairly reviewed the evidence concerning continuity.

The applicant applied to reopen her appeal from a 1998 conviction for defrauding Legal Aid, which had been dismissed on its merits in 2000.

She alleged ineffective assistance of counsel and a conflict of interest involving her former junior counsel.

The Court of Appeal dismissed the application, holding that its jurisdiction to reopen an appeal is generally limited to cases not heard on the merits.

Assuming Civil Rule 59.06 could apply, the court found no merit to the applicant's allegations and no concern of a miscarriage of justice.

The appellant was convicted of aggravated assault after a 48.5-month non-appellate delay.

The application judge found 23 months of delay attributable to the Crown but dismissed the appellant's section 11(b) Charter application, applying the 'clearest of cases' standard and finding no prejudice to trial fairness.

The Court of Appeal held that the application judge erred in law, as a stay is the mandatory minimal remedy for a section 11(b) breach and proof of actual prejudice to trial fairness is not required.

The Court upheld the attribution of delay to the Crown, allowed the appeal, set aside the conviction, and entered a stay of proceedings.

The appellant appealed his conviction for sexual assault as a party to the offence, arguing the trial judge failed to properly caution the jury about the frailties of the complainant's evidence.

The complainant had admitted to lying to the police in two separate statements.

The Court of Appeal found that the trial judge committed a reversible error by failing to instruct the jury on the legal implications of these inconsistencies and by providing an unbalanced charge that unduly promoted the Crown's case.

The appeal was allowed and a new trial ordered.

The appellant, a former Venturers leader, appealed his convictions for historical indecent assault against two complainants.

He argued that the jury's verdicts were unreasonable due to inconsistencies and improbabilities in the complainants' evidence.

The majority of the Court of Appeal dismissed the appeal, finding that a properly instructed jury acting judicially could reasonably have rendered the verdicts.

The dissenting judge would have allowed the appeal regarding one complainant, finding the evidence surrounding the incident highly improbable.

The appellant appealed his conviction for simple assault, arguing that the trial judge misapprehended the evidence and that the verdict was unreasonable because medical evidence was inconsistent with the violent assault described by the principal Crown witness.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to rely on substantial circumstantial evidence, including blood spatters and injuries, to find the appellant committed a simple assault.

The appellant appealed his one-year custodial sentence for fraud.

The Court of Appeal found that the trial judge erred by considering the appellant's lack of remorse as an aggravating factor.

However, the court upheld the sentence as fit, noting that the appellant abused the trust of vulnerable fellow church members, causing an elderly couple to lose their home and life savings.

Despite the appellant being a first offender and initially a victim of a fraudulent scheme himself, the principles of denunciation and deterrence warranted the custodial sentence.

The appeal was dismissed.

The appellant appealed from a decision of a summary conviction appeal judge, arguing that the judge failed to apply the appropriate level of scrutiny to the trial judge's reasons.

The Court of Appeal dismissed the appeal, finding that the summary conviction appeal judge properly examined the trial judge's reasons in conjunction with the evidence and correctly concluded there was evidence to support the findings.

The appellant appealed her sentence, which was imposed following a joint submission.

She sought to introduce fresh evidence regarding her medical condition.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the sentence as the trial judge was aware of her condition and the fresh evidence did not suggest the correctional institute was unable to manage her chronic conditions.

The appellant appealed his convictions for criminal harassment, making harassing telephone calls, and breaching probation, arguing that the trial judge was biased and pre-judged the merits of the offences during the complainant's examination-in-chief.

The Court of Appeal dismissed the appeal, finding that the trial judge's remarks, while unfortunate in timing and language, did not meet the high threshold for actual bias.

The majority concluded the remarks were an inquiry into the complainant's expected outcome and noted the lack of objection from defence counsel.

A dissenting judge would have ordered a new trial, finding the trial judge had made up his mind before the completion of the examination-in-chief.