Brian A. Callender

The defendant, R.W., was convicted of sexually assaulting D.N. and H.W., and touching them while under 16.

The offences occurred on the same day in 2018.

H.W. was the defendant's niece, 14 years old, and D.N. was a friend.

The Crown sought a 5-year imprisonment, while the defence proposed 3-4 years.

The court considered aggravating factors, including the victims' age, abuse of trust (for H.W.), and the defendant's alcohol issues and prior impaired driving convictions.

Mitigating factors included no prior history of sexual violence and a supportive relationship.

Applying sentencing principles, particularly denunciation and deterrence for child abuse, and guided by R. v. Friesen and R. v. Poulsen, the court imposed a total sentence of four years' imprisonment, with concurrent terms for each victim served consecutively.

Ancillary orders included a 20-year Sex Offender Information Registration Act (SOIRA) order (adjusted from lifetime due to R. v. Ndhlovu), a mandatory DNA order, a 10-year weapons prohibition, and a non-communication order.

The accused stood trial on two historic sexual assault counts arising from alleged abuse of two brothers connected to a church youth group in the early 1980s.

Applying the W.(D.) framework, the court found the accused generally credible and concluded his evidence raised a reasonable doubt.

The court also found significant reliability concerns in the complainants' evidence, including material inconsistencies, uncertainty surrounding prior discussions, and concerns about reconstructed or recovered memory evidence.

The Crown failed to prove either count beyond a reasonable doubt, and the accused was acquitted.

The applicant, serving a seven-year aggregate sentence for fraud, money laundering, and a criminal organization offence, brought a habeas corpus application challenging his ineligibility for accelerated parole review (APR).

He argued that while the criminal organization offence was ineligible for APR, his other offences should be considered separately and remain eligible.

The court found that while the applicant's argument had logical merit, it was bound by appellate authority holding that a single excludable offence renders an offender ineligible for APR on the entire merged sentence.

The application was dismissed.

The Crown applied for leave to introduce prior disreputable conduct evidence regarding the history of the relationship between the accused and the complainant.

The evidence was to be introduced through the complainant's testimony and facts admitted during four prior guilty plea proceedings.

The defence did not oppose the admission of this evidence.

The court exercised its gatekeeper function and, relying on established jurisprudence regarding intimate partner abuse, ruled that the evidence of prior acts was admissible.

The court granted the Crown's application.

The applicant, a federal inmate, filed an application for habeas corpus under the Criminal Proceedings Rules to challenge his involuntary transfer to a maximum-security institution.

The respondent requested that the application be refiled under the Rules of Civil Procedure, arguing the matter was civil in nature.

The court directed the Registrar to accept the application as a criminal proceeding for administrative purposes, noting that requiring inmates to navigate civil rules and filing fees would impede access to justice.

The defendant, Kristopher Vaughan, was found guilty of sexually assaulting Cheryl Wright and was before the court for sentencing.

The court considered aggravating factors, including the victim's vulnerability, the location of the assault, the degree of invasiveness, the prolonged nature of the incident, and the significant emotional impact on the victim.

Mitigating factors included the defendant's lack of a prior criminal record, his military service, health challenges (depression, alcohol/anti-depressant mix), family support, and prospects for rehabilitation.

The court also factored in the harsher conditions of incarceration due to the COVID-19 pandemic.

Vaughan was sentenced to 15 months imprisonment, followed by 18 months of probation with specific conditions, and several ancillary orders including a weapons prohibition and sex offender registration.

The applicant, awaiting sentencing for sexual assault, brought a motion to vacate his interim release under s. 523(2)(c) of the Criminal Code so he could immediately surrender into custody.

Due to COVID-19, in-person hearings were suspended, delaying his sentencing.

The applicant sought to begin serving his anticipated custodial sentence to expedite his return to society and his parenting responsibilities.

The Crown consented, and the court granted the motion, finding cause was shown to vacate the release and allow the applicant to surrender to police pending a virtual sentencing hearing.

Daniel Cook, charged with domestic violence offences and in custody, sought a bail application during a part-heard trial that was adjourned due to the COVID-19 public health crisis.

The court first determined that the bail application met the requirement for urgency.

The primary issue then became whether the substantive bail application should be heard by the trial judge (Justice Tranmer) or by the Ontario Court of Justice, given that the accused had not previously applied for bail.

The court distinguished R. v. Watts, finding that section 523(2)(a) of the Criminal Code empowers a trial judge to alter an accused's judicial interim release status once trial proceedings have commenced.

Consequently, the substantive bail application was referred back to the trial judge.

Kristopher Vaughan was found guilty of sexual assault.

At the sentencing hearing, the Crown applied on behalf of the victim to lift a publication restriction order previously made under section 486.4(1) of the Criminal Code.

The defendant took no position on the application.

The court, satisfied that the victim understood the effect and consequences of the request, granted the application, thereby permitting the publication of all information pertaining to the court proceeding, notwithstanding that it could identify the complainant.

The applicant sought judicial review of a decision by the Parole Board of Canada Appeal Division affirming the revocation of his statutory release.

The applicant, serving a 10-year sentence for violent sexual assaults, had his release suspended after demonstrating a pattern of risky behaviour, rule breaking, and driving infractions, including frequently visiting the university area where his index offences occurred.

The Federal Court applied the Vavilov reasonableness standard and concluded the Board's finding that the applicant presented an undue risk to society was internally coherent, rational, and justified by the facts and law.

The application for judicial review was dismissed.

The applicant, Timothy Allan Wood, challenged the decision of the acting Warden of Joyceville Institution to reclassify him to medium security risk and involuntarily transfer him to Collins Bay, a medium security institution, via an application for habeas corpus.

The court found a critical inconsistency between the correctional authorities' claim of relying on "believed reliable source information" and testimony that no reliability assessment was conducted for inmate sources.

Citing *Mission Institution v. Khela*, the court determined that the record did not meet the principles for reliable evidence, rendering the reclassification and transfer decision unlawful.

The application was granted.

Kristopher Rothery was found guilty of criminal negligence and aggravated assault of his seven-week-old son, Jackson Rothery.

The offences occurred when Jackson was in the defendant's sole care, resulting in severe injuries including rib fractures, subdural hemorrhages, and brain injury.

The court considered sentencing principles under the Criminal Code, including denunciation and deterrence, and aggravating factors such as offences against children and abuse of trust.

Mitigating factors included the defendant's age, lack of criminal record, and mental health challenges.

The Crown sought 3-5 years imprisonment, while defence counsel suggested 2 years plus probation.

The court imposed a concurrent sentence of three years for aggravated assault and eighteen months for criminal negligence, along with ancillary orders.

The appellant appealed his sentence of 18 years' imprisonment (less 18 months' credit for pre-trial custody) for making, possessing and distributing child pornography, sexual assault with a weapon, and sexual interference.

While babysitting his three nieces (six-month-old twins and a four-year-old), the appellant sexually abused them, filmed the abuse, and distributed the images on an Internet site devoted to made-to-order sadistic child pornography.

The Court of Appeal dismissed the appeal, finding the sentence was not demonstrably unfit despite being at the high end of the sentencing range.

The court emphasized the primacy of denunciation and deterrence in such cases and the unique and egregious circumstances of the offences.

The defendant, Kristopher Rothery, was charged with aggravated assault, criminal negligence, and failing to provide the necessaries of life to his seven-week-old son, Jackson.

Jackson suffered severe injuries including subdural haemorrhages, rib fractures, and brain injury.

The court found that the injuries were inflicted by Rothery, who had shaken the child and subsequently failed to seek timely medical help.

Rothery's defence, claiming accidental injury during resuscitation and an honest but mistaken belief that the child was fine, was rejected.

The court found Rothery guilty of aggravated assault and criminal negligence, staying the charge of failing to provide necessaries of life under the Kienapple principle.

The Attorney General of Canada appealed a declaration that the respondent was eligible for accelerated parole.

The respondent had pled guilty to conspiracy offences that straddled the date the Abolition of Early Parole Act repealed accelerated parole.

The Court of Appeal held that for the purposes of s. 11(i) of the Charter, a crime is committed when culpability attaches, even if it is a continuing offence.

Since the respondent entered into the conspiracies before the repeal, he was entitled to the benefit of the lesser punishment (accelerated parole).

The appeal was dismissed.

The applicant, a federal offender, sought a declaration that he was eligible for accelerated parole review (APR) despite the regime's repeal by the Abolition of Early Parole Act.

He argued that because one of his offences was committed prior to the repeal, denying him APR violated his rights under s. 11(i) of the Charter.

The court dismissed the application, finding that because the applicant committed five additional offences after the repeal of APR, his expectation of liberty was altered by his own actions, not by retrospective legislative action.

Therefore, there was no variation in punishment and no breach of s. 11(i).

The applicant sought a declaration that all of his concurrent sentences for multiple drug trafficking and proceeds offences were eligible for accelerated parole review (APR) despite the repeal of the APR regime on March 28, 2011.

Some offences occurred before the repeal date while others occurred afterward.

The court considered the interaction of s. 11(i) of the Charter with the repeal of APR and the authorities interpreting eligibility for offenders whose conduct straddled the repeal date.

The court held that although APR may theoretically apply to offences committed before the repeal, it could not be extended to later offences simply because they were sentenced together.

On the facts, the repeal did not increase the applicant’s incarceration period because the later offences independently required longer incarceration.

The appellant appealed his convictions and sentence for assault, mischief, and failure to comply with an undertaking.

The charges arose from an altercation where the appellant evicted his teenage daughter, grabbed her, and threw her computer, as well as a subsequent breach of a no-contact order regarding another daughter.

The Court of Appeal dismissed the appeal, finding the daughter was not a trespasser, the trial judge properly inferred damage to the computer, and the appellant could not use an unauthorized third party to communicate.

The 45-day sentence was upheld as reasonable.

The appellant, a federal inmate convicted of offences committed prior to the enactment of the Abolition of Early Parole Act (AEPA), appealed the dismissal of his habeas corpus application.

He argued that the retroactive abolition of accelerated parole review (APR) violated his rights under s. 11(i) of the Charter.

Applying the companion decision in Canada (Attorney General) v. Lewis, the Court of Appeal held that the abolition of APR appreciably increased the appellant's expected incarceration time, constituting an unjustified variation in punishment.

The appeal was allowed, and the appellant was declared eligible for the APR regime.

The respondents committed offences before the Abolition of Early Parole Act came into force, but were convicted and sentenced after.

They successfully applied for a declaration that they were eligible for accelerated parole review under the previous regime, arguing that the retrospective application of the Act violated their rights under s. 11(i) of the Charter.

The Attorney General appealed.

The Court of Appeal dismissed the appeal, holding that the denial of day parole constitutes punishment and that the retrospective application of the Act unjustifiably violated s. 11(i) of the Charter.