Caitlin Downing

Sentencing decision arising from convictions for historical domestic violence offences against two former intimate partners, including indecent assault, sexual assault, common assaults, and pointing a firearm.

The court emphasized proportionality, denunciation, deterrence, statutory aggravating factors for intimate partner abuse and abuse of trust, and the significant impact of the offences on the victims.

While the offender's advanced age, frailty, multiple medical conditions, lack of prior record, and the pandemic were treated as collateral consequences warranting some moderation, the court held that a substantial penitentiary term remained necessary.

A global sentence of 43 months less 71 days' credit was imposed, together with DNA, firearms, sex offender registry, and no-contact orders.

Everett Milotte was found guilty of careless storage of a firearm, possession of a prohibited device (switchblade), and possession of a prohibited firearm.

The offences arose from a domestic incident where Milotte sent a suicidal text with a handgun picture, prompting police intervention and the discovery of numerous weapons, some unlawfully possessed or stored.

The court considered aggravating factors, including the intent to cause fear and the risk from careless storage, alongside significant mitigating factors such as Milotte's lack of criminal record, cooperation with police, and extensive rehabilitation efforts following a period of situational distress.

The Crown sought a suspended sentence, probation, a DNA order, and a 5-year weapons prohibition.

The defence requested a conditional discharge and probation, arguing against a criminal record and further prohibition.

The court ultimately granted a conditional discharge with one year of probation, declined a DNA order and a separate s. 109 weapons prohibition, but included a weapons prohibition as a condition of probation.

A forfeiture and destruction order for unlawfully owned weapons was also made.

The accused, a 74-year-old retiree, was charged with kidnapping, uttering threats, aggravated assault, and attempted murder against his former partner.

After their separation, the accused drove the complainant to a secluded wooded area against her will, threatened to run her over if she escaped, and stabbed her in the abdomen and neck.

The court applied the W.D. framework to resolve conflicting testimony, rejecting the accused's claim of self-defence.

The accused was found guilty of kidnapping, uttering threats, and aggravated assault, but acquitted of attempted murder as the Crown failed to prove a specific intent to kill beyond a reasonable doubt.

The accused brought Charter applications to exclude evidence obtained during a traffic stop and subsequent searches of cell phones and a vehicle GPS device following a home invasion robbery.

The court found no breaches of the accused's rights under ss. 8, 9, or 10 of the Charter during the initial stop and arrest.

The court also upheld the validity of the search warrants and production orders.

Although the police failed to file a timely report to justice for the seized items, the court assumed a s. 8 breach but admitted the evidence under s. 24(2), finding the breach was not serious and the evidence was highly reliable and important to the prosecution.

The accused, Samantha Tripp, was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration exceeding 80 mg.

The defence argued a breach of her s. 10(b) Charter rights and that breath samples were not taken "as soon as practicable." The court found no Charter breach, as police delay was justified by public safety concerns and practical limitations.

The court also found the breath samples were taken "as soon as practicable" given the circumstances.

The presumption of care and control was not rebutted.

Based on the evidence of police officers and a civilian witness, the court found the accused's ability to operate a conveyance was significantly impaired by alcohol.

Tripp was found guilty of both offences.

T.N. was found guilty of sexual assault.

The Crown sought 3-5 years incarceration, while the defence sought 9 months incarceration followed by 2 years probation.

The court considered sentencing principles, aggravating factors (breach of trust, psychological impact on victim, manipulation), and mitigating factors (no criminal record, youth, good character, employment history).

The judge emphasized individualization of sentence over strict adherence to ranges, noting the devastating impact on the victim and the offender's good rehabilitation prospects despite denial of guilt.

T.N. was sentenced to 1 year imprisonment, followed by 3 years probation with conditions, DNA order, 20-year SOIRA registration, and 10-year weapons prohibition.

Joseph Butera was found guilty of possession of child pornography and arranging through telecommunication to sexually assault a child under the age of 16.

The court considered aggravating factors, including the repeated attempts to have the victim's mother breach trust, instructions for sexual interference, the request for new child pornography images, and the substantial collection of child pornography.

Mitigating factors included his lack of criminal record, early guilty plea, remorse, and rehabilitative efforts.

Applying the principles of denunciation and deterrence, particularly in light of R. v. Friesen, the court imposed a global sentence of 45 months, reduced to 38 months after credit for pre-sentence custody and a COVID-19 pandemic multiplier.

Ancillary orders included a DNA sample, lifetime SOIRA registration, forfeiture of devices, a 10-year weapons prohibition, and various lifetime prohibitions on contact with children and internet use.

The Crown appealed the acquittal of the respondent on a charge of refusing to comply with a roadside screening device demand.

The trial judge had found that the officer's incorrect advice—that a refusal to blow carries the same penalty as a failure—tainted the otherwise valid demand.

The Superior Court of Justice allowed the appeal, finding that while the initial information was incomplete, the officer subsequently clarified that the respondent would be charged if he refused.

The court concluded the demand was unequivocal and the respondent understood the consequences, entering a conviction.

Historical domestic violence prosecution arising from allegations by two former intimate partners, including indecent assault, sexual assault, assault, and pointing a firearm.

The court applied the W.(D.) credibility framework and carefully distinguished credibility from reliability in assessing evidence concerning events said to have occurred decades earlier.

It held that delayed disclosure did not undermine the complainants’ credibility in relation to the sexual offences and accepted the core evidence on five counts despite memory gaps attributable to the passage of time.

The accused was convicted on counts of indecent assault, assault, pointing a firearm, sexual assault, and assault, but acquitted on one assault count because the evidence concerning the toilet incident was not sufficiently reliable.

The offender pleaded guilty to operating a motor vehicle dangerously causing bodily harm contrary to section 320.13(2) of the Criminal Code.

On April 11, 2019, the offender deliberately crossed the centre line of Highway 17 in an attempt to commit suicide by colliding with an oncoming tractor-trailer.

The victim suffered catastrophic injuries including facial lacerations, loss of an ear, crushed vertebrae, and permanent hearing loss.

The offender was suffering from major depressive disorder with psychotic features at the time of the offence.

The court imposed a 9-month custodial sentence, a 7-year driving prohibition, a 10-year weapons prohibition, DNA collection, $2,500 restitution, and 3 years probation.

The sentencing balanced denunciation and general deterrence against rehabilitation and restraint, recognizing the offender's mental illness while holding him accountable for the unacceptable risk posed to others.

The Crown brought an application under section 714.1 of the Criminal Code seeking an order to permit four witnesses to testify via Zoom in a sexual assault case involving a minor complainant.

The witnesses included the complainant and his friend residing in Israel, and two camp directors residing in Ontario with COVID-19 health concerns.

The defence opposed the application, arguing that witnesses' homes were unsuitable locations and that the accused's right to a fair trial would be compromised.

The court granted the application, finding that all four witnesses had legitimate personal reasons for remote testimony and that appropriate safeguards could maintain trial fairness and the solemnity of proceedings.

The appellant appealed his summary convictions for sexual assault, assault, and criminal harassment, arguing the trial judge reversed the burden of proof and misapplied the W.(D.) principles when assessing credibility.

The appellant also argued the trial judge improperly relied on demeanor, given the appellant's testimony that he was on the autism spectrum.

The summary conviction appeal court found no error in principle, concluding the trial judge properly assessed the evidence as a whole and did not shift the onus to the accused.

The appeal was dismissed.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code for conduct that allegedly occurred on July 7, 2017, during a camping trip to Algonquin Park.

The Crown alleged that the accused sexually assaulted the complainant while she was sleeping in a tent.

The accused denied the allegations, claiming nothing of a sexual nature occurred while the complainant was sleeping.

The trial judge found the complainant's evidence credible and reliable, and rejected the accused's denials.

The judge was particularly influenced by the accused's text messages to the complainant's father, which demonstrated consciousness of guilt.

The judge found that the accused penetrated the complainant's vagina without consent while she was unconscious, constituting sexual assault.

The accused, M.J., was charged with break and enter with intent to commit an indictable offence, sexual assault, and uttering threats.

The Crown alleged that M.J. broke into the complainant's home and sexually assaulted her in the basement.

The trial proceeded over three days with testimony from the complainant, two Crown witnesses, and the accused.

The judge found that the accused's evidence was credible and straightforward, while the complainant's testimony was fraught with inconsistencies regarding dates, timelines, and material facts.

The judge concluded that the accused did not commit the alleged offences and acquitted him on all charges.

The accused was charged with dangerous driving causing death after striking and killing a pedestrian who was crossing the street following a hockey game.

The court found that while the accused's speed constituted the actus reus of dangerous driving given the heavy pedestrian traffic, the Crown failed to prove the requisite mens rea.

The court concluded that poor lighting, dark clothing, and the distraction of a stopped vehicle's headlights meant the accused's failure to see the pedestrians was a momentary lapse or error in judgment, not a marked departure from the standard of a reasonably prudent driver.

The charge was dismissed.

The accused was charged with four counts of assault against his former common-law partner spanning from 2006 to 2017.

The Crown alleged: (1) assault with a weapon (beer bottle) in 2006-2007; (2) assault in fall 2015 (cooking incident); (3) assault in November 2015 (bathtub incident); and (4) assault on October 17, 2017 (forcible ejection from residence).

The trial judge found the complainant's evidence on counts 1-3 lacked credibility and coherence, with significant gaps in memory and inconsistencies.

On count 4, while the accused admitted applying force, the trial judge found the defence of property under s. 35(1) of the Criminal Code did not apply because the force used was unreasonable in the circumstances.

The accused was acquitted on counts 1-3 and convicted on count 4.

The accused was charged with refusing to comply with a demand to provide breath samples contrary to section 254(3)(a) of the Criminal Code.

The Crown called a tow truck operator and two police officers to establish the accused's guilt.

The defence challenged the identification of the accused as the driver of the vehicle.

The court found that the accused was properly identified through driver's license documentation and officer testimony.

The court further found that the accused unequivocally refused to provide a second breath sample as demanded by the qualified technician, without reasonable excuse.

The accused was found guilty.

The accused was charged with theft of a custom-made anniversary ring valued at approximately $37,900 and possession of stolen property.

The ring went missing from a locked jewelry cabinet during a service call by the accused at the victim's residence.

The Crown's case relied on circumstantial evidence including the accused's presence at the residence, his subsequent visits to jewelry stores and pawnbrokers, and witness testimony identifying a ring matching the description of the stolen ring.

The accused testified he brought his father's sapphire ring for appraisal and denied taking the victim's ring.

The trial judge acquitted the accused, finding that while he was probably guilty, the Crown had not proven guilt beyond a reasonable doubt, particularly due to concerns about the reliability of key witness testimony regarding identification of the ring.

The offender was convicted of forgery and obstruction of justice after submitting a forged letter of support from her employer during a sentencing hearing for a previous fraud conviction.

The Crown sought a three-year custodial sentence, while the defence proposed 12 to 18 months.

The court emphasized denunciation and deterrence, noting the offender's premeditated attempt to deceive the court and her prior criminal record.

The offender was sentenced to a global term of 20 months' imprisonment, followed by 12 months of probation.

The Crown's request for a DNA order was denied.

The accused was charged with multiple counts of sexual assault against his common-law partner and four other women, as well as assault and mischief.

The accused raised the defence of non-insane automatism (sexsomnia), arguing he was in a parasomnic state during the incidents.

The court rejected the sexsomnia defence, finding the accused's actions were voluntary, goal-directed, and often influenced by alcohol intoxication rather than a sleep disorder.

The accused was found guilty of the sexual assaults but acquitted of the assault and mischief charges.