Catherine V. Weiler

The Court of Appeal for Ontario granted James Cole’s motion to extend the time to file a notice of appeal from his convictions and sentence for dangerous driving and related offences.

Cole argued his guilty plea was uninformed and involuntary because neither he, his counsel, the Crown, nor the court were aware that his plea would trigger an automatic lifetime driving suspension under the Highway Traffic Act.

The court found that Cole had adequately explained the delay in bringing the motion and had put forward arguable grounds of appeal, particularly regarding the significant collateral consequence of the automatic suspension.

The court concluded that the interests of justice warranted granting the extension.

The court sentenced Calvin Au, a Toronto Police Service officer, for assaulting Chadd Facey after a failed transaction involving a fake watch.

The court found Au used excessive force in taking Facey to the ground, though not in his capacity as a police officer.

The sentence imposed was a suspended sentence and 12 months probation, with ancillary orders including a weapons prohibition and a DNA order.

The decision discusses the aggravating and mitigating factors, the impact on the victim’s family and community, and the heightened standards for police officers convicted of assault.

The Court of Appeal for Ontario dismissed Conal Quinn’s appeal from his conviction for sexual assault.

The court found no reversible error in the trial judge’s exclusion of evidence under section 276 of the Criminal Code, nor in the exclusion of expert evidence regarding methamphetamine use and sexual impulsivity.

The court also rejected arguments regarding the sufficiency of the trial judge’s reasons and the finding that any consent would have been vitiated by abuse of authority.

The decision affirms the trial judge’s careful application of the law regarding sexual history evidence and the proper approach to expert testimony in the context of sexual assault prosecutions.

The Court of Appeal for Ontario dismissed the conviction and sentence appeals of Corey and Curtis Murray, who were convicted of second degree murder in the death of Trevor Seraphine.

The main issues on appeal concerned the police failure to preserve certain surveillance video evidence and the Crown’s late disclosure of the loss of this evidence.

The court found that while the loss of evidence breached the appellants’ Charter rights, the trial judge’s remedial jury instructions were adequate and a stay of proceedings was not warranted.

The court also upheld the 20-year parole ineligibility periods, finding them fit in the circumstances.

The applicant, Jacob Hoggard, sought release from custody pending an application for leave to appeal to the Supreme Court of Canada, having been convicted of sexual assault causing bodily harm and his appeal to the Court of Appeal for Ontario dismissed.

The Crown conceded the appeal was not frivolous and the applicant would surrender.

The motion judge focused on the public interest branch of the bail test, specifically public confidence.

The court found that the applicant's proposed leave application, concerning the legal test for the curative proviso under the Criminal Code, was weak as it raised a fact-specific application rather than an issue of national importance.

Given that the conviction had been unanimously affirmed by the Court of Appeal and leave to appeal to the Supreme Court is sparingly granted, the public interest in enforcing the sentence outweighed the applicant's interest in a second review.

The application for release was dismissed, without prejudice to reapply if leave to appeal is granted by the Supreme Court.

Jacob Hoggard appealed his conviction for sexual assault causing bodily harm to J.B., arguing the trial judge erred by admitting expert evidence on the neurobiology of trauma, failing to correct the Crown's closing submissions, delivering an unbalanced jury charge, and improperly admitting discreditable conduct evidence.

The Court of Appeal found that the trial judge erred in admitting the expert testimony as it was not necessary and risked misuse, but applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that no substantial wrong or miscarriage of justice occurred due to the trial judge's effective corrective instructions.

The other grounds of appeal were dismissed, and the appeal was dismissed.

Mikhail Vasiliev pleaded guilty to multiple counts of extortion, unauthorized use of a computer to commit mischief to data (related to LockBit ransomware attacks), and possession of prohibited firearms.

He deployed ransomware against three Canadian companies, causing significant financial losses and operational disruptions, totaling approximately $900,000 in damages and remediation costs.

The court considered aggravating factors such as the planned and deliberate nature of the cybercrimes, the motivation of personal gain, the substantial harm to victims, and the possession of loaded firearms.

Mitigating factors included his guilty plea, early resolution efforts, consent to extradition to the U.S. for related charges, anticipated restitution, and being a first offender.

The judge imposed a global sentence of four years and six months imprisonment, emphasizing denunciation and general deterrence for cybercrime.

The applicant, Craig M., sought bail release pending appeal of his conviction for sexual offences.

His appeal was based on ineffective assistance of counsel, alleging inadequate advice regarding his right to testify and mode of trial, and general inadequate performance.

The court found the claims regarding mode of trial and general performance frivolous.

While the claim about advice on testifying was not frivolous, it did not clearly surpass the "not frivolous" threshold due to a lack of supporting evidence, absence of a waiver of privilege, and problematic, evolving affidavits.

Given the seriousness of the offences and the weakness of the proposed appeal, the application for bail pending appeal was dismissed.

The applicant, convicted of 33 counts of voyeurism and sentenced to two years incarceration, sought bail pending appeal.

The Crown opposed on grounds of public safety and public confidence in the administration of justice under s. 679(3)(c) of the Criminal Code.

The court considered the applicant's history of pre-meditated voyeurism and indecent acts, as well as recent allegations of impersonating a police officer while on bail.

The motion judge found a substantial likelihood of the applicant committing further offences and that his detention was necessary for public safety.

Furthermore, releasing the applicant would undermine public confidence given the serious and escalating nature of his conduct, despite the relatively short sentence and the possibility of an expedited appeal.

The application for interim release was dismissed.

Nadeem Ahmed appealed his conviction for fraud and knowingly using a forged document, arguing his police statement was involuntary due to misleading advice regarding potential immigration consequences.

The Court of Appeal for Ontario dismissed the appeal, affirming the trial judge's finding that the statement was voluntary.

The court held that police are not required to explain every possible consequence of the criminal justice process, including immigration, and that the officer's statements were not misleading.

The decision emphasized the deference owed to a trial judge's voluntariness ruling unless a palpable and overriding error is demonstrated.

The Crown appealed an acquittal of Kevin Davis for impaired driving, arguing the summary conviction appeal judge erred in upholding the trial judge's decision to exclude breath samples due to a s. 10(b) Charter informational breach.

The Court of Appeal dismissed the Crown's appeal, finding that the "obtained in a manner" issue was not properly raised, and that the appeal judge's findings on the seriousness and impact of the breach were reasonable and owed deference.

The court emphasized that the "fresh start" doctrine should be applied cautiously to informational breaches, especially when the subsequent compliance does not fully dispel the initial breach's effects.

The appellant, Dhandev Sandhu, appealed his conviction for sexual assault.

The appeal primarily challenged the adequacy of the jury charge regarding the timeframe of the offence and the trial judge's caution concerning a complainant's prior inconsistent statement made under oath.

The Court of Appeal dismissed the appeal, finding that the jury instructions adequately conveyed the essential elements of the offence, the defence position, and the credibility issues, including the discrepancy in the complainant's sworn statements.

The court affirmed that a special instruction on the significance of a prior inconsistent sworn statement was not mandatory in this case, and the jury was fully aware of the credibility issues.

The appellant, convicted of sexual assault causing bodily harm, applied for release pending appeal under s. 679 of the Criminal Code.

The Crown conceded that the appeal was not frivolous and there was no flight risk.

The court focused on whether detention was necessary in the public interest, considering public safety and public confidence in the administration of justice.

Finding no substantial public safety concerns and arguable grounds of appeal, the court granted the application for release, emphasizing that the public interest in reviewability can outweigh the enforceability interest in such circumstances.

The appellant, William Joles, appealed his second-degree murder conviction, arguing that the trial judge erred by failing to give a limiting instruction on the use of bad character evidence and by failing to provide guidance to the jury on permissible inferences from after-the-fact conduct evidence.

The Court of Appeal dismissed the appeal, finding no real risk that the jury would misuse the bad character evidence and that the jury had a functional understanding of the permissible inferences from the after-the-fact conduct, especially given the clear submissions by counsel and the single live issue of intention.

The appellant, found not criminally responsible, appealed a Review Board disposition maintaining a conditional discharge, seeking an absolute discharge.

The Court of Appeal found the Board's decision unreasonable, as it failed to adequately consider evidence demonstrating the appellant's ability to manage his condition and did not meet the "significant threat to public safety" standard, which is onerous and requires a real risk of serious criminal harm.

The appeal was allowed, and an absolute discharge was granted.

The Crown appealed the acquittal of the respondent on a sexual assault charge, asserting errors in the trial judge's articulation and application of consent law, and insufficiency of reasons.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly set out the law on consent and that the reasons were sufficient, particularly as the acquittal rested on the Crown's failure to prove lack of consent beyond a reasonable doubt due to the complainant's unreliability.

Matthew Gibson, found not criminally responsible (NCR) for criminal harassment and breach of recognizance, appealed the Ontario Review Board's disposition maintaining conditional discharge.

He argued the Board erred in finding he posed a significant threat to public safety, contending the risk assessment was unreasonable and unsupported by evidence, particularly given his compliance with medication and treatment, and stable family support.

The Court of Appeal dismissed the appeal, finding no error in the Board's application of the significant risk test under the Criminal Code.

The court affirmed the Board's holistic consideration of risk factors, including lack of insight into his illness and index offences, and continued cannabis use, which outweighed protective factors, concluding the conditional discharge was necessary to manage the ongoing significant risk to public safety.

The appellant, R.C., appealed convictions for sexual assault, sexual interference, incest, and assault.

The primary issues on appeal were whether the trial judge's oral reasons for conviction were sufficient, and whether subsequently released "edited reasons" could be considered.

The Court of Appeal held that the edited reasons, released nearly two years after the oral reasons and after the appeal had commenced, could not be relied upon due to their substantive changes.

The court then assessed the sufficiency of the original oral reasons, finding that the trial judge adequately addressed material inconsistencies in the complainant's evidence and properly applied credibility principles, including those from R. v. W.(D.).

The appeal was dismissed, affirming the convictions.

The Crown appealed the acquittals of the respondent on charges including pointing a firearm, discharging a firearm with intent to wound, and attempted murder.

The Court of Appeal found that the trial judge failed to provide adequate reasons for the acquittals, specifically by not addressing credibility and reliability issues related to the officers' testimony and not explaining how the evidence led to reasonable doubt despite compelling forensic evidence.

The appeal was allowed, the acquittals were set aside, and a new trial was ordered on the disputed counts.

The appellant, Kevin Faudar, appealed his convictions for various firearms offences, alleging ineffective assistance of counsel.

His grounds included a conflict of interest due to counsel's prior representation of a key witness (X.Y.), improper advice to testify, and general incompetence.

The Court of Appeal dismissed the appeal, finding no actual conflict of interest that impaired trial fairness, that the decision for the appellant to testify was a reasonable strategic choice given the strong circumstantial evidence of constructive possession, and that counsel's overall performance did not fall below the standard of reasonableness or result in a miscarriage of justice.

The court affirmed the convictions and the sentence.