Charles William Hourigan

The appellant appealed his conviction for assault and sexual assault, arguing denial of his right to trial within a reasonable time under s. 11(b) of the Charter and ineffective assistance of trial counsel for failing to bring a s. 11(b) application.

The Court of Appeal found no error in the application judge's refusal to hear the late s. 11(b) application, noting it was a tactical decision and had been expressly abandoned by counsel with the appellant's awareness.

The court also found no ineffective assistance of counsel, as the decision not to bring the application was informed and reasonable.

The appeal was dismissed.

The appellant, convicted of arson and other charges, appealed his conviction on two grounds: alleged legal and factual errors by the trial judge and ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's comprehensive findings in an overwhelming circumstantial case, and concluding that the appellant's claims of ineffective assistance of counsel did not meet the required threshold of incompetence.

The appellant, Biao Zhou, appealed his conviction for sexual assault and forcible confinement.

The appeal raised multiple grounds, including errors in jury selection, a jury question, loss of juror notes, closing arguments, and jury instructions on post-offence conduct and consent.

The Court of Appeal dismissed the appeal, finding no reversible errors by the trial judge.

The court addressed the trial judge's procedural error in allocating peremptory challenges, applying the curative proviso, and upheld decisions regarding juror impartiality and trial management.

The Crown moved for a publication ban on the Court of Appeal's decision in R. v. Reimer, 2024 ONCA 519, which overturned a sexual assault conviction and contained references to the complainant's other sexual activity.

The motion was brought in light of the Supreme Court's decision in R. v. T.W.W., 2024 SCC 19, regarding court openness in s. 276 determinations.

The court applied the Sherman Estate test, finding the first component (serious risk to important public interest) met due to privacy concerns.

However, the second component (necessity) was not met as alternative measures (anonymization, removal of biographical info, prior in camera proceedings and publication ban at trial) sufficiently mitigated the risk.

The third component (proportionality) also weighed against the ban, as the benefits did not outweigh the significant negative effects on the open court principle and the precedential value of the decision, which provides guidance on complex issues related to consent and s. 276.

The motion for a publication ban was dismissed.

This appeal addressed the autonomy of adults with disabilities under parental charge, specifically concerning parenting orders under the Divorce Act for adults presumed capable.

The Court of Appeal found that the motion judge erred by making a temporary parenting order for a 26-year-old son with Down Syndrome without a specific determination of his capacity to make decisions about his residence and without affording him the opportunity to participate in the proceedings.

The court emphasized the common law presumption of capacity and the audi alteram partem principle, holding that an adult presumed capable must be served and given the right to be heard on matters affecting their fundamental rights.

The appeal was allowed, and the parenting order was set aside.

The appellant, Jeffrey Reimer, appealed his convictions for sexual assault with a weapon, unlawful confinement, and extortion.

The core issue on appeal was the trial judge's exclusion of sexualized text messages exchanged between the appellant and the complainant under s. 276 of the Criminal Code.

The trial judge had ruled the messages irrelevant, offered for an illegal purpose (proving prior consent), and dependent on prohibited "twin-myth" inferences.

The Court of Appeal found that the trial judge erred in excluding this evidence.

The Court clarified that statements of present intention to engage in future sexual activity are logically relevant to the issue of consent and do not automatically trigger the "twin-myth" inference or violate the contemporaneity rule, as their relevance does not stem from the sexual nature of the activity itself but from the stated intentions.

Consequently, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

This is an appeal from an order dismissing an action, primarily sounding in defamation, under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The motion judge had dismissed the action, finding that the plaintiff (appellant) had not discharged his burden under s. 137.1(4).

The Court of Appeal found that the motion judge erred in his consideration of the respondents' defences to the defamation claims and in his weighing of the public interest in the expressions against the plaintiff's interest in proceeding.

The Court of Appeal concluded that the plaintiff had established grounds to believe the action had substantial merit and the respondents had no valid defence, and that the public interest in permitting the action to continue outweighed the public interest in protecting the impugned expressions.

The appeal was allowed, and the action was permitted to proceed in its entirety.

The appellant, M.G., appealed his convictions for assault, uttering threats, and sexual assault causing bodily harm against his wife, and his three-year prison sentence.

The complainant had recanted her allegations prior to trial and again post-conviction, claiming hallucinations.

The Court of Appeal upheld the trial judge's credibility assessment, finding no palpable and overriding error in rejecting the recantation and accepting the complainant's earlier testimony.

The court also found no error in the trial judge's use of prior discreditable conduct evidence or in refusing to reopen the trial or declare a mistrial based on the post-conviction recantation.

On sentencing, the court found the three-year penitentiary sentence proportionate, consistent with jurisprudence for sexual assault involving penetration.

Both the conviction and sentence appeals were dismissed.

The appellant appealed his conviction and sentence.

The conviction appeal argued the trial judge erred in assessing the credibility of the sole defense witness.

The sentence appeal sought a conditional sentence instead of the imposed custodial term.

The Court of Appeal found no basis to interfere with the trial judge's credibility assessment, noting the deference owed.

Regarding the sentence, the court upheld the custodial term, emphasizing the serious nature of the offence, which involved the appellant pointing a gun at his son and wife and threatening to kill them.

Leave to appeal sentence was granted, but both the conviction and sentence appeals were dismissed.

The appellant, convicted of first-degree murder, appealed on three grounds: the trial judge's failure to provide a standalone instruction on collusion, the admission of in-dock identification evidence from an eyewitness who previously failed to identify him, and the refusal to grant a mistrial following prejudicial remarks by the Crown in closing arguments.

The Court of Appeal dismissed the appeal, finding that the trial judge's general cautions on witness credibility were sufficient to address collusion concerns, the discretionary decision to admit in-dock identification evidence was not erroneous given the strong corrective instructions provided, and the Crown's improper remarks did not warrant a mistrial as they were adequately cured by the trial judge's clear instructions to the jury.

The appellant, Qiao Zeng, appealed his conviction for second-degree murder.

The Court of Appeal found that the trial judge's jury instructions were confusing and inadequate, particularly regarding the two distinct routes to liability (aiding a planned murder and common intention in a kidnapping resulting in death) and the evidence relevant to each.

The blending of these routes and the lack of clear delineation between them for the appellant and co-accused likely confused the jury and may have led to a compromise verdict.

The court allowed the appeal, set aside the conviction, and ordered a new trial on the charge of second-degree murder.

This decision addresses motions for leave to appeal a costs order issued by the Superior Court of Justice.

Robert Mark Roe, the appellant in the underlying appeal concerning a will challenge, sought leave to appeal the costs award.

Randall Scott Roe, a respondent, brought a cross-motion for leave to appeal the same costs order.

The Court of Appeal dismissed Randall Scott Roe's cross-motion for leave to appeal, finding no error in the application judge's discretionary costs award, which involved a holistic review of the litigation and parties' conduct.

Robert Mark Roe's motion for leave to appeal the costs order was dismissed as abandoned.

No costs were awarded on the motions for leave to appeal.

The appellant, Lance Burkhard, appealed his first-degree murder conviction, arguing the trial judge erred in admitting a co-accused's statement to police, specifically regarding the handling of prior consistent statements.

The Court of Appeal found that the trial judge's instruction to the jury on prior consistent statements was incorrect and exacerbated the risk of the jury using them for a prohibited purpose, namely to bolster the co-accused's credibility on the central issue of who stabbed the victim.

The Court allowed the appeal, set aside the conviction, and ordered a new trial.

The appellant, Domarina Malek, appealed a Superior Court order that enforced a settlement agreement and dismissed her claim, denying her request for an adjournment.

Malek, who became self-represented after her counsel withdrew, argued she was under duress and mentally incapacitated when agreeing to the settlement.

The motion judge denied the adjournment, citing the long-standing litigation and Malek's failure to secure new counsel or provide medical evidence.

The Court of Appeal dismissed the appeal, finding the motion judge's denial of the adjournment was a reasonable exercise of discretion, given the contextual factors including the duration of the litigation, lack of explanation for not retaining new counsel, absence of medical evidence, and failure to attend a pre-trial.

The appellant, J.D., appealed his conviction for sexual assault and sought leave to appeal his three-year imprisonment sentence.

The conviction appeal grounds included allegations of reasonable apprehension of bias by the trial judge, improper use of voir dire testimony, an unreasonable verdict, and the trial judge's failure to grant s. 278 applications for disclosure of the complainant's medical records.

The sentence appeal ground related to the trial judge's alleged misapprehension of the potential immigration consequences of the sentence.

The Court of Appeal dismissed the conviction appeal, finding no reasonable apprehension of bias, no improper use of voir dire evidence, and that the verdict was reasonable given the appellant's admissions.

The court upheld the dismissal of the s. 278 applications, characterizing them as a fishing expedition.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the trial judge's error regarding immigration consequences did not impact the fitness of the sentence, which was within the appropriate range for forced penetration.

The Crown appealed the acquittals of the respondent on various firearm offences.

The central issue was whether the handgun found in the respondent's possession was a "firearm" as defined in s. 2 of the Criminal Code.

The trial judge had found it was not, reasoning that making it operational required special expertise, considerable time, and parts not readily available.

The Court of Appeal found that the trial judge erred by failing to consider all evidence, including the presence of a magazine in the handgun and the respondent's admission of having previously fired it.

The court affirmed that a handgun capable of firing when loaded, even if a magazine is required, is a firearm.

The appeal was allowed, acquittals set aside, convictions entered for some counts, and a new trial ordered for others.

The appellant, convicted of first-degree murder, appealed on three grounds: erroneous admission of character evidence, inadequate jury instruction regarding R. v. Villaroman principles on mens rea, and failure to provide a corrective instruction for improper bolstering of eyewitness testimony.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to admit character evidence, which was deemed relevant after the appellant put his character in issue.

The court also found the jury instruction on reasonable doubt and circumstantial evidence adequate, negating the need for a specific Villaroman instruction.

Finally, the omission of a corrective instruction was deemed immaterial given trial counsel's lack of insistence.

The appellant, Orville Kebokee, appealed his conviction for sexual interference under s. 151 of the Criminal Code.

He argued that the trial judge erred in credibility assessment by accepting the complainant's evidence and rejecting his, and by impermissibly discounting issues based on the complainant's age.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's credibility analysis and affirming the deference owed to such findings.

The court rejected the argument that the trial judge's consideration of the complainant's age diluted the standard of proof.

The Crown appealed a two-year global sentence for aggravated assault and breach of probation, arguing it was manifestly unfit.

The respondent had a history of escalating violent offences, and the current incident involved life-threatening injuries to the victim and the use of weapons while on probation.

The Court of Appeal found the original sentence demonstrably unfit due to the sentencing judge's failure to properly weigh aggravating factors, including the respondent's repeat violent offending and the concurrent nature of the sentences.

The Court varied the global sentence to three years and six months imprisonment.

However, considering the respondent's significant rehabilitative progress since his release, the remaining custodial portion of the sentence was stayed, and an 18-month probation order with specific conditions was imposed instead.

The appellant appealed his convictions for sexual assault and breach of a court order, arguing the trial judge misapprehended evidence regarding the complainant's physical attributes based on Zoom observations and erred in criticizing the defence's "sure of guilt" submission.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the complainant's credibility or the application of the burden of proof.

The court affirmed that trial judges can rely on common sense in assessing testimony and that the term "sure" is not a necessary component of the "beyond a reasonable doubt" standard.