Colleen McKeown

The appellant challenged convictions for sexual assault, arguing the trial judge misapprehended evidence about cannabis-related perception issues, applied an improper reliability analysis, and failed to address inconsistencies in the complainant’s evidence.

The court held that any alleged misapprehension was not material to the conviction reasoning and that the trial judge identified and decided the live reliability issue correctly.

It further held that trial reasons are assessed functionally and need not expressly resolve every inconsistency, particularly those not emphasized in closing submissions.

Appellate deference applied to the trial judge’s factual reliability findings.

The appeal was dismissed.

Two appellants convicted of first degree murder following a home invasion robbery during which the victim was fatally shot appealed their convictions.

The first appellant, found to be the principal shooter, raised grounds including failure to consider defence of a third party, insufficient findings on forcible confinement, and reliance on inadmissible hearsay for identification.

The Court of Appeal dismissed his appeal, finding no air of reality to the defence, that the evidence supported his participation in forcible confinement as a joint principal, and that the identification evidence was not hearsay.

The second appellant successfully argued that the trial judge applied an objective rather than subjective mens rea standard under s. 21(2) of the Criminal Code for party liability for murder.

The Crown conceded the error.

The murder conviction was set aside and a conviction for manslaughter substituted, with a sentence equivalent to 12 years imposed.

The appellant was convicted by a jury of sexual assault arising from an incident where initially consensual sexual intercourse escalated to unprotected intercourse without the complainant's consent.

On appeal, the appellant raised three grounds: errors in the W.(D.) jury instructions, improper Crown closing submissions, and that a pre-trial s. 276/278.92 ruling led to trial irregularities amounting to a miscarriage of justice.

The Court of Appeal found no merit in any ground.

The jury instructions properly conveyed each pathway to acquittal, the Crown's closing did not cross the line into oath-helping or rhetorical excess, and the pre-trial ruling did not create any irregularity or unfairness warranting appellate intervention.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The Court of Appeal for Ontario granted Morthaza Amirdad’s application for bail pending appeal after his conviction for 50 firearms offences.

The court found that the applicant’s argument regarding the trial judge’s failure to properly apply the Supreme Court’s guidance in R. v. Debot to confidential informant information was a credible ground of appeal.

The court also considered public safety and public confidence in the administration of justice, ultimately concluding that the applicant’s strict compliance with bail conditions, strong proposed bail plan, and status as a first-time offender justified release pending appeal, despite the seriousness of the offences.

The appellant appealed his convictions for sexual interference, sexual assault, and assault with a weapon against his stepdaughter.

He argued the trial judge misapprehended evidence, made unsupported credibility findings, and failed to properly apply the W.(D.) framework to exculpatory evidence from the complainant's mother.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the burden of proof, made credibility findings supported by the evidence, and adequately explained his reasons for accepting the complainant's testimony over the appellant's and the mother's.

Baldeep Singh Aujla appealed his summary conviction for sexual assault.

The appellant argued the trial judge erred by failing to consider the complainant's motive to fabricate, mischaracterizing surveillance video as 'corroborative,' and reversing the burden of proof regarding the complainant's testimony details.

The court dismissed the appeal, finding the trial judge adequately considered the motive to fabricate, used 'corroborative' in an informal sense, and did not reverse the burden of proof, as the conviction was primarily based on video evidence confirming the complainant's account.

C.P. was convicted of sexual assault and sentenced to a conditional sentence.

C.P. appealed the conviction, and the Crown sought leave to appeal the sentence, arguing for incarceration.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's credibility assessment or fact-finding.

While the Court found the conditional sentence demonstrably unfit for a serious sexual assault, it dismissed the Crown's sentence appeal, concluding that re-incarceration was not in the interests of justice given the time already served on the conditional sentence and the appellant's compliance and rehabilitation prospects.

J.P., convicted of sexual assault and sentenced to three and a half years incarceration, was denied release pending appeal by a single judge.

J.P. sought a panel review of that decision, arguing the motion judge erred in principle by relying on public safety, misassessing the appeal's strength, and incorrectly finding serious compliance issues.

The Court of Appeal dismissed the request for a release order, finding no palpable and overriding error or material error in principle in the motion judge's decision, which was based on the public confidence component of the public interest test, incorporating public safety and compliance concerns.

The appellant appealed his conviction for sexual exploitation.

The trial judge had convicted the appellant on a global count of sexual exploitation but acquitted on two specific counts of sexual exploitation and sexual assault.

The appellant argued the trial judge erred in relying on the Crown's case to reject his evidence without sufficient reasoned basis and failed to resolve material inconsistencies.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were considered and reasoned, adequately addressing credibility and reliability, and that alleged inconsistencies were either not material or properly resolved.

The appellant, A.V., appealed his conviction for sexual interference under s. 151 of the Criminal Code, committed abroad against his daughter.

The appeal raised three grounds: the constitutionality of s. 7(4.1) of the Criminal Code (overbreadth under s. 7 of the Charter), the trial judge's failure to address reliability concerns regarding the complainant's "flashback" evidence, and the trial judge's alleged improper use of the complainant's prior consistent statements.

The Court of Appeal dismissed all grounds, affirming the trial judge's finding that s. 7(4.1) is not overbroad, as its purpose is to deter Canadian citizens and permanent residents from engaging in child sexual exploitation abroad.

The court also found that the trial judge adequately addressed the complainant's reliability and properly used prior consistent statements for narrative and to rebut recent fabrication, without relying on their truth for bolstering reliability.

The appellant, Dalibor Klaric, appealed his conviction for first-degree murder.

The appeal focused on the trial judge's jury instruction regarding sexual assault as an element of constructive first-degree murder under s. 231(5) of the Criminal Code, specifically concerning the absence of consent.

The Court of Appeal found the instruction, though brief, was carefully tailored to the live issue at trial and the positions of the parties, adequately equipping the jury to decide the case.

The appeal was dismissed.

The appellant was convicted of sexual assault and sexual interference.

On appeal, the appellant argued that the trial judge erred in failing to provide a corrective instruction after the Crown's closing address invited the jury to engage in impermissible reasoning, specifically by linking the absence of a motive to fabricate with the reliability of the complainant's testimony.

The Court of Appeal found that the Crown's closing improperly invited the jury to equate the complainant's good relationship with the appellant and lack of motive to fabricate with the reliability of her evidence.

The court held that a corrective instruction was required, and its absence compromised the appellant's right to a fair trial.

The convictions were set aside, and a new trial was ordered.

The appellant, Gillian Boere, appealed her conviction for sexual exploitation and her 12-month prison sentence.

The trial judge had found her in a position of trust towards the 16-year-old complainant.

The appeal raised three issues: the trial judge's finding of a position of trust, the assessment of the complainant's credibility and reliability, and the dismissal of a constitutional challenge to the mandatory minimum sentence as moot.

The court dismissed both the conviction and sentence appeals, upholding the trial judge's findings on the position of trust, the complainant's credibility, and the appropriate application of the mootness doctrine regarding the constitutional challenge.

The appellant appealed convictions for five sexual offences, including sexual assault, human trafficking, and related material benefit and advertising charges.

The appeal raised four grounds concerning the trial judge's treatment of evidence: a misapprehension of a text message, exclusion of WhatsApp messages, refusal to permit cross-examination on prior "sexual punishment," and improper reliance on two text messages.

The Court of Appeal dismissed all grounds, finding that the trial judge's mistake regarding the text message was not essential to the reasoning, the WhatsApp messages were properly excluded under s. 276 of the Criminal Code and Canada Evidence Act due to authenticity concerns and prejudice, the refusal to permit cross-examination on prior sexual punishment was correct as it related to impermissible "twin myth" reasoning, and the reliance on the two text messages was proper.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The Crown sought to bifurcate the conviction and sentence appeals of the respondent, C.P., who was convicted of sexual assault.

The Crown argued for bifurcation due to anticipated delays in perfecting the conviction appeal, fearing C.P. would benefit from time served on a conditional sentence.

The court dismissed the Crown's application, finding that the expected delay was not undue and that the benefits of hearing the appeals together outweighed the Crown's concerns, noting that any benefit from delay would only be granted if in the interests of justice.

The appellant, M.C., appealed his conviction for child luring and sought leave to appeal his sentence.

The core issue was whether the trial judge erred by excluding M.C. and his counsel from an ex parte hearing during a s. 278 Criminal Code third-party records application.

The Court of Appeal found that the s. 278 application was part of the trial, making M.C.'s exclusion a jurisdictional error under s. 650 of the Criminal Code.

The Crown failed to rebut the presumption of prejudice, as the exclusion impacted M.C.'s ability to make full answer and defence and harmed the appearance of justice.

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

The appellant, Dimitrios A. Maniatis, appealed his conviction for sexual assault, alleging two reversible errors by the trial judge: failure to resolve a material inconsistency between the complainant's and an independent witness's evidence, and material misapprehension of the independent witness's testimony regarding his ability to observe the incident.

The Superior Court of Justice dismissed the appeal, finding that the trial judge adequately addressed the inconsistencies by attributing them to the complainant being asleep and the witness's initial misperception, and that it was open to the trial judge to accept the independent witness's evidence regarding his observations.

The appellant, B.C., appealed his conviction for sexual assault.

The appeal challenged the trial judge's findings on consent and the defence of honest, mistaken belief in communicated consent.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion on non-consent was unassailable and that any alleged errors regarding the honest mistaken belief defence could not have affected the verdict, as the appellant failed to take reasonable steps to ascertain consent, particularly given the complainant's intoxicated and ill state.

The appellant was convicted of aggravated sexual assault in 2013 for non-disclosure of her HIV-positive status during condomless vaginal intercourse, which the trial judge found vitiated consent due to a realistic possibility of transmission.

On appeal, fresh expert evidence was admitted, demonstrating that with antiretroviral treatment (ART) and an undetectable viral load, the risk of HIV transmission is effectively zero.

The Court of Appeal found that this new scientific understanding undermined the trial judge's conclusion regarding the realistic possibility of transmission in the appellant's specific circumstances.

Consequently, the appeal was allowed, the conviction was set aside, and an acquittal was entered.

The court declined to make a broader statement on the "realistic possibility of transmission" threshold beyond the specific facts of the case, citing institutional concerns and limitations of the fresh evidence record regarding multiple sexual contacts or viral loads that are suppressed but not undetectable.