Colleen McKeown

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.

The accused, A.V., brought a Charter application challenging the constitutionality of section 7(4.1) of the Criminal Code, arguing it was overbroad and infringed his liberty interests under section 7 of the Charter of Rights and Freedoms.

The provision grants extraterritorial jurisdiction over Canadian citizens and permanent residents for certain child sexual exploitation offences committed abroad.

The court examined the legislative objective of section 7(4.1) and assessed whether reasonable hypotheticals, such as consensual sexual activity with a 15-year-old in France (where the age of consent is 15), fell outside the objective.

The court found the objective was broad: to deter Canadian nationals from engaging in conduct viewed by Canadian standards as sexually exploitative of children abroad, regardless of dual criminality or international comity.

The court concluded that the hypotheticals, while potentially leading to "ill-advised prosecutions" were technically connected to this broad objective and therefore dismissed the overbreadth challenge.

The appellant appealed summary conviction findings of guilt for sexual assault, assault, criminal harassment, and breach offences arising from allegations by a former intimate partner.

He argued that the trial judge failed to consider corroborative defence evidence, failed to address material inconsistencies in the complainant's testimony, conflated the treatment of accused and non-accused witnesses, and applied uneven scrutiny to the evidence.

The appeal court held that the trial judge properly applied the governing credibility principles, including the W.(D.) framework, gave adequate reasons, and reasonably rejected the appellant's evidence as neither credible nor reliable.

The court found no material misapprehension of evidence, no reversible credibility error, and no unfairness in the scrutiny applied.

The appeal was dismissed.

The appellant, Janos Rweyemanu Rutaihwa, appealed his conviction for sexual assault, arguing that the trial judge's reasons were insufficient, failed to resolve material inconsistencies in the complainant's evidence, and took improper judicial notice regarding the nature of the sexual intercourse.

The appeal court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the complainant's credible and reliable evidence, which was found to have "remarkable particularity." The court also found no misapprehension of the appellant's evidence regarding alcohol consumption or improper judicial notice, concluding that the trial judge's findings were supported by the evidence and that the appellant's evidence was unreliable.

A.V. was convicted of sexual interference for conduct in Dubai.

Prior to sentencing, he applied to challenge the court's territorial jurisdiction, arguing that s. 7(4.1) of the Criminal Code is unconstitutional.

The application raised two constitutional arguments under the Charter: a breach of the right to make full answer and defence (s. 7 and 11(b)) due to difficulties in gathering foreign evidence, and overbreadth (s. 7) due to the section potentially capturing consensual conduct legal in other jurisdictions.

The court dismissed the first argument, finding that existing legal mechanisms and case-specific remedies address the concerns.

However, the court found arguable merit in the overbreadth argument, particularly concerning differing ages of consent, and adjourned sentencing to allow this aspect of the defence application to proceed.

The appellant, E.A.P., appealed his conviction for sexual assault.

The appeal raised three grounds: undue reliance on the complainant's demeanour for credibility assessment, an overly narrow view of how consent can be communicated, and a reversal of the burden of proof on the question of mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility assessment was holistic and not unduly reliant on demeanour, that the trial judge's view of consent was not overly narrow given the complainant's explicit refusals, and that the factual findings negated any air of reality to a mistaken belief in consent, thus no burden reversal occurred.

The appellant, Kevin Janeiro, appealed his convictions for robbery and having his face masked, arguing the verdicts were unreasonable and the trial judge materially misapprehended evidence, particularly regarding identity and lost security video.

The Court of Appeal found the convictions unreasonable due to material misapprehensions of evidence concerning fingerprint and DNA evidence, and the importance of the lost security video.

The court also found a Charter breach due to the negligent loss of the security video.

The appeal was allowed, convictions set aside, and verdicts of acquittal substituted.

The appellant appealed convictions for human trafficking, procuring, and receiving a material benefit from a person under 18, arguing errors in the trial judge's jury charge.

The Court of Appeal for Ontario dismissed the appeal, finding the jury charge was fair and legally sound.

Specifically, the court held that the trial judge correctly instructed the jury on the "purpose" element of human trafficking, the two modes of committing the procuring offence (despite the indictment only specifying one mode, the charge as a whole adequately covered the mens rea for both), and the application of circumstantial evidence for the material benefit charge, consistent with *R. v. Villaroman*.

The Crown appealed sentences imposed on two offenders convicted after a lengthy jury trial for leading a sophisticated criminal organization that imported approximately two tonnes of cocaine into Ontario over three years.

The sentencing judge imposed global sentences of 22 and 20 years’ imprisonment, relying heavily on the parity principle by comparing the respondents’ sentences to those of co‑accused who had resolved charges through joint submissions.

The Court of Appeal held that the sentencing judge erred by overemphasizing parity, using joint‑submission sentences as comparators, and failing to adequately apply the proportionality principle or account for the respondents’ leadership roles and the unprecedented scale of the importation scheme.

Given the gravity of importing roughly 2,000 kilograms of cocaine and the respondents’ status as directing minds of the criminal organization, the court substituted life sentences for the conspiracy count.

The court also set aside a fine in lieu of forfeiture imposed on one respondent in light of subsequent Supreme Court authority.

The appellants, Vito Buffone and Jeffrey Kompon, appealed their convictions for conspiracy to import cocaine and several substantive offences following a 50-day jury trial.

The appeal raised four grounds: the admissibility and scope of analyst's certificate evidence under the Controlled Drugs and Substances Act (CDSA), the trial judge's instructions on conspiracy (specifically the three-step Carter analysis), the instructions regarding inferences to be drawn from a third party's actions concerning an encrypted cellphone, and the instructions on the substantive counts.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in assessing the complainant's evidence, relying on stereotypes, and treating post-offence conduct.

The Court of Appeal dismissed the appeal, finding the trial judge properly addressed inconsistencies, did not rely on stereotypes but assessed plausibility in context, and correctly used post-offence conduct for credibility analysis, not propensity.

Brandon Crystal was found guilty of two assaults and one sexual assault against his girlfriend, Ms. P.D., and one count of failing to appear.

The court considered aggravating factors, including the breach of trust, victim vulnerability due to intoxication, and lack of remorse, alongside mitigating factors such as his first-offender status, rehabilitation efforts (sobriety, employment, counselling), and Gladue considerations related to his Indigenous ancestry and childhood trauma.

The court emphasized denunciation and deterrence while balancing rehabilitation and the principle of restraint.

A sentence of 22 months custody for sexual assault, concurrent suspended sentences for assaults and failure to appear, and 3 years probation with specific conditions was imposed, along with ancillary orders.

The Crown appealed the sentences imposed on the respondent for home invasion offences and attempting to obstruct justice.

The respondent had been sentenced to eight and one-half years for the home invasion and six months consecutive for attempting to obstruct justice by passing a note to a co-accused.

The Court of Appeal upheld the home invasion sentence, finding it lenient but not demonstrably unfit.

However, the court found the six-month sentence for attempting to obstruct justice to be demonstrably unfit and increased it to two and one-half years consecutive, emphasizing that interfering with a witness normally warrants a penitentiary term.

The appellant appealed his conviction for importing opium into Canada.

At trial, the Crown's expert witness testified that in his experience, it was 'one hundred percent true' that the person bringing the shipment had knowledge of the illicit substance.

The Crown conceded on appeal that this anecdotal evidence was inadmissible and highly prejudicial, running afoul of the Supreme Court's decision in R. v. Sekhon.

Because the trial judge failed to instruct the jury to disregard the evidence, the Court of Appeal allowed the appeal and ordered a new trial.

The applicant, J.J., sought a second bail pending appeal after his initial bail was revoked due to new charges, including firearms and drug offences, and breaches of his recognizance.

The court considered the public interest criterion under s. 679(3)(c) of the Criminal Code, focusing on public safety.

Despite a strict proposed bail plan involving new sureties and GPS monitoring, the court found a substantial likelihood that the applicant would re-offend, given his history of non-compliance and the nature of the new charges.

The court also considered the merits of the appeal and the COVID-19 pandemic but found these factors did not outweigh the public safety risk.

The application for bail pending appeal was dismissed.

The appellants appealed their conviction under the Township of Mulmur's planning bylaw for using an unpermitted cabin structure on their rural property.

The appellants argued that the prosecution failed to prove they actually used the structure on the specific date alleged (December 6, 2017).

The court upheld the conviction, holding that "use" under the bylaw's definition encompasses land use generally, not merely active use on a specific date.

The bylaw's definition of "use" includes any purpose for which a building may be designed, arranged, intended, maintained, or occupied, and the evidence established the cabin was intended and maintained for residential use, constituting a violation of the zoning bylaw regardless of whether the appellants were physically present on the alleged date.

The appellant was convicted by jury of sexual assault, attempted choking with intent to overcome resistance to sexual assault, threatening bodily harm, and three counts of breach of recognizance following an attack on a complainant in an apartment building elevator.

The appellant appealed his convictions for sexual assault and attempted choking, challenging the trial judge's instructions regarding evidence the jury could consider in determining whether the assault was of a sexual character.

Specifically, the appellant objected to the jury being instructed to consider evidence of his interactions with women at a nightclub earlier that evening and evidence of his communications with a body rub service approximately 30 minutes after the assault.

The Court of Appeal dismissed the appeal, finding the evidence was probative of the appellant's state of mind and intent, and that any prejudicial effect was adequately addressed through limiting instructions.

The appellant, a male dancer at a strip club, was convicted of sexual assault of a female customer.

The trial judge found that the complainant did not consent to fellatio and vaginal intercourse that occurred in the VIP room.

The appellant appealed on the basis that the trial judge relied on behavioural assumptions and stereotypes about how a young woman would act in a strip club setting to determine that the complainant did not consent.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge's credibility analysis was tainted by impermissible reliance on stereotypes and assumptions about female behaviour in a sexualized environment.