Dana Catherine Achtemichuk

The proposed intervener brought a motion for leave to intervene in the Crown's appeal against the respondent's acquittal for public incitement of hatred.

The respondent had been acquitted on the basis that his online statements were not communicated in a "public place" as required by s. 319(1) of the Criminal Code.

The court granted the motion, finding that the interpretation of "public place" in the context of online communications is an issue of wide-reaching impact.

The court concluded that the proposed intervener's submissions on statutory interpretation were sufficiently distinct from the Crown's and would provide useful assistance to the panel.

The appellant appealed firearm convictions arising from two mass shooting incidents and challenged the dismissal of a s. 11(b) Charter application.

The court held that the trial judge acted within his discretion in permitting a late Leaney application, where the prejudice caused by the Crown’s delay was cured by an adjournment and further disclosure.

Applying Jordan, the court upheld the deduction of periods attributable to defence delay, discrete exceptional circumstances, and pandemic-related delay, leaving the net delay below the presumptive ceiling.

The court also found the trial reasons on identity sufficient, given the combined force of police familiarity evidence, video evidence, and corroborative evidence linking the appellant to the vehicles and participants.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred by dismissing his application to sit at counsel table rather than in the prisoner's box.

The Court of Appeal dismissed the appeal, taking the opportunity to clarify the legal framework for courtroom seating.

The Court held that an in-custody accused is presumed to sit in the prisoner's box, though trial judges retain discretion to permit alternative seating based on security, trial fairness, and the ability to make full answer and defence.

The Court found the trial judge's decision was reasonable and that standard jury instructions adequately mitigate any potential stigma associated with the prisoner's box.

The appellant appealed convictions for firearm-related offences.

The firearm, ammunition, and an oversized magazine were seized from the appellant's home pursuant to a search warrant obtained after a threatening interaction between the appellant and his associates and a restaurant owner.

The appellant challenged the warrant through a Garofoli application, arguing the affiant mischaracterized the video evidence in the information to obtain and that the trial judge misapprehended the video surveillance evidence.

The Court of Appeal found no mischaracterization in the ITO and no error in the trial judge's assessment of the video evidence, dismissing the appeal.

The appellant was convicted of sexual assault, sexual interference, invitation to sexual touching, and assault with a weapon against his stepdaughter and sentenced to 8 years' imprisonment.

On appeal, the Court of Appeal found that the trial judge erred by treating the appellant's silence during a police interview as a "tacit admission" of guilt on the charges he did not explicitly deny.

This error was foundational, materially affecting the trial judge's assessment of both the appellant's and the complainant's credibility.

The court held that the right to silence, protected under s. 7 of the Charter, prohibits drawing an inference of guilt from an accused's choice to remain silent on some allegations while denying others.

The convictions were quashed and a new trial was ordered.

The appellant appealed his convictions for assault, assault causing bodily harm, break and enter, and two counts of threatening to use a weapon, alleging ineffective assistance of counsel.

He claimed trial counsel usurped his right to elect the mode of trial and his right to testify.

The Court of Appeal rejected the election claim, finding the appellant had not established the factual foundation and had not shown a reasonable probability he would have elected differently.

However, the court allowed the appeal on the right-to-testify ground, finding trial counsel failed to make clear that the decision to testify was the appellant's to make, failed to obtain written instructions, and that the police interview was not a functional equivalent of in-court testimony.

A new trial by judge and jury was ordered.

The appellant appealed his second-degree murder conviction, arguing the trial judge erred in finding a breach of the rule in Browne v. Dunn and in giving a restrictive corrective instruction.

The trial judge had instructed the jury that they could not find a key Crown witness fabricated her evidence about the appellant's confession because defence counsel did not explicitly put that suggestion to her in cross-examination.

The Court of Appeal allowed the appeal, finding no breach of the rule occurred as the tenor of the cross-examination made the defence's position clear.

Furthermore, the corrective instruction erroneously usurped the jury's function by prohibiting them from considering whether the witness fabricated the confession.

The curative proviso was not applied, and a new trial was ordered.

The Court of Appeal for Ontario dismissed Noah Dunnett’s conviction and sentence appeals for two counts of child luring, and allowed the Crown’s cross-appeal only to increase the SOIRA order from 10 to 20 years.

The court found no error in the trial judge’s handling of s. 11(b) Charter delay, the Garofoli application, or the sentence imposed.

The court emphasized the seriousness of child luring offences and the deference owed to trial judges on sentencing, especially where mitigating factors exist.

The SOIRA order was corrected to comply with statutory minimums.

The Court of Appeal for Ontario allowed the conviction appeals of William McDonald (second-degree murder) and Thomas Lako (manslaughter) arising from the 2012 shooting death of Jonathan Zak.

The court found that the trial judge erred in admitting a hearsay police statement from a deceased witness for the truth of its contents and in failing to adequately caution the jury regarding discreditable conduct evidence.

The court ordered new trials for both appellants.

This is a Crown appeal concerning a stay of proceedings entered by a summary conviction appeal judge due to unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The respondent's sexual assault conviction was quashed by the lower court.

The Court of Appeal found that the summary conviction appeal judge erred in calculating the net delay by mischaracterizing certain periods.

Specifically, the Court determined that a significant period of delay, previously attributed to the trial judge's unavailability or defence delay, should be considered discrete exceptional circumstances arising from an unforeseen witness issue and the Crown's reasonable efforts to mitigate.

The Court concluded that the net delay, when properly calculated, fell below the Jordan ceiling of 18 months for matters in the Ontario Court of Justice.

The appeal was allowed, the stay of proceedings was set aside, the conviction was reinstated, and the matter was remitted to the Superior Court for determination of other outstanding issues.

The appellant appealed his sexual assault conviction, arguing the trial judge erred in instructing the jury on the absence of DNA evidence (SAEK results).

The Court of Appeal found that while the initial instruction was potentially misleading, the subsequent correction and the charge as a whole adequately conveyed that reasonable doubt could arise from the absence of evidence, not just speculation.

The appeal was dismissed.

The Crown brought a motion for a stay and temporary publication ban pending a proposed application for leave to appeal to the Supreme Court of Canada.

The motion concerned two prior decisions of the Court of Appeal: one setting aside sexual assault convictions and ordering a new trial, and another declining a discretionary publication ban.

The Crown sought a partial stay of the publication ban decision, allowing a temporarily redacted version of the substantive judgment (with verbatim sexualized text messages removed) to be publicly released.

Applying the three-part test for a stay (serious issue, irreparable harm, balance of convenience), the court found that the Crown met the criteria, particularly given the public interest in protecting complainants and the arguable merit of the Crown's appeal regarding the scope of discretionary publication bans.

The motion was granted, ordering a partial stay and redaction of specific paragraphs, a temporary publication ban on certain information, and the sealing of the Crown's motion record.

This Crown appeal addresses the timeframe within which an initial refusal to provide a roadside breath sample (ASD demand) can be retracted before constituting a criminal offence.

The Court of Appeal for Ontario reconciled the "same transaction" principle from R. v. Domik with the "immediately" requirement of the Criminal Code s. 320.27(1)(b).

The court held that Domik applies to ASD demands, but the "same transaction" window is limited by the time police can lawfully obtain a sample "immediately" considering operational time and unusual circumstances, as interpreted by R. v. Breault.

The trial and summary conviction appeal judges erred in law by not properly applying these constraints.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

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.

The Crown appealed a stay of proceedings granted for delay under s. 11(b) of the Charter.

The application judge found a delay exceeding the presumptive Jordan ceiling.

The Crown argued three errors: mischaracterizing preliminary inquiry delay, failing to deduct judicial deliberation time for committal reasons, and failing to account for defence's untimely s. 11(b) concerns.

The Court of Appeal dismissed the appeal, finding no error in the first point.

For the second point, the court clarified that judicial deliberation time for interlocutory matters is generally included within the Jordan ceilings.

The third point was not considered due to an insufficient factual record.

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.

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, found Not Criminally Responsible (NCR) due to mental disorder, appealed a decision of the Ontario Review Board (ORB) that maintained his detention in a hospital, finding it to be the least onerous and restrictive measure commensurate with public safety.

The appellant had relapsed into drug use and exhibited psychotic symptoms after transitioning to supervised community housing, leading to his readmission to the hospital.

The hospital prematurely revoked his community housing approval before the ORB hearing.

The Court of Appeal found the ORB's decision to continue detention reasonable, given the appellant's history of violence, recent threats, and denial of substance abuse.

While acknowledging the hospital's premature revocation of housing approval undermined procedural fairness, the court found the appellant ultimately received a fair hearing and that there was no basis for appellate intervention.

The appeal was dismissed.

The appellant, Harris Haidary, appealed his sexual assault conviction.

The Court of Appeal found that the trial judge erred by relying on an impermissible inference that Mr. Haidary had "tailored" his testimony to conform to the Crown's evidence.

This form of reasoning is legally wrong, absent exceptional circumstances not present here.

Furthermore, the trial was rendered unfair because Mr. Haidary was not given notice that such an inference could be drawn against him, depriving him of the opportunity to address it.

The court declined to apply the curative proviso.

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

The appellant, a young person, appealed convictions for sexual assault and unlawful confinement.

The Court of Appeal allowed the conviction appeal and ordered a new trial, finding that the trial judge's reasons were insufficient as they did not provide an adequate pathway to support the convictions, particularly regarding the appellant's role as a party to the offences.

The trial judge's instruction on party liability under section 21 of the Criminal Code was found to be erroneous, and the reasons failed to specify how the appellant aided or abetted the commission of the offences.