Dan Guttman

The appellant, Mohsin Mirza, appealed his conviction for sexual assault.

The trial judge had found the sexual encounter non-consensual.

The appeal raised three issues: errors in assessing the complainant's credibility and reliability, improper reliance on stereotypes in treating the appellant's evidence, and applying an uneven standard of scrutiny.

The appellate court dismissed the appeal, finding that the arguments essentially amounted to a disagreement with the trial judge's factual findings and that no material misapprehension of evidence or reversible error in credibility assessment was demonstrated.

The appellants appealed their guilty pleas and suspended sentences for assault, claiming ineffective assistance of counsel.

They sought to introduce fresh evidence demonstrating they were misinformed by both their criminal and immigration lawyers regarding the immigration consequences of their pleas, specifically that they would face deportation.

The Superior Court of Justice admitted the fresh evidence, finding the pleas were uninformed and non-consensual.

The appeals were allowed, the convictions set aside, and a new trial ordered.

The applicant, who pled guilty to manslaughter in 1986, sought a post-conviction disclosure order from the Crown in aid of an application for a Ministerial Review under s. 696.1 of the Criminal Code, claiming he had falsely confessed and was wrongfully convicted.

The Superior Court of Justice dismissed the application for a disclosure order as premature (because the applicant had not exhausted his appeals) and moot (because the Crown had already disclosed all available documents).

However, the court granted declaratory relief, holding that the superior court has jurisdiction under s. 24(1) of the Charter to make post-conviction disclosure orders in aid of a Ministerial Review, and that convicted persons do not need the Crown's consent to communicate with public officials regarding their convictions.

The applicant sought a declaratory judgment affirming the Superior Court's jurisdiction under section 24(1) of the Charter to order post-conviction disclosure for individuals claiming wrongful conviction.

The respondent, the Attorney General of Ontario, brought a motion to strike the application, arguing the applicant lacked standing, the application was premature, and it failed to meet the section 7 Charter test.

The court dismissed the motion to strike, finding that the respondent had not met the high threshold of demonstrating it was plain, obvious, and beyond doubt that the application could not succeed.

The appellant appealed a conviction for breaching a recognizance under s. 810 of the Criminal Code by allowing his dogs to be outside unattended.

The trial judge focused on whether the appellant had made arrangements for others to care for the dogs and applied the “air of reality” analysis relating to exceptions to court orders.

On appeal, the court held that this approach misapprehended the defence evidence, which was a denial of the actus reus rather than reliance on an exception.

The trial judge improperly rejected a defence that had never been advanced and failed to address the core issue of whether the appellant had allowed the dogs to be outside.

The conviction was set aside and a new trial ordered.

The media applicants brought an application for a declaration that the police practice of impersonating journalists for criminal investigation and surveillance of public protests violates s. 2(b) of the Charter.

The court found no evidence that plainclothes officers engaging in surveillance held themselves out as journalists.

The court held that the evidentiary record did not support a finding that the practice of plainclothes surveillance in the presence of media had a chilling effect on news gathering.

The application was dismissed.

The appellant appealed convictions for impaired care and control and having a blood alcohol level over 80 mg, arguing the trial judge erred in dismissing a s. 11(b) Charter motion and misapplied the law on care and control following the Supreme Court’s decision in R. v. Boudreault.

The Superior Court held that although the trial judge mischaracterized part of the delay as entirely neutral, the total Crown and institutional delay remained within the permissible range and did not violate the right to be tried within a reasonable time.

On the merits, the court found no error in the trial judge’s conclusion that the accused failed to rebut the statutory presumption of care and control and that the circumstances established a realistic risk of danger.

The accused was extremely intoxicated, seated in the driver’s seat of a running vehicle parked at a busy downtown intersection, and his evidence regarding an alternate plan not to drive was rejected as not credible.

The findings were consistent with the principles in Boudreault concerning realistic risk of danger.