Danielle Robitaille

The appellants were convicted of first-degree murder based primarily on the testimony of a co-operating witness who was present during the shooting.

On appeal, the Court of Appeal found that the trial judge made three cumulative errors that rendered the trial unfair: providing an inadequate answer to a jury question about the absence of corroborative evidence, failing to correct improper statements made by the Crown during closing submissions, and improperly excluding a hearsay statement made by the key witness to his lawyer.

The Court ordered new trials for two of the appellants.

For the third appellant, the Court found the verdict unreasonable due to deeply flawed stranger identification evidence and entered an acquittal.

The appellant sought leave to appeal a summary conviction.

The Court of Appeal for Ontario considered an identified error by the summary conviction appeal court judge regarding consent versus capacity to consent.

However, the court found this error inconsequential given the trial judge's thorough analysis of the evidence.

Leave to appeal was refused.

The Crown appealed an acquittal for voyeurism.

The trial and summary conviction appeal judges excluded evidence (a hidden camera) found in an Airbnb apartment, ruling that the apartment owner (accused) had a reasonable expectation of privacy, and police actions violated his Charter rights.

The Court of Appeal found that the accused, as the apartment owner, did not have a reasonable expectation of privacy in the apartment while it was rented to the complainant.

The complainant was entitled to invite police to investigate a crime committed against him in the apartment.

The hidden camera was properly seized under the Criminal Code.

The Court allowed the appeal, set aside the acquittal, admitted the evidence, and ordered a new trial.

The applicant, charged with making an explosive substance, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 11(b) right to be tried within a reasonable time.

The total delay was 33 months and 22 days, exceeding the 30-month presumptive ceiling for the Superior Court.

After deducting defence-caused delay, the net delay remained above the ceiling.

However, the court found that the Covid-19 pandemic constituted an exceptional circumstance that justified the delay, as it caused a seven-month suspension of court operations.

The application for a stay of proceedings was dismissed.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The accused, T.K., charged with sexual interference and sexual assault, brought an application under section 278.4 of the Criminal Code seeking production of the complainant's and witnesses' electronic communications and photos/videos from a specific period.

The defence argued these records were relevant to the accused's belief regarding the complainant's age and consent.

The Crown and witnesses opposed, citing privacy and arguing the records were not necessary for full answer and defence.

The court, applying section 278.5(2) factors, found potential relevance and ordered the records to be produced for judicial review to determine if they are necessary for full answer and defence, balancing privacy interests against the accused's right to defence.

The applicant, F.N., sought bail after being charged with first-degree murder and attempted murder following the poisoning of two young children with sodium nitrite, resulting in one fatality.

The court considered the three grounds for detention under the Criminal Code, with particular focus on the tertiary ground, which assesses whether detention is necessary to maintain confidence in the administration of justice.

Despite the applicant presenting strong sureties and a reasonable release plan, the court found the Crown's circumstantial case to be formidable, given the applicant's access to the chemical and familiarity with the victims' household.

The gravity of the offence, involving the deliberate poisoning of defenceless children, was deemed extremely high.

The application for bail was dismissed, as the court concluded that a reasonable, informed member of the public would lose confidence in the administration of justice if the applicant were released under these circumstances.

The appellant, Grant Litt, appealed his conviction for breaking and entering, touching a person under 16 for a sexual purpose, and attempting to choke a person to commit sexual assault, stemming from a home invasion.

The sole issue at trial was identity.

The appeal focused on the trial judge's assessment of evidence, particularly expert evidence on a boot print, and the dismissal of a Charter application to exclude evidence.

The appellant also sought to introduce fresh evidence: a revised expert opinion on the boot print, downgrading its association with the appellant's boot.

The Court of Appeal admitted the fresh evidence, finding it met the cogency and due diligence criteria, as the trial judge had heavily relied on the original expert opinion and failed to sufficiently scrutinize other circumstantial evidence.

The appeal was allowed, and a new trial was ordered.

The appellant, convicted of six counts related to handgun possession, appealed his 38-month sentence.

He argued the sentencing judge erred by imposing a sentence greater than the Crown's proposal without notice and by refusing sufficient credit for restrictive house arrest (Downes credit).

The Court of Appeal found the sentencing judge misapprehended the Crown's position and committed an error in principle by exceeding the Crown's proposed sentence without allowing further submissions.

The appeal was allowed, and the sentence was reduced to 36 months, incorporating pre-sentence custody and Downes credit.

The defendant, Patrick Morgan, was found guilty of sexual assault involving unprotected intercourse with a profoundly intoxicated victim (K.L.) whom he had initially tried to help.

The court considered the seriousness of the offence, the breach of trust, the mens rea of recklessness, and significant mitigating factors including the defendant's youth, lack of criminal record, remorse, and personal hardships.

The Crown sought 12-18 months institutional incarceration, while the defence argued for a conditional discharge.

The court found that a conditional discharge was contrary to public interest due to the need for denunciation and general deterrence, but also that traditional incarceration was not fully appropriate given the unique circumstances and the defendant's strong rehabilitative prospects.

A conditional sentence of 16 months was imposed, to be served in the community with electronic monitoring, followed by 18 months probation.

The appellant, Marcel Seip, appealed his conviction and sentence for multiple offences, including aggravated assault, stemming from a home invasion and kidnapping.

The primary ground of appeal was that the trial judge erred in convicting him of aggravated assault after acquitting him of discharging a firearm with intent to wound, arguing that the finding of a potentially accidental shooting precluded the necessary intent for aggravated assault.

The Court of Appeal dismissed the appeal, affirming that the mens rea for aggravated assault requires only objective foreseeability of bodily harm, not specific intent to wound.

The court found no error in the trial judge's application of this principle or in her credibility findings, concluding that the appellant was a party to the aggravated assault as the mastermind of the home invasion who knew his accomplice had a gun.

The Crown brought an application before the Ontario Court of Justice seeking an order to compel two lawyers to disclose confidential and/or privileged information related to a deceased complainant, for use in a criminal prosecution under the Youth Criminal Justice Act.

The lawyers had refused to provide statements without a court order, citing the Law Society of Ontario's Rules of Professional Conduct.

The court dismissed the Crown's application, holding that the Ontario Court of Justice lacked the express or implied jurisdiction to grant such an order, which was deemed to be in the nature of declaratory relief.

The court emphasized that its jurisdiction is limited to the criminal proceeding itself and does not extend to pre-trial investigative orders concerning non-parties, a function reserved for the Superior Court.

The court addressed a joint request from the Crown and defence for a ruling on the authority to conduct a criminal trial virtually via Zoom, allowing the accused to participate remotely.

The court found it had jurisdiction under s. 650(2)(b) of the Criminal Code, in conjunction with ss. 715.22-715.24, to permit the accused's absence from the physical courtroom under proper conditions, especially given the accused was represented by counsel and had provided a clear waiver.

The decision distinguished conflicting lower court jurisprudence regarding virtual appearances for self-represented versus represented accused and for pleas versus trials.

The appellant, Gordon Hartling, appealed his conviction for aggravated assault, assault, resisting arrest, and two counts of breach of probation, and his sentence.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of forensic evidence, proper admission of spontaneous utterances, and no ineffective assistance of counsel.

However, the court stayed one breach of probation charge due to the Kienapple principle (same conduct grounding both charges) and allowed the sentence appeal in part, reducing the total sentence by five months.

This reduction was a remedy for an unreasonable 14-month post-verdict delay in sentencing, primarily caused by institutional resource issues in obtaining a Gladue report, which the court found not to be an exceptional circumstance.

The accused was charged with sexual assault and related allegations in June 2017, with trial scheduled for March 2019, resulting in a gross delay of 21.5 months.

The accused brought a motion for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging the right to be tried within a reasonable time had been violated.

After deducting 1.5 months of defence delay, the net delay was 19.5 months, exceeding the presumptive ceiling of 18 months established in R. v. Jordan.

The Crown failed to establish exceptional circumstances to rebut the presumption of unreasonableness.

The court found that systemic disclosure failures, particularly the late disclosure of a key witness's statement on the morning of trial, could not be justified as exceptional circumstances.

The charges were stayed.

The appellant sought leave to appeal from a summary conviction appeal judge's decision upholding a guilty plea conviction and refusing to admit new evidence to set aside the plea.

The Court of Appeal found that the summary conviction appeal judge erred in law by applying the Palmer test when rejecting the affidavit in the application to set aside the guilty plea.

Leave to appeal was granted.

However, upon examination of the record, including the detailed plea inquiry conducted by the original trial judge, the court found that the appellant fully understood and agreed to the plea and the underlying facts.

The appellant's claim of misunderstanding regarding a mandatory weapons prohibition was rejected as the record showed the trial judge and appellant's counsel had made clear that the prohibition would be mandatory.

The appeal was dismissed.

The Crown brought a motion to strike affidavits filed by the appellant in support of a fresh evidence application on appeal.

The motion was dismissed.

The Crown raised concerns that the fresh evidence materials were prepared by a lawyer found to be in a conflict of interest and sought to put the appellant on notice that it would challenge the admissibility or weight of evidence tainted by that conflict.

The court held that the appellant was now on notice of the Crown's position and that the Crown could raise these concerns before the appeal panel.

An appeal date was set for December 10, 2018, with provisions for the Crown to request an adjournment if necessary.

The appellant sought leave to appeal from the dismissal of his appeal from his summary conviction for criminal harassment.

The Court of Appeal applied the stringent test for leave to appeal, requiring either a clear error of law or an issue of public importance.

The court found that the appellant failed to meet this test, as he challenged factual findings and credibility determinations made by the trial judge rather than identifying errors in the appellate judge's decision.

The court upheld the trial judge's findings that the complainant's evidence regarding the poisoning of her cat was not relied upon, that the trial judge properly assessed the complainant's credibility, and that the appellant's conduct constituted criminal harassment.

The appellant sought leave to appeal from the summary conviction appeal judge's dismissal of his appeal from conviction under s. 445(1) of the Criminal Code for wilfully killing a dog.

The Court of Appeal found no error in the trial judge's finding of mens rea relating to recklessness.

The trial judge had found that the appellant threw the dog six feet onto a pile of debris with protruding nails, knowing that landing there was likely to cause the dog's death.

The motion for leave to appeal was dismissed as the test for granting leave to appeal had not been met.

Following a jury conviction for sexual assault, the court determined the proportionate sentence for Mr. Diaz.

The Crown sought 3.5 years imprisonment, while the defence sought 18 months.

The assault involved non-consensual anal intercourse after initial consensual activity, with the victim repeatedly telling the offender to stop.

Aggravating factors included the victim's relative naiveté, the offender's demeaning behaviour in continuing the assault despite requests to stop, the significant psychological impact on the victim, and the offender's failure to pay the victim as agreed.

Mitigating factors included the offender's exemplary education and employment history, strong community support, lack of criminal record, and the certainty of deportation.

The court found the appropriate sentence range to be an upper reformatory sentence to three years' incarceration, distinguishing the facts from more egregious cases cited by the Crown and less serious cases cited by the defence.

The court imposed a sentence of twenty months imprisonment, along with ancillary orders.