Danielle Robitaille

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 voyeurism under section 162(1)(a) of the Criminal Code for allegedly recording guests in an Airbnb unit using a hidden camera in a clock radio.

The defence brought a Charter application challenging the police conduct.

The court found that police breached the accused's section 8 Charter rights by entering the apartment without a warrant, seizing the clock-camera without lawful authority, and searching the device without a warrant.

Although the subsequent search warrant was found to be valid, the court excluded all evidence obtained through the Charter breaches under section 24(2), finding that admission would bring the administration of justice into disrepute due to the cumulative pattern of police misconduct and the serious impact on the accused's privacy rights in his dwelling.

The accused, a Traditional Chinese Medicine practitioner, was charged with three counts of sexual assault against three former patients.

The Crown alleged the accused touched the complainants in a sexual manner under the guise of 'energy work' and medical treatment.

The court dismissed the Crown's similar fact application, finding the evidence across counts was either not probative of the sexual nature of the touching or too dissimilar.

The court acquitted the accused on all counts, finding the testimony of one complainant unreliable and harbouring a reasonable doubt as to whether the touching of the other two complainants was of a sexual nature rather than for a clinical purpose.

The offender pleaded guilty to sexual interference against a child victim between 2008 and 2011, when the victim was eight to ten years old.

The offender was involved in an extra-marital affair with the victim's mother, who facilitated the abuse.

The court imposed a sentence of two years less-a-day in the reformatory followed by two years' probation, rejecting the Crown's submission for four years in the penitentiary.

The court found that while the offence was serious and caused significant harm, the offender was not a predator and did not systematically groom the victim.

Mitigating factors included the offender's guilty plea, lack of criminal record, remorse, low risk of reoffending, and excellent prospects for rehabilitation.

The accused, an off-duty police officer, was charged with sexual assault after allegedly brushing his fingers against the complainant's inner thigh in a crowded beer tent.

The Crown relied on circumstantial evidence, as no one witnessed the touching.

The court found that while the touching occurred by the accused's hand, there was a reasonable doubt as to whether it was deliberate or accidental.

Evidence of the accused's significant intoxication, unsteady gait, and uncoordinated movements supported a reasonable inference that the brief touching was accidental.

The accused was found not guilty.

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 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.

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 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 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.

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.

The accused was charged with sexual assault following an incident on July 18, 2015.

The complainant attended a bar, consumed significant alcohol, and has no memory of events after approximately 2:00 a.m.

Surveillance video evidence established that the complainant became progressively more intoxicated throughout the night.

The Crown argued that the complainant lacked capacity to consent due to extreme intoxication.

The defence argued that the complainant's assumption about her lack of consent was unreliable and that the evidence did not establish incapacity beyond a reasonable doubt.

The trial judge found that while the complainant was severely intoxicated, the evidence established she lacked the cognitive capacity to consent to sexual activity.

The accused was convicted of sexual assault.

Srinivasan Venkata Gadam was found guilty of eight counts of sexual assault against A.D. between April and August 2013, exploiting a position of trust within an employment/educational relationship.

The assaults involved threats of harm to the victim and her family, and forced vaginal intercourse.

The court considered aggravating factors including the multiple assaults, abuse of trust, and significant psychological trauma to the victim, as well as mitigating factors such as the defendant's lack of criminal record, good character, and the likely deportation consequences.

The court imposed a sentence of three years' incarceration, along with a 10-year firearm prohibition, a communication ban with the victim and her family, a DNA order, and a 20-year SOIRA order.

The accused was charged with five sexual assault offences involving three separate complainants, with allegations spanning from 2002 to 2003.

The trial proceeded on the basis of the complainants' evidence alone, with no corroborating evidence.

The court found that each complainant engaged in significant inconsistencies between their media interviews, police statements, and trial testimony.

Each complainant also deliberately withheld material information from police and Crown counsel, including post-assault contact with the accused that contradicted their claims of trauma and fear.

The court concluded that the complainants' credibility and reliability were severely compromised by their deceptive conduct, late disclosures, and contradictory evidence.

The court found that the evidence failed to meet the standard of proof beyond a reasonable doubt and acquitted the accused on all charges.

The appellant appealed his convictions for firearm offences and his sentence, arguing that the trial judge erred in dismissing his Charter application to exclude a loaded handgun found during a warrantless search incident to arrest.

The Court of Appeal upheld the trial judge's finding that the police had reasonable and probable grounds to arrest the appellant based on corroborated information from multiple confidential informants.

The court also agreed with the trial judge's s. 24(2) Charter analysis admitting the evidence.

The sentence appeal was allowed on consent solely to increase the appellant's pre-trial custody credit to a 1.5 ratio in accordance with R. v. Summers, but was otherwise dismissed.

The appellant mother appealed a custody and access order that granted the respondent father generous access to their children, arguing that the father had attempted to kill her during a vacation in Jamaica.

The trial judge had found the mother's allegations not credible, relying heavily on hearsay evidence from a blood expert who testified at the father's Jamaican criminal trial.

The Court of Appeal allowed the appeal, finding that the trial judge erred in admitting the hearsay evidence without threshold reliability, demonstrated a reasonable apprehension of bias through uneven scrutiny of the evidence, and failed to properly assess the best interests of the children, particularly regarding domestic violence.

A new hearing on custody and access was ordered.

The accused brought a Charter application under s. 8 and s. 24(2) to exclude all evidence obtained from two search warrants executed on May 7, 2014.

The accused was charged with uttering threats to cause death, possession of a weapon for a purpose dangerous to the public peace, and possession of prohibited weapons.

The court found that police officers conducting the search exceeded the scope of the warrant by searching in containers too small to hold a shotgun while looking for gun parts, thereby violating the accused's s. 8 rights.

The court also found that the officers improperly seized cell phones and medical information without reasonable grounds, and that misleading reports were filed with the justice.

Applying the Grant analysis, the court excluded all evidence obtained from the searches due to the serious and deliberate nature of the Charter breaches and the importance of maintaining judicial oversight through accurate reporting.

The appellant sought leave to appeal from the dismissal of a summary conviction appeal after a sexual assault conviction, relying on fresh expert evidence that he was in a parasomnic state and should be found not criminally responsible on account of mental disorder.

The court applied the fresh evidence framework under s. 683(1) of the Criminal Code and held that, although the proposed defence was raised only after trial and first appeal, the evidence was legally admissible, sufficiently cogent, and not barred by any tactical failure at trial.

Competing expert opinions created a live evidentiary issue that a reasonable trier of fact could resolve in favour of the appellant on a balance of probabilities.

The conviction was quashed and a new trial ordered.

The new trial was limited to determining whether the appellant was NCR-MD or guilty.

The appellant was convicted of possession of cocaine for the purpose of trafficking and breach of recognizance after police, acting on a confidential informant's tip, stopped a taxi he was in and eventually found crack cocaine in his backpack.

On appeal, the appellant argued his Charter rights under ss. 8 and 9 were breached during the traffic stop, pat-down search, and the search of his backpack at the police station.

The Court of Appeal dismissed the appeal, finding the traffic stop was a lawful investigative detention, the pat-down was a valid safety search, and the backpack search was a lawful search incident to arrest because police had reasonable and probable grounds to arrest for drug offences prior to the search.

The appellant was convicted of sexual assault.

The complainant had no memory of the events, and the trial judge inferred she was asleep and incapable of consenting.

On appeal, the appellant argued the trial judge failed to consider the alternate inference that the complainant was awake but in an unexplained blackout state.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge's reasons were insufficient because they failed to address and exclude this rational exculpatory inference.