Dan Stein

Appeal from convictions for dangerous driving causing death, five counts of dangerous driving causing bodily harm, and failure to comply with a term of bail.

The appellant argued the trial judge's jury charge failed to distinguish between the actus reus and mens rea of the dangerous driving offences, risking conflation.

The Court of Appeal dismissed the appeal, holding the charge generally followed the model instruction in Watt's Manual, clearly instructed the jury on both the objective dangerousness of the driving and the marked departure standard, and when read as a whole equipped the jury to decide the case.

The jury question about the Highway Traffic Act definition of dangerous driving did not indicate confusion about the instructions.

The sentence appeal was dismissed as abandoned.

The appellant appealed her sentence of 11 months in custody followed by two years' probation for fraud over $5,000, forgery, and impersonation to gain advantage.

The appellant had fraudulently represented herself as a registered practical nurse at five care homes over 14 months, administered medication to residents, and received remuneration for work she was not qualified to perform.

The Court of Appeal upheld the sentence, finding that the sentencing judge properly considered aggravating and mitigating factors, that denunciation and deterrence were paramount given the extended period of fraudulent conduct, and that the custodial sentence was well within the appropriate range for such serious offences.

The applicant sought appointment of counsel pursuant to s. 684 of the Criminal Code to represent him on appeal of a lifetime weapons prohibition imposed following his guilty plea to possessing ammunition while subject to a s. 110 prohibition order and possessing explosive substances.

The applicant advanced two grounds of appeal: first, that the Crown failed to provide notice of the lifetime ban as an enhanced penalty prior to his guilty plea, contrary to s. 727(1); and second, that his prior s. 110 prohibition did not constitute a prior conviction sufficient to trigger the mandatory lifetime prohibition under s. 109(3).

The Crown conceded the applicant lacked financial means but opposed the application on grounds that the appeal was not legally complex.

The court granted the application, finding the issues were arguable and involved questions of mixed fact and law beyond the applicant's capacity to advance without counsel.

The appellant appealed his sentence of 42 months imprisonment (less 6 months Downes credit and 12 days presentence custody credit) imposed for possession of 450 grams of cocaine for the purposes of trafficking.

The appellant alleged the trial judge made various errors in principle rendering the sentence unfit.

The Court of Appeal found the sentence was entirely fit and the Downes credit fell within the broad range of discretion afforded to the trial judge.

Leave to appeal sentence was granted but the sentence appeal was dismissed.

This decision concerns the continued effect of a non-publication order under section 517 of the Criminal Code and section 110 of the Youth Criminal Justice Act in the context of an appeal.

The Court confirms that the publication ban remains in effect and that the full decision will only be made publicly available once the order ceases to apply.

In the meantime, the decision is available for inspection at the Registry of the Court of Appeal for Ontario.

The Court of Appeal for Ontario dismissed Jason Immel’s conviction appeal for possession of fentanyl for the purpose of trafficking and possession of proceeds of crime, finding no error in the trial judge’s reasoning or assessment of the evidence.

The court allowed the sentence appeal in part, reducing the sentence for possession of proceeds of crime to the statutory maximum of two years, concurrent with the fentanyl sentence, but otherwise upheld the global sentence.

The Court of Appeal for Ontario dismissed Dwayne Thomas’s appeal from a six-and-a-half year sentence for sexual assault and breach of trust.

The court found the trial judge was entitled to exceed the usual sentencing range due to the aggravated breach of trust and the victim’s vulnerability as an incarcerated person.

The court rejected arguments that the trial judge failed to give sufficient weight to rehabilitation, the harshness of incarceration for a former correctional officer, and post-sentencing rehabilitative efforts.

The decision affirms the priority of deterrence and denunciation in sentencing for sexual assault by persons in positions of authority.

The appellant, P.R., appealed his convictions for sexually assaulting two 15-year-old complainants.

The Court of Appeal for Ontario dismissed the appeal, finding that the trial judge did not misapprehend the appellant’s evidence regarding his sexual preferences or rely on unsupported generalizations or stereotypes.

The trial judge’s findings were grounded in the evidence, and the reasons were read in context and as a whole.

The appellant was convicted of robbery following a home invasion and sentenced to four years' imprisonment.

On appeal, he argued the trial judge erred by relying on the rejected testimony of a co-accused and failing to caution himself about unsavoury witness evidence.

He also sought to introduce fresh DNA evidence and appealed his sentence based on the parity principle.

The Court of Appeal dismissed the appeals and the fresh evidence motion, finding no error in the trial judge's assessment of the circumstantial evidence or the differing sentences imposed on the co-accused based on their respective moral culpability.

The appellant appealed his sentence of seven years and seven months for firearms and drug offences, arguing the trial judge erred by treating him as a recidivist based on his youth record and by failing to grant a further sentence reduction for harsh pre-trial custody conditions.

The Court of Appeal dismissed the appeal, finding the trial judge properly weighed the appellant's continuous criminal record, including a youth conviction for first-degree murder using a firearm, to assess moral culpability.

The Court also held that the trial judge appropriately factored the harsh pre-trial conditions into the global sentence without requiring a mathematical deduction.

The appellant, convicted of sexual assault, sought leave to appeal his three-year custodial sentence.

The appeal raised two grounds: that the trial judge erred in relying on R. v. A.J.K. as mandating a minimum three-year sentence for penetration, and that she failed to consider relevant R. v. Friesen factors.

The Court of Appeal dismissed the appeal, finding the trial judge did not apply a minimum sentence but rather a fit range, and appropriately considered all relevant sentencing factors, including the seriousness of digital penetration.

T.J.W. appealed his sentence of five years for two counts of sexual interference, arguing the trial judge erred by failing to identify his advanced age (76 at sentencing) as a mitigating factor and by giving insufficient weight to other mitigating factors.

The Court of Appeal dismissed the appeal, finding the trial judge was aware of the appellant's age and considered it, and that defence counsel did not present evidence of health conditions or specific impacts of incarceration due to age.

The court concluded that the trial judge gave due weight to all relevant factors, including family support and community contributions, and that the sentence was within the appropriate range, emphasizing denunciation and deterrence.

The appellant, B.B., appealed his conviction for multiple counts of assault and sexual assault with a weapon, arguing that the trial judge erred by failing to provide a general propensity instruction to the jury regarding uncharged conduct and cross-count reasoning.

The Court of Appeal for Ontario dismissed the appeal, holding that while such an instruction is generally required for morally outrageous behaviour, in this specific case, the defence had strategically utilized the bad character evidence to challenge the complainant's credibility.

The court reasoned that providing a limiting instruction would have risked prejudicing the appellant by needlessly highlighting impermissible reasoning.

The court further noted that the uncharged conduct was less severe than the charged offences and was integral to the narrative of the relationship, diminishing the risk of improper jury reasoning.

The appellant, J.B., appealed his sexual assault conviction, arguing the trial judge erred by not putting the defence of honest but mistaken belief in consent to the jury, failing to correct improper Crown comments, and imposing an excessive sentence.

The Court of Appeal found there was an air of reality to the defence of honest but mistaken belief in consent, which should have been put to the jury.

Consequently, the appeal was allowed, and a new trial was ordered.

The appellant, Baba Ouedraogo, appealed his convictions for sexual assault, sexual interference, and choking, arguing the trial judge failed to adequately scrutinize certain evidence, including the complainant's injuries, toxicology report, video evidence, and identity evidence.

The Court of Appeal found that the appellant's arguments primarily sought to re-weigh evidence already considered by the trial judge.

The court noted that the physical evidence strongly contradicted the appellant's account and confirmed key aspects of the complainant's testimony, despite the trial judge having some concerns about her credibility in other areas.

The conviction appeal was dismissed, with the sentence appeal proceeding separately.

The appellant, Baba Ouedraogo, appealed his convictions for sexual assault with a weapon, sexual assault, robbery, disguise with intent, and failure to comply with a release order.

The Court of Appeal for Ontario found that the trial judge's inferences of guilt, drawn from overwhelming circumstantial evidence, were the only reasonable inferences available.

The court saw no basis to interfere with the convictions and dismissed the appeal.

This is an appeal from a conviction for choking in committing sexual assault and sexual assault.

The appellant challenged the trial judge's findings on the complainant's capacity to consent due to intoxication, the assessment of the appellant's credibility and mens rea, and the sufficiency of reasons for the choking conviction.

The Court of Appeal for Ontario dismissed all grounds of appeal, affirming the trial judge's conclusions that the complainant lacked capacity to consent, the appellant's testimony was not credible, and sufficient reasons were provided for the choking conviction.

The appellant appealed his conviction for drug trafficking and possession of property obtained by crime, arguing the trial judge erred in the s. 24(2) Charter analysis by admitting evidence obtained from warrants based on a redacted Information to Obtain (ITO).

The trial judge found a s. 8 Charter breach due to insufficient grounds in the redacted ITO but admitted the evidence under s. 24(2) of the Charter.

The Court of Appeal upheld the trial judge's s. 24(2) analysis, finding no error in the application of the Grant criteria.

The court clarified that the Crown's litigation choice to proceed under Garofoli step five (redacted information), rather than step six (unredacted information), does not automatically imply bad faith for the purpose of the s. 24(2) analysis, especially when the Crown took active steps to provide a summary and the defence consented to its use.

The appellant appealed convictions for offences related to a shooting incident where shots were fired at a parked truck.

The case against the appellant was circumstantial, with key issues at trial being perpetrator identification, timing of the shots, and the continuity of firearm and shell-casing exhibits.

The appellant argued the trial judge misapprehended evidence regarding the continuity of shell casings.

The Court of Appeal found that the trial judge was clearly aware of and addressed the continuity arguments, and was not required to refer to every aspect of the evidence in his reasons.

The court also rejected the argument that the verdict was unreasonable, as it was dependent on the continuity argument which was dismissed.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The appellant, David Menezes, appealed his sentence for criminal harassment, arguing he was improperly denied pre-sentence custody (PSC) credit.

He had been on a conditional sentence order (CSO) for assault, breached it, and was arrested for the breach and criminal harassment.

He spent six months in custody before his CSO breach hearing, where he received a one-month custodial term.

He remained in custody until sentencing for criminal harassment.

The trial judge denied PSC credit for the initial six-month period, reasoning the CSO was running, but granted four months' credit for harsh conditions.

The Court of Appeal found that the CSO was indeed running during the initial six-month detention period under s. 742.6(12) of the Criminal Code, as he was presumptively detained under s. 515(6).

However, the CSO was suspended during the subsequent two-month period (after the breach disposition until sentencing for harassment) because he remained in custody awaiting sentencing for the new charge.

The Court allowed the appeal in part, granting an additional three months of PSC credit for this two-month period, while upholding the denial of credit for the initial six months.