Dan Stein

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.

The appellant, P.W., appealed his convictions for sexual interference and invitation to sexual touching, and his global sentence.

The appellant argued that the trial judge misapprehended critical evidence and erred in applying the burden of proof.

The Court of Appeal found no material misapprehension of evidence and upheld the trial judge's credibility findings, confirming the application of the R. v. W.D. test.

While the appeal against conviction was dismissed, the lifetime Sex Offender Information Registration Act (SOIRA) order was reduced to 20 years by consent of the Crown, pursuant to s. 24(1) of the Charter.

The appellant appealed his convictions for discharging a firearm and unauthorized possession of a loaded prohibited firearm in a motor vehicle, as well as his sentence.

He argued the trial judge erred in finding him a party to the shooting based on circumstantial evidence, including his presence in the vehicle and flight from police.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded from the totality of the evidence, including the appellant's DNA on the firearm and his coordinated actions with the co-accused, that he acted in concert to plan and carry out the shooting.

The sentence appeal was consequently dismissed.

The appellant appealed his convictions and sentence, which were based on communications intercepted under judicial authorization.

At trial, a Garofoli motion challenging the authorization's validity due to redacted affidavits and inadequate summaries was dismissed, leading to conviction.

Subsequently, in two other prosecutions arising from the same investigation, the Crown conceded that further disclosure was necessary for the accused to make full answer and defence, which they could not provide without compromising confidential informants, resulting in stays of proceedings under s. 24(1) of the Charter.

The Court of Appeal admitted evidence from these subsequent proceedings, finding it in the interest of justice.

Given the Crown's concessions in related cases, the court determined that fairness required the appellant's prosecution also be stayed.

The appellant, D.M., appealed his conviction and sentence for making child pornography and making arrangements to commit sexual offences against children.

The conviction appeal, based on the voluntariness and unequivocal nature of his guilty plea, was dismissed, with the court finding the trial judge had properly addressed any equivocation.

The sentence appeal was allowed.

The Court of Appeal found that the sentencing judge erred by failing to consider significant mitigating factors, including the appellant's early guilty plea and difficult background, and by not addressing Gladue principles due to the issue of Indigeneity not being raised at trial.

Despite the lack of a formal Gladue report on appeal, the court considered the appellant's progress in embracing his Indigenous identity in prison.

The original three-year consecutive sentence was reduced to 30 months.

The appellant, Brent William Diehl, appealed his conviction for sexual assault with a weapon, arguing that the trial judge relied on myths and stereotypes in assessing credibility and applied uneven scrutiny to the evidence.

The Court of Appeal for Ontario dismissed the appeal, finding no error in the trial judge's analysis, which correctly applied the principles of credibility assessment and reasonable doubt, and did not engage in stereotypical reasoning or uneven scrutiny.

The trial judge's assessment of the complainant's evidence as credible and reliable, and the appellant's account as illogical, was upheld.

The appellant, Krzysztof Harasiuk, appealed a 24-month sentence imposed after he pleaded guilty to 10 offences, arguing the sentencing judge erred in rejecting a joint submission for "time served." The Court of Appeal for Ontario allowed the appeal, reducing the sentence to "time served." The Court found that the sentencing judge improperly applied a fitness test rather than the stringent "administration of justice into disrepute" standard required for departing from joint submissions.

It emphasized the importance of joint submissions for judicial efficiency and certainty, concluding that the proposed sentence, which amounted to 14 months with credit for pre-sentence custody and house arrest, would not have brought the administration of justice into disrepute, especially considering the resource savings from the omnibus plea.

The appellant appealed his convictions for break and enter with intent, disguise with intent, and forcible confinement.

He argued the verdict was unreasonable because his DNA on a marijuana pipe could have been left at a party prior to the incident, and the complainant described the intruder as having blue-grey eyes while his are brown.

The Court of Appeal dismissed the appeal, finding the trial judge made no error in concluding the male DNA on the pipe belonged to the intruder and that the eye colour discrepancy did not rule out the appellant.

The appellant, Allan Dale Sutherland, appealed his sentence for operating a motor vehicle while disqualified and prohibited, challenging both the 18-month custodial sentence and the lifetime driving prohibitions imposed by the sentencing judge.

The Court of Appeal upheld the 18-month sentence, finding it fit given the appellant's extensive record and the need for specific deterrence.

However, the court found that the sentencing judge erred in imposing lifetime driving prohibitions, as legislative amendments to the Criminal Code (specifically the repeal of s. 259(4) and replacement by s. 320.18, with maximums set by s. 320.24(5)) made such prohibitions discretionary with specific maximum periods.

The court vacated the lifetime prohibition on the first count and varied the prohibition on the second count to 11.5 years, reflecting the maximum permissible period plus the sentence duration.

The appellant, Antonio Duscio, appealed a 16-month imprisonment sentence for contempt of court, which was imposed shortly after a previous 12-month contempt sentence.

The Court of Appeal found no error in the sentencing judge's analysis of relevant legal principles or extensive factual findings.

The court noted that the appellant could secure early release by purging his contempt or providing a complete accounting of dissipated funds and assets.

The appeal was dismissed.

The appellant appealed the length of his conditional sentence order (CSO) after it was partially collapsed due to a breach involving contact with his former intimate partner.

He sought to reduce the CSO length so that time spent detained could be credited as pre-sentence custody on a new, related criminal harassment charge.

The Court of Appeal dismissed the appeal, finding the original CSO length appropriate and holding that any credit for pre-sentence custody must be determined by the sentencing judge on the new charge.

The appellant appealed his convictions for three counts of attempt murder, aggravated assault, uttering threats, and failure to comply with probation, as well as his 13-year sentence.

The appeal raised issues concerning the trial judge's assessment of intent (capacity vs. actual intent), the admissibility of opinion evidence regarding credibility and demeanour, the alleged misapprehension of evidence concerning the appellant's intoxication and state of mind, and the use of the appellant's out-of-court statements.

The Court of Appeal dismissed the appeal against both conviction and sentence, finding no reversible error in the trial judge's reasoning or findings.

The appellant, Sakia Mojadiddi, appealed her sentence for fraud over $5,000, specifically challenging the amount of the fine in lieu of forfeiture.

She argued the trial judge failed to account for payments made to victims.

The Court of Appeal dismissed the sentence appeal, affirming that the purpose of a fine in lieu of forfeiture is to deprive the offender of proceeds of crime, not restitutionary, and therefore payments made by co-accused or from commingled victim funds do not reduce the fine amount.

The appellant was convicted of procuring and advertising sexual services.

On appeal, the court found the trial judge erred in applying the actus reus for procuring by failing to consider the nature of the relationship between the accused and the complainant, as required by the interpretation of "control, direction or influence" under s. 286.3(1) of the Criminal Code.

Additionally, the trial judge erred by convicting the appellant for advertising on a theory of party liability that the Crown had disavowed, without providing the defence notice and an opportunity to respond.

The appeal was allowed, and a new trial ordered on both counts.

The appellant pleaded guilty to possession of a loaded restricted firearm and possession of a restricted firearm knowing possession is unauthorized.

He appealed his four-year sentence, arguing the sentencing judge erred in assessing an expert report regarding his post-traumatic stress disorder and in applying Gladue factors.

The Court of Appeal found the sentencing judge erred in assessing the expert's report, which was relevant to the circumstances of the offences and rehabilitation prospects.

The appeal was allowed and the sentence was reduced to three and a half years.

The appellant appealed his convictions and sentence for offences arising from a home invasion robbery.

He argued the trial judge failed to properly analyze circumstantial evidence and contradictions in the victim's testimony, and erred in principle during sentencing by confusing the roles of the assailants.

The Court of Appeal dismissed the conviction appeal, finding the verdicts reasonable and supported by the totality of the evidence.

The sentence appeal was also dismissed, as the 6.5-year sentence was fit given the appellant's prior record and the aggravating nature of home invasions, though the assault conviction was conditionally stayed under the Kienapple principle.

The appellant pled guilty to multiple offences, including robbery and break and enter, committed during a drug-fuelled rampage.

He was sentenced to four and one-half years' imprisonment and ordered to pay $15,698.34 in restitution.

On appeal, the appellant argued the sentencing judge erred by failing to consider his ability to pay.

The Court of Appeal agreed, finding the sentencing judge failed to conduct a meaningful inquiry into the appellant's ability to pay and the impact of the orders on his rehabilitation.

The appeal was allowed and the restitution orders were set aside.

The appellant appealed her conviction for sexual assault, sexual exploitation, and sexual invitation involving two foster children.

The appeal raised multiple grounds including reasonable apprehension of bias arising from the trial judge's prior involvement in the appellant's former husband's trial, improper elicitation of evidence from a key witness, failure to consider lost evidence, ineffective assistance of counsel, and alleged errors in the trial judge's reasoning.

The Court of Appeal dismissed all grounds of appeal, finding the trial was fair, counsel was competent, and the trial judge's reasons were adequate and supported by the evidence.

The appellant was convicted of unlawful confinement, sexual assault causing bodily harm, and uttering a death threat following a jury trial.

Approximately three years later, he was declared a dangerous offender and sentenced to an indeterminate period of incarceration.

His appeal was initially abandoned but subsequently reopened.

On appeal, the appellant challenged both his conviction and sentence.

The conviction appeal was dismissed as the trial Crown's closing remarks, while potentially problematic, did not cause a substantial wrong or miscarriage of justice.

However, the sentence appeal was allowed on the basis that the trial judge violated procedural fairness by denying the appellant the right to make oral submissions during the dangerous offender hearing, instead requiring written submissions only.

A new dangerous offender hearing was ordered.

The appellant appealed his convictions for break and enter and failure to comply with probation.

He argued that the trial judge erred in failing to consider his specific circumstances when assessing his credibility and intent, and that the trial judge improperly relied on his after-the-fact conduct of fleeing the daycare as evidence of guilt.

The Court of Appeal found that the trial judge was aware of the appellant's personal circumstances and made credible findings that were not subject to appellate interference.

The court also found that the trial judge properly considered the appellant's after-the-fact conduct as circumstantial evidence.

Both the conviction and sentence appeals were dismissed.