Darren J. Hogan

The Crown appealed a summary conviction acquittal for sexual assault.

The trial judge found the accused not guilty after concluding that the Crown had failed to prove beyond a reasonable doubt that the complainant did not consent to the physical contact.

The Crown argued the trial judge erred by partitioning the complainant's evidence, treating her as a discreditable witness requiring corroboration, and failing to consider the accused's evidence on consent.

The appellate court dismissed the Crown's appeal, finding no legal error in the trial judge's assessment of credibility, his consideration of the absence of corroborative evidence, or his ultimate verdict.

The Crown appealed a summary conviction acquittal in an impaired driving case.

The accused was charged with operating a motor vehicle while impaired by drugs following a serious motor vehicle collision.

The trial judge excluded evidence of the accused's urine sample analysis and observations by police officers, finding insufficient reasonable and probable grounds for the arrest and demand for a drug recognition expert evaluation.

The appellate court allowed the Crown's appeal and ordered a new trial, finding that the arresting officer possessed reasonable and probable grounds based on the totality of circumstances, including the serious nature of the collision, observations of impairment, a 911 call about an impaired driver, and the negative breath sample result.

The court also found the trial judge breached natural justice by acquitting the accused without hearing submissions from the Crown on the remaining admissible evidence.

The Crown appealed a stay of proceedings granted by the Ontario Court of Justice on the basis of delay under section 11(b) of the Charter.

The Superior Court found that the total delay was well within the Jordan ceiling and that the defence had not taken meaningful steps to expedite the proceedings.

The trial judge below erred in focusing on police delay in video disclosure and in treating the absence of a fully unredacted video as a bar to progress.

The appeal was allowed, the stay was set aside, and the matter was remanded for trial scheduling.

This is an appeal by the Crown from a decision of the Ontario Court of Justice staying proceedings for breach of the respondent’s rights under s. 11(b) of the Charter.

The Superior Court finds that the delay was caused by an exceptional circumstance—an erroneous ruling by the initial trial judge on a third-party records application, which led to a successful certiorari application by the affected third party.

The Court holds that the Crown took all reasonable steps to avoid or mitigate the delay and that the lower court erred in attributing the delay to the Crown.

The appeal is granted, the stay is vacated, and the matter is remitted for trial.

The appellant appealed his conviction for criminal harassment and his nine-month sentence.

The conviction appeal raised issues regarding the trial judge's findings on "lawful authority" for the appellant's actions and the objective reasonableness of the complainant's fear.

The sentence appeal argued that the sentence was disproportionate and that the trial judge erred by relying on inapt comparator cases and failing to adhere to the "step-up" principle.

The court dismissed both the conviction and sentence appeals, finding no reversible error in the trial judge's conclusions on lawful authority or the objective reasonableness of the complainant's fear, and no error in principle regarding the sentence, which was deemed fit given the appellant's criminal record and lack of remorse.

This is a detention review application brought by H.K., seeking release from custody pending trial.

This was the third bail hearing for the applicant, and the second review.

The applicant argued for release based on alleged material changes in circumstances, including a new proposal for electronic monitoring, the duration of his custody (nearly 16 months), delays in his preliminary hearing due to the COVID-19 pandemic, and the rising number of COVID-19 cases in Ontario and at his detention facility.

The court dismissed the application, finding that none of the presented factors constituted a material change in circumstances sufficient to grant jurisdiction for a de novo review of the previous detention order.

The court emphasized that the electronic monitoring proposal failed the "new evidence" criteria for due diligence, the passage of time was not significant enough, the preliminary hearing delay was a relitigated issue with a new date now set, and the general rise in COVID-19 cases did not demonstrate a specific material effect on the applicant.

The detention was upheld on secondary and tertiary grounds due to an inadequate release plan and ongoing public safety concerns.

The appellant appealed his conviction for impaired care and control of a motor vehicle and refusing to provide a breath sample.

The appeal raised four issues: whether the trial judge misdirected herself on care and control, whether the trial judge improperly used the appellant's right to silence against him, whether the trial judge erred in finding the breath sample refusal clear and unequivocal, and whether trial counsel was ineffective.

The court dismissed the appeal, finding no misdirection on care and control, that the trial judge properly used prior inconsistent statements to assess credibility without infringing the right to silence, that the breath demand was clear, and that trial counsel's performance was not ineffective, nor did it cause a miscarriage of justice given the overwhelming evidence.

The Crown applied under s. 486.5 of the Criminal Code for publication bans to protect the identities of three witnesses (J.D., M.S., B.S.) in a murder re-trial.

The Crown argued that non-publication was necessary to prevent harm to the witnesses' reputations and rehabilitation efforts, and to encourage participation in the justice system.

The respondents opposed, asserting the paramountcy of the open court principle and the lack of an adequate evidentiary record.

The court dismissed the application, holding that the Crown's unsworn statements were insufficient to displace the presumption of openness, and that purely personal interests like emotional distress or embarrassment do not satisfy the necessity test for a publication ban.

The appellant, Xueming Yang, appealed his conviction for 'over 80' and failing to stop at a red light, alleging ineffective assistance of trial counsel.

The appellant claimed counsel failed to interview a key witness and file a Charter application regarding arbitrary detention.

The court dismissed the appeal, finding no miscarriage of justice.

It concluded that even if a Charter application had been pursued, there was no reasonable possibility of acquittal because the police officer had reasonable grounds for the traffic stop, and the appellant's credibility was significantly undermined by his immigration motivations for the appeal and inconsistent testimony.

The appellant, Brenda Zegil, appealed a sentence for failing to comply with a Sex Offender Information Registration Act (SOIRA) order.

The sole issue was whether she should receive credit for 63 days spent in custody in the United States between August 29 and November 1, 2016.

She had been held in "immigration detention" after serving sentences for U.S. charges, before being turned over to Canadian police.

The court considered whether this U.S. custody was "as a result of" the Canadian offences under s. 719(3) of the Criminal Code.

The court found that the appellant failed to establish that the Canadian charges played a role in her U.S. immigration detention.

The appeal was dismissed, and the original sentence stood.

The appellant appealed his convictions for assault and possession of a weapon dangerous to the public peace, arguing that the trial judge failed to provide adequate reasons and improperly applied the self-defence provisions of the Criminal Code.

The Superior Court dismissed the appeal, finding that the trial judge's reasons, though brief, were sufficient when read in the overall context of the case and submissions, allowing for meaningful appellate review.

The court affirmed the trial judge's conclusion that while the appellant may have subjectively believed his mother was threatened, there were no objective grounds to support that belief, thereby negating the self-defence claim.

The appellant appealed his summary conviction for breaching a bail condition that required him to stay 150 meters away from the complainant.

At trial, the judge accepted the complainant's evidence and rejected the evidence of the appellant and his wife.

On appeal, the appellant argued the trial judge erred in his findings of fact and failed to consider a conspiracy against him.

The Superior Court dismissed the appeal, holding that the trial judge's credibility findings are entitled to great deference and the evidence supported the conviction.

The applicant, Trevor Franklin, sought to restore his appeal of a simple assault conviction, which had been dismissed as abandoned due to his repeated non-attendance and failure to perfect the appeal.

The Crown opposed the application.

The court reviewed the applicant's history of non-compliance and the previous refusals to grant adjournments.

The court also considered the merits of the underlying appeal, finding the grounds unmeritorious.

The application to restore the appeal was dismissed, as the applicant failed to demonstrate the exceptional circumstances required and it was not in the interests of justice to reinstate the appeal.

The appellant, self-represented, appealed his conviction for uttering a death threat contrary to s. 264.1(1)(a) of the Criminal Code.

The grounds of appeal were the trial judge's alleged failure to provide adequate assistance to the self-represented appellant, an unreasonable verdict, and the trial judge's failure to consider the evidence of a defence witness.

The court found no merit to any of the grounds, noting the trial judge's careful assistance to the appellant, the verdict's reliance on credibility findings, and that the unreferenced defence evidence was irrelevant to the verdict.

The appeal was dismissed.

The appellant appealed a conviction for "over 80" after her vehicle was found in a snowbank.

At trial, the appellant claimed a third party was driving, a claim corroborated by a defence witness.

The trial judge disbelieved the appellant and convicted her.

On appeal, the court found that the trial judge erred by failing to assess the corroborating defence witness's evidence separately from the appellant's, thereby misapplying the principles of R. v. W.(D.).

The trial judge also erred by engaging in speculation regarding witness behaviour and by not making an explicit finding of collusion despite noting the opportunity for it.

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

The appellant appealed his convictions for impaired driving, assault with intent to resist arrest, and refusal to comply with a breath sample demand, and his sentence.

The appeal raised three grounds: alleged Charter violations concerning excessive police force (ss. 7 and 12) and the right to counsel (s. 10(b)), and an error in convicting for assault resisting arrest.

The court dismissed all grounds of appeal, upholding the trial judge's findings that the police use of force was reasonable in the circumstances, that the appellant failed to diligently assert his right to counsel, and that the elements of assault with intent to resist arrest were proven.

The court clarified the distinction between the burden of proof for Charter motions (balance of probabilities) and for criminal charges (beyond a reasonable doubt), and the limited application of the "Prosper warning" for the right to counsel.

The respondent was acquitted of impaired driving and over 80 charges after the trial judge granted a directed verdict at the close of the Crown's case.

The Crown appealed, arguing the trial judge misapprehended the Supreme Court's decision in R. v. Boudreault by requiring the Crown to prove a realistic risk of danger even when the statutory presumption of care and control under s. 258(1)(a) of the Criminal Code was not rebutted.

The Superior Court of Justice agreed, holding that the requirement to prove a realistic risk of danger only arises when the accused has rebutted the statutory presumption.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The accused pleaded guilty to possessing and making available child pornography.

The Crown sought a 36-month sentence with various ancillary orders.

The defence sought 18 months concurrent with probation.

The court imposed a 15-month sentence (15 months on the making available charge and 4 months concurrent on the possession charge) followed by three years probation.

The court balanced the paramount sentencing principles of denunciation and deterrence against mitigating factors including the accused's guilty plea, remorse, lack of prior record, good character, community support, and psychiatric evidence indicating low risk of reoffending.

Following convictions after trial for multiple counts of sexual assault and sexual interference against young children in a position of trust, the court determined the appropriate global sentence and addressed a constitutional challenge concerning pre‑sentence custody credit.

The offender argued that applying the Truth in Sentencing Act to limit enhanced credit would violate s. 11(i) of the Charter because the offences were committed before the Act came into force.

The court held that pre‑sentence custody constitutes “punishment” for the purposes of s. 11(i) and that retroactive application of the Act would increase the punishment by eliminating the then‑usual practice of granting 2:1 credit.

The relevant provisions of the Act were therefore declared of no force and effect as applied to the offender.

A global sentence of seven years’ imprisonment was imposed with credit for pre‑sentence custody at a 2:1 ratio.

The accused, a personal care attendant at a long-term care facility, was charged with sexual assault and sexual exploitation of two elderly female residents with advanced dementia.

The Crown proceeded by indictment on four counts arising from two separate incidents in December 2011.

The accused was acquitted on three counts but convicted on one count of sexual assault.

The court found that while the Crown failed to prove direct penile contact as required for the sexual exploitation charge, the conduct constituting the sexual assault—allowing himself to be undressed while caring for a naked resident with his genitals in close proximity to her face—violated the resident's sexual integrity and constituted sexual assault under the objective test established in R. v. Chase.