Darren J. Hogan

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 appellant appealed his convictions and sentence for assaulting and disarming a peace officer.

The charges arose after the appellant grabbed the barrel of an officer's machine gun during a dynamic entry execution of a search warrant.

The appellant argued the trial judge erred in applying an objective mens rea standard and provided inadequate reasons for rejecting his testimony.

The Superior Court of Justice dismissed the conviction appeal, finding the trial judge applied the correct subjective standard when reading the reasons as a whole.

The sentence appeal was also dismissed, as the 60-day conditional sentence was not demonstrably unfit given the statutory emphasis on denunciation and deterrence.

The appellant appealed her summary conviction for driving 'over 80', alleging ineffective assistance of trial counsel.

She argued that trial counsel failed to request maintenance and calibration records for the approved instrument and that his failings caused adjudicative unfairness.

The Superior Court of Justice dismissed the appeal, finding that trial counsel provided reasonable professional assistance by retaining an expert, considering defences, and holding the Crown to its burden of proof, and that no miscarriage of justice occurred.

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 Crown appealed an acquittal for sexual assault under s. 271 of the Criminal Code, alleging the trial judge misapprehended the evidence, erred in applying the law of consent, and rendered an unreasonable verdict.

The prosecution theory at trial was that the complainant was unconscious due to intoxication and therefore incapable of consenting.

The appellate judge held that the trial judge was entitled to assess the complainant’s credibility, draw common‑sense inferences about intoxication and unconsciousness without expert evidence, and conclude that the Crown had not proven lack of consent beyond a reasonable doubt.

The court also held that the Crown cannot appeal an acquittal solely on the ground that it is unreasonable absent another error of law.

The appeal was dismissed.

The Crown appealed a summary conviction acquittal on a charge of dangerous driving arising from a high-speed police stop on the Don Valley Parkway.

The trial judge had found that audio and video recordings from a police in-car camera contradicted key aspects of the arresting officer’s testimony regarding aggressive driving and road conditions, leading to concerns about the reliability of the officers’ evidence.

The trial judge concluded that the evidence did not establish a marked departure from the standard of care required for dangerous driving and that the Crown had not proven the offence beyond a reasonable doubt.

On appeal, the Crown argued that the trial judge misapprehended the evidence by comparing testimony with recordings that did not capture the entire driving sequence.

The appeal court held that the trial judge understood the limited scope of the recording and committed no palpable and overriding error in assessing credibility and reliability.

Deference to the trial judge’s factual findings required dismissal of the appeal.

Summary conviction appeals from conviction and sentence for sexual assault.

The accused argued the trial judge erred in accepting the complainant’s evidence and rejecting his testimony.

The court found the trial judge properly applied the W.(D.) credibility framework and that the guilty verdict was reasonable on the record.

However, the Crown’s sentence appeal succeeded because the trial judge erred in principle by failing to give adequate weight to denunciation and by overemphasizing rehabilitation when imposing a conditional sentence.

The conditional sentence was set aside and replaced with a custodial sentence followed by probation.

The appellant was convicted of disobeying a court order under s. 127 of the Criminal Code after violating an injunction protecting an abortion clinic.

She appealed, arguing that the injunction was unenforceable against her because she was not a named party to the original proceedings, and that she should have been charged with criminal contempt instead of a s. 127 offence.

The Superior Court of Justice dismissed the appeal, holding that the injunction expressly applied to non-parties and that her argument constituted an impermissible collateral attack.

The court further held that s. 127 of the Criminal Code is a valid mechanism for enforcing court orders against non-parties, alongside the common law power of criminal contempt.

On a summary conviction appeal from a conviction for failing to comply with a recognizance, the appellant argued the Crown had not proven he was absent from his residence other than under permitted work or school exceptions.

The court held there was evidence supporting the findings that the recognizance was in force and that the appellant was not at home during the compliance check.

However, because the Information expressly pleaded the exceptions, and the police had no knowledge of the appellant’s work or school arrangements and conducted no investigation into them, the Crown failed to negative those exceptions even on a prima facie basis.

The appeal was allowed and a new trial was ordered before a different judge.

On a summary conviction appeal from convictions for mischief under $5000 and breach of recognizance arising from a road-rage altercation, the appellant argued that the trial judge misapprehended the complainant's evidence concerning whether she had reviewed a prior written police statement.

The court held that the trial judge did not misapprehend the evidence, properly distinguished between the written statement and a later video statement, and remained alive to contradictions in the complainant's various accounts.

In any event, applying the governing test for misapprehension of evidence, any possible error was not central to the reasoning process and had no impact on the convictions.

The appeal was dismissed without calling on the Crown.

The appellant appealed a conviction for impaired driving arising from erratic driving, speeding, the odour of alcohol, and physical signs of impairment observed during a traffic stop.

He argued that the trial judge failed to analyze the in-car video, failed to consider evidence consistent with sobriety, misapplied the governing impairment test, and returned an unreasonable verdict.

The appeal court held that the trial judge was not required to review every piece of evidence in detail, was entitled to rely on the officer's evidence, and correctly applied the requirement that any degree of impairment of the ability to drive is sufficient.

The findings of fact were supported by the record and attracted appellate deference.

The summary conviction appeal was dismissed.

On a summary conviction appeal from a conviction for operating a motor vehicle with excess blood alcohol, the appellant challenged the trial judge’s reliance on hearsay evidence to explain delays in obtaining breath samples.

The court held that the trial judge used the hearsay for its truth despite the Crown not tendering it under a principled hearsay framework or established exception.

Because the impugned evidence was central to the finding that the samples were taken as soon as practicable under s. 258(1)(c) of the Criminal Code, the conviction could not stand.

The appeal was allowed and a new trial was ordered before a different judge.

The offender pleaded guilty to possession, accessing, and making available child pornography, as well as breaching probation conditions from a prior child pornography conviction.

The Crown sought a penitentiary sentence of three to five years, while the defence sought a reformatory sentence of two years less a day.

The court considered the offender's history of childhood sexual abuse, his genuine remorse, and his positive progress in therapy.

Concluding that a reformatory sentence would best facilitate the offender's ongoing rehabilitation while satisfying the principles of denunciation and deterrence, the court imposed a sentence of two years less a day followed by three years of probation.

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.