David B. Butt

The Court of Appeal for Ontario dismissed Conal Quinn’s appeal from his conviction for sexual assault.

The court found no reversible error in the trial judge’s exclusion of evidence under section 276 of the Criminal Code, nor in the exclusion of expert evidence regarding methamphetamine use and sexual impulsivity.

The court also rejected arguments regarding the sufficiency of the trial judge’s reasons and the finding that any consent would have been vitiated by abuse of authority.

The decision affirms the trial judge’s careful application of the law regarding sexual history evidence and the proper approach to expert testimony in the context of sexual assault prosecutions.

This decision concerns a Stage Two hearing under s. 278.92 of the Criminal Code regarding the admissibility of two documents authored by the complainant and given to the accused.

The accused sought to adduce these documents to challenge the complainant's credibility, arguing they were inconsistent with her police statement about the nature of their relationship.

The Crown and complainant opposed the admission, citing risks of twin myths and prejudice.

The court found the documents relevant and of significant probative value, not substantially outweighed by the danger of prejudice to the proper administration of justice.

The application was allowed, permitting the accused to cross-examine the complainant on the documents for the limited purpose of establishing any inconsistency, with the scope of questioning to be carefully circumscribed by the court.

A Toronto Police Service officer, Constable Quinn, was charged with one count of sexual assault of E.W. while on duty.

The Crown alleged the sexual activity was non-consensual, and that Quinn manipulated the situation by faking a phone call to his partner and creating opportunities to be alone with the complainant.

Quinn testified the activity was consensual and instigated by the complainant.

The court found Quinn's testimony not credible, particularly regarding the fake phone call and his efforts to engage with the complainant outside of police duties.

The court accepted the complainant's evidence that she did not consent and found her credible and reliable.

The court also determined that, even if there had been apparent consent, it would have been vitiated by Quinn's abuse of his position of trust, power, or authority as an on-duty police officer.

Constable Quinn was found guilty of sexual assault.

This appeal concerned the applicability of the third-party records regime under sections 278.1-278.9 of the Criminal Code to a former police officer's anticipated testimony and a draft statement of claim in a criminal trial.

The appellants, J.R. (the former officer) and Toronto Police Service, sought to overturn a subpoena requiring J.R. to testify and to prevent the use of the draft statement of claim.

The Court of Appeal upheld the lower courts' findings that the third-party records regime did not apply to oral statements made by J.R. and, in the specific circumstances, did not apply to the draft statement of claim.

Furthermore, even if the regime applied to the draft statement, its production was deemed necessary in the interests of justice.

The appeal was dismissed, and an interim stay was set aside, making the lower court's unsealing and set aside orders effective.

Patryk Myszka pleaded guilty to voyeurism (s. 162(1) Criminal Code) for secretly recording his common-law partner in their home for a sexual purpose.

The Crown sought a conditional sentence of 5 months followed by 18 months probation, while the defence sought a conditional discharge with probation.

The court considered aggravating factors, including the planned nature of the offence, breach of trust, and significant victim impact, alongside mitigating factors such as the guilty plea, lack of prior criminal record, and engagement in counselling.

The judge determined that a conditional discharge was not in the public interest due to the seriousness of the offence, but a conditional sentence was also not necessary.

A suspended sentence with 18 months probation and a forfeiture order for the recording devices was imposed, emphasizing denunciation, general deterrence, and the victim's protection.

The complainant, A., sought certiorari to quash a trial judge's decision regarding the admissibility of her sexual history evidence under s.276 of the Criminal Code in a sexual assault trial.

The trial judge had admitted certain prior sexual activity as relevant to the accused's belief in communicated consent, while prohibiting its use for propensity reasoning.

The Superior Court dismissed the application, finding no error of law going to jurisdiction and exercising its discretion to refuse interlocutory review, emphasizing the need to minimize delay in criminal trials and the non-final nature of the ruling at that stage.

The appellant was convicted of two counts of attempting to purchase sexual services from a young person through an undercover police sting operation (Project Raphael).

He was sentenced to eight months in jail and two years of probation.

On appeal, the appellant challenged his conviction on Charter grounds and sought leave to appeal his sentence.

The Court of Appeal dismissed the conviction appeal, finding the arrest was lawful and the trial judge properly applied the legal test for objective reasonableness.

However, the Court allowed the sentence appeal, reducing the sentence to six months less one day to preserve the appellant's right of appeal to the Immigration Appeal Division, as a sentence exceeding six months would result in deportation as a permanent resident.

The defendant, A.C., brought an application challenging the constitutionality of subsections 278.94(2) and 278.94(3) of the Criminal Code, arguing they violated sections 7 and 11(d) of the Charter of Rights and Freedoms.

The challenge asserted infringements on the right to a fair trial, against self-incrimination, and prosecutorial independence due to the complainant's right to appear and make submissions at admissibility hearings for sexual activity evidence.

The court applied the Mills/Darrach approach for constitutional challenges to legislation and dismissed the application, finding no Charter breach.

The court clarified that the complainant's involvement is limited to providing perspective on the admissibility of evidence, combating myths and stereotypes, and does not transform the complainant into a second prosecutor or infringe on the accused's fundamental rights.

The accused pleaded guilty to attempting to obstruct justice by lying to police about the identity of the person who killed her ex-boyfriend.

The accused was assaulted by her ex-boyfriend with a knife, and her current boyfriend shot and killed him in defence.

When police arrived, the accused gave false statements claiming she did not know who the shooter was, and she attempted to persuade a witness not to mention her boyfriend to police.

The accused maintained this lie for seven and a half months before finally admitting the truth.

The court imposed a nine-month conditional sentence followed by one year of probation, balancing her youth, guilty plea, and lack of criminal record against the serious nature of obstructing justice in a homicide investigation.

The appellant, Patrick Lemieux, appealed his conviction for assault causing bodily harm, arguing the trial judge failed to properly consider his state of mind regarding self-defence, reversed the burden of proof, and provided inadequate reasons.

The Superior Court dismissed the appeal, finding that the trial judge correctly applied self-defence principles, including the air of reality test, and did not misapply the burden of proof or W.(D.) principles.

The court affirmed that the trial judge's reasons, when read in context, sufficiently demonstrated that the self-defence claim lacked a reasonable basis and that the appellant's response was disproportionate.

The appellant, a police officer, appealed his conviction for dangerous driving causing bodily harm.

While responding to an emergency at high speed, he drove through a small town at 178 kmph in a 50 kmph zone, passed a construction zone and school, and collided with another vehicle.

Trial counsel conceded the actus reus and causation.

The central issue was whether the Crown proved beyond a reasonable doubt that the driving constituted a marked departure from the standard of care of a reasonable person in the appellant's circumstances.

The trial judge found it did, and the Court of Appeal upheld the conviction.

The appellant also sought leave to appeal sentence but was unsuccessful.

The defendants applied to replace police bail conditions imposed under section 503(2.1) of the Criminal Code with a judicial bail order under section 515.

The defendants were charged with aggravated assault, assault with a weapon, and public mischief arising from an altercation with a civilian.

The Crown sought to maintain three contested conditions: residency in Ontario, a curfew from 10:00 pm to 6:00 am, and abstention from alcohol consumption.

The court found that the residency condition was unnecessary to ensure attendance in court, the curfew was punitive and unnecessary given the situational nature of the alleged offence, and the alcohol prohibition lacked evidentiary support and was not necessary to address public safety or confidence in the administration of justice.

The court replaced the police bail with a judicial bail order removing the three contested conditions while maintaining no-contact provisions, weapons prohibitions, and notification requirements.

The accused brought a second third-party records application under s. 278.3 of the Criminal Code, seeking records from the Children's Aid Society (CAS) and Ottawa Police Service (OPS).

The defence argued the records were relevant to the complainant's credibility and reliability, particularly concerning her alleged drug and alcohol use, which was a factor in her leaving the family home and subsequently making allegations.

The court, applying the two-part test from R. v. Mills, reviewed the records.

It found that certain OPS records (incidents from March 18, 2016, and April 16, 2016, and a related video), which suggested the complainant may have been intoxicated, were relevant and producible, subject to redactions, consistent with a prior ruling by Gilmore J. regarding similar York Regional Police Service records.

However, a 911 audio call and OPS records from April 18, 2016, relating to Algonquin College, were deemed irrelevant and not produced.

The court emphasized the need to avoid stereotypical conclusions about complainants.

The applicant, Jesse Bonello, charged with robbery and related offences, sought disclosure of police occurrence reports relating to the principal Crown witnesses, Tyrone Saunders and Lauren Smith, under *Stinchcombe* and, alternatively, via an *O'Connor* application.

The Crown argued the records were not in its possession and thus not subject to *Stinchcombe* disclosure.

The court found that the occurrence reports were not "fruits of the investigation" and therefore not subject to *Stinchcombe* disclosure.

Applying the *O'Connor* principles, the court determined that the applicant met the "likely relevance" threshold for Tyrone Saunders' records due to his extensive criminal record and expected credibility issues, ordering a review of those sealed documents.

However, the application for Lauren Smith's records was dismissed as a "fishing expedition" due to the absence of a criminal record or case-specific evidence demonstrating likely relevance.

A police officer was convicted of sexually assaulting a complainant by performing searches of her while transporting her to a police station.

At trial, the trial judge admitted a prior consistent statement made by the complainant to a female officer at the police station, in which the complainant stated she had already been searched three times.

The summary conviction appeal judge quashed the conviction, finding the trial judge erred in admitting and relying on the prior consistent statement.

The Crown appealed to the Court of Appeal for Ontario.

The Court of Appeal allowed the appeal and restored the conviction, holding that the prior consistent statement was admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements, and that the trial judge properly used the statement to assess the complainant's credibility by considering the context, timing, and spontaneous nature of the complaint.

The defendant, a police officer, was charged with sexual assault arising from an alleged incident in 1986 involving a woman he had investigated during a traffic stop.

The complainant alleged the defendant contacted her early the next morning, came to her home under the pretext of needing additional information, and forced her to perform fellatio.

The defendant testified the encounter was consensual and involved only kissing and touching.

The court found both witnesses had credibility concerns but ultimately determined that while the complainant's version was more probable, the Crown had not proven guilt beyond a reasonable doubt.

The charge was dismissed.

The applicant, a complainant in a sexual assault prosecution, sought certiorari to review a preliminary inquiry ruling refusing to admit proposed expert evidence regarding the limited reliability of facial demeanour in assessing credibility.

The proposed expert intended to testify about social science literature suggesting that observing facial expressions does not meaningfully improve the ability to detect dishonesty.

The court applied the admissibility framework from R. v. Mohan and held that the preliminary inquiry judge did not err in declining to qualify the expert or admit the evidence, noting that the proposed opinion relied primarily on a literature review outside the expert’s field of direct research and lacked necessity.

The court further held that the complainant, as a third party whose Charter interests were directly affected, could seek certiorari review, but no jurisdictional error or error of law was established.

In a criminal appeal involving a niqab-wearing complainant at a preliminary inquiry, the Court addressed how to reconcile freedom of religion with fair-trial rights.

The majority held neither an absolute ban nor an absolute permission rule is acceptable, and adopted a contextual four-step framework.

A witness may be required to remove a niqab only where necessary to prevent a serious trial-fairness risk that cannot be avoided by alternatives, and where the benefits of removal outweigh the harms.

The appeal was dismissed and the matter remitted for application of that framework.

The accused, a parking enforcement officer, was charged with assault contrary to section 266 of the Criminal Code.

The accused was struck and knocked to the ground on Ossington Avenue, sustaining a mild concussion.

Approximately one hour later, at a police station, the accused assaulted the person who had attacked him.

The defence raised the common law defence of non-insane automatism, arguing the accused's actions were involuntary due to impaired consciousness from the concussion.

The Crown argued the accused acted voluntarily.

The trial judge found the defence had not established a proper evidentiary foundation for automatism and convicted the accused.

Three police constables from the Barrie Police Service were charged with assault causing bodily harm following their arrest of a civilian, Michael Ullman, at his residence on July 5, 2009.

The Crown alleged the officers entered the home without permission, without exigent circumstances, and used excessive force during the arrest, resulting in a broken arm.

The defendants claimed they were invited into the home, had reasonable grounds to believe firearms were present (exigent circumstances), and used only necessary force to subdue an actively resisting suspect.

The trial focused on whether the entry was lawful and whether the force used was reasonable.