David J. Spence

Following a judge-alone criminal trial alleging repeated physical abuse of two child complainants, the court accepted the core evidence of the children and rejected the accused's denial when the evidence was assessed as a whole under the W.(D.) methodology.

The court found the Crown proved repeated assaults on one child with a belt and wire, and separate assaults on the other child, but held the weapon-specific counts relating to the younger child were not proven beyond a reasonable doubt.

The defence application for a stay based on abuse of process was dismissed because the asserted frailties in the evidence did not establish prejudice to trial fairness or the integrity of the justice system.

The s. 11(b) application was also dismissed, both because of its untimely presentation after the evidence had largely concluded and because, after deducting defence delay, the net delay fell well below the Jordan ceiling.

The accused pleaded guilty to sexual interference and making child sexual abuse material arising from repeated penetrative assaults of a very young child over more than a year while acting as a trusted caregiver and family friend.

Applying the sentencing principles in ss. 718 to 718.2 of the Criminal Code and the recalibrated approach in Friesen, the court treated denunciation and deterrence as paramount, emphasizing the child’s age, repeated penetrative abuse, breach of trust, planning, and the enduring harm associated with image creation.

The court found only limited mitigation in the late guilty plea, lack of record, expressions of remorse, and collateral financial impact on the offender’s family.

A penitentiary sentence of 10 years was imposed, together with SOIRA, DNA, forfeiture, no-contact, and s. 161 orders.

The offender pleaded guilty to two counts of child luring after communicating online with an undercover officer posing as a 14-year-old girl.

The communications were highly sexualized and occurred over several weeks, though the offender never met the officer in person.

The court considered the offender's lack of a criminal record, guilty plea, rehabilitative efforts, and the significant collateral consequences of family separation due to his children's medical needs.

The court found that a conditional sentence was inappropriate given the gravity of the offence and the need for denunciation and deterrence.

The offender was sentenced to 18 months' imprisonment, 18 months' probation, and ancillary orders including a 6-year section 161 prohibition order.

The offender was convicted of sexually assaulting an intoxicated minor on January 1, 2023.

The Crown sought a three-year penitentiary sentence, while the defence sought a conditional sentence of two years less a day followed by three years of probation.

The court imposed a two-year custodial sentence, finding that while the offender was a youthful first offender of otherwise strong character with low reoffending risk and significant mitigating factors, the principles of sentencing—particularly denunciation and deterrence—required incarceration rather than a conditional sentence.

Ancillary orders included a DNA order, a ten-year firearms prohibition, and a lifetime SOIRA order.

The accused, charged with historical sexual assault of his 12-year-old cousin in 1991, brought a lost evidence application seeking a stay of proceedings.

The defence argued that the failure of the police to preserve a tape recording of the complainant's 1991 interview, tissue samples from her abortion, and other records constituted unacceptable negligence and breached his s. 7 Charter rights.

The court dismissed the application, finding no unacceptable negligence because the police had closed the file in 1991 at the urging of the accused's family and had no reason to believe the evidence would be needed.

The court also found no actual prejudice to the accused's fair trial rights, as the missing evidence would not have assisted his defence given the admissions made at the time and the availability of detailed contemporaneous notes.

The defendant applied for a mistrial in his sexual assault trial, arguing that the complainant gave materially different evidence in a subsequent trial involving his brothers.

The defence alleged that the complainant's testimony regarding her 1991 statements to the Children's Aid Society and police was inconsistent.

The court dismissed the application, finding that the essence of the complainant's evidence was the same in both trials.

Any minor differences were insignificant, would not have impacted the court's assessment of her credibility, and did not render the trial unfair.

The defendant brought a motion seeking the trial judge's recusal based on a reasonable apprehension of bias.

The motion arose after the trial judge had completed her reasons for judgment convicting the defendant of historical sexual assault, but before those reasons were released, when the defence sought to bring a lost evidence application.

The defence alleged that six events, including the trial judge's refusal to release her preliminary reasons and her questioning of defence counsel during an adjournment request, demonstrated bias.

The trial judge dismissed the motion, finding that her conduct was consistent with her gatekeeping function and that a reasonable, informed observer would not conclude she was biased or incapable of deciding the remaining applications impartially.

The accused was charged with sexual assault and sexual interference relating to an incident in 1991 when the complainant was 12 years old and the accused was 21.

The assault resulted in the complainant becoming pregnant and subsequently having an abortion.

The matter was investigated by police and CAS at the time, but no charges were laid.

The complainant came forward again in 2022.

The trial judge applied the W.(D.) framework, rejecting the accused's blanket denials as not credible.

Despite the passage of 33 years, missing police and CAS records, the destruction of hospital tissue samples, and the complainant's conflated memory regarding the location of the abortion, the court found the complainant's core testimony identifying the accused as the perpetrator to be credible and reliable.

The accused was found guilty of sexual interference, with the sexual assault count stayed under the Kienapple principle.

The Ontario Court of Justice sentenced Marcial Katimaba Manigbas for sexual assault, considering aggravating factors such as the abuse of a professional relationship and the offence occurring in the victim's home.

Despite the seriousness, the court recognized mitigating factors including Manigbas' age, lack of prior criminal record, positive family and community ties, and collateral consequences suffered.

The court imposed a 5-month conditional sentence to be served in the community, a 12-month probation order with strict conditions including no contact with the victim, a DNA order, and a 5-year weapons prohibition.

The court declined to impose a SOIRA order, finding it disproportionate given the circumstances.

This decision addresses the issue of consent in a sexual assault trial involving the accused, Stelios Stratigakos, and the complainant, H.K. The court carefully evaluates the credibility and reliability of the witnesses, including the complainant, a close friend, and the accused.

The judge applies the legal standard from R. v. W.D. regarding reasonable doubt and finds the accused's testimony not credible.

The complainant's testimony, corroborated by an independent witness, is accepted as truthful.

The accused is found guilty beyond a reasonable doubt of sexual assault.

The accused, a building superintendent, was charged with sexual assault under s. 271 of the Criminal Code.

The trial involved testimony from the complainant and the accused, as well as consideration of Charter arguments.

The court assessed the credibility and reliability of the complainant's testimony, finding it unshaken despite minor inconsistencies regarding timing.

The court applied the W.D. test to the accused's denial, finding his evidence unconvincing and dismissive of the complainant's autonomy.

Ultimately, the court found the complainant's evidence credible and reliable, concluding that the Crown had proven the sexual assault beyond a reasonable doubt.

The accused was found guilty.

This ruling addresses three interpretation issues that arose at the outset of a sexual assault trial.

The court determined whether a Japanese interpreter should be provided for the complainant witness and assessed the qualifications of two proposed Japanese language interpreters.

The court ruled that the complainant required an interpreter, that one proposed interpreter (Kwang Hyuon Joo) was not qualified, and that the other proposed interpreter (Ayae Komri) was qualified to provide interpretation.

The decision emphasizes the court's truth-seeking function and provides a detailed analysis of interpreter competence criteria.

The defendant brought a s. 276 application to cross-examine the complainant on five lines of inquiry regarding her past sexual activity and non-disclosure, aiming to challenge the link between the alleged assault and pregnancy.

The court allowed inquiry into the complainant's understanding of pregnancy-causing sexual activity, her initial denial of sexual activity, and whether other sexual activities could have caused pregnancy, with limitations.

However, the court disallowed questioning on the non-disclosure of alleged assaults by the defendant's brothers and the nature and circumstances of those alleged assaults, finding them irrelevant or unduly prejudicial and offending the collateral fact rule.

The decision emphasizes balancing the accused's right to full answer and defence with the protection of the complainant under s. 276 of the Criminal Code.

The Crown sought to admit a video-recorded statement made by the accused, Jennifer Sacobie, to police.

The defence argued the statement was involuntary and obtained in violation of Sacobie's s. 10(b) Charter right to counsel.

The court found that while the statement was voluntary, the police had seriously breached Sacobie's Charter rights by failing to inform her of her right to counsel upon detention and by continuing to question her despite her repeated requests for a lawyer.

The court further found that no "fresh start" occurred to sever the link between the Charter breach and the subsequent statement.

Applying the Grant factors, the court concluded that admitting the statement would bring the administration of justice into disrepute, and therefore excluded it.

The defendant/applicant brought a multi-faceted application to exclude evidence obtained via a search warrant, arguing a Section 8 Charter breach.

The primary argument involved challenging the sufficiency of the Information to Obtain (ITO) and seeking to cross-examine the affiant.

A secondary, stand-alone argument contended that the police's retention and use of the applicant's youth records, which were referenced in the ITO (and later excised by consent), constituted a breach of the Youth Criminal Justice Act (YCJA) and a Section 8 Charter violation.

The court dismissed the application, finding no basis for cross-examination and that the ITO, after excisions, provided sufficient grounds for the warrant.

The court further held that the YCJA does not require the destruction of all internal police records related to youth interactions, and that consulting such records does not amount to a "search" under Section 8 of the Charter.

Even if there was negligence in including the references, it did not constitute bad faith warranting exclusion of evidence under Section 24(2) of the Charter.

The applicants sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay, arguing their trial, scheduled for May 2023, exceeded the 30-month presumptive ceiling for Superior Court matters established in R. v. Jordan.

The court found a 5-day period of defence delay but noted the total delay still exceeded the ceiling by at least two months.

The Crown argued the COVID-19 pandemic constituted an exceptional circumstance, and they had taken reasonable steps to mitigate the delay, including offering earlier trial dates through a "Jordan court." The court agreed that the pandemic was an unforeseen and unavoidable discrete event causing delay and that the Crown and court administration had made reasonable mitigation efforts.

The application for a stay was dismissed.

The Crown applied under s. 486.2(2) of the Criminal Code for an order allowing the 18-year-old complainant in a sexual assault trial to testify via closed-circuit television (CCTV).

The complainant, who is on the autism spectrum and experiences panic attacks, expressed fear of confronting the accused in person.

The defence opposed the application, arguing the complainant testified without issue at the preliminary inquiry and lacked medical documentation for her diagnoses.

The court granted the application, finding that the threshold for testimonial aids is whether it would facilitate a full and candid account, and concluded that CCTV testimony would enhance the truth-seeking function of the trial.

The offender was found guilty of sexually assaulting his intimate partner while she was asleep.

The Crown sought a sentence of 4 years, while the defence sought 2 to 2.5 years.

The court considered the serious nature of the offence, the offender's extensive criminal record, and the mitigating factor of a severe assault the offender suffered while in pre-sentence custody.

The court imposed a sentence of 3 years imprisonment, less credit for pre-sentence custody and lockdowns.

The defendant, charged with multiple massage parlour robberies, applied to exclude evidence seized from his rented truck and room, alleging violations of his Charter rights.

The court found that while the initial search of the truck incident to arrest was lawful, the police seriously violated the defendant's s. 10(b) rights by delaying access to counsel and improperly questioning him about his address.

This unconstitutionally obtained information led to a warrantless entry into his room, violating s. 8, and the subsequent seizure of a distinctive leather jacket.

Applying the Grant framework, the court excluded the jacket and evidence obtained from a later warrant search of the truck, but admitted the knife and phones found during the initial lawful search.

The accused, an Uber driver, was charged with unlawful confinement and assault after allegedly driving the complainant in the opposite direction of her destination and grasping her hand.

The Crown's case relied heavily on the complainant's testimony and contemporaneous text messages.

The court found significant inconsistencies in the complainant's evidence regarding her choice of seats, the conversation in the vehicle, her messaging during the ride, and her explanations for delayed responses.

Due to substantial concerns with the complainant's reliability and credibility, the court was left with a reasonable doubt and acquitted the accused on both counts.