David M. Humphrey

The accused, a family physician, was charged with sexual assault with a weapon (a needle) in relation to a patient who attended his clinic complaining of a headache and sinus infection.

The complainant alleged that during the administration of a Demerol injection, the accused unnecessarily lowered her clothing, inappropriately touched her, engaged in grinding motions against the examination table, discussed her sexual experiences, and ejaculated.

The accused maintained that the procedure was entirely professional and appropriate.

The trial judge found that while the complainant honestly perceived she had been sexually assaulted, the Crown failed to prove beyond a reasonable doubt that the touching was objectively sexual in nature.

The trial judge identified numerous material inconsistencies in the evidence of the complainant and her witnesses, including contradictions regarding the location of meetings, contents of a gift bag, the existence and content of recordings, and the presence of a diagram.

The trial judge also found credibility concerns with the accused's evidence.

Ultimately, the trial judge concluded that the Crown had not met its burden of proof and entered an acquittal.

This decision concerns the prosecution of five members of the 2018 Canadian World Junior Hockey Team for sexual assault.

The complainant, E.M., alleged that after consensual sexual activity with Michael McLeod, she was sexually assaulted by McLeod and his teammates in a London hotel room.

The accused maintained that E.M. was a willing and active participant.

The court found significant inconsistencies and reliability issues in the complainant’s evidence, including contradictions with video evidence and other witness testimony.

The court concluded that the Crown had not proven the absence of consent beyond a reasonable doubt for any of the accused and acquitted all five.

The judgment provides a detailed analysis of the law of consent, credibility, and the use of myths and stereotypes in sexual assault trials.

This decision addresses the Crown's application to admit a text message as hearsay evidence under the principled exception in a high-profile sexual assault prosecution.

The court reviews the necessity and reliability requirements for hearsay, ultimately finding that the reliability threshold is not met and dismissing the application.

The ruling provides a detailed application of the Supreme Court’s guidance in R. v. Bradshaw and R. v. Charles on the dangers of hearsay and the use of corroborative evidence.

The Crown sought to admit a text message sent by Brett Howden to Taylor Raddysh as past recollection recorded, an exception to the hearsay rule.

The court reviewed the requirements for admissibility, including reliability, timeliness, absence of memory, and the witness’s ability to vouch for the accuracy of the record.

The court found that while the first three requirements were met, Mr. Howden could not vouch for the accuracy of the text message, as he had no memory of sending it and could not confirm its truthfulness.

As a result, the application to admit the text message as past recollection recorded was denied.

This decision addresses a defence motion for a mistrial after a jury note alleged unprofessional conduct by defence counsel, raising concerns about jury impartiality.

The court reviews the legal principles governing mistrials, including the presumption of jury impartiality, the test for reasonable apprehension of bias, and the discretion to discharge jurors or declare a mistrial.

The court finds that the fairness of the trial has been compromised and grants the motion for a mistrial, emphasizing that such a remedy is reserved for the clearest of cases where no other remedy will suffice.

The appellant, a physician, appealed his conviction on three counts of sexual assault and sought leave to appeal his sentence.

The Court of Appeal for Ontario considered grounds including the admission and use of cross-count similar act evidence, the sufficiency of the trial judge's reasons, errors in credibility and reliability assessment, and the trial judge's treatment of prior consistent statements and motive to fabricate.

The Court found no errors in the trial judge's handling of similar act evidence, the sufficiency of reasons, or the credibility assessments.

It also found no error in the application of the totality principle in sentencing.

The conviction appeal was dismissed, and leave to appeal sentence was granted but the sentence appeal was also dismissed.

Jack Himel pleaded guilty to possession and making child pornography.

The Crown sought 18 months custody, while the defence sought a conditional sentence or 12-15 months.

The court found that despite significant mitigating circumstances and low risk of re-offence, a conditional sentence was inappropriate given the severity of the offences, particularly the making of child pornography, and the Supreme Court's directives on sentencing for child sexual offences.

A sentence of 12 months custody followed by 12 months probation was imposed.

Dr. Wameed Ateyah was convicted of 16 counts of sexual assault and one count of sexual exploitation involving 13 female patients.

The court considered aggravating factors including breach of trust, the number of victims, the intrusive nature of the offences, and falsification of medical records.

Mitigating factors included lack of criminal antecedents, otherwise good character (though attenuated due to breach of trust), collateral consequences (loss of medical license), and physical/mental health issues.

The Crown sought a 9-year sentence, while the Defence sought 3 years.

The court emphasized denunciation, deterrence, and public protection as dominant sentencing objectives.

Applying the principle of totality, the court imposed a global sentence of nine years in jail, with credit for pre-trial custody, resulting in a final sentence of eight years and 357 days.

The defendant, a doctor, was charged with 24 counts of sexual assault and one count of sexual interference involving fifteen female patients.

The Crown alleged that the defendant intentionally touched patients' breasts and/or genitals for sexual purposes under the guise of medically unnecessary examinations, capitalizing on his position of trust.

The defense argued that some events did not occur or were medically appropriate, and alleged collusion among complainants.

The court granted the Crown's similar fact evidence application, finding a distinctive pattern of behavior and false record-keeping.

The court found the defendant's testimony lacked credibility and reliability.

Ultimately, the defendant was found guilty of 16 counts of sexual assault and 1 count of sexual interference, and acquitted on other counts due to insufficient evidence or Crown's request.

The complainant (J.N.) alleged sexual assault by her former family doctor, Romeo Tan, during a physical exam in May 2014.

J.N. had no memory of the incident for three and a half years until she read a newspaper article.

The defence argued the assault did not occur and highlighted inconsistencies in J.N.'s memory and the implausibility of the events.

The court found J.N. to be a sincere and credible witness but was not satisfied beyond a reasonable doubt that her recovered memory was reliable, given her general poor memory, suggestibility, the delay in recollection, and the lack of independent corroboration.

The defendant was acquitted.

The Crown sought a ruling on the admissibility of statements made by the accused, Viraphone Savina Ackharath and Alea Sabira Baksh, who are charged with importing and conspiracy to import a controlled substance.

Ackharath challenged the admissibility of her statements, arguing a violation of her s. 9 Charter rights due to an arbitrary arrest without reasonable and probable grounds.

The court found that the Border Services Officer had objective reasonable and probable grounds for the arrest, considering factors such as the accused being a travelling companion of someone arrested for smuggling, their origin from a known source country for controlled substances, and being flagged for secondary inspection.

Consequently, no s. 9 Charter breach was found.

Furthermore, the court determined that even if a breach had occurred, the admission of the statements would not bring the administration of justice into disrepute under s. 24(2) of the Charter, given the non-serious nature of any potential breach and the minimal impact on the accused's rights, particularly as she was immediately advised of and given access to counsel.

The Crown's application for the admissibility of all statements was granted.

The appellant was convicted of assault against his wife, A.B., based on her testimony corroborated by date-stamped photographs, despite the trial judge having reasonable doubt on related firearm charges due to credibility concerns with the complainant and another witness.

The appellant appealed his conviction, arguing the verdict was unreasonable and the trial judge's reasons were insufficient, claiming an illogical result from incompatible findings.

The Court of Appeal dismissed the conviction appeal, finding that while the trial judge's reasons could have been clearer in explaining the differing credibility findings across distinct charges, it was permissible for the judge to accept parts of a witness's testimony when supported by other evidence.

The court affirmed that the verdict was not unreasonable under the Beaudry/Sinclair test, as the findings were distinct and supported by the evidence.

The sentence appeal was abandoned.

The Ontario Court of Appeal addressed two appeals concerning the Ontario Review Board's (ORB) jurisdiction to conduct disposition review hearings by videoconference without the accused's consent during the COVID-19 pandemic.

The applicant, found not criminally responsible (NCR), objected to a virtual hearing.

The ORB proceeded without consent and subsequently ordered her detention.

The Superior Court quashed the ORB's jurisdictional ruling via certiorari.

The Court of Appeal dismissed the Crown's appeal of the certiorari order, affirming that the ORB lacked statutory authority under the Criminal Code to compel virtual attendance without consent.

It also allowed the applicant's appeal of the detention order, finding it void due to the ORB's violation of procedural rules (Rule 43.03(5) of the Criminal Proceedings Rules) by proceeding while a certiorari application was pending.

The court emphasized that the Criminal Code implies a right to physical presence unless consent is given for virtual attendance, and that the pandemic does not justify exceeding statutory jurisdiction.

The appellant, convicted of second-degree murder and offering an indignity to human remains, appealed his conviction and sentence.

The conviction appeal grounds included the trial judge's ruling on solicitor-client privilege over seized notes, the dismissal of an alternate suspect application, and the failure to leave manslaughter as an available verdict to the jury.

The sentence appeal sought a reduction in the 17-year parole ineligibility period.

The Court of Appeal dismissed all grounds of appeal, upholding the conviction and the imposed sentence, finding no error in the trial judge's rulings or the sentencing decision.

The appellant appealed his conviction for sexual assault and the 30-month sentence.

The conviction appeal was based on the trial judge's alleged uneven scrutiny of evidence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of credibility and reliability, despite a minor misapprehension regarding the planning of the offence.

The sentence appeal was allowed, and the sentence was reduced to two years less a day, as the trial judge erred in finding an aggravating factor (methodical planning) that was not proven beyond a reasonable doubt.

The court also considered the appellant's cognitive deficits and the appropriate sentencing range for similar offences.

The appellant appealed his conviction for sexual assault arising from an incident on January 31, 2016, where he met the complainant in a bar and took her to his parents' apartment.

The complainant testified that after consensual kissing, she expressed that she did not want to have sex, but the appellant proceeded with non-consensual vaginal intercourse and anal contact.

The appellant testified that the intercourse was consensual and denied anal contact.

The trial judge convicted the appellant based on acceptance of the complainant's credibility and rejection of the appellant's evidence.

The appellant raised three grounds of appeal: insufficiency of reasons, improper use of prior consistent statements, and uneven scrutiny of evidence.

The Court of Appeal dismissed all grounds and upheld the conviction.

The accused, a medical doctor, was charged with sexual assault of a patient.

This was a new trial ordered by the Court of Appeal following a previous conviction.

The complainant testified to various sexual acts by the accused during a medical appointment.

The accused denied all allegations, citing a severe right hand injury at the time that would have made the alleged actions excruciatingly painful.

The defence also presented "fresh evidence" from other patients and a tenant who claimed to have overheard the complainant and her sister discussing fabricating an allegation for financial gain.

The court found the complainant to be a credible witness but disbelieved the accused's testimony.

However, considering the medical evidence regarding the accused's hand injury and the "fresh evidence" from defence witnesses, despite its suspicious nature, the court found that a reasonable doubt existed.

The accused was found not guilty.

The accused was charged with two counts of sexual assault causing bodily harm under section 272(1)(c) of the Criminal Code.

The case centered on whether consent to sexual activity can be vitiated through fraud in the context of online deception.

The accused used an elaborate Craigslist scheme, posing as a spa owner and creating fictional personas to deceive two women into believing they were engaging in sexual activity with high-end business clients in exchange for substantial payment.

In reality, the accused was the "client" and had no intention of paying.

The Crown alleged that the accused exceeded the boundaries of any consent given and engaged in aggressive breast-sucking and forced fellatio.

The accused denied the allegations, claiming all sexual conduct was consensual.

The court found the accused guilty of sexual assault causing bodily harm in relation to one complainant and guilty of the included offence of sexual assault in relation to the other, based on evidence of non-consent and the complainants' withdrawal of consent during sexual activity.

The appellant was convicted of sexual assault of his patient during a medical examination.

On appeal, the appellant sought to admit fresh evidence consisting of affidavits from four independent witnesses who observed the complainant and her sister after the alleged assault.

The witnesses testified that they overheard conversations suggesting the complainant and her sister were planning to fabricate allegations against the appellant for financial gain.

The Court of Appeal found the fresh evidence met the Palmer test for admissibility, as it was reasonably capable of belief, bore on the decisive issue of credibility, and could reasonably have affected the verdict.

The court quashed the conviction and ordered a new trial.

The appellant was convicted of multiple offences including sexual assault and sexual exploitation against his former common law wife and her three daughters.

He appealed on five grounds: refusal to sever the sexual assault charge involving the adult complainant; refusal to allow him to sit at counsel table; improper application of the collateral fact rule; jury instructions on similar fact evidence; and failure to correct alleged impropriety in Crown's closing address.

The Court of Appeal dismissed the appeal, finding that while some errors occurred, they were not material and did not result in an unfair trial.