David M. Humphrey

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 accused, charged with sexual assault and assault, brought an application alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay from the date of the charge to the anticipated end of the trial was 27.4 months.

The court deducted 168 days of defence delay and 192 days of delay caused by the COVID-19 pandemic as an exceptional circumstance.

The remaining net delay of 15.5 months fell below the 18-month presumptive ceiling established in Jordan.

The application was dismissed.

In a judge-alone criminal trial involving allegations of historical sexual touching by a physician against a former patient, the court held that the Crown failed to prove the offences beyond a reasonable doubt.

The court treated delay in disclosure and continued contact with the accused as neutral considerations, but found serious reliability concerns arising from the genesis of the complaint during a psychological assessment and from numerous inconsistencies between the complainant’s prior statements and trial evidence.

The court concluded that the complainant may have been sincere but mistaken, and that her stated memories were not shown to be anchored in real-life events.

The accused was acquitted on both counts.

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.

Volkswagen Aktiengesellschaft pleaded guilty to 60 charges under the Canadian Environmental Protection Act, 1999, including 58 counts of unlawfully importing vehicles that did not conform to prescribed vehicle emissions standards and two counts of providing misleading information.

The company admitted to installing defeat devices in approximately 128,000 diesel vehicles imported into Canada between 2008 and 2015, which allowed the vehicles to pass emissions testing while emitting substantially higher nitrogen oxide levels during normal driving conditions.

The court imposed a fine of $196,500,000, the largest environmental fine in Canadian history at that time, reflecting the severity of the deliberate deception, the environmental and health risks created, and the need for deterrence and denunciation.

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 court dismissed an application by three individuals (two environmentalists and a former Volkswagen vehicle owner) seeking to participate as parties in the criminal prosecution of Volkswagen Aktiengesellschaft for violations of the Canadian Environmental Protection Act.

The applicants sought to present victim impact statements and make submissions regarding restitution, fines, and sentencing.

The court held that the applicants lacked standing to participate as parties, as the Public Prosecution Service of Canada has carriage of the prosecution and speaks on behalf of the public.

The court noted that while victim impact statements are permitted under the Criminal Code, there is no statutory foundation for victims to become quasi-parties to criminal proceedings.

The Crown sought to introduce historical text messages sent by the accused to his wife, which were obtained by police pursuant to a valid general warrant.

The accused sought to exclude the messages on the basis of spousal privilege under s. 4(3) of the Canada Evidence Act and s. 189(6) of the Criminal Code.

The court dismissed the application, holding that spousal privilege is a testimonial privilege that protects a spouse from being compelled to testify, but does not render the communications themselves inadmissible when independently and lawfully obtained by police.

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 Crown applied for a search warrant under s. 487 of the Criminal Code to search the accused's password-protected smartphone, along with an assistance order under s. 487.02 to compel the accused to unlock the device.

The court granted the search warrant but dismissed the application for the assistance order.

The court held that compelling the accused to reveal his password or unlock the phone would violate his right to pre-trial silence and protection against self-incrimination under s. 7 of the Charter, and that the use immunity proposed by the Crown was insufficient to cure the breach.

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.

The accused psychiatrist was tried on multiple counts of sexual assault and one count of extortion arising from alleged sexual activity with a patient in connection with disability-benefit paperwork.

The court held that the case turned on credibility and applied heightened caution to the complainant's evidence because of significant crimes of dishonesty, admitted lies to police, and a deliberate plan to manufacture supporting evidence through a staged incident and coordinated false testimony.

Although the complainant correctly identified a physical characteristic of the accused, the court found that this had only limited confirmatory value.

The Crown failed to prove guilt beyond a reasonable doubt, and the accused was acquitted on all counts.

An appeal of conviction and sentence for historical sexual offences.

The appellant, a pediatrician, was convicted of three counts of indecent assault relating to two former female patients, with offences spanning from 1964 to 2013.

The trial judge found the appellant guilty based on the complainants' evidence while rejecting his denials.

The Court of Appeal allowed the appeal and set aside all three convictions, ordering a new trial based on multiple misapprehensions of evidence by the trial judge, including erroneous inferences drawn from uncontradicted evidence and improper reliance on the absence of motive to lie as a credibility enhancer.

The applicant, a doctor, applied to sever a three-count indictment alleging sexual assaults against two different complainants (a patient and a co-worker) occurring years apart.

The applicant argued that joinder would cause prejudice and improper propensity reasoning.

The Crown opposed, arguing the evidence was intertwined and a viable similar fact application would be brought.

The court dismissed the application, finding a factual and legal nexus between the counts, and concluded that in a judge-alone trial, the risk of prejudice could be managed with appropriate evidentiary rulings.

The Crown brought an application to admit evidence of the accused's prior discreditable conduct from 2008, involving domestic assault and unauthorized possession of a firearm, as similar fact evidence in a trial for similar charges.

The Crown argued the evidence was necessary to rebut the defence's assertion that the complainant planted the firearms.

The court applied the Handy framework and dismissed the application, finding the prior incident lacked sufficient similarity to the current charges and that its admission would be highly prejudicial.

The respondent pleaded guilty to making child pornography for the purpose of publication.

The trial judge found that the respondent's rights under ss. 7 and 9 of the Charter were breached due to mistreatment in custody and a delayed bail hearing.

Invoking s. 24(1) of the Charter, the trial judge imposed a 21-month conditional sentence, overriding the one-year mandatory minimum sentence and the statutory prohibition on conditional sentences for this offence.

The Crown appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred in finding the Charter breaches and in using s. 24(1) to impose a sentence outside statutory limits.

A 21-month prison sentence was substituted but stayed as the respondent had already served the conditional sentence.

The appellant was convicted of sexual assault following a judge-alone trial.

At the close of the Crown's case, the trial judge initiated an in-chambers discussion with counsel, in the absence of the accused, suggesting a plea bargain to a lesser offence.

The Court of Appeal admitted fresh evidence regarding this meeting and held that the discussion violated the accused's right to be present during his trial under s. 650(1) of the Criminal Code.

The court found that the trial judge's actions compromised trial fairness and the presumption of innocence, rendering the curative proviso inapplicable.

The appeal was allowed and a new trial ordered.