David M. Humphrey

This appeal and cross-appeal addressed whether Ontario’s SIU framework permits police officers involved in fatal incidents to consult counsel before completing duty notes.

The majority held the regulatory scheme does not permit consultation with counsel at the note-making stage, emphasizing transparency, public confidence, legislative history, and the duty to prepare independent, complete notes.

It rejected even limited pre-note legal consultation as inconsistent with the scheme’s objectives, while confirming officers may consult counsel after filing notes.

The cross-appeal was allowed, overturning the Court of Appeal’s allowance of basic legal advice prior to notes.

Dissenting reasons on cross-appeal would have preserved a narrow right to basic legal advice that excluded drafting assistance.

Two accused were charged with sexual assault, administering a stupefying or noxious substance to facilitate sexual assault, and being parties to each other’s alleged sexual assault.

The complainant reported memory loss and later flashbacks alleging anal sexual assaults after a night of drinking and attending the accused’s condominium.

The court found significant reliability issues with the complainant’s evidence, including inconsistent recollections, delayed “flashback” memories, and refusal to acknowledge possible memory error.

Forensic and circumstantial evidence did not establish the administration of a drug or non-consensual sexual activity beyond a reasonable doubt.

The court concluded the Crown failed to prove lack of consent or the involvement of both accused in the alleged assaults.

The accused, a physician, was charged with one count of sexual assault against his employee.

The Crown alleged multiple incidents of unwanted touching and attempted kissing in the workplace, set against a backdrop of admitted sexual harassment.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's denials as implausible and inconsistent.

Finding the complainant's evidence credible and corroborated in part by other witnesses, the court concluded that at least one incident of sexual assault—rubbing his groin against her leg—was proven beyond a reasonable doubt.

A conviction was entered.

The appellant appealed convictions for sexual exploitation and a one-year custodial sentence arising from a sexual relationship with a complainant who was under 18 while he was privately tutoring her.

The court held that the trial judge properly applied the position-of-trust analysis under s. 153(1) of the Criminal Code and did not improperly equate the appellant's role to that of a formal schoolteacher.

The court also rejected the submission that the trial judge applied different standards of scrutiny to the appellant and the complainant, finding that the complainant's evidence had been adequately tested and the credibility findings were entitled to deference.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because the aggravating features justified a one-year term of imprisonment.

The applicants, charged with sexual assault and administering a stupefying drug, sought a stay of proceedings under s. 11(b) of the Charter due to a 39-month delay between the charges and the trial date.

The court analyzed the delay using the Morin framework, attributing portions to inherent time requirements, defence actions, Crown actions, and institutional delay.

Although the court found actual and inferred prejudice, the unreasonable delay was calculated to be only one month beyond the Morin guidelines.

The court concluded that this short period of unreasonable delay was outweighed by the societal interest in having the serious charges determined on their merits, and dismissed the application.

The appellant, a high school math teacher, appealed his convictions for sexual assault and sexual exploitation of a 16-year-old student.

He argued the trial judge erred by treating a cross-examination question as evidence, failing to address improbabilities in the complainant's evidence, and attaching no weight to his good character evidence.

The Summary Conviction Appeal Court dismissed the appeal, finding that any error regarding the cross-examination question was harmless, the trial judge's credibility assessments were reasonable and supported by the evidence, and the trial judge did not err in her treatment of the character evidence given the private nature of the offences.

The Crown appealed a conditional sentence of two years less a day imposed on a psychiatrist convicted of two counts of sexual assault against a patient.

The offences occurred over a nine-year period and involved a significant breach of trust, as the offender exploited the patient's vulnerabilities and later orchestrated a cover-up.

The Court of Appeal found the trial judge erred in principle by discounting the victim impact statement due to a pending civil suit and by failing to treat the breach of trust as an aggravating factor.

The appeal was allowed, and the sentence was varied to two years' imprisonment.

The Crown appealed a trial judge's decision to stay serious charges against six police officers due to unreasonable delay under s. 11(b) of the Charter.

The trial judge had attributed the 56-month delay primarily to the Crown's failure to make timely disclosure.

The Court of Appeal allowed the appeal for five of the officers, finding the trial judge erred in attributing the delay to disclosure issues rather than the inherent time requirements of a highly complex case.

A new trial was ordered for those five officers.

However, the Court dismissed the appeal regarding the sixth officer, finding the delay in his much simpler case was unreasonable because the Crown unnecessarily insisted his trial follow the complex trial of his co-accused.

The appellant appealed his convictions for assault, uttering threats, and sexual assault against his spouse.

The appeal centered on the trial judge's assessment of credibility, as the case turned almost entirely on the conflicting testimony of the appellant and the complainant.

The Court of Appeal found that the trial judge applied different standards of scrutiny, holding the appellant accountable for every inconsistency while glossing over significant contradictions in the complainant's evidence, particularly regarding her statements to police.

The trial judge also misapprehended material parts of the appellant's evidence.

Concluding that the appellant did not receive a fair trial, the Court of Appeal set aside the convictions and ordered a new trial.

The Ontario Review Board appealed a costs order made against it by an application judge following a successful application by the respondent to quash an adjournment order made by the ORB.

The Court of Appeal allowed the appeal and set aside the costs order, finding that the application judge applied the wrong test.

The Court held that the test for awarding costs against the ORB should be at least as stringent as the test for awarding costs against the Crown in criminal matters, requiring a marked and unacceptable departure from reasonable standards, which was not met in this case.

The respondent was previously found guilty of civil and criminal contempt for his open, continuous, and flagrant refusal to obey a court order to testify at the Cornwall Public Inquiry.

Having served a six-month sentence for civil contempt, the court convened to determine the sentence for criminal contempt.

Applying the totality principle and considering mitigating factors such as pre-sentence custody and harsh incarceration conditions, the court sentenced the respondent to a further 30 days of incarceration, to be served consecutively without remission or parole.

Sentence appeal from a global penitentiary term imposed after guilty pleas to multiple historic and more recent sexual offences against three child complainants, together with child pornography and breach offences.

The court held that a sentencing judge may reject a joint submission only where the proposed sentence is contrary to the public interest and would bring the administration of justice into disrepute, but found the judge erred in applying that standard by failing to give sufficient weight to the guilty plea, remorse, and the avoidance of trial for the complainants.

The court also held that prior appellate authority on sentencing ranges for repeated abuse of children in a position of trust did not mandate a sentence above ten years regardless of a guilty plea.

The seven-year floor of the joint submission was too low, but the ten-year ceiling, though lenient, was not so low as to require rejection.

Appeal allowed and global sentence reduced to ten years less credit for pre-trial custody.

The appellant, a 20-year-old first offender, pleaded guilty to criminal negligence causing death after towing a friend on roller blades alongside her car, resulting in his death.

She was initially sentenced to 12 months' imprisonment.

On appeal, the Court of Appeal found the sentencing judge erred in principle by ruling out a conditional sentence ab initio due to aggravating factors and by failing to prioritize rehabilitation for a youthful first offender.

The appeal was allowed, and an 18-month conditional sentence with 240 hours of community service was substituted.

The appellant, a former Crown Attorney suffering from bipolar affective disorder, pleaded guilty to fraud and breach of trust for misappropriating funds from a charity and a client, and for improperly negotiating plea bargains to secure restitution for that client.

The sentencing judge imposed a total of 24 months' incarceration, finding that the medical evidence did not support a causal link between the appellant's mental illness and his criminal behaviour.

The Court of Appeal found the sentencing judge misconstrued the psychiatric evidence regarding the inadequacy of the appellant's lithium levels and his uncontrolled hypomanic state.

The appeal was allowed in part, and the sentence was varied to a blended sentence of 12 months' incarceration followed by a 12-month conditional sentence.

The appellant appealed an order sending seized materials to U.S. authorities pursuant to the Mutual Legal Assistance in Criminal Matters Act.

The appellant argued the search warrant was invalid because the supporting affidavit relied entirely on unsworn hearsay from a U.S. request without independent police investigation.

The Court of Appeal dismissed the appeal, holding that the detailed factual allegations in the formal treaty request provided sufficient reliable evidence for the authorizing judge to issue the warrant.

The court also found the application judge's brief reasons, which adopted the respondent's factum, were adequate and did not deprive the appellant of meaningful appellate review.

The Crown appealed a conditional sentence imposed on the respondent.

The Court of Appeal noted that while a conditional sentence may have been inappropriate at the time it was imposed, it would not be in the interests of justice to incarcerate the respondent now.

The respondent had completed 11 months of the sentence without issue, completed half of her community service hours, and was pregnant.

The appeal was dismissed.

The respondent was acquitted of impaired driving causing bodily harm and driving 'over eighty' after the trial judge excluded breath sample results under s. 24(2) of the Charter, finding a breach of the respondent's s. 10(b) right to counsel.

The trial judge concluded the respondent was not afforded adequate privacy while speaking to duty counsel from a hospital room.

The Crown appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the respondent's subjective belief that his conversation was not private was unreasonable in the circumstances, as he was left alone in a room, the officer stood 20 feet away, and the respondent never expressed any privacy concerns to the officer.

The Crown appealed a trial judge's order staying the respondent's second-degree murder trial for abuse of process and unreasonable delay under s. 11(b) of the Charter.

The trial judge had found over 150 Charter breaches by police and Crown counsel.

On appeal, the respondent conceded the trial judge's findings were unsupportable but argued the stay should be upheld because her trial counsel's incompetence caused the delay.

The Court of Appeal allowed the Crown's appeal, finding no evidence the respondent was unaware of her counsel's strategy, and set aside the stay of proceedings and costs order, directing a new trial.

The appellant, a young person, appealed a disposition of 6 months secure custody, imposed in addition to 2 months of pre-disposition custody.

The Court of Appeal found the sentence demonstrably unfit, noting the father's responsible and caring commitment to his son.

The court reduced the custodial disposition to time served (seven months) and varied the terms of the one-year probation order.

On a sentence appeal from a manslaughter conviction arising from the killing of an abusive parent, the court held that the sentencing judge committed reviewable errors in principle.

The judge applied an unduly narrow penitentiary range, failed to treat provocative conduct as relevant mitigation, and misapprehended the evidence by overstating the time between the sexual assault and the homicide.

Given the offender's reduced moral culpability, lack of record, guilty plea, trauma history, and treatment needs, the original four-year penitentiary sentence was unfit.

The appeal was allowed and the sentence was reduced to time served with probation.