David M. Paciocco

The appellant, Shane Sureskumar, appealed his convictions for identity theft, attempted fraud over $5,000, fraud over $5,000, and fraudulent possession of credit card data, and sought leave to appeal his sentence.

The convictions stemmed from his actions as a bank teller accessing client data and attempting/executing fraudulent transfers.

The appeal challenged the trial judge's findings on a s. 8 Charter breach regarding a search incident to arrest, the s. 24(2) exclusion of evidence, and the validity of a search warrant for his cell phone.

The appellant also argued the trial judge erred in not imposing a conditional sentence.

The Court of Appeal dismissed the conviction appeal, finding a s. 8 breach but upholding the admission of evidence under s. 24(2) due to good faith and discoverability, and affirming the cell phone warrant.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the trial judge properly considered and rejected a conditional sentence, weighing aggravating factors (breach of trust, quantum, sophistication, greed) against modest mitigating factors (youthful first-time offender, no loss).

The appellant, Pedro Hechavarria-Tapia, appealed his dangerous offender designation and indeterminate sentence for serious intimate partner violence.

The appeal challenged the sentencing judge's findings of fact regarding the appellant's treatability and willingness to engage in rehabilitation.

The Court of Appeal dismissed the appeal, finding ample support in the record for the sentencing judge's conclusions that the appellant was intractable and unwilling to be treated for the relevant conditions, despite some superficial engagement with probation officers and past program enrollment.

The appellants, William Fehr Sr. and Dorothey Fehr, appealed a lower court order that permanently stayed their professional negligence action against Paul Gribilas (lawyer) and Burns Hubley LLP (accounting firm) based on a "no-claims-over" provision in a mutual release.

The release settled previous disputes, including the Fehrs' purported interest in J+W Foods Inc. The professional negligence action alleged that Gribilas and Burns Hubley LLP failed to protect the Fehrs' shareholdings.

The motions judge found the action to be an abuse of process because it contravened the no-claims-over clause, which prevented claims against parties who might seek contribution from the releasees (J+W Foods Inc., William Fehr Jr., Steven Trougakos).

The Court of Appeal dismissed the Fehrs' appeal, affirming that the motions judge had the inherent authority to stay the action as an abuse of process and that the defendants had a viable claim over, thereby triggering the no-claims-over provision.

The cross-appeal by Gribilas and Burns Hubley LLP was dismissed as moot.

The applicant, Craig M., sought bail release pending appeal of his conviction for sexual offences.

His appeal was based on ineffective assistance of counsel, alleging inadequate advice regarding his right to testify and mode of trial, and general inadequate performance.

The court found the claims regarding mode of trial and general performance frivolous.

While the claim about advice on testifying was not frivolous, it did not clearly surpass the "not frivolous" threshold due to a lack of supporting evidence, absence of a waiver of privilege, and problematic, evolving affidavits.

Given the seriousness of the offences and the weakness of the proposed appeal, the application for bail pending appeal was dismissed.

This motion concerned a request for a stay pending appeal of a judgment secured by Lithium Royalty Corporation (LRC) after a bifurcated liability hearing in a breach of contract action.

The moving parties (Orion entities) sought a full stay of the underlying action and their appeal.

The court dismissed the motion for a full stay of the underlying action but granted a partial stay against two specific respondents, Bellatrix Ltd. and Orion Mine Finance (Master) Fund I LP, preventing enforcement actions without leave, due to the apparent strength of their appeals regarding corporate separateness.

The court also ordered a stay of the appeal itself (COA-23-CV-1029) pending the conclusion of the underlying trial to promote judicial efficiency and avoid multiplicity of proceedings.

The appellant appealed his convictions for accessing child pornography, arguing that the trial judge erred in finding that s. 8 of the Charter was not engaged when his wife voluntarily turned over computers containing evidence to the police, and by failing to find a s. 8 breach due to delayed reporting of the seizure.

The Court of Appeal found that s. 8 was engaged when police took control of the computers, constituting a seizure.

While the seizure of Computer 1 was found to be lawful under s. 489(2) of the Criminal Code, the delay in filing the report to a justice for Computer 1 was a Charter breach.

The court declined to exclude the evidence under s. 24(2) of the Charter, finding the breaches were not serious and the evidence was reliable and essential.

The appeal was dismissed.

The appellant, Jatinder Singh Dhillon, appealed a final order in family litigation, raising four grounds: a resulting trust claim, quantification of net family property, private school costs under s.7 of the Federal Child Support Guidelines, and "netting down" a lump sum retroactive spousal support award.

The Court of Appeal dismissed all grounds, finding no legal or palpable and overriding factual error.

The court emphasized that judges are not required to make tax adjustments for retroactive spousal support awards unless specifically requested and that such adjustments are discretionary, especially where non-disclosure of income could lead to a windfall.

This is a costs endorsement from the Court of Appeal for Ontario following an appeal.

The court reviewed cost submissions and concluded that while success in the underlying appeal was divided, the respondent wife (appellant on the cross-appeal) achieved greater overall success than the husband.

Consequently, costs in the amount of $10,000 were awarded to the wife, payable by the husband.

The appellant sought to overturn a lower court decision denying his claim for adverse possession over an unfenced portion of a triangular strip of land adjacent to his property, and his claim for proprietary estoppel.

The Court of Appeal upheld the application judge's decision, finding no error in the judge's application of the three-pronged test for adverse possession, nor in the rejection of the proprietary estoppel claim.

The court affirmed that the unfenced area could be treated separately from a fenced portion where adverse possession was conceded, and that the appellant failed to prove actual possession, intent to exclude, or effective exclusion for the unfenced area.

C.H. appealed convictions for mischief under $5000, uttering threats, common assault, and sexual assault committed against his former fiancée.

The appeal raised several grounds, including the trial judge's treatment of character evidence, application of the rule in R. v. W.(D.), evaluation of motive and delay in reporting, treatment of exculpatory evidence for sexual assault, and misuse of a prior consistent statement.

The Court of Appeal dismissed the appeal, finding no reversible error in most grounds.

While acknowledging an error in the trial judge's hypothetical comment on exculpatory evidence for sexual assault and the misuse of a prior consistent statement, the court concluded these errors did not contribute to the convictions or warrant setting them aside.

The Crown appealed the conditional sentence imposed on the respondent for serious firearms and drug offences, including possession of a prohibited firearm, pointing a firearm, and cocaine trafficking.

The Court of Appeal found that the sentencing judge erred in principle by misunderstanding the "true crime" characterization of the offences and by misapprehending mitigating factors.

The court emphasized that possession of a loaded handgun is a serious offence normally attracting a penitentiary term, and the mitigating factors in this case were not strong enough to warrant a conditional sentence.

The appeal was allowed, the original sentences were set aside, and a total effective sentence of four and one-half years of imprisonment was imposed.

The appellant, M.C., appealed his conviction for child luring and sought leave to appeal his sentence.

The core issue was whether the trial judge erred by excluding M.C. and his counsel from an ex parte hearing during a s. 278 Criminal Code third-party records application.

The Court of Appeal found that the s. 278 application was part of the trial, making M.C.'s exclusion a jurisdictional error under s. 650 of the Criminal Code.

The Crown failed to rebut the presumption of prejudice, as the exclusion impacted M.C.'s ability to make full answer and defence and harmed the appearance of justice.

The court allowed the appeal, set aside the conviction, and ordered a new trial.

The moving parties (defendants) sought to re-open their appeal, which was previously dismissed as abandoned due to their former counsel's failure to appear and communicate.

The court granted the motion, finding it was in the interests of justice as the moving parties were unaware of the hearing date through no fault of their own, and their former counsel was later suspended by the Law Society.

The appeal was not heard on its merits, and the responding party consented to the re-opening.

The Crown appealed the conditional sentence imposed on R.S. for violent sexual assault and choking, arguing it was demonstrably unfit and below the appropriate penitentiary range.

The majority of the Court of Appeal agreed the sentence was demonstrably unfit, finding a 3-year penitentiary term would have been proportionate.

However, the appeal was dismissed to avoid reincarceration and to preserve the probation order, as R.S. had completed the conditional sentence.

A concurring judge found the original sentence fit, emphasizing the significant mitigating impact of Gladue principles on the offender's moral culpability and the deference owed to trial judges in sentencing.

The appellant sought leave to appeal the global sentence of 15 months' imprisonment for drug trafficking and breach of undertaking, arguing the sentencing judge erred in assessing addiction as a mitigating factor.

The Court of Appeal found no legal error, clarifying that the sentencing judge's finding was factual and that addiction was properly weighed against aggravating factors, including the commercial motive, repeat offending, and breach of release conditions.

The Court upheld the sentence, finding it within the appropriate range and that a conditional sentence was insufficient for denunciation and deterrence.

The appellant, Alexsander Budimirovic, appealed his conviction for two counts of fraud and one count of attempted fraud.

The appeal raised four grounds: the trial judge's failure to give a limiting instruction on propensity reasoning between counts, error in admitting videotaped hearsay statements (Hockett Statements) for their truth, failure to caution the jury about relying on the Hockett Statements without corroboration, and refusal to grant an adjournment after the appellant discharged his counsel.

The Court of Appeal dismissed all grounds of appeal, affirming the trial judge's instructions on propensity reasoning, the admissibility of the Hockett Statements based on procedural reliability, the adequacy of the caution regarding the statements, and the proper exercise of discretion in refusing the adjournment.

This is an appeal from the denial of a motion to find a person involved in the action in contempt.

The Court of Appeal for Ontario determined that the order appealed from was interlocutory, meaning it lacked jurisdiction to hear the appeal, which properly lies to the Divisional Court with leave.

Consequently, the appeal was transmitted to the Divisional Court.

The appellant, Robert Lavergne, appealed his 17-month global sentence for sexual assault and sexual exploitation, arguing the sentence was unfit and that post-sentence changes to conditional sentencing law (Bill C-5) required reconsideration, including the constitutionality of the mandatory minimum sentence for sexual exploitation.

The Court of Appeal granted leave to appeal but dismissed the appeal.

The court found that the changes in law did not compel a reconsideration of the sentence or the constitutional challenge, as the trial judge's imposed sentence was fit and exceeded the minimum, and a conditional sentence would not have been imposed even under the new law.

The sentences were not demonstrably unfit, considering the profound psychological harm to the victims and the appellant's abuse of trust as a teacher.

The appellant, a young person, appealed convictions for sexual assault and unlawful confinement.

The Court of Appeal allowed the conviction appeal and ordered a new trial, finding that the trial judge's reasons were insufficient as they did not provide an adequate pathway to support the convictions, particularly regarding the appellant's role as a party to the offences.

The trial judge's instruction on party liability under section 21 of the Criminal Code was found to be erroneous, and the reasons failed to specify how the appellant aided or abetted the commission of the offences.

The appellant, D.G., appealed his conviction for sexual assault.

The trial judge had found significant credibility issues with the complainant's evidence, including inconsistencies and missing journals, but still convicted.

The Court of Appeal found the trial judge's reasons inadequate for failing to explain how he could believe the complainant's evidence despite these identified credibility problems.

The appeal was allowed, the conviction set aside, and a new trial ordered.