David M. Paciocco

The appellant, Tyrone Burton, appealed his convictions for human trafficking, receiving a benefit from human trafficking, exercising control for the purpose of receiving a benefit from prostitution, and obstruction of justice, as well as his sentence of 10.5 years in custody and a 10-year long-term supervision order.

The Court of Appeal dismissed the conviction appeal, with the exception of two counts of exercising control which were stayed by Crown concession under the Kienapple principle.

The sentence appeal was also dismissed, with the court finding the sentence fit and within range, and upholding the long-term supervision order.

The court rejected arguments regarding the trial judge's application of law, questioning of witnesses, use of evidence, and the appellant's opportunity to testify.

This is an appeal from a Superior Court order staying proceedings due to the appellants' unauthorized possession and review of the respondents' privileged documents.

The parties were involved in a failed joint venture to establish a Schedule 1 bank.

The appellants, particularly Scott Penfound, obtained and accessed voluminous privileged emails and legal strategy documents belonging to the respondents from a shared file server.

The motion judge found a rebuttable presumption of prejudice, which the appellants failed to rebut by not providing evidence of the scope of their review.

The Court of Appeal upheld the stay, finding no error in the motion judge's conclusion that significant, ongoing prejudice existed that could not be cured by a lesser remedy, especially given the client's direct access to the information and lack of transparency.

The appellants appealed a motion judge's decision to strike portions of their Response to a Request for Particulars and Reply.

These struck portions re-introduced allegations of negligence from 2008 and 2009, which a Case Management Master had previously ruled were new causes of action and denied leave to amend the statement of claim to include them.

This Master's decision was upheld on appeal.

The motion judge struck the pleadings based on res judicata, issue estoppel, and abuse of process.

The Court of Appeal dismissed the appeal, affirming that re-litigation doctrines apply to decisions of associate justices (Masters) on pleadings motions, and that the motion judge correctly applied the "plain and obvious" test.

The appellant, S.M.C., sought to appeal a sexual assault conviction but failed to perfect the appeal despite numerous court appearances, extensions, and warnings.

The Court of Appeal for Ontario dismissed the appeal as abandoned, citing egregious and persistent non-compliance with court directions, including a prior failure to comply with bail conditions.

The court emphasized that the justice system cannot operate effectively if court orders are disregarded.

This is an appeal from a trial judgment that found a third party, Dennis G. K. Chu, 50% responsible for injuries sustained by Tate Moran in a motor vehicle accident, requiring him to indemnify Ottavio Fabrizi for a settlement.

The trial judge determined that Chu's intentional tortious conduct (road rage) was a "but for" cause of Fabrizi running a red light and colliding with another vehicle.

Chu appealed, arguing errors in the application of the causation test, the failure to consider Fabrizi's negligence as an intervening act, and the misapplication of the "agony of the moment" doctrine.

The Court of Appeal dismissed the appeal, affirming that contribution and indemnity under the Negligence Act can apply where one tort is intentional and the other negligent.

The court upheld the trial judge's "but for" causation finding and clarified that the "agony of the moment" doctrine is a defence to the standard of care, not a causation issue, and is not available to the party who created the emergency.

The respondent tow truck driver was acquitted of municipal by-law offences for offering services and positioning his truck within 200 metres of an accident scene.

The lower courts found the municipal by-law inconsistent with s. 177(3) of the Highway Traffic Act, which exempts towing services from a general prohibition on commercial solicitation on roadways in an emergency.

The Court of Appeal allowed the appeal, holding that s. 177(3) merely creates an exception to a prohibition and does not grant paramount permission to attend accident scenes.

The by-law was not inconsistent with the HTA.

Convictions were entered and fines imposed.

Johnson Aziga appealed his convictions for two counts of first-degree murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault, as well as his dangerous offender designation and indeterminate sentence.

The Court of Appeal set aside the murder convictions, substituting them with manslaughter, due to misdirection on mens rea for murder (oblique intention).

It also set aside two aggravated sexual assault convictions (Counts 6 and 8) and ordered new trials, finding the trial judge misdirected the jury on the "realistic possibility of HIV transmission" for oral penetration.

The appeal on the remaining convictions and the dangerous offender designation/indeterminate sentence was dismissed.

Melissa Merritt and Christopher Fattore appealed their first-degree murder convictions.

Fattore's appeal, challenging the voluntariness of his confession, was dismissed as the court found no palpable and overriding error in the trial judge's decision.

Merritt's appeal, however, was allowed.

The Court of Appeal found that the trial judge erred in jury instructions regarding the use of a partially unintelligible "airport intercept statement" as an admission of guilt, and also misdirected the jury on the burden of proof concerning innocent explanations for "Walmart omissions" (after-the-fact conduct).

Consequently, Merritt's conviction was set aside, and a new trial was ordered for her.

The appellant, Chang Jiu Chen, appealed a summary judgment that found his purported rescission of an Agreement of Purchase and Sale for a condominium unit invalid and constituted an anticipatory breach.

The appellant claimed a "material change" under the Condominium Act, 1998, due to uncompleted amenities (parkette and entry/exit gates).

The Court of Appeal upheld the motion judge's decision, ruling that the uncompleted amenities were statutorily excluded from the definition of "material change" and that the appellant's prior communications demonstrated an unwillingness to close, thus constituting an anticipatory breach.

The court also affirmed a good faith requirement for notices of rescission under the Act.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant sought a declaration of beneficial ownership in a condominium unit, claiming the respondents wrongfully terminated a Reservation Agreement without reasonable notice.

The Court of Appeal dismissed the appeal, finding that the reasonable notice argument was not properly raised before the application judge or in the appeal factum.

Furthermore, the court held that the appellant's persistent refusal to complete the purchase and his failure to maintain communication negated any claim of insufficient notice regarding the agreement's termination.

The appellant father appealed a motion judge's order finding him in contempt for failing to sign an assessor's retainer, prohibiting him from filing further motions without leave, granting the respondent mother sole decision-making responsibility, and delegating treatment authority for their child.

The Court of Appeal upheld the contempt finding and the grant of sole decision-making authority, finding the father's attempts to modify the retainer were not minor and that the mother's authority was justified by the father's non-compliance.

However, the court found the prohibition on filing further motions without leave was an overreach, as the father was not a vexatious litigant and such a term was not supported by the record, especially given potential future enforcement issues regarding parenting time.

The appeal was allowed in part.

The appellant appealed a conviction for sexual assault, arguing the trial judge erred in assessing consent and credibility.

The Court of Appeal upheld the conviction, finding the trial judge's credibility assessment was intelligible, coherent, and based on the totality of the evidence, particularly the implausibility of the appellant's account and the plausibility of the complainant's testimony and physical state.

The court dismissed the appeal, affirming the trial judge's findings.

The appellant, Kevin Hanse, appealed his convictions for two firearm offences (attempting to obtain possession of a firearm and transferring ammunition) and his sentence.

The Crown's case relied heavily on wiretap evidence, with the defence challenging the admissibility of expert and lay witness testimony regarding code words for firearms and marijuana.

The appellant also sought to introduce fresh post-sentencing evidence concerning a workplace injury and argued the trial judge erred in assessing aggravating factors and imposing a consecutive sentence for a marijuana trafficking offence to which he had pleaded guilty.

The Court of Appeal dismissed both the conviction and sentence appeals, upholding the trial judge's evidentiary rulings and finding no error in the sentencing principles or the fitness of the sentence.

The Crown appealed directed verdicts of acquittal on drug and firearm possession and conspiracy charges arising from contraband found in a storage locker and hidden vehicle compartments.

The accused had repeatedly accompanied a co‑conspirator to a storage locker used as a drug stash house and later exercised exclusive control over the co‑conspirator’s vehicle containing large quantities of cocaine, fentanyl, and a handgun.

The Court of Appeal held that the trial judge erred in removing the case from the trier of fact.

Applying the directed verdict framework, the circumstantial evidence could support reasonable inferences of participation in the drug conspiracy.

The acquittals were set aside and a new trial was ordered.

Mark Sheldon Roberts appealed a 2020 Ontario Review Board disposition.

The Court of Appeal dismissed the appeal as moot because the 2020 disposition had been superseded by a 2021 disposition, and new criminal charges and re-admission to a secure forensic unit at CAMH had rendered the factual record stale.

The court reiterated the principle of not deciding moot cases, especially in Review Board matters where no effective remedy can be given for a spent disposition.

The appellant appealed his conviction under s. 172.2(2) of the Criminal Code for agreeing by telecommunication to commit sexual interference with a person believed to be under 16.

The appeal raised two grounds: whether the trial judge erred in finding an agreement by failing to consider inconsistent inferences (actus reus), and whether the mens rea for the offence requires an intent to actually carry out the underlying sexual offence, beyond the intent to enter into the agreement.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding of a sufficiently detailed agreement and clarifying that the mens rea only requires the intent to enter into the agreement, aligning the offence with other inchoate child protection provisions.

The appellant appealed his conviction for sexual assault arising from events that occurred after he and the complainant separated from a group during an early morning walk following a party.

He argued that the trial judge misapprehended evidence, improperly relied on neutral circumstantial evidence as confirmatory, and engaged in uneven scrutiny when assessing the parties’ credibility.

The Court of Appeal held that the trial judge carefully considered inconsistencies in the complainant’s evolving accounts and appropriately relied on corroborating medical and circumstantial evidence, including DNA evidence and observations of the complainant’s physical condition after the incident.

The court concluded that the trial judge’s credibility findings were reasonably supported by the evidence and disclosed no reversible error.

The appeal was therefore dismissed.

The appellant, Kyle Sparks MacKinnon, appealed his conviction for second-degree murder and wounding, arguing the trial judge erred in admitting a dying victim's statement as a spontaneous utterance or under the principled hearsay exception, and in the jury instructions regarding its treatment.

The Court of Appeal dismissed the appeal, finding the statement admissible as a spontaneous utterance due to its spontaneity and the victim's state, and that the jury instructions were adequate.

The court affirmed the trial judge's finding that no "special features" undermined the statement's reliability.

The appellants, found in civil contempt for disobeying a court order regarding property use and trespassing, appealed their $1,000,000 fine.

They sought to introduce fresh evidence, alleging ineffective assistance of trial counsel.

The Court of Appeal dismissed the application for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the sentencing judge's findings that the contempt was flagrant, protracted, deliberate, and profitable, and that the fine was fit, dismissing the appeal.

The appellant, Dwayne Gordon, appealed his conviction for second-degree murder and the imposed sentence of life imprisonment with 14 years parole ineligibility.

The appeal raised three issues regarding conviction: adequacy of jury instructions on identification evidence (including recognition evidence), the instruction on adoptive admissions, and the failure to discharge a juror with colour distinction difficulties.

On sentence, the appellant argued the trial judge erred by considering youth court disposition and conditional discharge as a criminal record.

The Court of Appeal dismissed the conviction appeal, found no error in the jury instructions on identification or adoptive admissions, and upheld the decision not to discharge the juror.

While acknowledging errors in considering the appellant's youth record for sentencing, the court found these errors did not impact the parole ineligibility period.

The appeal was dismissed, except for setting aside the victim fine surcharge.