David M. Paciocco

The appellant, licensed for medical marijuana, was arrested after an officer, ignorant of the relevant regulations, disbelieved his medical card.

A search incident to arrest yielded a handgun and cocaine.

The appellant sought to exclude this evidence under ss. 8 and 9 of the Charter.

The Court of Appeal found that the officer's belief was objectively unreasonable, leading to Charter violations.

However, applying the s. 24(2) Grant analysis, the court determined that despite the institutional and individual police failings, the seriousness of the conduct was at the less serious end of the spectrum.

Given the appellant's reduced expectation of privacy in the vehicle and the high reliability and importance of the evidence (gun and drugs), its admission would not bring the administration of justice into disrepute.

The appeal against conviction was dismissed.

This is an application by the appellant to reopen his appeal, which was previously dismissed as abandoned due to his failure to surrender into custody as required by his bail release order.

The appellant had been convicted of drug-related offences, including possession for the purpose of trafficking, and sentenced to seven years' imprisonment.

The Court of Appeal for Ontario denied the application, finding that the appellant's explanation for his failure to surrender was problematic, his grounds of appeal were not strong, the Crown would be prejudiced by the disposal of evidence, and the principle of finality weighed against reopening the appeal.

The appellant appealed his conviction for sexual assault, raising multiple grounds including errors in evidence assessment, failure to give a Vetrovec warning, failure to address honest but mistaken belief in consent, and reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, affirming the trial judge's credibility findings and rejecting arguments based on stereotypical victim behaviour.

The court found no air of reality for the honest but mistaken belief defence and no evidence of judicial bias, concluding that the verdict was reasonable.

The appellant, Gladys Segura, appealed the dismissal of her application to transfer her Small Claims Court action to the Superior Court of Justice and to add the Canadian Radio-Television and Telecommunications Commission (CRTC) and Commission for Complaints for Telecom-Television Services (CCTTS) as defendants.

The original Small Claims action involved claims against Rogers Communications Inc. for alleged overcharges, improper service termination, and a phone exchange.

The application judge found that the appellant had not demonstrated that her claim could not be justly and fairly resolved in Small Claims Court, nor had she provided sufficient material facts to support higher damages, equitable relief, or claims against the proposed new defendants.

The Court of Appeal found no error in the application judge's decision, affirming the dismissal of the transfer application and the refusal to add new parties.

Costs were awarded to the respondents.

This decision addresses two appeals by an accused found not criminally responsible (NCRMD) from disposition orders of the Ontario Review Board (ORB).

The first appeal (C68888) challenged a 2020 detention order with community living privileges, which was ultimately adjourned as moot due to a subsequent disposition.

The second appeal (C69217) arose from a 2021 ORB hearing following the revocation of the accused's community living privileges and his re-detention due to new harassment incidents.

A central issue in the second appeal was the ORB's new practice of issuing general detention orders to a "Forensic Service" without specifying the security level of the unit.

The Court of Appeal expressed concern that this practice might hinder the ORB's ability to ensure the least onerous and least restrictive disposition, emphasizing the need for specificity regarding conditions and security levels.

The Court admitted fresh evidence regarding the accused's transfer to a secure unit and the withdrawal of criminal charges.

The Court maintained the 2021 disposition and dismissed the second appeal.

Mr. Ojaghi appealed a detention order issued by the Ontario Review Board, arguing it was unreasonable and seeking a conditional discharge.

He also challenged the Board's removal of a travel provision from his previous disposition.

The Court of Appeal upheld the detention order, finding it reasonable and necessary for public safety given the applicant's non-compliance with medication.

However, the court found that the Board breached its duty of procedural fairness by removing the travel provision without notice or inviting submissions, and therefore reinstated that provision.

The appellant, Richard Walker, sought leave to appeal his sentence for accessing, possessing, and making child pornography available.

He raised three grounds: (i) the trial judge erred in deeming lack of insight an aggravating factor; (ii) the trial judge erred in failing to reduce the sentence due to COVID-19 collateral consequences; and (iii) these errors rendered the sentence unfit.

The Court of Appeal dismissed the appeal, finding that lack of insight is distinguishable from lack of remorse and can be considered for future dangerousness, the trial judge correctly applied the law regarding COVID-19's minimal mitigating impact, and the sentence was fit given the gravity and nature of the child pornography offences, particularly the egregious content and victim ages.

A minor correction to the s. 161 order was made on consent.

The appellant, Timothy Massey-Patel, appealed his sexual assault conviction, arguing the trial judge's verdict was unreasonable, that she erred in assessing witness evidence, and that she relied on impermissible stereotypes and applied uneven scrutiny.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions were reasonable, her assessment of evidence sound, and that she did not rely on stereotypes or apply uneven scrutiny.

The court affirmed that a reasonable doubt on one aspect of the alleged assault (penile penetration) did not invalidate the conviction for other sexual touching and digital penetration, as the doubt arose from reliability concerns, not credibility of the complainant.

The appellant, L.C., appealed his conviction for sexual interference and sexual assault, seeking a new trial based on proposed fresh evidence.

The fresh evidence, consisting of two affidavits from the appellant's sister, aimed to challenge the credibility of one of the complainants by suggesting prior discussions (collusion) among the complainants.

The Court of Appeal dismissed the appeal, refusing to admit the fresh evidence.

The court found the appellant's sister's evidence lacked credibility due to her bias and inconsistencies, and it was not sufficiently probative to undermine the trial judge's finding that the complainant's testimony was untainted by collusion.

The appellant, Steven Vanroy Browne, appealed his conviction for manslaughter, arguing the verdict was unreasonable and that evidence of phone numbers provided to his probation officer was inadmissible.

The Court of Appeal found the verdict reasonable, supported by DNA evidence, mobile phone records, and association evidence, despite inconsistencies in eyewitness identification.

The court also upheld the admission of phone number evidence, ruling it was not compelled and did not violate Charter rights, as the appellant failed to establish a subjective or objective belief of compulsion.

The appeal was dismissed.

The appellant, an Indigenous man, sought to withdraw his guilty pleas, arguing that the trial judge erred by not inquiring into the impact of his Indigenous experiences on the voluntariness of his plea, even though he had not raised this issue.

The Court of Appeal dismissed the appeal, holding that while judges have a duty to inquire into the validity of a plea if there are apparent indications of an issue, there is no general affirmative obligation to inquire into an Indigenous person's experiences affecting plea voluntariness unless specific circumstances trigger such a duty.

The court found no such circumstances in this case, and the evidence suggested the plea was voluntary.

The appellant, C.G., appealed his convictions for sexual assault, sexual interference, invitation to sexual touching, and breach of recognizance.

The Court of Appeal found that the trial judge made three fundamental errors: an inadequate analysis of "inadvertent collusion" concerning defence witnesses, a failure to analyze crucial competing exculpatory evidence (e.g., creaky floors, light sleepers, appellant's work schedule), and an improper application of the principles from R. v. W. (D.) by not explaining why the exculpatory evidence failed to raise a reasonable doubt.

The trial judge also erred by relying on a stereotype about sex offenders taking "incredible risks" without proper evidentiary foundation.

The appeal was allowed, and a new trial was ordered.

The appellant, Latoya Ceballo, appealed her conviction for importing cocaine, arguing that the trial judge erred in denying her Charter application to exclude evidence.

Ceballo contended she was detained during a secondary customs inspection without being promptly advised of her Charter rights (ss. 10(a), 10(b)).

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that Ceballo was not detained prior to admitting possession of cocaine.

The court reiterated that routine border inspections, including ion scans and questioning about travel, do not constitute detention.

It found no error in the trial judge's assessment that the Border Services Officer's actions were not intrusive enough, nor was there a sufficiently strong particularized suspicion or subjective decision to engage in an intrusive investigation to trigger detention.

The court also found no material misapprehension of evidence by the trial judge.

The appellant, J.J., appealed convictions for sexual assault and break and enter.

The appeal raised issues concerning the trial judge's alleged misapprehension of DNA evidence, the imposition of an onus on the appellant to provide a benign explanation for DNA presence, and trial counsel's conflict of interest.

The Court of Appeal found that the trial judge did not misapprehend the DNA evidence in his reasons, did not reverse the burden of proof regarding innocent DNA transfer, and that trial counsel's prior representation of an investigating officer did not result in an actual conflict of interest impairing trial fairness.

The appeal was dismissed.

The appellant, Gary Hoffman, appealed his manslaughter conviction, raising three grounds: the trial judge's failure to give a W.(D.) direction regarding exculpatory evidence from a key witness (Peter Ojha), a misdirection on double hearsay contained in Ojha's K.G.B. statement, and a constitutional challenge to the Ontario Juries Act.

The Court of Appeal dismissed the constitutional challenge but found errors in the jury instructions regarding the W.(D.) direction and double hearsay.

The court held that a W.(D.) direction is required for exculpatory evidence from any witness, even if that witness also provides inculpatory evidence or if the exculpatory evidence relates to only one theory of culpability.

It also clarified that if a jury finds a K.G.B. statement to be based on double hearsay, they must disregard it entirely, rather than merely considering it for reliability.

Consequently, the manslaughter conviction was set aside, and a new trial was ordered.

The appellant, Margaret Lee Cole, appealed her conviction for first-degree murder in the death of Richard Humble, who died in a house fire.

The Crown's case was based on circumstantial evidence, including the appellant's financial motive (forged documents and will), the presence of a sedative (Alprazolam) in the victim's system (prescribed to the appellant), a false alibi, and other suspicious circumstances.

The Court of Appeal found that the trial judge erred in admitting extrinsic misconduct evidence (the "Chapman letters") and in the jury's instruction on its use, as well as in the jury's instruction on the fabricated alibi.

However, the Court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that the Crown's case was overwhelmingly strong and that the errors did not cause a miscarriage of justice.

The appeal was dismissed, and the conviction upheld.

This appeal concerned the Ontario Review Board's refusal to order a psychiatric assessment for an accused, found not criminally responsible by reason of mental disorder (NCRMD) for double murder, who had been designated a "high-risk accused." The accused sought the assessment to promote an application to the Superior Court to remove his high-risk designation, arguing his progress meant he no longer qualified.

The Court of Appeal dismissed the appeal, affirming the Board's decision.

The Court clarified that the "substantial likelihood" test for reviewing a high-risk designation assesses the accused's inherent risk of violence if not subject to external constraints, not their risk under current supervised conditions.

Given the accused's history and ongoing risk factors, the Board's conclusion that an assessment would not change its determination was reasonable.

The Court also noted the Board's error in applying an "onus" on the accused in inquisitorial proceedings, though found it non-prejudicial.

The appellant, found not criminally responsible, appealed the Ontario Review Board's disposition that continued his detention.

He sought an absolute discharge or, alternatively, a transfer to a less secure psychiatric facility.

The Court of Appeal found the Board's conclusion that the appellant continued to pose a significant threat to public safety was reasonable, supported by expert evidence.

The request for transfer was also denied as the proposed facilities lacked all-male units, a necessary condition given the appellant's history.

The appeal was dismissed.

The appellant appealed her convictions for impaired operation causing death, impaired operation causing bodily harm, and failing to remain, and sought leave to appeal her global five-year sentence.

The appellant had pleaded guilty to the charges but later sought to strike her plea, alleging duress.

The Court of Appeal dismissed the conviction appeal, finding no legal error in the trial judge's conclusion that the guilty plea was voluntary and informed, noting that a change of mind after the fact is insufficient to set aside a plea.

The Court also dismissed the sentence appeal, finding the sentencing hearing was conducted fairly, the sentence was warranted by the facts and the appellant's driving record, and there was no basis to interfere with the trial judge's discretion regarding credit for pre-sentence custody.

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

The applicants' motion resulted in an order for them to pay costs to the respondent, Dilico Anishinabek Family Care, in the amount of $3,500, inclusive of HST and disbursements.