David M. Paciocco

The appellant appealed his convictions for assault, assault with a weapon, sexual interference, three counts of sexual assault, uttering a threat, two counts of failing to comply with a recognisance, and failure to comply with probation.

The charges stemmed from allegations made by three of the appellant's children, all of whom had cognitive deficits.

The trial judge convicted the appellant of all charges except one count of assault causing bodily harm.

The appellant challenged the conviction on grounds of material inconsistencies in witness evidence and inadequate reasons, and also sought leave to appeal his sentence of 10 years' incarceration less 34 months of pre-trial custody.

The Court of Appeal dismissed the conviction appeal, granted leave to appeal sentence, and allowed the sentence appeal to provide additional credit for pre-sentence custody.

The appellant appealed a trial judgment settling the division of matrimonial property following a marriage breakdown.

The central issue was whether the respondent was a beneficial owner of the matrimonial home held solely in the appellant's name.

The trial judge found the respondent was a beneficial owner based on the parties' pattern of joint financial ventures in real estate.

The appellant argued the trial judge erred in finding beneficial ownership, in denying an adjournment request, in failing to assist her as a self-represented litigant, and in refusing an unequal division of net family property.

The appeal was dismissed on all grounds.

The appellant was convicted by jury of second degree murder in the death of Orin Felix and attempted murder of Trevor Hunter following an altercation between two groups outside a bar.

The appellant appeals on grounds relating to the trial judge's jury instructions on post-offence conduct evidence and a corrective instruction regarding the appellant's testimony about a witness named Latoya Dejonge.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's handling of the post-offence conduct evidence or the corrective instruction, and concluding that the trial remained fair despite some unfortunate judicial decisions.

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

The appellant was convicted of firearms offences and possession of cocaine for trafficking after police officers detained him on a street in Windsor, Ontario without reasonable suspicion, violating his Charter rights under sections 8, 9, and 10(b).

The trial judge found the detention arbitrary and the searches unlawful but admitted the evidence under section 24(2) of the Charter, finding the police acted in good faith.

The Court of Appeal allowed the appeal, holding that the trial judge erred in assessing the seriousness of the Charter breach by relying solely on the officers' subjective belief that they were not detaining the appellant.

The court found the police should have known they were exceeding their powers following the Supreme Court's decision in R. v. Grant, and excluded the evidence, entering acquittals on all counts.

The plaintiff was pushed by the defendant Saywell, causing him to stumble into the path of a truck driven by Cloutier.

He suffered brain damage and became incapable of managing his own affairs.

He settled his statutory accident benefits (SABs) claim and his tort claim against Cloutier (a Pierringer settlement) prior to trial.

At trial, the jury apportioned liability equally among the plaintiff (contributory negligence), Saywell, and Cloutier.

The trial judge adopted the "silo" approach to deducting SABs from tort damages, rather than the strict "apples to apples" matching approach.

The trial judge also held that the non-settling defendant was only entitled to deduct 50 per cent of the SABs from his share of damages.

The Court of Appeal affirmed the silo approach and the proportionate deduction of SABs, overruling prior precedent requiring strict matching.

The plaintiff was catastrophically injured in a motor vehicle accident and sued the defendants for damages.

The jury found the defendants 62% liable and awarded damages of approximately $2.6 million, including $2.2 million for future care costs.

The trial judge made a conditional assignment order of the plaintiff's future statutory accident benefits (SABs) to the defendants' insurers under section 267.8(12)(a)(ii) of the Insurance Act.

The plaintiff appealed, arguing that the assignment violated strict matching principles and was premature.

The Court of Appeal dismissed the appeal, affirming the conditional assignment order and rejecting the strict matching approach in favour of a "silo" approach.

The court also denied leave to appeal the trial judge's substantial reduction of the plaintiff's costs award, which was reduced from $795,616.09 to $375,000 due to the plaintiff's counsel's conduct regarding a settlement offer, the lack of material benefit in proceeding to trial, and conduct that unnecessarily extended the trial.

The appellant appealed his conviction on the grounds of a Charter section 8 violation relating to an unreasonable search and seizure.

The trial judge found that the appellant had abandoned his house and car keys when approached by police, thereby defeating any reasonable expectation of privacy.

The Court of Appeal upheld the conviction, finding no basis to interfere with the trial judge's credibility findings regarding the police officers' testimony.

The court also rejected arguments of uneven scrutiny and misapprehension of evidence.

The appellant was convicted by jury of robbery, assault causing bodily harm, aggravated assault, uttering a threat to cause death, and possession of a weapon for a purpose dangerous to the public peace, and pleaded guilty to breach of recognizance.

The crimes involved the slashing and robbery of a 57-year-old blind male complainant.

Identity was the only contested issue at trial.

The appellant appealed his convictions and sought leave to appeal his sentence of seven years.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's jury charge regarding the alternative suspect defence or the Vetrovec charge.

However, the court found sentencing errors and imposed a stay on the aggravated assault and weapon dangerous convictions pursuant to Kienapple principles, and varied the sentences on the uttering a threat to cause death and breach of recognizance convictions to 18 months and three months concurrent respectively, while affirming the global sentence of seven years less 771 days' credit for pre-sentence custody.

The appellant was convicted of sexual assault based on evidence that the complainant was extremely intoxicated and incapable of consenting when the appellant engaged in sexual activity with her.

The appellant appealed, arguing the trial judge erred by failing to consider whether the complainant's lack of memory raised a reasonable doubt regarding consent or honest but mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were compelling and based on the totality of evidence demonstrating the complainant's extreme intoxication and incapacity to consent, not merely on the complainant's testimony.

The appellant was convicted of sexual assault, unlawful confinement, obstructing a peace officer, and breach of recognizance.

He appealed his convictions for sexual assault and unlawful confinement, arguing that the trial judge erred in assessing credibility, failed to address certain evidence, gave uneven scrutiny to the evidence, and received ineffective legal representation.

The Court of Appeal rejected all grounds of appeal, finding that the trial judge properly assessed the evidence, made reasonable inferences from the complainant's testimony and physical evidence, and that counsel's tactical decisions fell within the ambit of reasonable professional assistance.

The appellant appealed the motion judge's order striking his fresh as amended statement of claim without leave to amend and dismissing his action for malicious prosecution and misfeasance in public office against the Law Society of Ontario and four individuals involved in investigations and proceedings concerning the appellant over 15 years.

The motion judge found the appellant had failed to provide sufficient particulars of improper purpose or ulterior motive as required by the Rules of Civil Procedure.

The Court of Appeal allowed the appeal in part, finding the appellant had sufficiently pleaded the elements of both torts through his pleadings and response to the demand for particulars, except as to one respondent against whom no particulars were provided.

The court dismissed the appellant's motion to admit fresh evidence and vacated the costs order, awarding the appellant partial costs of the appeal.

Two consolidated appeals concerning the proper interpretation of section 23 of the Health Care Consent Act, 1996 regarding "necessary and ancillary treatment." The appellants, both found incapable of consenting to primary psychiatric treatment, challenged both their incapacity findings and the Board's practice of making separate findings of incapacity for ancillary treatments.

The Court of Appeal clarified that once a person is found incapable of consenting to primary treatment, section 23 automatically authorizes ancillary treatment without requiring a separate incapacity finding, even if the person is capable of consenting to the ancillary treatment.

The appellant appealed her sentence for abduction of a child in contravention of a court order.

The appellant had removed her twin children from school in violation of a court-ordered access schedule, driving aggressively to evade the complainant (the children's father).

She pleaded guilty and received a suspended sentence.

On appeal, she argued the sentencing judge erred by considering her prior wrongdoing as an aggravating factor and by emphasizing general deterrence over her specific circumstances.

The Court of Appeal dismissed the appeal, finding the sentencing judge was entitled to consider the appellant's course of conduct in determining whether a discharge would be contrary to the public interest, and was entitled to find that a conditional discharge was not appropriate given the aggravated manner of the offense.

The appellant was convicted of sexual assault and sexual exploitation by a Superior Court judge and sentenced to 12 months' imprisonment concurrent on both counts, plus two years' probation, a lifetime weapons prohibition, a lifetime SOIRA order, and a DNA order.

The appellant appealed the convictions on four grounds: uneven scrutiny of witness credibility, improper application of the rule in Browne v. Dunn, failure to address the Crown's failure to call certain witnesses, and improper admission of similar fact evidence.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The appellant appealed his sentence for manslaughter following a guilty plea in the death of his 53-day-old son.

The appellant raised four grounds of appeal: that the sentencing judge unfairly minimized the mitigating effect of the guilty plea; that the judge unduly relied on the appellant's failure to disclose a head injury to medical personnel; that the judge misapprehended the agreed statement of facts regarding the force used; and that the judge erred in declining to award pre-sentence credit beyond the 1.5:1 ratio for harsh detention conditions.

The Court of Appeal dismissed the appeal, finding no errors in principle and that the sentence was fit.

The Crown appealed the acquittal of H.E. on a charge of sexual assault against his wife.

The trial judge had accepted the complainant's testimony regarding the assault but acquitted the accused based on a reasonable doubt about whether he possessed the required mens rea, citing factors including the complainant's delay in reporting and continued sexual relations with the accused.

The appellate court found that the trial judge committed reversible errors by considering an honest but mistaken belief in consent defence that was not raised at trial, by relying on a shared mistaken belief about marital rights that cannot form the basis for such a defence, and by considering factors that were irrelevant to the accused's state of mind.

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

The appellant was convicted of robbery and using an imitation firearm in the commission of that offence.

He was sentenced to six months' incarceration for robbery and 12 months' consecutive for the firearm offence.

On appeal, the appellant challenged the convictions on four grounds: the admissibility of dog tracking evidence, the trial judge's use of post-offence conduct evidence (flight from police), the trial judge's treatment of evidence regarding the appellant's intoxication, and a misapprehension of evidence regarding the appellant's location.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The appellant appealed his conviction on two counts of sexual assault against his step-granddaughter.

The trial judge found that the appellant sexually assaulted the complainant on multiple visits over a nine-year period, characterizing the assaults as part of an ongoing course of conduct.

The complainant acquiesced to the appellant's demands out of fear and therefore did not consent.

The appellant raised two grounds of appeal: that the trial judge reversed the burden of proof by drawing a negative inference from the absence of medical evidence regarding the appellant's physical capability, and that the trial judge failed to apply the third step of the W.(D) test.

The Court of Appeal dismissed both grounds and upheld the conviction.

The appellant Crown appealed the sentence imposed by the trial judge on the respondent who pled guilty to importing hashish contrary to s. 6(1) of the Controlled Drugs and Substances Act.

The trial judge had found s. 6(3)(a) of the CDSA and its combined effect with Criminal Code s. 742.1(c) to be unconstitutionally overbroad under s. 7 of the Charter, rendering the respondent eligible for a conditional sentence.

The trial judge imposed a conditional sentence of two years less a day and 18 months' probation.

On appeal, the Crown conceded that given the respondent's changed circumstances, time already served, and community service completed, reincarceration was not warranted, and requested the sentence be stayed.

The Court of Appeal allowed the appeal and varied the sentence to time served, with the probation order remaining in effect.