David M. Paciocco

The appellant was convicted of child abduction contrary to section 282 of the Criminal Code after taking her seven-year-old daughter to China in December 2010 without the knowledge or consent of the child's father and refusing to disclose the child's whereabouts upon return to Canada.

The trial judge imposed a seven-year sentence.

The appellant appealed both conviction and sentence, raising 14 grounds of appeal including allegations of illegality, perjury, and judicial misconduct.

The Court of Appeal dismissed the conviction appeal, finding the trial was conducted fairly and the evidence overwhelmingly established guilt.

The sentence appeal was allowed in part regarding pre-sentence custody credit, which was recalculated at a 1.5:1 ratio rather than 1:1, resulting in a reduction of the sentence by 14 months.

The appellant appealed his conviction for robbery with a firearm on two grounds: (1) whether his right to trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was breached, and (2) whether the trial judge's finding that the gun used in the robbery was a firearm was unreasonable.

The appeal was heard after the Supreme Court's landmark decision in R. v. Jordan, which fundamentally changed the approach to s. 11(b) claims by establishing a presumptive 30-month ceiling for trial completion.

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

The appellant appealed his conviction for failing to stop at the scene of an accident, impaired operation of a motor vehicle causing bodily harm, operation of a motor vehicle while over 80 causing bodily harm, and dangerous driving causing bodily harm.

The sole issue at trial was whether the appellant was the driver of the vehicle involved in the collision.

The appellant raised two grounds of appeal: first, that the trial judge erred in his jury instructions regarding in-dock identification evidence from eyewitnesses; and second, that the trial judge erred in noting that a passenger may have had an interest in the outcome due to her friendship with the appellant.

The appellate court found no error in either ground and dismissed the appeal.

The appellant sought leave to appeal his sentence for assault against his girlfriend.

The appellant was convicted under s. 265 of the Criminal Code and received a suspended sentence with nine months of probation.

The Summary Conviction Appeal Court dismissed his appeal.

The appellant argued that leave to appeal should be granted because the Summary Conviction Appeal Court erred in relying on aggravating factors not considered by the sentencing judge and in misapplying the law regarding immigration consequences.

The Court of Appeal denied leave to appeal, finding that any errors were inconsequential and that both the sentencing judge and Summary Conviction Appeal Court properly considered the appellant's immigration status.

The Crown appealed the acquittal of the respondent on eight charges of serious assault, including physical and sexual abuse.

The trial judge acquitted the respondent on all counts after a nine-day trial.

The Crown argued that the trial judge failed to provide adequate reasons for the acquittals, providing only brief comments on the record that did not explain the decision or permit meaningful appellate review.

The trial judge promised detailed written reasons but never delivered them despite repeated requests over several months.

The appellate court found that the trial judge's brief comments constituted only the "bottom line" decision without any analysis of the evidence, contradictions between witnesses, or identification of specific evidentiary gaps supporting the reasonable doubt conclusion.

The court held that the failure to provide reasons that permit meaningful appellate review constitutes reversible error in law.

The appellant was convicted of two counts of sexual assault and two counts of sexual interference against the two daughters of his former girlfriend, with offences alleged between 2002 and 2004.

The trial judge rejected the appellant's denials and accepted the complainants' evidence.

The appellant was sentenced to two years less one day imprisonment.

On appeal, the Court of Appeal allowed the appeal on the basis of ineffective assistance of trial counsel, finding that counsel failed to review a police statement with the appellant, failed to prepare him for cross-examination on that statement, and failed to intervene during cross-examination.

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

The appellant appealed his conviction for possession of an illegal weapon, challenging the trial judge's finding that the firing pin for the weapon was "readily sourced and available." The appellant argued this conclusion was speculative and unsupported by evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion was supported by the evidentiary record, including evidence that the gun was common in the United States where parts were readily available, and that smuggling of parts into Canada occurs despite legal prohibitions.

The accused was initially found unfit to stand trial on murder charges on January 4, 2017, and a sixty-day "make fit" order was issued.

At the March 10, 2017 hearing, the Crown conceded that it had not met its burden of proving fitness on the balance of probabilities.

The court found the accused remained unfit to stand trial, primarily due to cognitive impairments caused by major depressive episode and schizophrenia that prevented him from meaningfully participating in trial and instructing counsel.

The accused brought a section 11(b) application seeking a stay of proceedings for breach of the right to trial within a reasonable time on a charge of operating a motor vehicle with more than the legal amount of alcohol in his blood.

The parties agreed that the net delay was less than 18 months, placing the case within the presumptively reasonable delay threshold established in R. v. Jordan.

The court applied the transitional framework from Jordan, considering whether the accused took meaningful steps to expedite proceedings and whether the case took markedly longer than it reasonably should have.

The court found that after deducting neutral delay periods (intake period, preparation time, defence counsel unavailability, and post-adjournment defence delay), the Crown delay was approximately 8.6 months, well within Morin guidelines.

The application was dismissed.

The trial judge considered a bail application brought under Criminal Code section 523(2) by an accused who had been in custody for nearly two years awaiting trial.

The judge determined that section 523(2) is a bail review provision, not a bail hearing provision, and that the accused had never had an initial bail hearing.

The judge concluded that he lacked jurisdiction to conduct a de novo bail hearing under section 523(2) because that provision only applies where there is a prior order to vacate.

The judge declined to convert the hearing into a section 515 application, finding that a hearing conducted without jurisdiction is a nullity and cannot be reconstituted by agreement.

The judge directed the accused to pursue a section 515 bail application before another justice.

A youth charged with sexual offences brought a section 11(b) Charter motion alleging violation of the right to trial within a reasonable time.

The court applied the new Jordan framework, which established an 18-month presumptive ceiling for provincial courts.

The applicant argued for a lower 12-month ceiling for youth cases.

The court found that charges involving one complainant exceeded the presumptive ceiling and could not be justified under either the Jordan framework or transitional principles, resulting in a stay of proceedings.

Charges involving a second complainant were found to be within acceptable delay parameters and proceeded to trial on the merits.

The Crown sought to admit three out-of-court statements attributed to the deceased complainant, Michael O'Drane, under the principled exception to the hearsay rule established in R. v. Khan.

The statements consisted of: (1) a comment overheard by a witness when O'Drane spoke to paramedics; (2) oral statements made to a police officer at the hospital; and (3) a videotaped interview conducted four days after the alleged assault.

The court rejected all three statements as failing to meet the threshold reliability requirement, finding insufficient process-based and content-based indicia of reliability.

The court emphasized that ultimate inferences from corroborating evidence cannot be used to establish the reliability of hearsay statements.

The accused challenged the mandatory victim surcharge under Criminal Code section 737 as violating equality rights under section 15 of the Canadian Charter of Rights and Freedoms.

The court found that the surcharge had a disproportionate impact on persons with mental disabilities.

The Crown sought to justify the violation under section 1 of the Charter by arguing the surcharge served pressing and substantial objectives of raising funds for victim services and holding offenders accountable.

The court rejected the Crown's section 1 justification, finding the legislation was not minimally impairing and that the deleterious effects on disabled persons outweighed the salutary effects.

The offender was convicted after trial of ten indictable firearms-related charges and one count of breach of probation arising from a single incident on November 27, 2014, in which he carried a concealed firearm to a restaurant, pointed it at a group of men, chased two of them while pointing the weapon, entered a motor vehicle with the firearm, and subsequently bragged about the incident on social media.

The court imposed a sentence of 48 months imprisonment, comprising 30 months concurrent on the active firearm offences and breach of probation, plus 18 months consecutive for four firearm prohibition breaches.

The court rejected the Crown's request for a 6-year exemplary sentence and the defence request for 30 months, finding that while the offences were serious and committed by an offender with a violent criminal history and demonstrated contempt for court orders, the circumstances did not warrant the Crown's proposed sentence.

A youth charged with sexual offences against two young complainants.

The Crown sought to introduce count-to-count similar fact evidence, using testimony from one complainant to support allegations involving the other.

The court considered whether the evidence met the admissibility threshold under the similar fact evidence doctrine, examining both the probative value and the risk of prejudice.

The court admitted the evidence on two bases: the coincidental use of the term "milk" by both complainants, and the contextual similarities in how the alleged offences occurred.

The accused sought to re-elect trial mode from the Ontario Court of Justice to the Ontario Superior Court of Justice following an adverse severance application decision.

The Crown opposed the re-election, arguing that the trial had already commenced with the severance hearing and therefore re-election required Crown consent.

The court held that once a seized trial judge begins to receive evidence on a severance application, the trial is underway for purposes of Criminal Code section 561(2), and the right to re-elect without consent expires 14 days before that point.

The re-election application was denied.

The accused applied for severance of counts relating to two separate criminal incidents—one in Ottawa involving the alleged robbery, assault, and unlawful confinement of Justin Huynh, and another in Richmond Hill involving similar offences against Linton Campbell.

The accused sought to sever the counts to avoid prejudice and to preserve her tactical choice whether to testify.

The court denied the severance application, finding significant factual overlap between the incidents, viable similar fact evidence connecting them, and no objective foundation for the accused's stated intention to testify on one set of charges but not the other.

The accused pleaded guilty to threatening to cause death and breach of probation.

She brought constitutional challenges to section 737 of the Criminal Code (the victim surcharge provision), arguing it violated her Charter rights under sections 7 and 15.

The court found a prima facie violation of section 15 (equality rights) on the basis that the mandatory victim surcharge has a discriminatory impact on mentally disabled persons who are disproportionately poor.

The court rejected section 7 challenges based on arbitrariness and overbreadth, finding the provision does not violate liberty or security of the person in a manner contrary to fundamental justice.

The accused was sentenced for her considerable role in atrocious sexual and physical crimes committed with her husband against their two daughters over many years.

The accused was found guilty of sexual assault, sexual touching of a minor with an object, direct sexual touching of a minor, and assault with a weapon.

The court imposed a global sentence of 7 years imprisonment, with 4 years and 3 months remaining to serve after crediting pre-sentence custody.

The sentencing decision emphasizes the gravity of the offences, the breach of parental trust, the severe and lasting harm to the victims, and the limited mitigating effect of the accused's own history of abuse and her secondary role in most offences.

The accused brought a section 11(b) Charter application alleging that his right to be tried without unreasonable delay was violated.

The charge of impaired driving contrary to section 253(1)(b) of the Criminal Code was laid on September 8, 2011.

The prosecution involved two trials and an appeal, spanning over four years.

The court conducted a detailed analysis of the delay attributable to the Crown versus delay caused by the defence and inherent in the case.

The court found that while the total delay was substantial at 15.75 months of Crown-caused and institutional delay, it fell within the acceptable range for a retrial (14-18 months).

The court also found that the defence had not acted with sufficient diligence, including late disclosure of trial complexity, last-minute tactical changes, and a late section 11(b) application.

The court found no meaningful prejudice to the accused and dismissed the application.