David M. Paciocco

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 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 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 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 was convicted of second degree murder after fatally stabbing his friend during a physical altercation that began as a fist fight and escalated when the deceased produced a knife.

The appellant admitted to causing the death but claimed self-defence.

He was sentenced to life imprisonment with parole ineligibility of 12 years.

On appeal, the appellant challenged the admission of various evidence, the jury charge on self-defence and provocation, and the sentencing decision.

The Court of Appeal upheld the conviction and sentence, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions, though it identified an error in sentencing that had no impact on the outcome.

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.

The appellants purchased land near Sturgeon Lake and commissioned a survey indicating their property abutted land owned by the Long Beach Residents' Association.

They claimed that a portion of Long Beach's land between their property and the lake shore was originally part of their parcel and should be conveyed to them.

The application judge dismissed their claim, finding that Long Beach's property was originally a water lot conveyed to the federal government and that fill was deposited to construct a wharf, moving the shoreline eastward.

The Court of Appeal upheld this decision, finding the factual findings well-grounded in evidence and that survey monuments supported the boundary determination.

The court also dismissed the appellants' riparian rights claim, finding any such rights would have been extinguished under the Real Property Limitations Act.

An appeal of a Criminal Code section 672.54(c) detention order made by the Ontario Review Board.

The appellant argued that the Board erred in concluding that he poses a significant risk to the public and that the Board committed a Carrick error by failing to make this determination independently of his admission.

The Court of Appeal dismissed the appeal, holding that while a Board must make its own determination of dangerousness, it is entitled to rely on counsel's credible acknowledgement that the significant threat standard has been met, provided the Board does not abdicate its responsibility to assess the evidence.

The appellant appealed the Ontario Review Board's disposition dated February 2, 2018, which maintained the same order as the previous year.

The Board concluded that despite the appellant's positive steps, events in spring 2017 and the appellant's lack of insight demonstrated that the appellant continued to pose a significant threat to public safety.

The Court of Appeal found that the Board's conclusion was open to it on the evidence and that there was no material misapprehension of evidence.

The appeal was dismissed.

The appellants appealed a motion judge's decision granting judgment in the amount of $55,555.55 in accordance with a Rule 49 offer to settle.

The appellants claimed the offer had been revoked before acceptance, arguing it was revoked orally at a pretrial conference and subsequently by a second written offer.

The respondent contended the first offer had not been effectively revoked and that acceptance occurred before service of the second offer.

The Court of Appeal upheld the motion judge's decision, finding that Rule 49 offers can only be revoked in writing, and that the respondent's acceptance of the first offer preceded service of the second offer based on credible evidence and the appellants' failure to provide an affidavit of service.

An insurance priority dispute concerning whether an automobile insurance policy issued by Elite remained in force at the time of an accident.

Elite sent a purported notice of non-renewal in August 2010 for a policy ending September 20, 2010, based on the claimant's failure to register for a data-transmitting device within 12 months.

The arbitrator found the notice premature and that the policy had been terminated by mutual agreement of the parties despite the statutory continuation provision in section 236(5) of the Insurance Act.

The Superior Court appeal judge reversed, finding section 236(5) required the policy to remain in force.

The Court of Appeal allowed the appeal, finding the arbitrator's decision reasonable on both issues: the notice was premature and the policy was effectively terminated by the parties' conduct.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

The appellant appealed his convictions for failing to provide the necessaries of life to his blind and cognitively impaired mother and sister, resulting in their deaths from starvation and septic shock respectively.

The appellant also appealed his sentence of 18 years (8 years consecutive for criminal negligence in his sister's death and 10 years for manslaughter in his mother's death).

The Court of Appeal dismissed the conviction appeal but allowed the sentence appeal.

The court found that while the verdicts were inconsistent (acquittal on manslaughter but conviction on criminal negligence for the sister's death), the criminal negligence conviction was reasonable and supported by evidence, whereas the manslaughter acquittal arose from a manifest legal error.

The court admitted fresh evidence regarding the appellant's cognitive limitations on the sentencing issue and reduced the global sentence to 14 years, minus presentence custody credit of 1,405 days, resulting in a net sentence of 10 years and 2 months.

A police officer convicted by jury of dangerous driving causing death and sentenced to eight months in prison sought bail pending appeal.

The Crown opposed release, arguing the grounds of appeal lacked merit and that public confidence in the administration of justice required incarceration pending appeal.

The motion judge granted bail, finding the grounds of appeal relating to sufficiency of focus on the dangerous driving and guidance on marked departure were not frivolous and warranted close examination.

The judge held that public interest was best served by allowing the applicant to challenge the conviction before serving the sentence.

The appellant was convicted of robbery, breach of recognizance, breach of probation, and possession of proceeds of crime arising from an altercation involving a purported cocaine sale.

The trial judge convicted the appellant of robbery by stealing with violence contrary to s. 343(b) despite the Crown alleging robbery while armed with a firearm contrary to s. 343(d).

The appellant received a global sentence of 20 months in prison and 2 years probation, with 320 days pre-sentence custody credited at 1.5:1, resulting in a net sentence of 4 months.

The appeal addressed whether the trial judge erred in treating robbery with violence as an included offence in a charge of armed robbery, and whether the trial judge improperly placed the burden of proof on the appellant regarding self-defence.

The appellant sought leave to appeal a summary conviction appeal court decision that dismissed his appeal from a conviction for impaired driving.

The appellant's main complaint was that the trial judge relied on the testimony of one officer to establish reasonable grounds for arrest despite discrepancies with another officer's observations.

The appellant also attempted to raise new grounds of appeal not previously raised, including bolus drinking and denial of a Charter motion, and brought a fresh evidence application regarding non-disclosure of a breath technician's certificate.

The Court of Appeal denied leave to appeal and denied admission of fresh evidence, finding that the appellant's grounds did not raise arguable points of law of significance to the administration of justice and that the appellant was essentially seeking a retrial.

A youth appealed his sentencing on charges of unlawful possession of a loaded handgun, unlawful possession of a prohibited weapon (sawed-off shotgun), and breach of recognizance.

The appellant contended that the youth court judge erred by not respecting the joint sentencing submission on allocation of pre-sentence custody, by failing to allow the appellant to speak before sentencing, by imposing a 15-month probationary sentence (which exceeded the statutory maximum of 12 months for the s. 95 offence), and by imposing a 7-year weapons prohibition.

The Court of Appeal partially allowed the appeal, modifying the probationary sentence on the s. 95 offence to 12 months while upholding the other aspects of the sentence.

The appellant appealed his sentence for possession of heroin for the purpose of trafficking.

The appellant was found in possession of 21.91 grams of heroin divided into four packages and pleaded guilty to possession but claimed it was for personal use.

The trial judge rejected this claim, finding that given the appellant's limited financial resources and addiction, he must have been trafficking to support his habit.

The appellant argued the sentencing judge made errors in principle by treating the absence of pro-social life factors as aggravating, considering outstanding domestic violence charges as aggravating, and failing to exercise restraint.

The appellate court agreed with two of the three errors but found the sentence was nonetheless fit and within the appropriate range for similar offences.

The appellant was convicted of second-degree murder in the shooting death of a drug dealer during a robbery.

The trial judge sentenced him to life imprisonment with parole ineligibility after 16 years.

On appeal, the appellant challenged his conviction on five grounds: (1) the admissibility of expert opinion evidence regarding cellphone usage patterns by drug traffickers; (2) the trial judge's refusal to admit prior out-of-court statements; (3) jury instructions cautioning the jury to consider the appellant's testimony with particular care; (4) jury instructions on eyewitness identification evidence; and (5) the trial judge's failure to properly instruct the jury on the significance of non-identification evidence.

The Court of Appeal found merit in several grounds of appeal, particularly regarding the cellphone evidence, jury instructions on the appellant's alibi testimony, and instructions on eyewitness non-identification evidence.

The court determined that the cumulative effect of these errors was not harmless and warranted a new trial.

The appellant was convicted of child luring under s. 172.1(1)(b) of the Criminal Code for sending sexually explicit messages and images to a 15-year-old girl who was a friend of his twin daughters.

The trial judge found that the appellant believed the complainant was under 16 years of age.

The appellant appealed on four grounds: (1) the verdict was unreasonable because the trial judge found only that the appellant would have known the complainant's "approximate age" rather than that he subjectively believed she was under 16; (2) the trial judge failed to provide sufficient assistance to the self-represented appellant regarding Charter issues; (3) the trial judge erred in dismissing the s. 8 Charter application; and (4) the sentence was influenced by a mandatory minimum that was subsequently struck down as unconstitutional.

The Court of Appeal dismissed the conviction appeal and the sentence appeal.