David Watt

Shane Wood appealed his conviction for first-degree murder, arson, and offering an indignity to a body.

The appeal raised three grounds: the trial judge's failure to admit defence evidence (hearsay statements of Kim Rolph-Smith), improper jury instructions on after-the-fact conduct, and inadequate handling of juror misconduct.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exclusion of the hearsay evidence due to lack of reliability, no fatal omissions in the jury instructions on after-the-fact conduct, and that a juror inquiry was not warranted given the nature of the juror's note and the trial judge's corrective instruction.

The Crown appealed a dangerous offender sentence, arguing the sentencing judge applied the wrong legal standard ("reasonable possibility" instead of "reasonable expectation") when determining if a lesser measure than indeterminate detention would adequately protect the public.

The Court of Appeal found the sentencing judge erred in law by applying a less rigorous standard and by relying on speculative evidence of treatability and manageability.

The appeal was allowed, and a sentence of indeterminate detention was substituted.

The appellants, G.F. and R.B., appealed their sentences for sexual assault after their convictions were restored by the Supreme Court of Canada.

The trial judge had sentenced G.F. to three and a half years and R.B. to three years.

The appellants raised several grounds of appeal, including the trial judge's personal objections to the conduct, penalizing them for maintaining innocence, an alleged error in finding a breach of trust, inadequate distinction in culpability, and failure to consider collateral consequences (immigration for G.F. and mental health for R.B.).

The Court of Appeal dismissed all complaints, finding no errors in principle that impacted the sentences.

The court affirmed the finding of a breach of trust and reiterated that collateral immigration consequences cannot justify artificial sentences.

The sentences were deemed proportionate and not "demonstrably unfit."

The appellant, Miguel Chacon-Perez, appealed his conviction for second-degree murder.

The appeal raised four grounds: unreasonable verdict, improper Crown closing address, failure to instruct the jury on manslaughter, and error in denying a jury request for witness testimony.

The Court of Appeal dismissed the first three grounds but allowed the appeal on the fourth ground, finding that the trial judge erred by effectively refusing the jury's request for a read-back of crucial witness testimony related to the identity of the assailant, which was the central contested issue.

A new trial was ordered.

The appellant, Juan Solorzano Sanclemente, appealed his conviction for sexual assault and the blended sentence imposed.

The appeal raised four grounds: the trial judge's dismissal of an application to introduce evidence of extrinsic and contemporaneous sexual activity of the complainant under s. 276 of the Criminal Code; the failure to instruct the jury on the defence of mistaken belief in communicated consent; the failure to exclude a video recorded interview for a breach of s. 10(b) of the Charter; and an unbalanced jury charge.

The Court of Appeal dismissed all grounds of appeal, upholding both the conviction and sentence.

The court found no error in the trial judge's application of s. 276, the air of reality test for the mistaken belief defence, the Charter s. 10 analysis, or the fairness of the jury charge.

The appellant, Jevane Fuller, appealed his convictions for multiple break and enters, assault, confinement, and robbery, and his total sentence of 15 years.

The appeal challenged the trial judge's assessment of a key witness's evidence and the admission of similar act evidence, both cross-count and from prior Toronto robberies.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's evidentiary rulings.

Leave to appeal sentence was granted, and the appeal was allowed only to the extent of removing a victim fine surcharge, with the overall 15-year sentence upheld as fit.

The Crown appealed the dismissal of charges under the Occupational Health and Safety Act against an employer and supervisor following a workplace accident.

The lower courts had excluded evidence from the Ministry of Labour's inspection of a roller, finding a breach of the respondents' Charter rights (s. 11(d)) due to the inspectors' failure to halt inspection after a lawyer's letter, poor note-taking, and not following internal policies.

The Court of Appeal found that there is no constitutional right for an accused to direct an investigation or be present during evidence inspection.

It held that inconsistencies in inspector testimony or failure to follow internal guidelines do not amount to a Charter violation.

Crucially, the respondents failed to demonstrate any prejudice to their right to make full answer and defence, especially after disposing of the evidence themselves.

The appeal was allowed, and a new trial ordered.

The appellant, Andrew Burnett, appealed his conviction for second-degree murder on two grounds: procedural error due to email discussions about jury instructions in his absence (violating s. 650(1) Criminal Code) and a breach of his s. 10(b) Charter right to counsel.

The Court of Appeal found that while procedural errors occurred regarding the email discussions, they did not cause prejudice to the appellant.

The court also upheld the trial judge's finding that there was no breach of the implementational component of s. 10(b) Charter right, as the appellant's desire for counsel was ambivalent and he prioritized understanding the case against him.

The appeal was dismissed.

The appellant, Tesean Alvarez, appealed his convictions for aggravated assault and possession of a weapon dangerous to the public peace, arguing the trial judge erred in jury instructions regarding eyewitness identification reliability, Vetrovec warnings, exculpatory evidence, and cross-racial identification, and that the verdict was unreasonable.

The Court of Appeal found that the trial judge's instructions on eyewitness identification were inadequate, particularly concerning flaws in the police identification process and the distinction between inculpatory and exculpatory evidence.

While other grounds of appeal were dismissed, the court concluded that the jury was not properly equipped to assess the identification evidence, which was central to the Crown's case.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, found not criminally responsible, appealed the Ontario Review Board's decision to impose a detention order instead of a conditional discharge, arguing procedural unfairness due to lack of notice regarding the rejection of a joint submission.

The Court of Appeal found that a joint submission for conditional discharge did exist, despite the Crown's initial reservation and a dispute over a cannabis condition.

However, the court determined that the Board members' probing questions during the hearing provided adequate, albeit not ideal, notice that the joint submission was in peril.

Fresh evidence of the appellant's subsequent readmissions to hospital further supported the reasonableness of the detention order.

The appeal was dismissed.

The appellant, Justice Okojie, appealed his convictions for importing and possessing heroin for the purpose of trafficking.

The primary ground of appeal concerned when the offence of importing is complete, particularly in controlled delivery scenarios, arguing it was complete before his involvement.

The second ground challenged the reasonableness of the verdict, asserting that his knowledge of the package containing a controlled substance was not the only reasonable inference.

The Court of Appeal dismissed both appeals, clarifying that importing is complete when the contraband is no longer under the control of customs authorities, and upholding the trial judge's finding of knowledge based on circumstantial evidence.

The appellants, David Kaczmarek and Terrell Sullivan, appealed their convictions for sexual assault and Mr. Sullivan also appealed his sentence.

The trial judge had found the complainant lacked the capacity to consent due to extreme intoxication and did not agree to the sexual activity.

The Court of Appeal upheld the trial judge's finding of incapacity, rejecting arguments that the judge erred in the order of findings, equated lack of memory with incapacity, or reversed the burden of proof.

Mr. Kaczmarek's claim of ineffective assistance of counsel, alleging his counsel prevented him from testifying, was also dismissed, as the court found counsel's advice was sound and the decision not to testify was ultimately Mr. Kaczmarek's.

Mr. Sullivan's sentence appeal was dismissed, with the court affirming that continuing sexual activity after consent is withdrawn is not less morally blameworthy than engaging in sexual activity with someone who never consented or lacked capacity.

The appellant appealed convictions for assaulting a police officer, failing to comply with a recognizance, drug trafficking, and possession of proceeds of crime.

The appeal centred on alleged Charter breaches: excessive force (ss. 7, 12) and denial of the right to counsel (s. 10(b)).

The Court of Appeal dismissed the excessive force argument, finding the trial judge did not misallocate the burden of proof.

However, it allowed the appeal regarding the s. 10(b) breach, finding the trial judge erred in applying the *Grant* factors and should have excluded the evidence (fanny pack contents).

Consequently, convictions for drug trafficking and possession of proceeds of crime were quashed, and acquittals entered, while convictions for assaulting a police officer and breach of recognizance were upheld.

The appellant, Peter Cowan, appealed his conviction for possession of cocaine for the purpose of trafficking and sought leave to appeal his nine-month sentence.

The conviction appeal centered on the trial judge's application of the burden of proof, specifically the "could reasonably be true" phrase in relation to the W.(D.) questions.

The Court of Appeal dismissed the conviction appeal, finding that despite the inappropriate language, the trial judge correctly applied the burden of proof.

Regarding the sentence, the parties agreed the trial judge misapprehended the likelihood of deportation.

The Court of Appeal granted leave to appeal the sentence and varied it to a 12-month conditional sentence, considering the appellant's first-offender status, low-level trafficking, and mental disabilities.

The applicant, J.M., sought an order from the Court of Appeal for Ontario under s. 684(1) of the Criminal Code for state-funded counsel to represent him in his appeal against a sexual assault conviction, after Legal Aid Ontario denied funding.

A chambers judge had previously dismissed a similar application.

The Court of Appeal dismissed the application, holding that there is no right of appeal from a chambers judge's refusal to appoint funded counsel under s. 684.

The court clarified that while it has concurrent jurisdiction with a single judge to consider such applications, it would only exercise this de novo jurisdiction if there were a sufficient change in circumstances since the initial decision, which was not present in this case.

The court also affirmed that provincial legislation cannot create rights of appeal in criminal matters.

The Crown brought a motion for directions seeking a declaration that a co-accused, Jason Hamilton, had waived solicitor-client privilege over communications with his trial counsel regarding the accuracy and creation of an Agreed Statement of Facts.

Hamilton and the appellant, Haldane Smithen-Davis, were convicted based on this statement, and Smithen-Davis sought to reopen his appeal, relying on Hamilton's affidavit which challenged the statement's veracity and his counsel's advice.

Despite Smithen-Davis waiving his privilege, Hamilton refused.

The Court of Appeal found that Hamilton's partial and selective disclosure in his affidavit, and his reliance on it to explain his actions, constituted an implied waiver of privilege due to fairness.

The court ordered that Hamilton had waived privilege regarding the Agreed Statement of Fact's accuracy and origin, and directed cross-examination on these issues.

The appellant, Noordin Premji, appealed a 13.5-year prison sentence for heroin importing.

The Court of Appeal found that the trial judge erred in principle by failing to consider the appellant's advanced age (77 at sentencing) as a mitigating factor, contrary to the principles established in R. v. M. (C.A.).

Considering the appellant's significantly deteriorated health and the Crown's concession, the court performed its own sentencing analysis.

While rejecting a conditional sentence due to the seriousness of the offence, the court varied the sentence to nine years, emphasizing that this reduction was due to the highly unusual circumstances of the appellant's advanced age and severe medical problems, not a general change in sentencing approach for large-scale drug importing.

The appellant, found not criminally responsible in 2008 for aggravated assault, appealed the Ontario Review Board's decision to continue her detention order.

She sought an absolute or conditional discharge, arguing the Board failed to adequately explain its finding that she remained a significant threat to public safety and neglected its inquisitorial duty to explore less restrictive dispositions.

The Court of Appeal dismissed the appeal, finding the Board's reasons transparent and intelligible, and that it had no further inquisitorial duty given the record and the appellant's position that she did not want restrictions.

The appellant, S.F., appealed his conviction for sexual interference, arguing the trial judge erred in making impermissible use of prior consistent statements, misapprehending evidence concerning disclosure to a high school counsellor, and applying an uneven standard of scrutiny to the evidence.

The Court of Appeal dismissed the appeal, finding the trial judge correctly articulated and applied the principles governing prior consistent statements, did not misapprehend the evidence, and properly assessed witness credibility without uneven scrutiny.

The appellant appealed his sentence for robbery, specifically challenging the calculation of presentence custody and credit for restrictive bail terms (Downes credit).

The parties jointly agreed that the sentencing judge was misinformed about the actual time spent in presentence custody and on restrictive bail conditions, leading to an incorrect credit calculation.

The Court of Appeal granted an additional 37 days of credit to remedy the error.