David Watt

This is an appeal from the dismissal of an application for extraordinary relief (prohibition and certiorari) seeking to prevent a judge from proceeding with a remote video trial and to quash a ruling for a remote trial.

The Court of Appeal dismissed the appeal as moot because the appellant's request for a full in-person trial had been accommodated.

The court declined to hear the moot appeal on public interest grounds, citing an insufficient record, the issues not being evasive of review in normal appellate process, and no evidence of a systemic problem requiring immediate resolution.

The appellant appealed his conviction and sentence.

The conviction appeal was based on the dismissal of a mid-trial application under s. 276 of the Criminal Code.

The Court of Appeal found no error in the trial judge's exercise of case management powers in dismissing the late application, nor any basis for the application to have succeeded on its merits.

The sentence appeal was also dismissed, with the court finding the eight-year sentence imposed was entirely fit in the circumstances, despite some mitigating factors not being specifically mentioned by the trial judge.

The appellant appealed convictions for multiple drug and firearm offences, alleging the trial judge failed to provide adequate reasons for dismissing a Charter motion and misapprehended evidence.

The Court of Appeal found the trial judge's reasons adequate, noting no obligation to reconcile every inconsistency, only those relevant to the Charter application.

While conceding a misapprehension regarding the location of the appellant's wallet, the court determined it had no impact on the verdicts due to overwhelming evidence of possession, including a padlock code found in the appellant's wallet connecting him directly to contraband.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed an appeal from an order of the Superior Court of Justice that had dismissed an application for certiorari.

The appellant sought certiorari to quash a provincial court judge's decision to commit him to trial on a charge of first-degree murder.

The Court of Appeal agreed with the application judge that there was a sufficient basis in the evidence for a properly instructed jury to convict on the charge.

The appellant, convicted of first-degree murder and robbery, appealed on the sole ground that his trial counsel breached the duty of loyalty, effectively depriving him of counsel.

The appellant argued that counsel acted as amicus curiae rather than defence counsel, undermining his defence through misguided actions and communications with the Crown, including lying to gain trust and sharing defence strategy.

The Court of Appeal dismissed the appeal, finding that while counsel's actions were at times misguided and unethical (e.g., lying about his background), they did not constitute a breach of the duty of loyalty.

The court applied the two-part test for breach of loyalty, requiring an actual conflict of interest and impairment of representation, concluding that counsel's actions, though inadvisable, were not motivated by conflicting loyalties but rather by an attempt to manage a difficult client in a challenging case with strong Crown evidence.

The appellant pleaded guilty to 14 offences, including possession of stolen vehicles, operating while prohibited, failing to stop for police, drug trafficking, and firearm offences, and received a global sentence of 46 months.

He appealed the sentence, arguing that the sentencing judge failed to adequately consider mitigating factors (specifically, his guilty pleas), that the sentence was not properly individualized (lack of counselling order), and that the reasons for sentence were insufficient.

The Court of Appeal dismissed the appeal, finding that the sentencing judge did acknowledge the guilty pleas, that the individualization argument lacked support due to no submissions on counselling, and that the reasons were sufficient when read in context.

The appellant, Linda Lawlor, appealed her conviction for fraud over $5,000 and the fine in lieu of forfeiture portion of her sentence.

The conviction arose from the fraudulent transfer of a property using a personal security license, leading to substantial mortgages.

The appellant argued for a mistrial, claiming a misunderstanding of the charge's scope, as the trial proceeded on the basis of eight properties when her committal was limited to one.

The Court of Appeal dismissed the conviction appeal, finding the conviction rested on overwhelming evidence related to the specific property, and that evidence regarding other properties was admissible to show the relationship between the appellant and co-accused.

The court also rejected arguments about the defence's informed choices and reopening evidence.

Regarding the sentence appeal, the court affirmed that the fine in lieu of forfeiture is based on the value of property controlled, not just traced benefit, and that the co-accused's lack of control over funds meant the appellant could not rely on them for payment.

This addendum clarifies the payment deadline for fines imposed in the main appeal decision (2021 ONCA 665).

The respondent requested clarification, and the court ordered that the fines be paid within seven days of the release of this addendum.

The appellants, Zhang Jian Fan and Jian Ling, appealed their convictions and sentences for large-scale cannabis production offences under the Controlled Drugs and Substances Act.

They asserted a defence of honest but mistaken belief that their operation was properly licensed.

The trial judge rejected their credibility and found their mistake was one of law, not fact.

The Court of Appeal upheld the trial judge's finding that the appellants' belief was not credible and, alternatively, that their mistake was one of law regarding the scope and application of the licences, not a mistake of fact about the existence of a licence.

The Court also upheld the sentences, finding them proportionate, while setting aside victim surcharges.

The Crown appealed a summary conviction appeal judge's decision that reduced fines and eliminated a custodial sentence for environmental offences under the Canadian Environmental Protection Act (CEPA).

The Court of Appeal agreed with the appellate judge that the sentencing judge erred in principle by comparing the case to one involving deliberate environmental harm, thus upholding the elimination of the custodial sentence for the individual respondent.

However, the Court of Appeal disagreed with the reduction of fines, finding no error in the original sentencing judge's imposition of separate fines for each count, and restored the original fines for both the corporate and individual respondents.

The appellant, G.B., appealed convictions for sexual assault, sexual interference, and invitation to sexual touching against his granddaughter.

The trial judge rejected the appellant's evidence, including his attempt to manufacture a motive for the complainant to lie (a car loan dispute).

The Court of Appeal found no error in the trial judge's assessment of the appellant's evidence or her finding that the complainant had no motive to fabricate, though it cautioned against relying on an "apparent lack of motive" to bolster credibility.

The court applied the curative proviso, finding that any error did not overwhelm the trial judge's careful reasons.

The appeal was dismissed.

The appellant, Hussein Kelkas, appealed his conviction for three counts of sexual assault involving two complainants.

The central issue at trial was consent.

The trial judge found the complainants credible and the appellant's evidence incredible.

The appeal grounds included misapprehension of evidence, impermissible judicial notice, improper bolstering of credibility, and a finding of fact without evidence.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's assessment of evidence or credibility, and no impermissible use of judicial notice.

The appellants, condominium owners, appealed a permanent injunction issued by the Superior Court of Justice.

The injunction restricted the male appellant's communication and conduct due to a long-standing pattern of harassment, rude behavior, and interference with the condominium corporation's board and employees, in violation of the Condominium Act.

The Court of Appeal dismissed the appeal, affirming the application judge's jurisdiction, the appropriateness of the injunction under s. 134(3) of the Condominium Act, and the fairness of the proceedings despite the denial of an adjournment and the appellant's failure to file a proper affidavit.

The appellants appealed the orders of a motion judge who granted a declaration that previous court orders survived the appellants' bankruptcy.

The motion judge provided no reasons for her decision or for the costs order.

Both parties asked the Court of Appeal to set aside the order.

The Court of Appeal allowed the appeal, finding that the failure to provide reasons incapable of meaningful appellate review constituted an error in law, and ordered a new hearing before a different judge.

The appellant was convicted of aggravated assault and assault with a weapon after a joint trial.

The appeal centered on the trial judge's misapprehension of video surveillance evidence, which was believed to be uninterrupted but contained significant gaps.

The Court of Appeal found this misapprehension material and central to the trial judge's reasoning for conviction, thus warranting setting aside the convictions.

However, the Court declined to enter an acquittal, determining that the verdict was not unreasonable given other circumstantial evidence, and ordered a new trial.

The respondent was acquitted of sexual assault and sexual interference charges at trial.

The Crown appealed, arguing that the trial judge's reasons for acquittal were inadequate and that the judge applied a higher degree of scrutiny to the Crown's evidence than to the respondent's.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons met the legal requirement of adequacy, explaining the factual and credibility determinations and the basis for reasonable doubt.

The court also found that the Crown failed to meet the high burden of showing that the credibility determinations were the result of a legally erroneous application of different standards of scrutiny, upholding the deference owed to the trial judge on credibility issues.

The appellant, Sakhi Alekozai, appealed his convictions for internet child luring and communicating to obtain sexual services from a person under 18, which arose from a police sting operation.

The appeal challenged the trial judge's application of mens rea standards, particularly regarding the distinction between recklessness and actual belief or wilful blindness, in light of the Supreme Court of Canada's decision in R. v. Morrison.

The Court of Appeal dismissed the appeal, finding that the trial judge had correctly determined that the appellant subjectively believed the collocutor was underage, and that the "reasonable steps" defence was not available.

This addendum to an appeal decision addresses the Court of Appeal's inherent jurisdiction to permit publication of its reasons, which contain information subject to a statutory publication ban under s. 278.95 of the Criminal Code.

The court determined that despite the ban, and the trial judge not having lifted it, it possessed inherent jurisdiction to publish its reasons unredacted, provided the complainant's privacy (protected by a separate s. 486.4 ban) and the interests of justice were considered.

The court found that the complainant was comfortable with publication and that the development of jurisprudence on s. 276 applications would benefit.

The appellant was convicted of sexual interference and sexual assault involving a 15-year-old complainant (L.S.) met on a dating app.

The trial judge found the appellant had an honest but mistaken belief that L.S. was 18, but failed to take all reasonable steps to ascertain L.S.'s age, leading to conviction.

On appeal, the appellant argued errors in the fault element analysis and misapprehension of evidence.

The Court of Appeal dismissed the appeal, affirming the conviction.

The court clarified that while the trial judge's reasoning on the "alternative pathway to conviction" was erroneous in light of new authorities (R. v. Morrison, R. v. Carbone), the ultimate conclusion of guilt was proper.

The failure to take all reasonable steps to ascertain age, combined with recklessness, was sufficient to establish the mens rea for sexual interference.

The misapprehension of evidence claim also failed to meet the stringent threshold for appellate intervention.

The appellant appealed her conviction for aggravated assault against a 13-month-old child, arguing the trial judge erred in assessing conflicting expert medical evidence on the causation of the child's head injury.

The Court of Appeal found that the trial judge improperly preferred the Crown's expert opinion in isolation before considering the totality of the evidence, thereby misapplying the R. v. W.(D.) framework.

This led to a flawed assessment of the defence's alternative theories and a failure to properly consider whether the evidence raised a reasonable doubt.

The appeal was allowed, and a new trial ordered.