D. Nugent

The appellant, Justin Williams, appealed his conviction for assault, arguing that the trial judge made unreasonable findings of fact or credibility and misapprehended his evidence.

The Ontario Superior Court of Justice found that the trial judge’s findings were open to him on the record, that there was no palpable and overriding error, and that the trial judge provided comprehensive reasons for rejecting the defences of consent and self-defence.

The appeal was dismissed.

The decision addresses whether the complainant D.P. may give recognition evidence identifying S.P. and Geza Gelencser in videos found on a laptop seized from Mr. Gelencser’s home.

The court finds that D.P. is in a better position than the jury to identify S.P. and Mr. Gelencser based on her prior acquaintance and specific knowledge, and admits the evidence.

The accused was charged with theft over $5,000 from a Canadian Tire store between April 1 and August 31, 2015.

A voir-dire was held to determine the voluntariness of statements made to an internal investigator for Canadian Tire.

The court found that the investigator was a person in authority and that the Crown failed to establish that the statements were free and voluntary.

The statements were ruled inadmissible due to inadequate warnings regarding the right to counsel and caution, insufficient record-keeping of the oral statement, and evidence suggesting inducements were offered.

The accused, J-C.M., was found guilty of indecent assault and gross indecency committed in 1971 against his younger brother, then aged 14-15.

The Crown sought a penitentiary sentence of 3-5 years, while the defence requested a conditional sentence of two years less a day.

The court considered aggravating factors including the victim's age, the breach of trust by the older brother, and the significant, inter-generational impact on the victim and his family.

Mitigating factors included the accused's lack of prior convictions, pro-social life since the offences, low risk of re-offending, and community support.

The court found that a conditional sentence would not adequately address the principles of denunciation and deterrence given the seriousness and repeated nature of the offences.

A sentence of two years less a day in custody was imposed, along with a 10-year s. 109 order, a lifetime SOIRA order, and a DNA sample order.