Elena Corinne Middelkamp

The Court of Appeal for Ontario dismissed Baba Ouedraogo’s appeal from sentence, except to vacate the sentencing judge’s recommendation for phallometric testing.

The appellant challenged the imposition of a second Long Term Supervision Order (LTSO), the finding of substantial risk of reoffence, the imposition of lifetime prohibition orders, and the recommendation for phallometric testing.

The court found no error in the sentencing judge’s approach to issue estoppel, risk assessment, or the imposition of prohibition orders, but held that a recommendation for phallometric testing was not legally available without the offender’s consent.

The appellant, Mustafa Ahmed, was convicted of second degree murder following a judge-alone trial.

The case involved a fatal shooting during a bar altercation, captured on CCTV.

The trial judge rejected Ahmed’s claims of self-defence and provocation, finding his testimony not credible or reliable.

On appeal, Ahmed argued that the trial judge made palpable and overriding errors in assessing the CCTV evidence and misapplied the law regarding his subjective beliefs.

The Court of Appeal found no such errors and dismissed the appeal.

The Crown sought leave to appeal a conditional sentence of two years less a day, with house arrest, followed by three years of probation, imposed on the respondent for trafficking fentanyl.

The respondent, an addict, had sold a small quantity of fentanyl to a friend who subsequently died.

The Crown argued the sentence was demonstrably unfit, disproportionate, and failed to meet objectives of denunciation and deterrence.

The Court of Appeal granted leave but dismissed the appeal, finding the sentencing judge properly considered significant mitigating factors, including the respondent's extraordinary rehabilitation efforts, early guilty plea, remorse, and strict pre-trial bail conditions, concluding the sentence was not demonstrably unfit despite the gravity of the offence.

The appellant, Marvin Smith, appealed his dangerous offender designation and indeterminate sentence, imposed after pleading guilty to aggravated assault, intimidation of a justice system participant, and weapon possession.

The central issue was whether the sentencing judge erred in interpreting "pattern of persistent aggressive behaviour" under s. 753(1)(a)(ii) of the Criminal Code, specifically regarding a six-year gap in his criminal history and the admission of hearsay evidence.

The Court of Appeal dismissed the appeal, finding that the sentencing judge correctly concluded the appellant exhibited a pattern of persistent aggressive behaviour, notwithstanding the gap, and that the indeterminate sentence was appropriate given the high risk of reoffending and intractability.

The appellant, Robert Francis Fox, appealed his conviction for sexual assault after pleading guilty mid-trial.

He sought to withdraw his guilty plea, arguing it was involuntary due to misinformed advice from his trial counsel regarding the collateral consequence of losing access to his young daughter if convicted.

The Court of Appeal, considering fresh evidence from a family and criminal lawyer, found that the trial counsel's advice was exaggerated and incorrect, leading to an improperly informed plea.

The appeal was allowed, the guilty plea set aside, and a new trial ordered.

The appellant was convicted of aggravated assault and uttering a threat to cause death.

The appeal centered on the alleged ineffective assistance of trial counsel, specifically the unauthorized disclosure of the appellant's statement to the Crown and its subsequent use in cross-examination, which impacted the trial judge's assessment of his credibility.

The Court of Appeal admitted fresh evidence and found that trial counsel's conduct fell below the standard of a reasonable professional, leading to a miscarriage of justice due to both trial unfairness (unilateral waiver of the right to silence) and an unreliable verdict.

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

The appellant, Adel Arnaout, appealed from a dangerous offender designation and indeterminate sentence imposed after a second dangerous offender hearing.

He sought to set aside the designation and substitute a determinant sentence with a long-term supervision order, or alternatively, a fresh hearing.

The Court of Appeal upheld the sentencing judge's findings that a pattern of behaviour was established by the letter bomb incidents alone, that the conduct satisfied the brutality requirement under the Criminal Code, and that it was not reasonably possible to control the appellant's behaviour in the community, deferring to the sentencing judge's preference for expert psychiatric evidence.

The appeal was dismissed.

The appellant was convicted of sexually assaulting the complainant.

The appeal challenged the trial judge's assessment of credibility and reliability, alleging misapprehension of evidence, uneven scrutiny of Crown and defence evidence, and erroneous reliance on the complainant's apparent lack of animus.

The Court of Appeal found that the trial judge materially misapprehended evidence regarding the appellant's memory and exculpatory text messages, applied an uneven standard of scrutiny to the evidence, and improperly used the complainant's apparent lack of animus to bolster her credibility.

These errors, in their cumulative effect, detrimentally impacted the reasoning process and rendered the conviction unsafe.

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

The appellant, O’Dean McFarlane, appealed a disposition of the Ontario Review Board (ORB) that transferred him from St. Joseph’s Healthcare Hamilton to a higher security forensic facility at Waypoint Centre for Mental Health Care.

The appeal was based on two grounds: the Board's refusal to grant an adjournment of an early review hearing, which the appellant argued denied him a fair hearing, and the Board's alleged failure to discharge its inquisitorial duty to investigate concerns of unconscious racial bias influencing hospital staff's perception of him.

The Court of Appeal dismissed the appeal, finding no error in the Board's discretionary decision regarding the adjournment, as the issues were intertwined and no prejudice was demonstrated.

The court also held that the Board's inquisitorial duty was not triggered regarding racial bias, as there was no realistic possibility that further inquiry would have altered the decision, which was firmly rooted in objective evidence of the appellant's conduct.

The appellant, Anibal Rivera, appealed his conviction for sexual assault.

The central issue at trial was consent, specifically regarding condom use.

The appellant raised three grounds of appeal: the trial judge's application of the R. v. W.(D.) credibility analysis, the alternative finding of fraud vitiating consent, and the use of the complainant's hospital attendance to support her credibility.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the reasonable doubt standard, the fraud analysis was superfluous but not inconsistent with the primary finding of non-consent, and the complainant's hospital visit was appropriately used to corroborate her evidence regarding condom use and not to suggest that pursuing charges enhanced credibility.

The appellant appealed his conviction for multiple violent offences and his designation as a dangerous offender, which resulted in an indeterminate sentence.

The primary focus of the appeal was the dangerous offender designation under s. 753(1)(a)(iii) of the Criminal Code, which allows for designation based on the brutal nature of a single offence compelling a conclusion of future unrestrained behaviour.

The Court of Appeal upheld the sentencing judge's decision, finding no error in the assessment and weighing of conflicting expert psychiatric evidence regarding the appellant's future risk of violent reoffence.

The court affirmed that the sentencing judge was entitled to prefer the Crown's expert's opinion, which considered clinical factors in addition to actuarial tests, and that the evidence supported the conclusion that the appellant constituted a threat to public safety requiring an indeterminate sentence.

The conviction appeal was also dismissed.

The appellant, found not criminally responsible, appealed an Ontario Review Board (ORB) disposition ordering his detention at a forensic psychiatry program, arguing for a conditional discharge.

The ORB had vacated his previous conditional discharge due to concerning behaviours and a deteriorated mental state, supported by psychiatric and risk assessment evidence.

The Court of Appeal dismissed the appeal, finding the ORB's decision reasonable and supported by evidence, noting that a detention order was necessary to allow the Hospital to approve accommodation, consistent with the least onerous and restrictive disposition.

The appellant, Joshua Barreira, appealed his 15-year sentence for manslaughter, which had been reduced to a net 4.5 years after pre-sentence custody credit.

He raised four grounds of appeal: the sentence falling outside the appropriate range, the sentencing judge's failure to assume he did not know his accomplice had a gun, insufficient "Duncan credit" for harsh pre-sentence custody conditions, and an omission of pre-sentence credit for time served between sentencing submissions and the imposition of sentence.

The Court of Appeal granted leave to appeal and allowed the appeal in part, accepting the fourth ground as conceded by the Crown.

The court rejected the other grounds, affirming that the sentence was not demonstrably unfit, that mitigating facts must be established on a balance of probabilities, and that the "Duncan credit" was within the sentencing judge's discretion.

The sentence was adjusted to reflect the additional pre-sentence credit.

The appellant was convicted of sexual assault, uttering a threat to cause death, and two counts of assault.

The appeal primarily concerned the trial judge's failure to instruct the jury on the permitted and prohibited uses of the complainant's prior consistent statements, which were introduced to rehabilitate her credibility after a defence attack.

The Court of Appeal found this omission, exacerbated by instructions given only on prior inconsistent statements, constituted a reversible error.

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

The court also affirmed the dismissal of a pre-trial third-party records application, finding the records were not "likely relevant."

The appellant, Nathan Tenthorey, appealed his conviction for aggravated assault, arguing the trial judge erred by failing to instruct the jury on the included offences of simple assault and assault causing bodily harm, and by failing to provide a *Soobrian* limiting instruction.

The Court of Appeal held that the trial judge erred in law by concluding that assault causing bodily harm was not an included offence in a non-particularized aggravated assault charge, and erred factually by finding no air of reality for either included offence.

The court clarified the test for included offences in multi-mode charges.

The appeal on the *Soobrian* instruction was dismissed.

The conviction was set aside, and a new trial ordered.

Bartosz Gajewski was found not criminally responsible (NCR) for assault and forcible confinement and was subject to the Ontario Review Board (ORB) jurisdiction.

The ORB conditionally discharged him.

The Crown appealed this disposition, seeking to add a geographic boundary condition or to remit the matter for a re-hearing, arguing the ORB erred in law and was unreasonable in not imposing the boundary condition.

The Court of Appeal dismissed the appeal, finding that the ORB correctly applied the law by balancing public safety with the accused's liberty interests and that its decision not to impose the boundary condition was reasonable, as existing conditions adequately protected the victim.

The applicant, J.J., sought a second bail pending appeal after his initial bail was revoked due to new charges, including firearms and drug offences, and breaches of his recognizance.

The court considered the public interest criterion under s. 679(3)(c) of the Criminal Code, focusing on public safety.

Despite a strict proposed bail plan involving new sureties and GPS monitoring, the court found a substantial likelihood that the applicant would re-offend, given his history of non-compliance and the nature of the new charges.

The court also considered the merits of the appeal and the COVID-19 pandemic but found these factors did not outweigh the public safety risk.

The application for bail pending appeal was dismissed.

The appellants, Brandon Barreira, Joshua Barreira, and Chad Davidson, appealed their convictions for first-degree murder.

Davidson had admitted to shooting the victim, Tyler Johnson, but claimed manslaughter, while the other appellants denied party liability.

The appeal primarily focused on the trial judge's jury instructions, arguing a failure to adequately relate the evidence to the issues, and the unreasonableness of the first-degree murder verdict.

The Court of Appeal found the jury instructions inadequate for failing to properly summarize and relate the evidence to the specific elements of the offence and party liability.

While the court determined that the first-degree murder verdict was not unreasonable given the evidence, the instructional errors necessitated a new trial.

The appeals were allowed, and a new trial on the charge of first-degree murder was ordered for all appellants.

The appellant was convicted of sexual interference and invitation to sexual touching involving his stepdaughter but acquitted of sexual assault.

On appeal, the court found that the trial judge erred by allowing improper cross-examination regarding the complainant's motive to fabricate and by using the absence of proved motive to enhance the complainant's credibility.

The Crown's extensive questioning required the appellant to speculate about the complainant's motives, thereby improperly shifting the burden of proof.

The court held that such cross-examination violates long-standing jurisprudence and that the absence of evidence of motive cannot be used to bolster credibility.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for shooting a handgun at a person on a residential street in Ottawa.

The trial judge admitted but gave no weight to the appellant's alibi evidence because it was disclosed late (on the second day of trial, nearly a year after the alleged offense) and because the trial judge disbelieved the explanation for the late disclosure.

The Court of Appeal upheld the conviction, finding that the trial judge properly drew an adverse inference regarding the late alibi disclosure and properly rejected the credibility of the explanation offered by the appellant's brother.