Erica Kathryn Whitford

The Crown appealed the 9-month sentence imposed on the respondent for sexual assault against a child, arguing it was demonstrably unfit and failed to properly apply sentencing principles from *R. v. Friesen*.

The Court of Appeal granted leave, found the trial judge erred in principle by overemphasizing mitigating factors and underestimating the gravity and harm of the offence, and imposed a demonstrably unfit sentence.

The Court increased the sentence to 24 months but, based on fresh evidence that the respondent had completed his original sentence and was on parole, stayed the execution of the additional incarceration.

The applicant, convicted of sexual assault, sought court-appointed counsel under s. 684 of the Criminal Code to assist with his application for leave to appeal and subsequent appeal to the Court of Appeal for Ontario.

Legal Aid Ontario had denied coverage due to insufficient merit.

The Crown opposed the appointment of counsel and requested that the court decide and refuse the leave application at the motion hearing.

The court found the applicant lacked sufficient means but was not persuaded that appointing counsel was in the interests of justice, noting the issues were relatively straightforward.

The court also declined the Crown's request to decide the leave application prematurely, adhering to the court's Criminal Appeals Practice Direction.

Both the applicant's motion for counsel and the Crown's request were dismissed.

The appellant, found not criminally responsible for past violent offences due to mental disorder, appealed a disposition of the Ontario Review Board (ORB) that continued his conditional discharge.

He sought an absolute discharge, arguing that the ORB's conclusion of significant public safety risk was unsupported and its reasons insufficient.

The Court of Appeal found the ORB's conclusion reasonable, based on evidence of the appellant's major mental illness, lack of insight, intent to stop medication, and unwillingness to abstain from drug use, which posed a substantial risk of decompensation and violent relapse.

The appeal was dismissed, affirming the ORB's conditional discharge.

The appellant, a photographer, appealed his conviction for multiple counts of invitation to sexual touching and sexually touching two fourteen-year-old clients.

The appeal grounds were that the trial judge misapprehended the defence's position regarding the complainants' alleged motive to fabricate and collusion.

The defence suggested a motive to fabricate arose from the complainants' involvement in an organization assisting sexual abuse victims, and that there was unconscious collusion.

The Court of Appeal dismissed the appeal, finding that the trial judge had properly confronted and rejected the defence's arguments regarding motive to fabricate and collusion, and that her findings were reasonable.

The appellant appealed his conviction for possession of child pornography and his 15-month custodial sentence.

He argued the trial judge erred in her Garofoli ruling regarding the search warrant and in declining to exclude evidence under s. 24(2) of the Charter despite finding three s. 8 breaches.

He also argued the sentence was harsh given his medical condition.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's application of the law on amplification or the Grant analysis.

The sentence appeal was also dismissed, with the court deferring to the trial judge's consideration of the appellant's medical condition.

The appellant appealed his conviction for sexual assault and his sentence.

The conviction was entered in November 2013 and the sentence of 18 months' custody (after credit of six months) followed by three years' probation was imposed in July 2014.

The appellant raised two grounds of appeal: first, that the trial judge reversed the onus of proof by requiring him to disprove the complainant's account; and second, that the trial judge erred in admitting his police statement.

The Court of Appeal found no error in the trial judge's analysis and dismissed both the conviction appeal and the sentence appeal, which had become moot as the sentence had been served.

The appellant appealed his conviction for sexual interference, invitation to sexual touching, and breach of recognizance arising from a relationship with a 14-year-old.

The defence position was that the alleged events never occurred.

The Court of Appeal upheld the conviction, finding that the trial judge appropriately addressed inconsistencies in the evidence and that the record contained ample corroboration of the complainant's core testimony.

Leave to appeal sentence was granted and the victim surcharge was set aside.

An appeal from an Ontario Review Board disposition ordering continued detention under Part XX.1 of the Criminal Code.

The appellant argued that the Board improperly conflated the risk of relapse in mental illness with the risk to public safety.

The Court of Appeal upheld the Board's decision, finding that the evidence supported a finding of significant risk of reoffending based on the appellant's psychosis triggered by substance abuse, his history of violent behaviour, and high actuarial risk scores.

The Board properly rejected a conditional discharge, accepting expert evidence that Mental Health Act provisions would be inadequate to protect the public.

An appeal from an Ontario Review Board detention order with privileges up to the possibility of community accommodation.

The appellant challenged the Board's decision on three grounds: insufficient reasons, procedural error due to gaps in the record, and failure to adequately address why a conditional discharge was not the least restrictive disposition.

The Court of Appeal dismissed the appeal, finding no error in the Board's reasoning, no procedural defect, and that the detention order fell within a range of reasonable outcomes based on evidence of ongoing mental illness, delusional thinking, substance abuse, medication non-compliance, and lack of insight into symptoms.

Both defendants were convicted of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code.

Over three years, they published a community newspaper called Your Ward News that promoted hate against Jews and women, glorified Nazism, denied the Holocaust, and counselled violence against women.

The court imposed consecutive sentences: James Sears received one year incarceration (six months on each count, the procedural maximum for summary conviction); Leroy St. Germaine received a 12-month conditional sentence (six months on each count served consecutively, with house arrest conditions).

The court declined to impose probation on either defendant, finding such restrictions would unduly curtail Charter-protected freedom of expression.

The defendants were convicted of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code.

Over a three-year period, the defendants published and edited a community newspaper that promoted hate against Jews and women, glorifying Nazism, denying the Holocaust, and demonizing both groups.

The sentencing decision addresses the appropriate custodial sentence, the application of consecutive versus concurrent sentencing, aggravating and mitigating factors, community impact, and the scope of probation conditions.

The court imposed a one-year jail sentence (six months on each count served consecutively) and declined to impose probation restrictions on publishing activities, finding such restrictions would violate Charter-protected freedom of expression.

The applicant brought a motion to re-open his trial after conviction, claiming ineffective assistance of counsel.

The applicant sought to introduce affidavit evidence regarding ineffective assistance and proposed witnesses.

The court applied the test from R. v. Arabia and R. v. Kowall, considering both the Palmer fresh evidence criteria and whether the application was an attempt to reverse tactical decisions made at trial.

The court found that the decision to call no defence evidence was a deliberate tactical choice made by trial counsel based on professional judgment.

The court dismissed the application, finding that the applicant failed to meet the test for re-opening and that trial counsel's conduct fell within the wide range of reasonable professional assistance.

The defendant brought an application four months after conviction and four days before sentencing to re-open the trial and/or declare a mistrial.

The application raised multiple grounds including ineffective counsel, abuse of process, apprehension of bias, constitutional challenges regarding freedom of expression and jury trial rights, and inadequate reasons for judgment.

The court applied the Palmer test for admissibility of fresh evidence after conviction and found most issues lacked merit.

However, regarding the failure to call a defence, the court determined it could not assess the application without hearing from the defendant and counsel, and without a proffer of the evidence sought to be adduced.

The court allowed the application to proceed by way of affidavit evidence to ensure no miscarriage of justice.

The appellant was convicted of invitation to sexual touching, sexual assault, and sexual interference involving his step-son, with allegations occurring when the complainant was between 8 and 13 years old.

He was acquitted of assault.

The appellant appealed on five grounds: inconsistent verdicts, admissibility of his videotaped statement to police, jury instructions on credibility across counts, jury instructions on consent, and jury instructions on prior inconsistent statements.

The Court of Appeal dismissed all grounds of appeal, finding the verdicts reconcilable, the admission of evidence proper under s. 653.1 of the Criminal Code, and the jury instructions adequate and not prejudicial.

The appellant appealed his conviction for assault with a weapon, dangerous operation of a vehicle, possession of cocaine, and two counts of possession of dangerous weapons.

The appellant argued that the trial judge erred by failing to adequately address weaknesses in eyewitness identification evidence and by misapprehending evidence regarding identification.

The Court of Appeal found that while the trial judge could have expanded his discussion of identification evidence frailties, the overwhelming force of other evidence—including the appellant's own admission of being the driver of the fleeing vehicle, the presence of baseball bats with blood in that vehicle, and the vehicle matching the description provided by assault witnesses—established guilt beyond a reasonable doubt.

The appeal was dismissed.

The appellant appealed his sentence imposed by the Ontario Court of Justice on charges of driving while disqualified and possession for the purpose of trafficking.

The appellant argued that the sentencing judge erred by imposing consecutive sentences when a joint submission at the pre-trial stage had included a term that sentences be concurrent.

The Court of Appeal found the record unclear regarding the sentencing judge's intention on whether sentences should be consecutive or concurrent.

The Crown conceded the ambiguity.

The appeal was allowed and the sentence was reduced to reflect concurrent sentences.

The appellant was convicted of failing to provide the necessaries of life and assault against her 86-year-old mother.

The trial judge found the appellant guilty of failing to provide necessaries based on leaving her mother on the porch for approximately one hour in freezing temperatures on November 26, 2007.

The appellant was also convicted of assault based on a neighbour's evidence of witnessing the appellant push her mother out the front door.

The Court of Appeal allowed the appeal, setting aside the conviction for failing to provide necessaries and entering an acquittal, and setting aside the assault conviction and ordering a new trial.

The appellant appealed his conviction for arson relating to a fire at his home on April 5, 2011, claiming ineffective assistance of trial counsel.

The appellant advanced two main arguments: first, that counsel failed to properly cross-examine the only alternative suspect, his former fiancée; and second, that counsel overrode his desire to testify and improperly failed to call other defence evidence.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish the prejudice component of the ineffective assistance of counsel test.

The court noted that the trial judge's conclusion that the alternative suspect's involvement was implausible was not subject to palpable and overriding error, and that the appellant had signed a written acknowledgement indicating his informed decision not to testify.

Appeal from a conviction entered by a Superior Court judge sitting with a jury on charges of sexual assault.

The appellant challenged the trial judge's jury instructions on two grounds: first, that the jury should have been specifically cautioned that the appellant's failure to return to Canada immediately upon learning of the charges could not be used as evidence of guilt; and second, that the jury should have been instructed that if they found the complainant deliberately lied about a specific incident (the "2008 event"), they could use that lie to reject all of her evidence.

The Court of Appeal dismissed the appeal, finding that while the appellant's delay in returning could be relevant to credibility, the trial judge's instructions adequately conveyed to the jury that they must assess the complainant's entire testimony in context and that deliberate lies are relevant to credibility.

The defendants, the editor and publisher of the community newspaper Your Ward News, were charged with two counts of wilful promotion of hatred against Jews and women under s. 319(2) of the Criminal Code.

The Crown called expert witnesses to contextualize the anti-Semitic and misogynistic content of the publication.

The court found that the newspaper repeatedly and consistently dehumanized Jews and women, employing extreme vilification, Holocaust denial, and advocacy of violence.

The court rejected the defence that the content was merely satirical or anti-Marxist, concluding that both defendants were fully aware of the hate propaganda and intended to promote it.

Both defendants were found guilty on all counts.