Eugene J. Bhattacharya

D.G. was convicted by a jury of sexual assault.

This decision outlines the reasons for sentencing.

The court determined the facts for sentencing, finding that D.G. engaged in penetrative vaginal intercourse with the complainant while she was intoxicated to the point of unconsciousness.

The court considered aggravating factors such as the vulnerability of the victim, the opportunistic nature of the assault, and the significant psychological harm to the complainant.

Mitigating factors included D.G. being a first-time offender with prosocial antecedents and potential immigration consequences.

The court imposed a sentence of three years and six months imprisonment, consistent with the established range for similar offences.

The plaintiff sought an order to exclude co-defendant police officers from each other's examinations for discovery and to prohibit communication between them until the conclusion of discoveries.

The plaintiff argued this was necessary due to a risk of tailored or parroted testimony, citing the officers' prior conduct in criminal proceedings where they admitted to obstruction of justice.

The defendants opposed, asserting their right to attend and arguing no sufficient risk of tailoring existed.

The court granted the exclusion order, finding a clear risk of tailored evidence given the officers' past dishonesty, and determined that the ends of justice required the exclusion to ensure fair examinations, despite the logistical challenges for common counsel.

The appellant appealed his summary convictions for assault and uttering death threats against his wife.

The trial was a credibility contest where both parties testified to diametrically opposed accounts of a domestic dispute.

The trial judge convicted the appellant, relying in part on the complainant's after-the-fact emotional state as corroborative evidence.

The Summary Conviction Appeal Court allowed the appeal, finding that the emotional state evidence was equally consistent with both accounts and therefore possessed no probative value.

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

The accused brought an application under s. 629 of the Criminal Code challenging the jury array, alleging partiality or wilful misconduct by the Jury Sheriff in compiling the 2022 Jury Roll.

The defence argued that errors in the jury source list, which excluded eligible 18-year-olds and mishandled prior jurors, compromised the panel.

The court dismissed the application, finding that the errors were unintentional mistakes made despite a rigorous review process, and did not render the jury panel partial or unrepresentative.

The accused brought an application under s. 629 of the Criminal Code challenging the jury panel, arguing that errors in compiling the jury roll breached the Juries Act.

The errors involved the inadvertent exclusion of eligible 18-year-olds and the potential inclusion/exclusion of individuals based on recent jury service.

The court dismissed the application, finding no evidence of partiality or deliberate misconduct by the Sheriff.

The court also held that the unintentional exclusion of a minor segment of the population did not breach the accused's Charter right to a representative jury.

The appellant police officer appealed findings of misconduct (neglect of duty and deceit) and the penalty of dismissal imposed by a Hearing Officer.

The misconduct arose from the appellant's failure to properly investigate a suspected impaired driver and his subsequent false explanations to his supervisor and Professional Standards Bureau.

The Ontario Civilian Police Commission dismissed the appeal, finding that the Hearing Officer did not misapprehend the expert evidence, drew reasonable inferences from the facts, and appropriately weighed the dispositional factors in imposing the penalty of dismissal.

The applicant, Kim Tran, sought a stay of proceedings for unreasonable delay under section 11(b) of the Charter, arguing that the total delay of 25 months and 20 days exceeded the presumptive ceiling.

The Crown attributed the delay to a discrete event (unavailability of a police witness due to health reasons) but failed to demonstrate that it took reasonable steps to mitigate the resulting delay.

The court found that the Crown did not meet its constitutional obligation to bring the accused to trial within a reasonable time, granted the application, and stayed the charge.

The applicant, Michael Buabeng, sought a stay of proceedings under section 11(b) of the Charter, alleging unreasonable delay in his criminal prosecution for assault and sexual assault charges.

The total delay was 1,401 days (46 months), exceeding the 30-month presumptive ceiling for Superior Courts.

The court deducted 105 days for defence delay, resulting in a net delay of 1,296 days.

The Crown argued for exceptional circumstances, including 181 days due to uncertainty surrounding Bill C-75 amendments to preliminary inquiries and 341 days due to the COVID-19 pandemic.

After deducting these exceptional circumstances, the remaining delay was 823 days (27.4 months), falling below the presumptive ceiling.

The onus then shifted to the defence to demonstrate that the delay was nonetheless unreasonable.

The court found that the applicant failed to meet this burden, and therefore, the application for a stay of proceedings was dismissed.

The appellant appealed a summary judgment that ordered her to pay the respondent $200,000 under a promissory note and a related oral agreement for interest.

The funds were advanced by the respondent on the appellant's behalf for an investment in Metrozen, which subsequently misappropriated the funds.

The motion judge rejected the appellant's defenses, including lack of consideration, conditional repayment, and misrepresentation.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors of fact or law by the motion judge, and affirmed that the documentary record and the appellant's acknowledgments supported the judgment.

The plaintiff brought a motion for summary judgment to enforce a $200,000 promissory note against the defendant.

The parties had jointly invested in a syndicated mortgage project that turned out to be a fraud, with the plaintiff advancing the defendant's share of the funds.

The defendant argued there was a failure of consideration and misrepresentation, but the court rejected these defences based on contemporaneous documentary evidence, including text messages and emails acknowledging the debt.

The court granted summary judgment for the plaintiff, finding no genuine issue requiring a trial.

The accused was charged with sexually assaulting his younger sister between January 1, 2006 and December 31, 2006, when she was approximately 6 years old and he was approximately 15 years old.

The charges included sexual assault, touching for a sexual purpose contrary to s. 151 of the Criminal Code, and invitation to touch for a sexual purpose contrary to s. 152.

The trial turned on the credibility and reliability of the complainant's evidence.

The court found that while the complainant may have experienced trauma and repressed memories, her recollection was seriously impaired with significant inconsistencies between her trial testimony, her statement to Brampton police, and her earlier statement to Niagara police.

The accused testified that he never engaged in any sexual activity with his sister.

Applying the W.(D.) test, the court found that the accused had raised a reasonable doubt and acquitted him of all charges.

Following a jury conviction for sexual assault, sexual touching, and invitation to sexual touching involving a child under 14, the court sentenced the offender for the sexual touching count and stayed the remaining counts under the Kienapple principle.

The court found multiple aggravating factors, including abuse of a child in a position of trust, repeated incidents involving vaginal penetration, secrecy, planning, and the commission of the offences while the offender was on bail for similar allegations involving other children.

Applying the Gladue/Ipeelee framework, the court accepted that the offender's Indigenous background had some modest relevance but found the report did not show a sufficient connection between systemic factors and moral blameworthiness or sentencing alternatives.

Denunciation, deterrence, and protection of the public predominated, and an 8-year penitentiary sentence with ancillary lifetime and other protective orders was imposed.

The appellants brought a motion to exclude prior civil judgments and transcripts from being admitted as evidence in their appeal against a proposal to revoke their real estate registrations.

The Tribunal dismissed the motion, finding that the judgments and transcripts were relevant to the appeal and that their weight would be determined at the hearing.

On consent, the Tribunal ordered that the findings in the civil judgments did not apply to the appellant who was not a party to the civil litigation.

This trial decision addresses the equalization of net family property, spousal support, and s. 7 child support expenses following a 20-year marriage.

Key disputes included the attribution of diamond rings and a joint bank account, the existence of a debt to the applicant's sister for a California property, the respondent's personal debts, and the valuation of a Honda and RRSPs at the date of marriage.

The court imputed income for both parties for support purposes and denied the respondent's request for a right of first refusal on a jointly-owned property.

The appellant appealed his summary conviction for refusing to comply with an Approved Screening Device (ASD) demand.

He argued the trial judge erred in finding reasonable suspicion, finding an intentional refusal, and improperly using his roadside silence to reject his trial testimony regarding medical excuses.

The Summary Conviction Appeal Court found no error in the reasonable suspicion or intentional refusal findings.

However, the court held the trial judge committed a reversible error by using the appellant's pre-arrest roadside silence to reject his trial evidence.

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

The accused was charged with assaulting the complainant on November 12, 2014, in Oakville in an incident arising from a road rage altercation.

The Crown proceeded summarily.

The court found that the accused initiated a confrontation after a minor traffic incident, blocked the complainant's vehicle at an intersection, approached the complainant's window, and assaulted him, causing injuries.

The accused also uttered threats and fled the scene.

The court rejected the accused's testimony as self-serving and defying common sense, accepting the complainant's account and that of an independent witness.

The accused was found guilty of assault beyond a reasonable doubt.

The respondent requested that the Tribunal defer consideration of the human rights application pending the conclusion of criminal proceedings against him.

The respondent argued that the criminal charges arose from the same factual allegations as the application.

The applicant opposed the deferral.

The Tribunal granted the request, finding that deferral was appropriate to protect the respondent's right to remain silent in the criminal proceeding and to avoid inconsistent findings of fact.

The respondent mother brought a motion to change custody orders from 2005 and 2006, seeking to obtain custody of three children from the applicant paternal grandmother.

The children had been in the grandmother's care since 2005 following the mother's incarceration for dangerous driving causing death.

The mother had since rehabilitated herself, completed education, secured employment, and maintained sobriety.

The court found that while the grandmother had provided stable care, she lacked insight into the children's emotional needs and had failed to facilitate the mother's involvement in their lives.

The court granted custody to the mother, finding that the children's best interests, particularly the eldest child's strongly expressed wishes, warranted the change from the status quo.

The appellant appealed a summary conviction for failing to remain at the scene of a motor vehicle accident with intent to escape civil or criminal liability.

The appeal challenged the admissibility of police observations, the reliability of eyewitness identification, and the reasonableness of the verdict.

The appeal court found the trial judge inadequately analyzed significant weaknesses in the identification evidence and improperly conducted independent internet research regarding a “K-way” tracksuit relied upon as key identification evidence.

While the verdict was not necessarily unreasonable on the admissible evidence, the errors undermined the fairness of the reasoning process.

The conviction was set aside and a new trial ordered.

The appellant licensee appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding that it breached s. 45(1) of the Liquor Licence Act by permitting drunkenness on its premises, and imposing a 10-day licence suspension.

The Divisional Court dismissed the appeal, holding that s. 45(1) applies to anyone on the premises, not just patrons, and that due diligence is not an available defence in this regulatory context.

The majority found the Board's factual findings and the penalty reasonable.

A dissenting judge would have allowed the appeal on the basis that the Board failed to properly analyze whether the licensee 'permitted' the drunkenness.