Frank Au

The appellant appealed his convictions for threatening bodily harm, threatening to cause damage to property, intimidation of a justice system participant, and criminal harassment.

He argued that the Crown failed to prove the particulars of one count, and that the trial judge erred in her jury instructions, evidentiary rulings, and failure to inquire into his fitness to stand trial.

The Court of Appeal dismissed the appeal, finding that the Crown proved the offences as particularized, the jury was properly instructed, and there were no grounds to suggest the appellant was unfit to stand trial.

A dissenting judge would have allowed the appeal on one count, finding the Crown failed to prove the specific allegation particularized in the indictment.

The appellant appealed his convictions for a series of robbery and related offences following a judge-alone trial that turned on the question of identity.

Duty counsel argued the convictions constituted an unreasonable verdict, advancing four arguments relating to the trial judge's findings regarding Facebook Messenger communications, the robber's appearance, clothing, and proximity to the location where the van and drugs were found.

The court held the verdict was based on findings of fact open to the trial judge, to which deference was owed.

Duty counsel's additional argument that electronic messages should have been treated as presumptively inadmissible bad character evidence was rejected, as the trial judge concluded the messages were referable to the offence in question.

The appeal was dismissed.

The appellant sought to reduce a global nine-year sentence for armed robbery-related offences by relying on fresh evidence of pre-sentence custody lockdowns and triple bunking.

The court admitted the fresh evidence but held that harsh-custody mitigation required evidence of actual impact, which was not provided.

Applying the governing approach to custody conditions as a mitigating factor within overall fitness analysis, the panel found no error in principle and no demonstrable unfitness.

Given the appellant’s extensive robbery record, parole status at the time of the offences, and the already low-end fit sentence for armed robbery, a reduction would have made the sentence unfit.

The appellant challenged convictions for sexual assault and sexual interference, arguing the trial judge erred in admitting a child complainant’s hearsay disclosures and related audio recordings.

The court held the trial judge properly applied the principled hearsay framework on necessity and threshold reliability, including evidence of potential trauma if the complainant testified and corroborative forensic evidence.

The court rejected arguments alleging judicial bias and improper treatment of the appellant’s exculpatory account, finding no evidentiary foundation for intervention.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and forcible confinement, alleging ineffective assistance of trial counsel.

He argued that his counsel failed to properly advise him on his right to a jury trial, his right not to testify, and his right to appear in person rather than virtually.

The Court of Appeal admitted fresh evidence and found that while the failure to advise on the jury election was not established, trial counsel failed to provide competent advice regarding the appellant's right to testify and his right to appear in person.

These failures deprived the appellant of the ability to make fundamental decisions about his defence, undermining trial fairness and resulting in a miscarriage of justice.

The appeal was allowed and a new trial by judge and jury was ordered.

The appellant, K.Q.S., appealed convictions for sexual interference and sexual assault, as well as the resulting five-year custodial sentence.

The Court of Appeal found no error in the trial judge’s approach to the evidence or in the treatment of delayed disclosure.

The sentence was deemed fit and within the appropriate range.

Both the conviction and sentence appeals were dismissed.

The appellant, J.S., appealed convictions for sexual offences against three step-grandchildren and the imposed global sentence of 30 months' imprisonment.

The Court of Appeal dismissed the appeal against conviction, finding no basis to intervene.

The sentence appeal was partially allowed, reducing a lifetime Sex Offender Information Registration Act (SOIRA) order to 20 years with the Crown's consent, and imposing conditional stays of proceedings on three sexual assault counts, without altering the overall 30-month sentence.

The appellant, Noah King, appealed his convictions for 12 serious offences and a 7-year imprisonment sentence.

The Court of Appeal dismissed the appeal against conviction, finding no errors in the trial judge's assessment of evidence.

However, the court found the 7-year sentence to be demonstrably unfit, noting the trial judge's unclear reasoning for the sentencing range despite properly identifying Gladue principles.

The sentence was reduced to 5 years' imprisonment, with specific reductions applied to various counts.

The appellant, Gordon Morin, appealed his conviction and sentence for multiple counts of abuse against his domestic partner.

The Court of Appeal for Ontario allowed the conviction appeal, ordering a new trial.

The trial judge erred by improperly using the complainant's prior consistent text messages as corroborating her in-court testimony and contradicting the appellant's evidence, in violation of the hearsay rule and the rule against self-corroboration.

The trial judge failed to instruct herself on the permissible and impermissible uses of these statements, which was critical in a case turning on credibility.

The appellant, Dellen Millard, brought an appeal.

The court rejected his argument that a judge's mere presence on a panel that previously ruled adversely against him raised a reasonable apprehension of bias.

However, the court granted his request for an adjournment to prepare written submissions, putting the matter over to a future Kingston inmate sitting.

The appellant was convicted of multiple sexual offences and possessing child pornography, receiving a 10-year prison sentence.

He appealed his conviction, arguing ineffective assistance of counsel and that the trial judge failed to adequately address inconsistencies in a complainant's evidence.

The Court of Appeal dismissed the appeal, finding that the appellant did not meet the factual threshold for ineffective assistance of counsel and that the trial judge properly characterized the inconsistencies in the complainant's evidence as "peripheral" distinguishing the case from precedents where inconsistencies were deemed "profound."

The appellant, Baba Ouedraogo, appealed his convictions for sexual assault with a weapon, sexual assault, robbery, disguise with intent, and failure to comply with a release order.

The Court of Appeal for Ontario found that the trial judge's inferences of guilt, drawn from overwhelming circumstantial evidence, were the only reasonable inferences available.

The court saw no basis to interfere with the convictions and dismissed the appeal.

The appellant, Baba Ouedraogo, appealed his convictions for sexual assault, sexual interference, and choking, arguing the trial judge failed to adequately scrutinize certain evidence, including the complainant's injuries, toxicology report, video evidence, and identity evidence.

The Court of Appeal found that the appellant's arguments primarily sought to re-weigh evidence already considered by the trial judge.

The court noted that the physical evidence strongly contradicted the appellant's account and confirmed key aspects of the complainant's testimony, despite the trial judge having some concerns about her credibility in other areas.

The conviction appeal was dismissed, with the sentence appeal proceeding separately.

The appellant, convicted of four counts related to sexual luring of a child and sentenced to 3.5 years, appealed his conviction and sentence.

He argued his Asperger's Syndrome affected his testimony, but the trial judge had already considered this.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error.

The court also addressed a Kienapple conditional stay issue, correcting the trial judge's error by quashing the conviction on count 3 and entering a conditional stay, while lifting the stay on count 4 and entering a conviction, confirming the original sentence on count 4.

The appellant, Shakur Clarke, appealed his conviction and 10.5-year sentence for offences related to a drive-by shooting.

He argued that the circumstantial evidence relied upon by the trial judge to establish his role as driver and shooter was open to other reasonable inferences, specifically that he could have entered the vehicle after the shooting.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the alternative inferences were not reasonable and that the cumulative circumstantial evidence led to the only reasonable inference that the appellant and his co-accused acted in concert.

The appellant, convicted of sexual interference and invitation to sexual touching, appealed his conviction.

The Court of Appeal found that the trial judge erred in assessing the appellant's evidence by appearing to place a persuasive burden on him to explain why the allegations were false and by misapprehending his evidence regarding his relationship with the complainants.

Additionally, the trial judge failed to adequately address the evidence of potential collusion between the complainants and its impact on credibility.

Due to these cumulative errors, the conviction appeal was allowed, and a new trial was ordered on the charges involving S.L.

The appellant, who pleaded guilty to manslaughter and flight from police, appealed his sentence regarding the credit applied for time spent in Providence Continuing Care Hospital.

The sentencing judge had applied a 1:1 credit instead of the usual 1.5:1 enhanced credit, citing the appellant's treatment for substance abuse and mental health issues.

The Court of Appeal found the reasons for departing from enhanced credit insufficient, emphasizing the quantitative rationale of `R. v. Summers` credit.

The appeal was allowed, and the appellant was granted an additional 214 days of credit.

The appellant, J.R., appealed a conviction for sexual assault, arguing the trial judge erred in finding the touching of the complainant's leg to be of a sexual nature.

The Court of Appeal found no error in the trial judge's legally and factually sound reasons.

The appellant also raised an issue regarding the complainant's age in institutional records, but the trial judge had already found that the complainant's age (under 18) was not proven beyond a reasonable doubt for sentencing purposes.

The conviction appeal was dismissed.

A publication ban order under ss. 486.4 or 486.6 of the Criminal Code remains in effect.

The appellant, David Menezes, appealed his sentence for criminal harassment, arguing he was improperly denied pre-sentence custody (PSC) credit.

He had been on a conditional sentence order (CSO) for assault, breached it, and was arrested for the breach and criminal harassment.

He spent six months in custody before his CSO breach hearing, where he received a one-month custodial term.

He remained in custody until sentencing for criminal harassment.

The trial judge denied PSC credit for the initial six-month period, reasoning the CSO was running, but granted four months' credit for harsh conditions.

The Court of Appeal found that the CSO was indeed running during the initial six-month detention period under s. 742.6(12) of the Criminal Code, as he was presumptively detained under s. 515(6).

However, the CSO was suspended during the subsequent two-month period (after the breach disposition until sentencing for harassment) because he remained in custody awaiting sentencing for the new charge.

The Court allowed the appeal in part, granting an additional three months of PSC credit for this two-month period, while upholding the denial of credit for the initial six months.

The appellant, P.W., appealed his convictions for sexual interference and invitation to sexual touching, and his global sentence.

The appellant argued that the trial judge misapprehended critical evidence and erred in applying the burden of proof.

The Court of Appeal found no material misapprehension of evidence and upheld the trial judge's credibility findings, confirming the application of the R. v. W.D. test.

While the appeal against conviction was dismissed, the lifetime Sex Offender Information Registration Act (SOIRA) order was reduced to 20 years by consent of the Crown, pursuant to s. 24(1) of the Charter.