Gavin N. MacDonald

The appellant, found not criminally responsible for multiple violent offences including discharging an air pistol at a victim, appealed a disposition of the Ontario Review Board continuing his detention at a forensic psychiatry program.

He sought an absolute or conditional discharge.

The Court of Appeal found the Board's decision was reasonable, noting the seriousness and recency of the index offences, the appellant's limited insight into his illness, ongoing concerns about substance use and impulsivity, and the lack of suitable community accommodation.

The appeal was dismissed, though the court commended the appellant's significant progress.

The applicant, convicted of voyeurism, publishing child pornography, and criminal harassment involving a minor, sought bail pending his conviction appeal.

The Crown conceded the appeal was not frivolous but argued detention was necessary in the public interest to maintain confidence in the administration of justice.

The motion judge found the grounds of appeal to be weak but granted bail, noting the applicant had been on house arrest for three years without breaches, posed no public safety risk, and risked serving most of his 30-month sentence before the appeal could be heard.

The applicant sought bail pending his appeal of convictions and a 78-month sentence for serious offences involving intimate partner violence committed while on release.

The Crown conceded the appeal was not frivolous but opposed release on public interest grounds.

The court applied the Oland framework, balancing the reviewability interest against the enforceability interest.

Although the applicant raised an arguable ground of appeal regarding restrictions on cross-examination, the court found the enforceability interest predominated due to the gravity of the offences, the breach of a prior release order, and residual public safety concerns.

The application for bail pending appeal was dismissed.

The appellant appealed his convictions for two counts of robbery, breaking and entering a dwelling house and committing robbery, and suffocating another person with intent to commit robbery.

The appeal raised two grounds: first, that the trial judge erred by not instructing himself on the frailties of eyewitness identification evidence, even when the witness purports to recognize someone known; and second, that the trial judge applied a different standard of scrutiny to the complainant's and the appellant's evidence when assessing credibility.

The Court of Appeal dismissed the appeal, finding that the complainant's extended interaction with the appellant reduced the chance of mistaken identity, and that the trial judge was entitled to weigh inconsistencies differently given their varying nature.

Ms. Davies, found not criminally responsible for assault with a weapon and aggravated assault, appealed the Ontario Review Board's disposition that continued her detention order and refused a cannabis exemption.

The Court of Appeal upheld the Board's finding that she continued to pose a significant threat to public safety.

However, the court found the Board's refusal to grant the cannabis exemption unreasonable, as it conflated "substances" with "cannabis" and lacked sufficient evidence directly linking cannabis use to a significant public safety risk in a controlled hospital environment.

The matter was remitted to the Board for a rehearing on the cannabis exemption.

The appellant, convicted of impaired driving causing bodily harm, dangerous driving causing bodily harm, and failing to stop at an accident, appealed her convictions and sentence.

The central issue at trial was the defence of necessity, claiming she drove due to fear for her safety.

The Court of Appeal found that the trial judge erred by allowing the Crown to elicit evidence of the appellant's pre-trial silence regarding the alleged attack and by drawing an adverse inference from that silence, thereby breaching her right to silence.

The court held that the right to silence cannot be used to incriminate an accused or impeach credibility, and that suggesting a defence is a "recent fabrication" due to pre-trial silence undermines this right.

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

The appellant appealed his sentence for possession of a loaded firearm, possession of a firearm while prohibited, and making a false statement.

The Court of Appeal found that the sentencing judge erred in principle by exceeding the Crown's proposed sentence without notifying counsel or providing clear reasons, by treating the loaded nature of the firearm as a separate aggravating factor (when it was an essential element of the offence), and by failing to consider the guilty plea as a mitigating factor.

The appeal was allowed, the original sentence was vacated, and a global sentence of four years' custody (as initially proposed by the Crown) was imposed, less pre-sentence custody credit.

The applicant sought a review of a bail judge's order denying bail pending trial for second-degree murder.

The Court of Appeal found that the bail judge erred in principle by failing to adequately consider the proposed release plan, which included strict house arrest, electronic monitoring, and committed sureties, when assessing the secondary and tertiary grounds for detention.

The court allowed the application, set aside the detention order, and ordered the applicant's release on approved terms.

The appellants, committed to trial for second-degree murder, successfully appealed a judicial review order that had quashed their preliminary inquiry judge's decision and directed committal for first-degree murder.

The Court of Appeal found the reviewing judge erred by substituting his view of the evidence for that of the preliminary inquiry judge, incorrectly identifying jurisdictional errors.

The preliminary inquiry judge had correctly applied the law and did not commit jurisdictional error by finding insufficient evidence for first-degree murder.

The appeal was allowed, the judicial review decision quashed, and the original committal for second-degree murder reinstated.

The appellant sought leave to appeal a six-month sentence for aggravated assault stemming from a road rage incident.

The Court of Appeal granted leave, finding the sentencing judge erred by relying on an incomparable precedent, leading to an unduly harsh sentence.

Considering the appellant's troubled background, efforts at rehabilitation, and the trial judge's findings on self-defence factors, the court reduced the sentence to time served, emphasizing that the fact of incarceration, rather than its length, sufficiently achieved deterrence and denunciation.

The appellants were convicted by jury of second-degree murder and aggravated assault arising from a parking lot altercation in which one victim was fatally stabbed and another was wounded.

The Court of Appeal dismissed both appeals, finding that the first appellant's murder conviction was not unreasonable given multiple available routes to liability under ss. 21(1) and 21(2) of the Criminal Code, and that the second appellant's s. 11(b) application was properly dismissed under the Jordan transitional exception.

The court also rejected challenges to the jury instructions on circumstantial evidence, after-the-fact conduct, manslaughter under s. 21(2), and the Vetrovec caution regarding a mixed witness.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal found the Board's reasons manifestly insufficient to permit meaningful appellate review, specifically noting a lack of engagement with issues of conditional discharge or expanded community passes.

The matter was remitted to a differently constituted Board for a new hearing to consider these issues expeditiously.

The appellant appealed his convictions for criminal negligence causing death, criminal negligence causing bodily harm, and aggravated dangerous driving.

He argued that the trial judge erred in applying the modified objective test by failing to account for his state of panic after being chased by assailants, and by improperly using the automatism standard to assess mens rea.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the modified objective test.

The court held that a reasonable person in the appellant's circumstances would have foreseen the risk, as the imminent peril had passed, and the trial judge did not err in her consideration of the incapacity defence.

The appellant was convicted of manslaughter in the death of a five-and-a-half-month-old child.

He appealed on the sole ground that the trial judge applied uneven scrutiny to the Crown and defence evidence.

The appellant did not dispute that the child died from intentionally applied significant force causing a fatal brain injury, nor that the child's body was covered in extensive bruising.

Only the appellant and the child's mother had the opportunity to cause the fatal injury.

The Court of Appeal dismissed the appeal, finding that the trial judge did not apply uneven scrutiny and was entitled to make the credibility findings and reach the decision she did.

The appellant appealed an Ontario Review Board order detaining her in the General Forensic Unit at the Centre for Addiction and Mental Health.

The appellant had been found not criminally responsible on account of mental disorder for charges of possession of a weapon for dangerous purposes, assault with a weapon, and aggravated assault.

She sought an absolute or conditional discharge.

The Court of Appeal upheld the detention order, finding that the appellant continued to pose a significant threat to public safety based on her active psychiatric symptoms, stated intention to cease medication if released, vulnerability to opiate-based medications, and history of medication non-adherence.

The court found the Board's reasoning sound and the disposition reasonable and necessary.

An appeal of an Ontario Review Board disposition dated September 10, 2018, concerning an NCR accused found not criminally responsible on account of mental disorder.

The appellant challenged the Board's imposition of a detention order in place of a conditional discharge, arguing the detention was not necessary and appropriate and was not the least onerous and least restrictive disposition.

The appellant had absconded from her group home, breached conditions by using substances, and demonstrated diminished insight into her illness.

The Court of Appeal dismissed the appeal, finding the Board's decision fell within a range of reasonable outcomes given the appellant's increased risk profile and the need for hospital flexibility in managing her care and community placement.

The appellants sought to appeal a Superior Court decision dismissing their application for an order in lieu of mandamus to compel a justice of the peace to hold a hearing on a private information alleging perjury by a police officer.

The appeal arose from a pattern of repeated attempts by the appellants to pursue private prosecutions against officers who executed a Feeney warrant in 2006, during which a family member was tasered.

After multiple failures before different justices of the peace and Superior Court judges, the appellants filed a third information alleging the same perjury in a different territorial jurisdiction.

The Court of Appeal dismissed the appeal summarily, finding it both frivolous and vexatious.

The accused, Jamal Osborne-Adams, was charged with assault causing bodily harm following an incident at a Pizza Pizza restaurant.

The court rejected the accused's defence of self-defence and implied consent, finding him to be the aggressor throughout the altercation.

The judge found that the accused's actions were disproportionate and unreasonable, and that he intended to inflict serious bodily harm or was reckless as to whether such harm would ensue.

The accused was found guilty as charged.

The appellant, convicted of first-degree murder for the sexual assault and murder of a 70-year-old woman committed when he was 15 years old, appealed his sentence.

The Crown had sought and obtained an adult sentence rather than a youth sentence.

The appellant challenged the sentencing judge's decision on three grounds: failure to consider whether the presumption of diminished moral blameworthiness was rebutted, use of the appellant's testimony and denial of guilt as aggravating factors, and failure to properly weigh rehabilitation and integration principles.

The Court of Appeal dismissed the appeal, finding that although the sentencing judge erred in using the appellant's testimony as an aggravating factor, the error had no impact on the sentence and an adult sentence remained fit given the heinous nature of the crime.

The appellant appealed his conviction for attempted robbery and his 20-month sentence.

On the conviction appeal, the appellant argued that the trial judge failed to adequately account for the frailty of Crown witness evidence and applied more rigorous scrutiny to the appellant's evidence than to Crown witnesses.

The Court of Appeal upheld the conviction, finding the trial judge properly assessed the credibility of the accomplice and victim witnesses and did not reverse the onus of proof.

On sentencing, the Court of Appeal admitted fresh evidence regarding trial counsel's suspension, the co-accused's role in adjournments, and the appellant's bail variation application.

The Court also considered the appellant's extraordinary rehabilitation efforts since sentencing.

The sentence was varied to time served.