Heather Davies

The appellant appealed his conviction and sentence for assault following an altercation outside a pub where he repeatedly struck the complainant.

He argued the trial judge misapprehended evidence, failed to properly consider self-defence and consent, and imposed an unfit sentence including a DNA order.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility assessments, rejecting the availability of self-defence or consent on the facts, and upholding the sentence as fit and within the acceptable range.

The accused brought a motion in the nature of certiorari seeking to quash a bail decision rendered more than two years earlier in the Ontario Court of Justice and also sought the removal of Crown counsel from the prosecution for alleged misconduct at the bail hearing.

The court held that certiorari was a discretionary remedy and declined to grant relief where a statutory appeal under s. 520 of the Criminal Code had been available and had in fact been exercised successfully by the accused.

The court also emphasized the extraordinary two‑year delay in bringing the prerogative motion on the eve of trial.

Regarding the request to remove Crown counsel, the court found no evidentiary basis for the allegations of misconduct and concluded that the factual assertions advanced by the accused were misconceived.

Both aspects of the motion were dismissed.

The appellant was convicted at trial of refusing to comply with a breath demand under ss. 254(3) and (5) of the Criminal Code after police interpreted statements made during a roadside conversation as a refusal to accompany them to the station for breath testing.

The appellant had been arrested, advised of his right to counsel, and requested to speak to a lawyer before the officers continued discussing the breath demand with him.

The appeal court held that the accused’s statements during the brief roadside discussion were tentative and formed part of a single ongoing exchange occurring while he sought legal advice.

Relying on authorities such as R. v. Jumaga, the court concluded that a definitive refusal cannot be established where the accused has requested counsel and has not yet been given a reasonable opportunity to obtain legal advice.

The trial judge erred in treating the roadside discussion as constituting the actus reus of refusal.

The conviction was set aside and an acquittal entered.

The appellant sought to appeal summary conviction findings for forcible confinement, mischief under, intimidation, and two counts of assault after being tried and convicted in absentia.

The appellant had not appeared at trial, had not surrendered to serve his sentence, and had not communicated with counsel since before trial.

Counsel nonetheless advanced the appeal without instructions as a matter of principle.

The court considered whether it had jurisdiction to hear an appeal where counsel lacked instructions and the appellant remained unlawfully at large.

The court held that counsel without instructions had no standing to bring the appeal and that individuals who have not surrendered to custody should not be permitted to invoke the appellate process.

The appeal was dismissed without prejudice to the appellant seeking an extension of time if he later wished to pursue the appeal.

The appellant appealed a conviction for sexual assault following a judge-alone trial, arguing that the trial judge failed to properly apply the credibility analysis from R. v. W.(D.) and that the reasons for judgment were insufficient under the principles in R. v. Sheppard.

The court held that the W.(D.) framework does not require a trier of fact who has completely rejected the accused’s evidence to separately consider whether that rejected evidence could still raise a reasonable doubt.

The trial judge’s instructions demonstrated that the burden of proof was applied to the totality of the evidence, including any exculpatory evidence.

The appellate court also found that the reasons adequately explained the credibility findings and permitted meaningful appellate review.

The conviction was upheld.

Following a jury conviction for second-degree murder, the court determined the appropriate period of parole ineligibility.

The offender participated in a planned ambush in which the victim was lured to a vacant apartment, forcibly confined, beaten, and shot multiple times.

The jury recommended the minimum ten-year period, while the Crown sought fifteen years.

Considering the offender’s criminal record, the firearm-related nature of the murder, the offender’s participation while on probation and under a weapons prohibition, and the possibility of rehabilitation, the court increased the parole ineligibility period to twelve years.

The appellant appealed convictions for one count of common assault and one count of sexual assault arising from allegations by a spouse.

The Crown conceded that the trial judge failed to address significant inconsistencies in the complainant’s evidence, despite the case turning entirely on credibility.

The appeal court held that the failure to consider material inconsistencies constituted reversible error.

Due to ambiguity between the trial judge’s reasons and the endorsed verdicts on the information, acquittals were directed on both common assault counts and no retrial could be ordered for them.

The conviction for sexual assault was set aside and a new trial ordered on that count.

The accused brought a motion requesting a judicial inquiry into jury deliberations following a conviction for second-degree murder.

The motion relied on an affidavit from a juror alleging coercion and improper comments during deliberations.

The court held that after a verdict is received and the jury discharged, the trial judge is generally functus officio and lacks authority to revisit the verdict, subject to limited exceptions such as errors in recording the verdict.

Applying the jury secrecy rule under s. 649 of the Criminal Code and the principles articulated in Supreme Court jurisprudence, the court concluded that the allegations related to intrinsic aspects of jury deliberations rather than extrinsic information capable of impeaching the verdict.

As the affidavit did not demonstrate the introduction of extrinsic evidence, the court declined to conduct an inquiry and held that any challenge to the verdict must proceed on appeal.