Holly Loubert

The Court of Appeal for Ontario allowed the Crown's appeal from sentence, finding that the sentencing judge erred by imposing a two-year weapons prohibition under s. 51(3) of the Youth Criminal Justice Act (YCJA) following a youth's guilty plea to first-degree murder.

The Court held that the correct provision was s. 51(1), which requires a longer prohibition for offences subject to mandatory orders under s. 109 of the Criminal Code.

Both parties agreed to set aside the two-year prohibition and impose a 12-year weapons prohibition.

The Court substituted the appropriate order, noting the respondent's planning and aggravating circumstances.

The appellant sought leave to appeal his sentence of two years less a day for break and enter and careless storage of firearms, seeking the substitution of a conditional sentence.

The Court of Appeal found the sentence was not manifestly unfit and rejected claims of reasonable apprehension of bias.

However, the Court allowed the appeal in part to reduce the sentence by 41 days to account for pre-sentence custody credit.

Jacob Hoggard appealed his conviction for sexual assault causing bodily harm to J.B., arguing the trial judge erred by admitting expert evidence on the neurobiology of trauma, failing to correct the Crown's closing submissions, delivering an unbalanced jury charge, and improperly admitting discreditable conduct evidence.

The Court of Appeal found that the trial judge erred in admitting the expert testimony as it was not necessary and risked misuse, but applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that no substantial wrong or miscarriage of justice occurred due to the trial judge's effective corrective instructions.

The other grounds of appeal were dismissed, and the appeal was dismissed.

The appellant, C.D., appealed convictions and sentence for six counts of sexual assault against five complainants, including patients and a niece.

The conviction appeal centered on the trial judge's admission and use of count-to-count similar act evidence, and failure to sever counts.

The sentence appeal challenged the treatment of aggravating factors.

The Court of Appeal dismissed both the conviction appeal, finding no error in the similar act evidence analysis or its use, and the sentence appeal, upholding the 15-month imprisonment sentence as the trial judge did not err in principle regarding aggravating factors like age disparity, duration of offences, impact on victims, or risk of recidivism.

This is a Crown appeal concerning jury instructions on the mens rea for sexual assault, specifically when the defence of honest but mistaken belief in communicated consent is unavailable.

The trial judge instructed the jury that the Crown must prove the knowledge element (accused knew of, was wilfully blind or reckless as to, absence of consent) and allowed them to consider evidence of the respondent's mistaken belief.

The Court of Appeal held that while the knowledge element is always part of the Crown's burden, the trial judge erred by failing to instruct the jury to disregard evidence of legally ineffective mistaken beliefs, effectively allowing an unavailable defence through the "back door." The court allowed the appeal, set aside the acquittal, and ordered a new trial.

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.

A police officer, Remo Romano, appealed his conviction for dangerous operation of a motor vehicle causing death and his eight-month custodial sentence.

The conviction arose from a fatal collision where he struck and killed a pedestrian while driving at excessive speed during undercover surveillance.

The appellant argued the trial judge improperly focused the jury on the consequences of his driving rather than the manner of driving, and failed to adequately explain the "marked departure" standard for mens rea.

He also sought a reduction in sentence or a conditional sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding the jury charge was appropriate and the sentence was not demonstrably unfit, even considering the newfound availability of conditional sentences for this offence.

The appellant appealed his conviction for attempted murder and sought leave to appeal his life sentence.

The Court of Appeal found two fundamental errors in the trial: an erroneous instruction to the jury on reasonable doubt that reversed the onus, and an error in admitting statements made by the appellant to police in violation of his s. 10(b) Charter rights.

The court allowed the conviction appeal, set aside the conviction and aggravated assault finding, and ordered a new trial.

The sentence appeal was not reached.

The appellant, Thirumal Kanthasamy, sought leave to appeal his sentence for tractor trailer thefts and robberies, after his co-accused had their sentences reduced.

He argued for a reduction based on the principle of parity and changes in his personal circumstances, including new health issues (coronary artery disease, COVID-19 susceptibility) and increased family responsibilities due to his daughter's cerebral palsy and common-law partner's medical disability.

The Crown consented to a reduction from 8.5 years to 6.5 years based on parity but opposed further reduction based on the fresh evidence.

The Court of Appeal accepted the fresh evidence but found that a sentence below 6.5 years would not be proportionate to the gravity of the offences, which involved the use of firearms.

The appeal was allowed, and the sentence was reduced to six and one-half years.

The appellant, Jeremy Gough, appealed his conviction for first-degree murder, arguing that the trial judge erred by allowing the Crown to rely on post-incident conduct evidence (attending Tim Hortons, sending texts, delivering a skating form) as relevant to intent and planning/deliberation, and by failing to provide a limiting instruction to the jury.

The Court of Appeal dismissed the appeal, holding that the post-incident conduct evidence was relevant and admissible.

The Court found a positive link between the appellant's pre-offence and post-incident conduct, which formed part of a continuous scheme to distance himself from the crime, thereby attenuating the reasoning risks typically associated with such evidence and negating the need for a specific cautionary instruction.

This is a Crown appeal from a stay of proceedings imposed under s. 11(b) of the Canadian Charter of Rights and Freedoms in a youth matter.

The respondent was 12-13 years old at the time of the alleged offences.

The application judge erred by not applying the R. v. Jordan framework, which was subsequently clarified for youth matters by R. v. K.J.M. The Court of Appeal found that the 18-month ceiling from Jordan was not exceeded and there was no basis to maintain the stay.

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

The Ontario Court of Appeal heard appeals from convictions and sentences related to a series of tractor-trailer thefts and robberies.

Appellants challenged the validity of cell tower production orders, the admission of evidence obtained from Charter-breaching production orders under s. 24(2), and the use of similar act evidence.

One appellant also challenged possession convictions.

The Court dismissed all conviction appeals, finding the initial production orders valid, the s. 24(2) analysis sound (due to reduced privacy expectation in public location data), and the similar act evidence properly admitted.

However, the Court allowed the sentence appeals, finding the trial judge erred by analogizing the robberies to home invasions, which led to unduly high base sentences.

The Court reduced the total sentences for the three appealing accused.

The applicant sought review of a detention order made by a Superior Court judge under s. 680(1) of the Criminal Code.

The applicant was charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder.

The Court of Appeal found no error of law, principle, or palpable and overriding error in the application judge's factual findings regarding the primary and secondary grounds for detention.

The court upheld the detention order, finding the application judge's conclusions about the strength of the Crown's case and the fragility of the proposed release plan to be reasonable.

The appellant was convicted of kidnapping his friend after a judge and jury trial.

He was sentenced to seven years imprisonment.

On appeal, he challenged the conviction on four grounds: (1) the trial judge erred in her instructions on the actus reus of aiding and abetting by not emphasizing the need for actual assistance when reviewing the evidence; (2) the trial judge erred in failing to leave with the jury the included offence of "attempt to aid" a kidnapping; (3) the trial judge erred in not linking her W.(D.) instruction to the defence of duress; and (4) the trial judge erred in failing to correct Crown counsel's improper reference to hearsay evidence in closing arguments.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant appealed a disposition order from the Ontario Review Board that declined to provide a term allowing for community living at the hospital's discretion.

The Board instead included a generous daily pass provision at the hospital's discretion.

The Court of Appeal found the order reflected the evidence of the treating psychiatrist and hospital team, and that the daily pass provision adequately addressed concerns regarding the appellant's potential deterioration.

The appeal was dismissed.

The appellant was convicted of sexual assault and sexual assault with a weapon following a jury trial, but acquitted of three counts of uttering threats and one count of assault.

All charges involved the same complainant, the appellant's former common law spouse.

The appellant was sentenced to 22 months less one day of imprisonment plus two years' probation.

On appeal, the Court of Appeal allowed the conviction appeal on the basis that the trial judge erred by failing to provide the jury with meaningful guidance about assessing credibility, particularly regarding prior inconsistent statements made by the complainant.

The trial judge failed to instruct the jury on the significance of the complainant's initial denial of sexual abuse during her first police interview, which was inconsistent with her later allegations.

The Court found this error was reversible and went to the heart of the complainant's allegations.

A new trial was ordered on the sexual assault charges.

An appeal from the Ontario Review Board's disposition continuing a conditional discharge for an individual found not criminally responsible on account of mental disorder.

The appellant argued that the Board's conclusion that he remained a significant threat to public safety was unreasonable, particularly given his 17-year history without violent behaviour while subject to Board jurisdiction.

The Court of Appeal upheld the Board's decision, finding it fell within the range of reasonable outcomes based on evidence including the appellant's serious index offences, lack of insight into his mental illness, resistance to treatment, high risk assessment scores, and the unanimous opinion of his treatment team that he remained a significant risk.

The appellant was convicted of sexual assault, unlawful confinement, obstructing a peace officer, and breach of recognizance.

He appealed his convictions for sexual assault and unlawful confinement, arguing that the trial judge erred in assessing credibility, failed to address certain evidence, gave uneven scrutiny to the evidence, and received ineffective legal representation.

The Court of Appeal rejected all grounds of appeal, finding that the trial judge properly assessed the evidence, made reasonable inferences from the complainant's testimony and physical evidence, and that counsel's tactical decisions fell within the ambit of reasonable professional assistance.

A police officer convicted by jury of dangerous driving causing death and sentenced to eight months in prison sought bail pending appeal.

The Crown opposed release, arguing the grounds of appeal lacked merit and that public confidence in the administration of justice required incarceration pending appeal.

The motion judge granted bail, finding the grounds of appeal relating to sufficiency of focus on the dangerous driving and guidance on marked departure were not frivolous and warranted close examination.

The judge held that public interest was best served by allowing the applicant to challenge the conviction before serving the sentence.

The appellant sought a review of a decision by Justice MacPherson denying an extension of bail.

The appellant moved for appointment of counsel under s. 684 of the Criminal Code and for an adjournment of the review, citing medical evidence of unfitness to self-represent.

The court found the review moot because the appellant had been released from custody by the Vanier Institute.

The court dismissed the application and imposed restrictions on the appellant's ability to bring further motions without written permission, finding her conduct vexatious and an excessive drain on judicial resources.