Ian B. Kasper

The appellant, Taylor Kuhni, appealed the imposition of a lifetime driving prohibition following guilty pleas to several offences, including dangerous operation of a conveyance.

The Court of Appeal found that the sentencing judge erred in imposing a lifetime prohibition, as the maximum allowed by law was 10 years.

The court substituted a 10-year prohibition and dismissed the appellant’s request for an adjournment to consider a claim of ineffective assistance of counsel.

The appellant, Deepan Budlakoti, appealed his conviction for firearms offences, arguing that he was entrapped by a police agent.

The Court of Appeal addressed three grounds: alleged improper reliance on a hearsay statement, failure to consider the police agent’s financial motive, and failure to treat the agent as a Vetrovec witness.

The court found no error in the trial judge’s approach to any of these issues and dismissed the appeal.

The appellant, Zachary Wittke, sought a fresh psychiatric assessment under section 672.11 of the Criminal Code, arguing that it would demonstrate psychiatric disorders relevant to his mens rea for murder.

The Court of Appeal dismissed the motion, finding that a prior assessment at trial already addressed these issues and that no new evidence justified a further assessment.

The court held that strategic decisions at trial and the absence of new or flawed evidence did not warrant a new assessment at the appeal stage.

The Court of Appeal for Ontario dismissed the conviction and sentence appeals of Corey and Curtis Murray, who were convicted of second degree murder in the death of Trevor Seraphine.

The main issues on appeal concerned the police failure to preserve certain surveillance video evidence and the Crown’s late disclosure of the loss of this evidence.

The court found that while the loss of evidence breached the appellants’ Charter rights, the trial judge’s remedial jury instructions were adequate and a stay of proceedings was not warranted.

The court also upheld the 20-year parole ineligibility periods, finding them fit in the circumstances.

The appellant, convicted of sexual assault, appealed on the ground that the trial judge erred in assessing the complainant's credibility, specifically regarding the judge's view that the complainant's confusion about consent enhanced her credibility.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's assessment, affirming that a witness's candour, including about confusion, can properly support credibility findings.

The appellant, S.H., appealed his convictions for historical sexual offences against his two stepdaughters and his seven-year global sentence.

The Court of Appeal identified two key errors by the trial judge: improper use of the appellant's provincial driving record to draw adverse inferences about his character and credibility, and a misapprehension of the appellant's testimony regarding a television program.

Despite the Crown's argument that these errors were harmless and could be cured by the proviso, the Court found that the cumulative effect of the errors was material to the trial judge's credibility assessment of the appellant, especially given the sparse reasons for accepting the complainants' evidence.

The Court concluded that the errors contributed to a miscarriage of justice and ordered a new trial on all counts.

The appellant appealed a 12-year sentence for incest, criminal harassment, sexual exploitation, making child pornography, and possession of child pornography.

The appellant argued the trial judge erred by not alerting counsel to potential criticisms or rejection of an expert's risk assessment report.

The Court of Appeal dismissed the appeal, holding that a sentencing judge is not required to accept an expert's opinion in whole or in part and is entitled to weigh evidence.

The court found the sentence was not harsh given the severe aggravating factors, including the breadth, nature, and duration of the appellant's conduct and abuse of trust.

The appellant was convicted of sexual interference, invitation to sexual touching, incest, and sexual assault against his biological daughter and sentenced to nine years imprisonment.

On appeal, the appellant argued the trial judge applied uneven scrutiny to the evidence and that trial counsel was inadequate.

The Court of Appeal found no merit to the uneven scrutiny argument, affirming the trial judge's credibility findings, and no support for the inadequate counsel claim.

The court also found no error in the sentence, noting its consistency with sentencing principles for sexual violence against children.

However, the court granted a Charter remedy, varying the lifetime Sex Offender Information Registration Act (SOIRA) registration order to 20 years, with the Crown's consent.

The appeal from conviction and sentence was dismissed.

The appellant, Chad Michael Kennedy, appealed his convictions for arson, criminal harassment, uttering death threats, possession of an explosive substance, disobeying a court order, and breaches of probation, as well as his global sentence of 28 months.

The appeal primarily focused on the reliability of eyewitness identification and alleged inconsistencies with video evidence regarding the arson charges.

The Court of Appeal found that the trial judge properly cautioned himself regarding eyewitness testimony and adequately grappled with the alleged inconsistencies, concluding the video quality was too poor to contradict the eyewitness account.

The court also dismissed the sentence appeal, finding no error in principle.

The appellant appealed his global sentence of six years imprisonment for charges including distributing child pornography and breaching a s. 161 Criminal Code prohibition order.

The Court of Appeal found the sentencing judge's reasons inadequate for failing to sufficiently explain the sentence in light of sentencing objectives and comparable authorities.

Re-exercising its discretion, the Court reduced the global sentence to five years imprisonment, finding it to be a fit sentence considering all aggravating and mitigating factors.

The appellant, Robert Rouse, appealed his sentence, arguing that the sentencing judge failed to adequately consider the negative impact of his time spent on house arrest.

The Court of Appeal found that the strict conditions of house arrest, which required the appellant to be supervised by his full-time working surety, did indeed have a significant impact on his liberty and ability to carry out normal activities.

The Court concluded that this impact should have mitigated his sentence.

Leave to appeal was granted, and the appeal was allowed, resulting in a 7.5-month reduction to the appellant's sentence.

The appellant, L.G., appealed his conviction for gross indecency and sexual assault, which occurred in 1985-1986 when the complainant was 14.

The appellant claimed the sexual activity in 1987 was consensual.

The trial judge rejected the appellant's evidence due to inconsistencies with his police statement and implausibility, and found the defence witnesses' testimony incredible due to suspected collusion or tainting.

The trial judge accepted the complainant's consistent evidence, which was corroborated by independent, non-contentious details.

The Court of Appeal dismissed the appeal, finding that the trial judge did not reverse the burden of proof in assessing defence evidence and did not err in considering circumstantial evidence as confirmatory, as it was more consistent with the complainant's account.

The appellant, Pedro Hechavarria-Tapia, appealed his dangerous offender designation and indeterminate sentence for serious intimate partner violence.

The appeal challenged the sentencing judge's findings of fact regarding the appellant's treatability and willingness to engage in rehabilitation.

The Court of Appeal dismissed the appeal, finding ample support in the record for the sentencing judge's conclusions that the appellant was intractable and unwilling to be treated for the relevant conditions, despite some superficial engagement with probation officers and past program enrollment.

The appellant, Julien Jutras, appealed his convictions for sexual assault and voyeurism, arguing that the trial judge's reasons were insufficient.

He contended that the trial judge failed to adequately address inconsistencies in the complainant's testimony and an alleged motive for her to fabricate evidence.

The Court of Appeal found that while it would have been preferable for the trial judge to explicitly address these points, the reasons, when read holistically and in context, were not insufficient.

The court noted that the trial judge clearly accepted the complainant's evidence, which was supported by the graphic photos, and that a failure to explain the rejection of a submission does not render reasons deficient if the acceptance of contrary evidence is clear.

The appeal was dismissed.

The appellant was convicted of child luring, invitation to sexual touching, possession of child pornography, accessing child pornography, and weapons dangerous, receiving a global sentence of 34 months.

On appeal, the appellant argued the sentence was unfit for a first offender with mitigating factors, and that the trial judge failed to resolve disputed aggravating factors.

The Court of Appeal agreed, finding the sentence unsupported due to unresolved aggravating factors.

The court substituted the sentence to 28 months (time served).

Additionally, the appellant successfully appealed overly broad terms of a s. 161 order regarding internet access, which the court directed the parties to amend by consent or the court would amend after two weeks.

The appellant sought to appeal a sentence of over 8 months for fraud and probation breach, arguing that a retroactive legislative change in 2013 removed his right to appeal a criminal inadmissibility finding to the Immigration Appeal Division (IAD) because his sentence exceeded six months.

He requested a reduction of the jail term to less than six months to restore this right.

The Court of Appeal, applying R. v. Pham, found that the original 8-month sentence was lenient and fit, considering the nature of the fraud and the appellant's criminal record.

The court held that reducing the sentence to avoid immigration consequences would constitute an "inappropriate and artificial sentence" and would circumvent Parliament's will.

The appeal was dismissed.

The appellant, convicted of aggravated sexual assault and other serious offences, appealed the imposition of a 10-year Long-Term Supervision Order (LTSO).

The appeal was based on three grounds: the sentencing judge's assessment of substantial risk of reoffence, the length of the LTSO given the appellant's age and a Static-99R assessment, and the failure to explicitly grant "Duncan" enhanced credit for harsh pre-sentence custody conditions.

The Court of Appeal dismissed the appeal, finding that the sentencing judge properly assessed the risk of reoffence, the LTSO length was justified by the appellant's non-participation in treatment and other factors, and that the "Duncan" factors were implicitly considered in determining the fit sentence.

The appellant, designated a dangerous offender, appealed the Superior Court's dismissal of his habeas corpus application.

He argued the application judge misapprehended his complaint, which was against the Correctional Service of Canada for failing to provide necessary programming, creating a "rehabilitative impasse," rather than against the Parole Board.

The Court of Appeal found the "rehabilitative impasse" argument was not sufficiently raised below.

It upheld the application judge's decision to decline habeas corpus jurisdiction based on the Parole Board's comprehensive review system (the Peiroo exception from May v. Ferndale Institution), but found the application judge erred in also declining jurisdiction based on collateral attack and in using an un-noticed transcript.

Despite the error, the appeal was dismissed as the Peiroo exception was sufficient.

The accused was charged with sexual assault relating to four separate incidents involving a complainant he met on a dating app.

The Crown's case relied on the complainant's testimony and text messages, while the accused denied the allegations and advanced an alibi for one incident.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's evidence due to significant inconsistencies and exaggeration.

The court found the complainant to be a credible witness and convicted the accused of sexual assault.

The appellant, a disbarred lawyer, appealed the dismissal of her habeas corpus application challenging the validity of her warrant of committal.

The application judge had found the application frivolous, vexatious, and an abuse of process, noting that the arguments had been unsuccessfully raised multiple times before.

The Court of Appeal found no merit in the appeal, specifically endorsing the application judge's analysis and conclusion, and dismissed the appeal.