Jamie Cecilia Klukach

The appellant appealed his convictions for four counts of sexual assault and his 11-year sentence.

He argued that expert evidence on the neurobiology of trauma was improperly admitted and that similar fact evidence was erroneously used across counts.

The Court of Appeal found that while the expert evidence was admitted in error, the error was harmless due to robust jury instructions, applying the curative proviso.

The court also upheld the trial judge's admission of similar fact evidence.

A motion to introduce fresh evidence regarding the appellant's deteriorating health was dismissed, as it would not have altered the proportionate sentence.

The appeal was dismissed.

In a conviction appeal, the appellant sought production of a post-Hason Crown communication, plus a list of cases reviewed by the prosecution service concerning a forensic psychiatric expert and reasons for selection.

The court applied the two-step appellate production framework requiring a reasonable possibility the materials could assist a fresh-evidence motion and a reasonable possibility of eventual admissibility as fresh evidence.

It held the request was speculative, case-specific concerns from prior proceedings did not establish relevance in this record, and the requested internal review rationale was privileged.

The court further held that any standalone direction, divorced from justification, would not satisfy the relevance threshold.

The production motion was dismissed.

The Court of Appeal for Ontario dismissed the appeals of David Beak and Yostin Murillo from their convictions for first degree murder and sexual assault in the killing of Rhoderie Estrada.

The court found that the trial judge’s instructions to the jury on constructive first degree murder, post-offence conduct, and the handling of evidence and objections were accurate and complete.

The grounds of appeal advanced by both appellants, including issues of causation, post-offence conduct, jury instructions, and procedural fairness, were all rejected.

The appellants were convicted by a jury of second degree murder following the shooting death of the victim in a restaurant washroom.

The central issue on appeal was whether the trial judge erred in admitting surveillance video of the appellants at a motel with a firearm on the night prior to the shooting as prior discreditable conduct evidence, and whether the jury was properly instructed as to its permissible uses.

The majority of the Court of Appeal had found no error in the admission or instruction, while the dissenting judge would have ordered new trials.

A majority of the Supreme Court dismissed the appeals substantially for the reasons of the majority of the Court of Appeal, affirming the convictions.

The Court of Appeal for Ontario allowed the appeal of P.J.C., who had been convicted of assaulting his three stepchildren and sexually assaulting one of them.

The central issue was whether the trial judge erred in admitting expert evidence from Dr. Lori Haskell on the neurobiology of trauma and its effects on memory.

The Court found that the expert evidence was not necessary for the trial judge to assess the credibility and reliability of the complainants, and that its presentation—particularly through hypotheticals closely tracking the complainants’ evidence—improperly bolstered their credibility.

The prejudicial effect of the evidence outweighed any probative value.

The Court declined to apply the curative proviso and ordered a new trial.

The appellants, Thulani Chizanga and Shamar Meredith, appealed their convictions for second-degree murder and Mr. Meredith appealed his sentence.

The main issues on appeal included the admissibility of a "Super 8 Video" as prior discreditable conduct evidence, the trial judge's jury instructions on joint enterprise liability, post-offence demeanour evidence, and defence theories, as well as sentencing errors related to aggravating factors and mitigating circumstances.

The majority dismissed all appeals, finding no legal errors in the trial judge's decisions regarding evidence admissibility, jury instructions, or sentencing.

A dissenting judge would have allowed the conviction appeals and ordered a new trial, arguing the Super 8 Video was improperly admitted and instructed upon, particularly concerning its probative value for joint enterprise to kill.

The appellant, Nicholas Doering, brought a second appeal against his conviction for failing to provide the necessaries of life, after the Court of Appeal had previously affirmed his guilt on that charge and remitted the matter for sentencing.

The appellant argued that the trial judge erred in not re-opening the case to allow new legal arguments on his conviction.

The Court of Appeal dismissed the appeal, affirming that the trial judge had no jurisdiction to re-open the case as the matter was remitted for sentencing purposes only.

The court held that the issue of guilt was res judicata and the current appeal constituted an impermissible collateral attack on its previous order, emphasizing the principle of finality in the appellate process.

The appellants, Gavin MacMillan and Enzo De Jesus Carrasco, appealed their convictions for sexual assault and administering a stupefying substance, and their nine-year sentences.

They argued the trial judge erred in admitting expert evidence, excluding evidence of the complainant's prior sexual activity, instructing the jury on consent (specifically regarding orgasms), and demonstrating a reasonable apprehension of bias.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions and sentences.

The court affirmed the trial judge's rulings on expert evidence necessity and impartiality, the proper application of s. 276 of the Criminal Code regarding consent and prior sexual activity, and found no reasonable apprehension of bias.

The sentences were deemed fit and not demonstrably unfit.

The Crown appealed the acquittal of William Whatcott on a charge of willfully promoting hatred against gay men, stemming from the distribution of flyers at the 2016 Toronto Pride Parade.

The trial judge had acquitted Whatcott, finding the flyers did not constitute hate speech and excluding expert evidence on anti-gay discrimination tropes and evidence of prior discreditable conduct.

The Court of Appeal allowed the Crown's appeal, finding the trial judge erred in excluding the expert evidence, which was necessary to understand how the flyers perpetuated negative stereotypes and promoted hatred in a broader social and historical context.

A new trial was ordered.

The Court of Appeal for Ontario heard an appeal concerning convictions and sentencing.

Counsel for both the appellant and the Crown agreed that the matter should be remitted to the trial judge for sentencing on the failure to provide necessaries charge.

The Court ordered the remittal.

The appellant, a police officer, arrested an individual who was highly intoxicated by methamphetamine.

He later transferred custody to the OPP without seeking medical assistance, and the individual subsequently died of methamphetamine toxicity.

The trial judge convicted the appellant of failing to provide the necessaries of life and criminal negligence causing death.

On appeal, the Court of Appeal upheld the conviction for failing to provide the necessaries of life, finding the appellant's failure to seek medical assistance was a marked departure from the standard of care.

However, the Court quashed the conviction for criminal negligence causing death, concluding that the trial judge's finding that the appellant deliberately misled the OPP was unreasonable and that causation was not established.

The appellant, J.A., appealed convictions for second-degree murder of his daughter and attempted murder of his son.

The charges stemmed from an incident where he administered adult medication (Sleep MD, Nytol) and alcohol to his young children (ages 6 and 7), resulting in his daughter's death and his son's survival, as part of a failed murder-suicide attempt.

The appeal raised five grounds, primarily challenging the trial judge's "common-sense inference" instructions regarding intent, the failure to relate evidence to essential issues, and other jury charge errors.

The Court of Appeal dismissed the appeal, finding the common-sense inference instruction proper as death and serious bodily harm were predictable consequences of the appellant's actions, and the toxicology evidence did not dispel this inference.

The court also found no reversible error in the trial judge's instructions on evidence relevance to intent.

The Crown applied under s. 683(5) of the Criminal Code to suspend two conditional sentence orders (CSOs) imposed on the respondents, who were convicted of failing to provide necessaries of life.

The Crown argued that serving the CSOs before the appeal hearing would prejudice its sentence appeal, which sought penitentiary sentences.

The respondents opposed, arguing the Crown had not shown merit and that suspension was not in the interests of justice.

The court dismissed the Crown's application, finding that the "interests of justice" did not favour suspending the CSOs, noting that re-incarceration after a sentence is served is not inevitable and that the impact of served house arrest conditions could be considered on appeal.

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.

This endorsement addresses two applications for leave to intervene in a criminal appeal from conviction, brought by the Canadian Police Association, Toronto Police Association, and Police Association of Ontario.

The underlying appeal concerns a police officer convicted of criminal negligence causing death and failing to provide necessaries of life to an intoxicated individual.

The court granted intervener status, finding that the associations had a substantial interest and could offer useful perspectives on legal issues such as the standard of care for police officers, the relevance of mistake of fact in objective liability offences, and the need for expert evidence on professional standards, provided they confined their submissions to legal arguments and avoided the merits of the appeal.

The appellant, Grant Litt, appealed his conviction for breaking and entering, touching a person under 16 for a sexual purpose, and attempting to choke a person to commit sexual assault, stemming from a home invasion.

The sole issue at trial was identity.

The appeal focused on the trial judge's assessment of evidence, particularly expert evidence on a boot print, and the dismissal of a Charter application to exclude evidence.

The appellant also sought to introduce fresh evidence: a revised expert opinion on the boot print, downgrading its association with the appellant's boot.

The Court of Appeal admitted the fresh evidence, finding it met the cogency and due diligence criteria, as the trial judge had heavily relied on the original expert opinion and failed to sufficiently scrutinize other circumstantial evidence.

The appeal was allowed, and a new trial was ordered.

The appellant, Cindy Ali, appealed her conviction for first-degree murder in the death of her profoundly disabled daughter.

The Crown alleged the appellant suffocated her daughter and fabricated a home invasion story to cover it up.

The defence argued the death was seizure-related or caused by a home invader, and that the home invasion was real.

The Court of Appeal found that the trial judge erred in narrowing the jury's consideration of the cause of death to only suffocation and in unduly restricting the jury's consideration of alternative explanations for the fabricated home invasion narrative.

The trial judge's instructions effectively invited the jury to convict of murder if they found the home invasion story fabricated, without adequately considering other culpable acts (like failure to provide necessaries) or innocent explanations for the fabrication.

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

The appellant appealed his conviction for first degree murder following a second trial.

He raised six grounds of appeal, challenging the jury instructions on post-offence conduct and constructive first degree murder, the admission of his statements to police, the admission of a recanting witness's prior statement, the admission of intercepted communications with his former spouse, and the lawfulness of the wiretap authorizations.

The Court of Appeal dismissed all grounds.

The court found that while the trial judge erred in finding no independent evidence of fabrication regarding the appellant's alibi, the failure to give an O'Connor instruction did not prejudice him.

The court also held that spousal privilege under s. 4(3) of the Canada Evidence Act does not survive divorce.

The appeal was dismissed.

The Crown appealed a Court of Appeal decision setting aside the accused's conviction for sexual assault of a complainant with an intellectual and developmental disability, on the basis that the trial judge's reasons were insufficient.

The Court of Appeal majority found that the trial judge had failed to address the reliability of the complainant's evidence in light of expert evidence regarding her suggestibility, and had failed to provide reasons for rejecting the defence evidence.

The dissenting judge of the Court of Appeal held that the trial judge's reasons permitted meaningful appellate review.

The Supreme Court allowed the appeal, restoring the conviction, and cautioned that courts should focus on the individual's actual capacities rather than over-relying on expert evidence attributing general characteristics to persons with disabilities, as such over-reliance can perpetuate harmful myths and stereotypes and create barriers to access to justice.

The appellants were convicted of unlawful act manslaughter for failing to provide the necessaries of life to their 27-month-old daughter, who died of what trial experts concluded was a combination of asthma and malnutrition.

On appeal, the appellants sought to introduce fresh expert evidence from a forensic pathologist and a pediatric bone disorder expert, challenging the trial evidence on the cause of death.

The Court of Appeal admitted the fresh evidence, noting it was highly cogent and undermined the Crown's theory of liability at trial.

The appeals were allowed, the convictions set aside, and a new trial ordered.