Jane E. Kelly

The appellant appealed his convictions entered following guilty pleas to criminal harassment, assault police, and failure to comply with a recognizance, arguing ineffective assistance of counsel.

He alleged that his lawyer instructed him to plead guilty while assuring him he could still proceed to trial.

The court applied the established three-part test for ineffective assistance of counsel, requiring proof of the material facts, deficient performance, and resulting miscarriage of justice.

The court found the appellant failed to establish the factual basis for the allegation and concluded counsel’s representation was competent and professionally reasonable.

As no miscarriage of justice was demonstrated, the convictions were upheld.

The accused was charged with robbery with a firearm, using a firearm while committing an indictable offence, and assault with a weapon following an altercation in a crack house.

The Crown's key witnesses, including the victim, had significant credibility and reliability issues due to drug addiction and inconsistent testimony.

The court found reasonable doubt regarding the robbery and firearm charges, resulting in acquittals on those counts.

However, the court convicted the accused of assault with a weapon, as the victim's testimony regarding being struck with a lamp stand was corroborated by photographic evidence of his injuries.

The appellant appealed multiple Criminal Code convictions arising from incidents involving criminal harassment, assault, threats, theft, mischief, and breaches of recognizance.

The sole issue pursued on appeal was whether the trial judge failed to provide sufficient reasons for conviction following a lengthy multi-day trial involving numerous witnesses.

The appellate court held that although the trial judge’s oral reasons were brief in parts, they sufficiently explained the route to conviction and allowed meaningful appellate review.

The judge’s acceptance of the complainant’s evidence, corroborated by other witnesses and independent evidence, and rejection of the appellant’s testimony demonstrated application of the principles in R. v. W. (D.).

The appeal was therefore dismissed.

The appellant appealed criminal harassment convictions arguing that the trial judge erred in refusing a stay of proceedings for breach of the right to be tried within a reasonable time under s. 11(b) of the Charter.

The court found that several periods of delay had been incorrectly characterized as neutral, including delay caused by late disclosure, the Crown’s failure to subpoena witnesses, and the Crown’s late filing of written submissions.

Properly characterized, a substantial portion of the delay was attributable to the Crown and institutional factors, exceeding the Morin guidelines.

The appellant had also demonstrated actual prejudice resulting from restrictive bail conditions that interfered with employment and personal life.

The court concluded that the delay was unreasonable and granted a stay of proceedings.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, alleging ineffective assistance of counsel at trial.

Trial counsel mistakenly believed roadside statements regarding alcohol consumption could be used to impeach the accused’s credibility, and therefore failed to pursue a Carter defence, obtain relevant disclosure, or retain toxicology evidence.

On appeal, expert evidence suggested the approved instrument may have lacked proper maintenance and that the accused’s blood alcohol concentration at the time of driving could have been below the legal limit.

The court held that counsel’s misunderstanding of governing appellate authority affected strategic decisions and constituted ineffective assistance.

The resulting prejudice created a reasonable possibility that the verdict would have been different.

The appellant appealed a conviction for sexual assault arising from allegations that he touched the complainant’s vagina during a therapeutic massage.

He argued that the verdict was unreasonable due to the trial judge’s misapprehension of evidence and that the trial judge applied a higher level of scrutiny to the defence evidence than to the complainant’s evidence.

The appeal court held that several minor misapprehensions of evidence identified in the record were peripheral and did not affect the core credibility findings or reasoning process leading to conviction.

The court also found no basis to conclude that the trial judge applied uneven scrutiny to the parties’ evidence.

The conviction was upheld.

The appellant appealed convictions for impaired operation and operating a motor vehicle with a blood alcohol concentration over the legal limit.

At trial, the appellant brought an application under s. 11(b) of the Charter alleging unreasonable delay, which the trial judge dismissed with brief oral comments and a promise of written reasons.

Nearly three and a half years later, no written reasons were produced.

The appeal court held that the absence of reasoned reasons prevented meaningful appellate review of the s. 11(b) ruling.

The appeal was allowed and the matter remitted back to the trial court for proper determination.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol level over 80 mg, arguing the trial judge erred by refusing to quash the information due to non-compliance with s. 508 of the Criminal Code.

The alleged defect concerned a justice of the peace failing to correctly confirm the form of release on the information, despite the accused having been released on a promise to appear.

The court held that such non-compliance did not invalidate an otherwise properly sworn information and did not deprive the court of jurisdiction.

Relying on appellate authority and persuasive Superior Court decisions, the court concluded that defects relating to confirmation of a promise to appear are collateral to the validity of the charge.

The appeal was dismissed.

The appellant appealed a conviction for impaired driving, arguing that the trial judge erred by applying the presumption in s. 258(1)(c) of the Criminal Code where the offence date on the Information differed from the date the breath samples were taken.

The appellant also argued that the trial judge applied the wrong legal test when determining whether language difficulties constituted special circumstances requiring an interpreter for purposes of the right to counsel under s. 10(b) of the Charter.

The court held that the discrepancy in dates could be corrected by amending the Information under s. 683(1)(g) of the Criminal Code and that the appellant was neither misled nor prejudiced.

The court further found that the appellant sufficiently understood his right to counsel and that the evidence supported the trial judge’s finding of impairment beyond a reasonable doubt.

The accused fled from police in a stolen van at high speeds on city streets.

After running a red light and causing a minor collision, he continued to flee, eventually driving the wrong way into oncoming lanes and striking a vehicle making a left turn.

The collision resulted in one death and bodily harm to five others.

The court found the accused's driving was a marked and substantial departure from the standard of a reasonably prudent driver, and that the risks of death and bodily harm were foreseeable.

The accused was found guilty of criminal negligence causing death and criminal negligence causing bodily harm.

Sentencing decision for an offender convicted of multiple firearms offences arising from possession of a loaded .38 calibre revolver in a Toronto neighbourhood known for gang activity.

The offender, a repeat firearms offender subject to existing prohibition orders and probation, fled police and discarded the loaded weapon in a residential yard during pursuit.

The court emphasized denunciation and deterrence in response to gun violence while considering mitigating factors including youth, community support, and evidence of remorse and rehabilitation potential.

Applying the totality principle and consecutive sentencing for breaches of firearm prohibition orders, the court imposed a global sentence of eight years’ imprisonment with enhanced credit for pre‑sentence custody.

The appellant appealed convictions for sexual interference and uttering threats arising from allegations involving a child complainant, arguing that the trial judge misapplied the credibility framework in R. v. W.(D.), improperly rejected the accused’s evidence, and wrongly treated a letter written by the complainant as a prior consistent statement.

The court held that the trial judge applied the proper W.(D.) analysis and fairly assessed the credibility of both the complainant and the accused.

The court further found that the letter was not relied upon for the truth of its contents but was used only as part of the narrative context.

No reversible error was identified in the trial judge’s reasoning or evidentiary treatment.

The appeal was therefore dismissed.

The appellant appealed convictions for impaired operation and refusing to provide a breath sample, arguing that the trial judge erred in dismissing a delay-based Charter application, in finding no prejudice from delay, in concluding that a lawful breath demand was made, and in imposing a 15‑month driving prohibition.

The court held that the impugned two‑month period was properly characterized as intake delay and that outstanding disclosure did not prevent setting trial dates.

The court further found no evidence that delay prejudiced the appellant’s liberty, security of the person, or ability to make full answer and defence.

The evidence supported the finding that the breath technician effectively made a lawful demand and that the appellant understood the requirement to provide a sample.

The sentence, including a 15‑month driving prohibition and minimum fines, was within the appropriate range and disclosed no error.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding the legal limit, arguing that the trial judge erred in the analysis under s. 24(2) of the Charter after finding a breach of the right to counsel under s. 10(b).

The trial judge had improperly considered the potential value of legal advice that might have been provided during a second requested consultation with counsel.

The appeal judge agreed that this was an error in principle but conducted a fresh s. 24(2) analysis applying the framework from Grant.

The court held that the breach was not egregious, the impact on the accused’s Charter-protected interests was limited, and society’s interest in adjudicating impaired driving cases on their merits was strong.

The breath sample evidence was therefore admissible and the conviction was upheld.