Jeffrey Peter Wyngaarden

This is an appeal from convictions for sexual assault, assault, and criminal harassment.

The Court of Appeal found that the trial judge committed an error of law by discounting the accused's credibility on the basis that his evidence was "tailored" to fit Crown disclosure or evidence heard in court.

The court reiterated that such an inference is impermissible as it turns constitutional rights against the accused.

The error was deemed prominent in the trial judge's credibility assessment, which was the central issue.

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

In this addendum to a prior decision, the Court of Appeal for Ontario finalized the terms of probation for the appellant, Ahmed Marzouk, after having allowed his sentence appeal.

The court varied the sentence to two years less a day followed by a one-year probation, and subsequently ordered that the probation terms include those agreed to by counsel plus 60 hours of community service.

The appellant appealed his conviction for robbery and a three-year sentence.

The appeal challenged the reasonableness of identity evidence, the admissibility of rebuttal evidence, and the rejection of alibi evidence.

The Court of Appeal dismissed the conviction appeal, finding the identity evidence sufficient and the rebuttal evidence properly admitted.

However, the court found the trial judge erred in principle by over-emphasizing denunciation and deterrence for a youthful first offender with strong rehabilitative prospects.

Consequently, the sentence was varied from three years to two years less a day, followed by one year of probation.

A motion to file fresh evidence was dismissed as it merely confirmed existing evidence of rehabilitative prospects.

The appellants, April Vuong and Hao Quach, appealed their convictions for large-scale fraud and their 6-year sentences.

They argued that their s. 11(b) Charter right to be tried within a reasonable time was infringed, that the trial judge erred in permitting a forensic accountant to testify as a non-expert witness, and that their sentences were unfit.

The Court of Appeal dismissed all appeals, finding that the delay was justified under the Jordan transitional exceptional circumstance, that any error regarding the witness testimony was cured by the Criminal Code's proviso, and that the sentences were fit and within the appropriate range for a sophisticated Ponzi scheme.

The appellant was convicted by a jury of four counts of assault and two counts of assault with a weapon against his three children and wife.

He appealed both the conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the jury's verdict and rejecting claims of ineffective assistance of trial counsel due to a lack of prejudice.

Leave to appeal the sentence was granted, but the sentence appeal was also dismissed as no error in principle was found.

The applicant, I.W., sought bail pending appeal after his initial bail was revoked due to new charges of assault and uttering threats against his domestic partner, who was his surety.

He had been convicted of sexual assault, sexual interference, and sexual exploitation and sentenced to five years.

The court applied the three-part test for bail pending appeal, focusing on the public interest ground, which involves public safety and public confidence in the administration of justice.

The court found the enforceability interest to be high due to the seriousness of the original sexual offences and the new charges, which raised lingering public safety concerns and undermined his record of bail compliance.

While the appeal grounds were arguable, they were not considered strong enough to outweigh the high enforceability interest.

The application for bail pending appeal was dismissed.

The appellant, Christopher Smith, appealed his convictions for possessing identity documents, counterfeit marks, and cocaine.

The central issue at trial was possession and knowledge.

On appeal, the court dismissed arguments regarding inadmissible evidence and jury instructions on cross-count and propensity reasoning, finding no reversible error or prejudice.

However, the court found that the trial judge erred in instructing the jury that the marks on the identity documents were counterfeit, as there was no evidence of post-issuance alteration.

Consequently, the convictions for possessing counterfeit marks were set aside, and the conditional stay on the identity document convictions was lifted, with the sentence reallocated.

The appellant, Darren Pearce, sought leave to appeal a five-year global sentence for aggravated assault and breach of recognizance.

The Court of Appeal granted leave and allowed the appeal, finding that the sentencing judge erred by failing to adequately address the principle of parity between Mr. Pearce's sentence and that of his co-accused, Terrance Goodwin, who received a substantially shorter sentence for the same crime.

The court substituted a sentence of "time served" equivalent to approximately three and a half years, to achieve appropriate parity, considering Mr. Pearce's pre-sentence custody and credits.

The appellant was convicted of fraud over $5,000 and sentenced to 18 months' imprisonment.

She appealed her conviction and sought leave to appeal her sentence.

The Court of Appeal dismissed arguments regarding the trial judge's jury charge adequacy and the lack of a specific direction on handwriting comparisons, finding the charge fair in context and the jury adequately equipped.

Leave to appeal sentence was granted, but the appeal was dismissed as the sentence was within range and revealed no error in principle.

The appellant, Marcel Seip, appealed his conviction and sentence for multiple offences, including aggravated assault, stemming from a home invasion and kidnapping.

The primary ground of appeal was that the trial judge erred in convicting him of aggravated assault after acquitting him of discharging a firearm with intent to wound, arguing that the finding of a potentially accidental shooting precluded the necessary intent for aggravated assault.

The Court of Appeal dismissed the appeal, affirming that the mens rea for aggravated assault requires only objective foreseeability of bodily harm, not specific intent to wound.

The court found no error in the trial judge's application of this principle or in her credibility findings, concluding that the appellant was a party to the aggravated assault as the mastermind of the home invasion who knew his accomplice had a gun.

The appellant appealed his conviction for sexual assault and his 12-month sentence.

The appeal raised two main issues: whether the trial judge applied uneven scrutiny to the testimony of the appellant and the complainant, and whether the trial judge erred in treating the complainant's alleged motive to fabricate evidence.

The Court of Appeal dismissed the appeal, finding no uneven scrutiny in the trial judge's comprehensive assessment of the complainant's credibility and no error in the trial judge's conclusion regarding the absence of a realistic motive to fabricate.

The court also found the 12-month sentence for a random and violent sexual assault to be fit, despite potential immigration implications for the appellant.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred by finding the complainant had no motive to fabricate and using this to assess her credibility.

The Court of Appeal dismissed the appeal, clarifying the distinction between a "proven absence of motive to fabricate" and an "absence of evidence of motive to fabricate." The court held that while a proven absence of motive is a high bar, the absence of evidence of motive can be considered as one factor among many in assessing credibility, provided it is not given undue weight or used to reverse the burden of proof.

The trial judge's approach was found to be consistent with established legal principles.

The Crown applied under s. 490(2)(a) of the Criminal Code for further detention of seized items (physical documents and digital data) beyond the initial three months.

The investigation involves alleged fraudulent Employment Insurance Benefits claims by the respondents.

The court applied the test from R. v. Tennina, considering whether an investigation is ongoing, if the materials are necessary, and the progress of the investigation.

Despite the volume of materials, translation needs, and COVID-19 impacts, the court found the investigation active and the materials necessary, granting a further detention order for one year.

The appellant appealed his convictions for sexual assault and sexual interference on the basis that the trial judge failed to provide sufficient reasons.

The trial judge had stated she was confident of the appellant's guilt but reserved her reasons to address inconsistencies in the complainant's testimony.

However, no written or oral reasons for conviction were ever delivered.

The Crown conceded the appeal.

The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial, finding that the lack of reasons prevented appellate review.

The appellant, who was previously found not criminally responsible for assault causing bodily harm, appealed a decision of the Ontario Review Board maintaining his conditional discharge.

He argued that the Board's finding that he continued to pose a significant risk to the public was unreasonable and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding that the Board reasonably relied on expert psychiatric testimony indicating that the appellant's impending transition to a less structured living environment would increase his risk to public safety.

The applicants, convicted of defrauding investors of over $5 million in a Ponzi scheme, sought the appointment of counsel under s. 684 of the Criminal Code for their appeal.

The Court of Appeal dismissed the application, finding that the applicants failed to demonstrate that it was desirable in the interests of justice to have legal assistance, as the issues were straightforward and the applicants were capable of advancing their claims.

Furthermore, the applicants failed to provide adequate evidence of their financial need or that they had exhausted all other means of paying for counsel.

The appellants, in separate incidents, committed violent acts while in states of drug-induced psychosis and automatism.

At trial, they were precluded from raising the defence of non-mental disorder automatism due to section 33.1 of the Criminal Code, which removes the defence for violence-based offences where automatism is self-induced by voluntary intoxication.

The Court of Appeal held that section 33.1 violates sections 7 and 11(d) of the Charter by permitting convictions without proof of voluntariness or the requisite fault element, and by substituting voluntary intoxication for the essential elements of the offence.

The Court further held that these violations could not be saved under section 1 of the Charter.

Section 33.1 was declared to be of no force or effect.

The appeals were allowed, with a new trial ordered for one appellant and acquittals entered for the other on the violence-based charges.

This is an application for bail pending appeal by Adekunle Johnson Omitiran, who was convicted of sophisticated credit card fraud and sentenced to 48 months' imprisonment and a significant restitution order.

The applicant, with a history of similar frauds and breaches of court orders, argued for release based on arguable grounds of appeal, a non-violent record, a substantial release plan, and the COVID-19 pandemic.

The Crown opposed, emphasizing the weak grounds of appeal, the seriousness of the offences, the applicant's recidivism, and the unlikelihood of serving the full sentence before appeal.

The Court of Appeal dismissed the application, finding that while the grounds of appeal were "not frivolous" they were weak.

The decision primarily turned on the public interest factor under s. 679(3)(c) of the Criminal Code, concluding that the applicant's history of repeat offending, disregard for court orders, and the serious nature of the financial crimes, especially in the current economic climate, outweighed the reviewability interest.

The proposed release plan and surety were deemed insufficient to mitigate the risk of reoffending.

The applicant, Cecil Seerattan, sought release pending appeal of his domestic violence convictions, arguing his guilty plea was uninformed and misinformed regarding immigration consequences, and that the trial judge erred in denying an adjournment to set aside the plea.

The Crown opposed release, contending the appeal lacked merit.

The Court of Appeal granted the release, finding the appeal was not frivolous.

The court determined there was a firm foundation that the applicant was misinformed about the collateral immigration consequences of his plea and that he was subjectively prejudiced as a result.

Public interest considerations, including the trial judge's plea to immigration authorities and the applicant's successful bail history, also supported release.

An appeal from an Ontario Review Board disposition ordering continued detention of an NCR (not criminally responsible) accused at a forensic psychiatric hospital with community living privileges.

The appellant sought a conditional discharge as the least onerous and least restrictive disposition.

The Court of Appeal upheld the Board's decision, finding that the detention order remained necessary and appropriate given the appellant's ongoing mental health and substance use issues, poor insight into her condition, vulnerability to relapse, and recent threatening behaviour.

The court rejected the appellant's arguments that the Board failed to consider relevant factors including her sobriety, age-related reduction in violence risk, negative effects of hospitalization, and commitment to treatment compliance.