Jennifer A. Y. Trehearne

The Court of Appeal for Ontario allowed J.C.'s appeal from a dangerous offender designation and indeterminate sentence, finding a miscarriage of justice due to the limited, non-adversarial role assigned to amicus curiae at the original hearing.

The Court held that, in light of subsequent Supreme Court guidance in R. v. Kahsai, the trial judge erred in principle by not appointing amicus with a broader, adversarial mandate to ensure fairness, given the appellant's self-represented and self-defeating position.

The Court ordered a new hearing.

Two appellants were convicted of manslaughter following a group assault in which the victim was fatally stabbed by another member of the attacking group.

Both appellants appealed their convictions, arguing the trial judge erred in instructing the jury on causation in the context of co-principal liability.

The majority held that, reading the jury instructions as a whole, the jury was properly — though not perfectly — instructed on legal causation and the intervening act doctrine.

The majority further clarified that an act by a co-participant in a group assault can, in principle, trigger the intervening act doctrine, rejecting the Crown's contrary submission.

The dissent would have allowed the appeals and ordered a new trial, finding the repeated instruction that foreseeability of continuing assaults 'may be enough' to establish causation was erroneous and not cured by the remainder of the charge.

The appellant appealed his conviction for sexual assault and sexual interference, arguing the trial judge erred in analyzing the statutory fault element, rejecting the mistake of age defence, and misusing the complainant's prior consistent statements.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusions regarding the appellant's knowledge or recklessness as to the complainant's age, the rejection of the mistake of age defence due to lack of reasonable steps, and the credibility/reliability findings concerning the complainant's drug use and prior consistent statements.

The Crown appealed the acquittal of the respondent on a sexual assault charge.

The trial judge had found that the young woman was not proven to be unconscious or incapable of consent due to drug impairment.

The Court of Appeal found that the trial judge erred in making a factual finding unsupported by evidence and in failing to consider all evidence regarding the victim's capacity to consent.

The appeal was allowed, the acquittal set aside, and a new trial ordered, as the trial judge had not made findings on the respondent's mens rea.

The appellants, C.O. and N.P., appealed convictions for failure to provide necessaries of life and an order for a new trial on unlawful confinement, stemming from the unsanitary conditions in their apartment and the confinement of their four-year-old daughter, J. The Court of Appeal dismissed both appeals, affirming that risk of harm is an element of the necessaries offence under s. 215(2)(a)(i) of the Criminal Code and that the conditions of confinement are relevant to the "lawful authority" defence under s. 279(2).

The court found the trial judge erred in refusing to take judicial notice of the health risks posed by the cumulative unsanitary conditions.

The matter was remitted for sentencing on the necessaries charge.

The appellant, K.T., appealed his conviction for second-degree murder of his father, a judge-alone circumstantial case.

The appeal challenged the trial judge's findings regarding the movement of the deceased's body, the assessment of post-offence conduct (flight to Montreal with the deceased's belongings), and various factual inferences drawn from the evidence, including DNA, fingerprints, and the murder weapon.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's careful and extensive reasons, which were well-rooted in the evidentiary record and properly rejected alternative theories.

The appellant appealed his convictions for gross indecency and sexual assault, arguing ineffective assistance of trial counsel.

The Crown conceded several areas of counsel's incompetence, including failures to thoroughly investigate collusion among complainants, explore opportunity, challenge inconsistencies in testimony, and adequately prepare the appellant for trial.

The Court of Appeal found that the cumulative impact of these failures undermined the reliability of the verdict, particularly concerning the credibility of a key complainant and the application of similar fact evidence.

The court concluded that there was a reasonable probability that the trial outcome would have been different with effective counsel.

The appellant, C.S., sought bail pending appeal after being convicted of sexual interference, possession of child pornography, making sexually explicit material available to a child, and assault, receiving a six-year sentence.

The appeal challenges both conviction and sentence, primarily arguing that the trial judge failed to adequately consider the appellant's significant intellectual disability when assessing the voluntariness of his police statements, his credibility, and as a mitigating factor in sentencing.

The Crown conceded the public interest and surrender criteria for bail, leaving only the "not frivolous" test.

The Court of Appeal found that the appellant's grounds of appeal, which included the trial judge's discounting of uncontradicted expert evidence regarding the appellant's low IQ and vulnerability to manipulation, were not frivolous.

The court noted that if successful, these arguments could affect the trial outcome or sentence.

Consequently, bail pending appeal was granted.

The appellant, J.R., appealed convictions for sexual offences against his two young daughters.

The Crown conceded that the trial judge erred by failing to instruct the jury against cross-count reasoning and propensity reasoning, and by instructing them that cross-count reasoning was permissible.

The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial, finding these errors required the convictions to be set aside.

The appellant appealed his conviction for sexual assault with a weapon and uttering threats, arguing errors in identification evidence, credibility assessment, motive, burden of proof, and ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's assessment of evidence, credibility, or application of legal principles, and concluding that trial counsel's performance, while not perfect, did not result in a miscarriage of justice.

This is the applicant's second application for bail pending appeal following convictions for sexual assault and distributing intimate images.

The applicant argued a material change of circumstances based on newly available transcripts and an affidavit, alleging ineffective assistance from both previous counsel and an uninformed guilty plea.

The Court of Appeal dismissed the application, finding no material change of circumstances as the new grounds of appeal were not "not frivolous." The court also held that public confidence in the administration of justice required the applicant's continued detention, as the enforceability interest outweighed the weak reviewability interest.

The appellant was convicted of two counts of sexual assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's similar fact evidence ruling or credibility assessment.

The court also dismissed the sentence appeal, deeming the 14-month concurrent sentence fit given the serious nature of the crimes against very young victims.

The appellant, convicted of sexual assault, appealed on the grounds that his re-election of trial mode was invalid due to non-compliance with s. 561(7) of the Criminal Code and that the trial judge erred in concluding he was functus officio.

The Court of Appeal found the trial judge was not functus officio but agreed with the trial judge's alternative finding that the appellant, through counsel, had validly waived his right to have the re-election words read to him.

The appeal was dismissed.

The applicant, Gavin MacMillan, sought bail pending appeal after being convicted by a jury of sexual assault and administering a noxious substance, for which he received a nine-year sentence.

The primary ground of appeal was the retrospective application of Bill C-75, which abolished peremptory juror challenges, an issue previously addressed by the Court of Appeal in *R. v. Chouhan*.

The Crown conceded the appeal was not frivolous and that the applicant was not a flight risk.

The court granted bail, finding that despite the gravity of the offences, the strength of the appeal (bordering on certainty due to *Chouhan*) and the proposed stringent bail conditions (virtual house arrest) meant that detention was not necessary in the public interest.

The appellant, K.R., appealed his conviction on two counts of sexual interference against his step-daughter.

The grounds of appeal included impermissible speculative reasoning by the trial judge, undue weight on the complainant's demeanor, and an unreasonable verdict.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings on credibility and reliability, and concluding that the verdict was reasonable and supported by the evidence, with proper application of the burden of proof.

The appellant appealed his convictions on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm, as well as seeking leave to appeal his sentence.

The trial judge refused to grant an adjournment to allow the appellant to retain counsel, resulting in the appellant proceeding unrepresented.

The trial judge failed to address the appellant's inability to read or write and his limited English proficiency despite being informed of these facts.

The trial judge also improperly directed the defence expert to conduct cross-examination of the Crown's expert.

The Court of Appeal found these errors deprived the appellant of a fair trial and allowed the appeal, ordering a new trial.

The appellant was convicted of child luring contrary to s. 172.1(1)(a) of the Criminal Code and communicating with a person believed to be under 18 for sexual services contrary to s. 212(4).

He was one of 104 people caught in a police sting operation on Backpage.com.

The appellant claimed he believed he was engaged in role-play with an adult, not a 16-year-old.

The trial judge rejected this evidence and found the appellant actually believed the person was 16.

The appellant was sentenced to the mandatory minimum of 12 months' imprisonment under s. 172.1(2)(a) and 6 months under s. 212(4), to be served concurrently.

On appeal, the conviction was upheld.

The sentence appeal was allowed in part: the mandatory minimum under s. 172.1(2)(a) was declared unconstitutional as grossly disproportionate in reasonably foreseeable circumstances, though the 12-month sentence imposed was fit.

The victim surcharge was set aside.

The appellant was convicted of two counts of sexual assault, one count of invitation to sexual touching, and one count of touching for a sexual purpose against a child victim aged 9-11 years old.

On appeal, the appellant challenged the trial judge's credibility findings and alleged errors in the assessment of evidence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's findings were properly grounded in the evidence as a whole and that no reversible error occurred.

The sentence appeal was allowed in part, with the victim surcharge being set aside.

The appellant appealed his conviction for sexual interference following a jury trial.

The defence argued the complainant fabricated the complaint due to pressure from his father.

The appellant challenged the trial judge's instruction that "the timing of the disclosure signifies nothing," arguing it was improper in the context of the case.

The Court of Appeal found the instruction was ill-advised but not misleading when considered in context with the full charge and counsel's closing addresses.

The court clarified the instruction referred to delay between incidents and disclosure, not the circumstances of disclosure.

The appeal from conviction was dismissed, and the victim fine surcharge was set aside with Crown consent.

The appellant appealed both his conviction and sentence imposed by the trial judge.

The conviction arose from a motor vehicle accident.

The Court of Appeal upheld the conviction, finding that the trial judge properly assessed the evidence, particularly the eyewitness testimony regarding the movements of the vehicles immediately before and at the time of the accident.

The court found no error in the trial judge's treatment of the mens rea component of the offence.

On the sentence appeal, the court upheld the 18-month custodial sentence and the 10-year driving prohibition as being within the appropriate range.