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 appellants appealed their convictions for second-degree murder and manslaughter arising from a fatal group assault.

The primary appellant, convicted of murder as the stabber, sought to introduce fresh expert evidence and challenged the trial judge's instructions on identification and a key witness.

The co-appellants, convicted of manslaughter, argued the trial judge misdirected the jury on causation, specifically regarding whether the stabbing was an intervening act that broke the chain of causation.

The Court of Appeal dismissed all appeals, finding the jury instructions, when read as a whole, properly conveyed the law of causation and the requirements for assessing witness credibility.

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 appellant appealed his conviction for the first degree murder of his wife.

He argued the trial judge erred by not leaving the partial defence of provocation with the jury, and by leaving first degree murder based on planning and deliberation and constructive murder with the jury.

The Court of Appeal found no error regarding provocation or planning and deliberation.

However, the Court held the trial judge erred in leaving constructive murder for the jury, as the murder was completed before the subsequent unlawful confinement of a witness, breaking the required causal connection.

A new trial was ordered for the first degree murder charge.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

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 was convicted of second degree murder after the deceased, a drug dealer, was found beaten and strangled in his apartment.

The appellant was the last person seen with the deceased and had the deceased's blood on his jacket.

On appeal, the appellant argued the trial judge erred by failing to give a modified W.(D.) instruction regarding exculpatory footwear impression evidence, failing to correct the Crown's closing address, admitting references to dreams and flashbacks from police interviews, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions or the admission of evidence, and concluding that the circumstantial evidence reasonably supported the guilty verdict.

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 appealed his convictions for sexual assault, assault with a weapon, uttering threats, and criminal harassment against his estranged spouse, as well as his 42-month global sentence.

He argued the trial judge misapprehended evidence regarding the timing of divorce proceedings and failed to properly apply the W.(D.) principles to his testimony.

He also sought to introduce fresh evidence from family court proceedings.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of evidence and rejecting the fresh evidence as it failed the Palmer test.

The sentence appeal was also dismissed, with the court affirming that the sentence was fit and that the trial judge properly considered the abusive domestic context and parental alienation as aggravating factors.

The applicant pleaded guilty to sexual assault and distributing intimate images without consent and was sentenced to 18 months' imprisonment.

He applied for bail pending his conviction and sentence appeal, alleging his guilty plea was not informed and claiming ineffective assistance of counsel.

The Court of Appeal dismissed the application, finding the applicant failed to raise any arguable grounds of appeal and that his continued detention was necessary in the public interest due to the seriousness of the offences.

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.