Jeremy D. Tatum

The appellant pleaded guilty to two historical sexual assaults and was sentenced to a total of eight years in custody.

He appealed the sentence, arguing it was excessive and that the sentencing judge overemphasized denunciation and deterrence while failing to adequately consider his rehabilitation, poor health, and relationship with his son.

The Court of Appeal found no error in principle and concluded the sentence was fit, noting the sentencing judge properly applied the totality principle and accounted for mitigating factors given the very high moral blameworthiness of the offences.

The appeal was dismissed.

Following the allowance of the appellant's sentence appeal, the Court of Appeal issued an addendum to finalize the terms of the conditional sentence and probation orders.

The Court ordered house arrest for the duration of the conditional sentence with a specific exception for gym attendance, and imposed optional probation conditions including a weapons prohibition and no-contact orders.

The appellant appealed a manslaughter conviction arising from a fatal single blow delivered with a wooden board during a late-night confrontation on his porch, arguing that the only reasonable verdict was lawful self-defence under s. 34 of the Criminal Code.

The Court of Appeal held that a properly instructed jury could reasonably conclude beyond a reasonable doubt that the force used against a smaller unarmed person was not reasonable in the circumstances, and dismissed the conviction appeal and the related production motion.

On sentence, however, the court found procedural unfairness and error in principle where the sentencing judge treated supposed alternative responses available to the appellant as aggravating factors.

Re-sentencing afresh, the court held that the appellant’s moral blameworthiness was modest, that strong mitigating factors attenuated the gravity of the unlawful killing, and that a conditional sentence of two years less a day followed by three years’ probation was fit and legally available under s. 742.1.

The Crown appealed a summary conviction appeal decision that set aside a DNA order imposed on the respondent following a conditional discharge for assault.

The Crown argued the appeal judge misinterpreted the DNA Identification Act and failed to consider all mandatory factors under the Criminal Code.

The Court of Appeal dismissed the appeal, finding a meaningful legislative difference in the treatment of DNA samples between convicted offenders, who can apply for a record suspension to sequester their samples, and discharged offenders, who cannot.

The sentencing judge's failure to consider this disparate privacy impact justified appellate intervention.

The applicant brought a motion before the Court of Appeal.

A non-publication order under s. 517 of the Criminal Code was imposed at the bail hearing below.

Because the decision contains information covered by that order, the Court directed that the decision will not be published online until the non-publication order ceases to be in effect, though a copy is available at the Registry.

The Crown appealed a stay of proceedings entered under s. 24(1) of the Charter for a violation of the accused's s. 11(b) right to be tried within a reasonable time.

The application judge had found the net delay exceeded the 30-month presumptive ceiling.

On appeal, the Court of Appeal held that the application judge erred in her treatment of a discrete exceptional circumstance arising from the release of a Supreme Court of Canada decision that necessitated a rehearing of a change of venue motion.

The Court found the Crown had taken reasonable steps to mitigate the resulting delay and deducted an additional 93 days.

This brought the net delay below the presumptive ceiling.

The appeal was allowed and the stay of proceedings was set aside.

The appellant was convicted of 33 counts of voyeurism based on video recordings found on a USB device seized from a safe in his condominium.

He appealed, challenging the validity of the warrant authorizing the search of the safes.

The application judge had found that the information to obtain disclosed sufficient credible and reliable evidence to support the issuing justice's conclusion that a digital storage device would be found in the safes and would afford evidence of the offences under investigation.

The Court of Appeal held that the application judge made no extricable legal error, as his findings were rooted in the evidence and reflected permissible common-sense reasoning rather than speculation or impermissible propensity reasoning.

The appeal was dismissed.

The appellant, Connor Davison Gibson, brought a motion under section 683(1)(a) of the Criminal Code and rule 12(8) of the Criminal Appeal Rules for an order directing that the wooden board used to cause the deceased’s death (Exhibit 26 at trial) and the audio of the appellant’s 911 call be sent to the Court of Appeal and produced at the hearing of the appeal.

The Crown opposed, arguing that photographs of the board and a transcript of the 911 call were already in the record.

The court dismissed the motion, finding that the actual board and audio would not add anything meaningful to the panel’s deliberations, but noted the panel retains authority to require production of these exhibits if needed.

The Court of Appeal for Ontario dismissed Jitesh Bhogal’s appeal from his conviction for first degree murder.

The appellant argued that the trial judge erred by not instructing the jury on the defence of extreme intoxication akin to automatism in relation to the alleged sexual assault, and by mischaracterizing expert evidence on the cause of death.

The Court found that there was no air of reality to the extreme intoxication defence on the evidence, and that any misstatements of the expert evidence did not cause substantial prejudice.

The conviction was upheld.

The applicant, convicted of firearms offences, applied for a review of a decision denying him bail pending appeal under s. 680 of the Criminal Code.

Despite the Crown consenting to release, the bail judge had denied bail based on the seriousness of the offence and the perceived weakness of the sentence appeal.

The Court of Appeal found that the bail judge erred in principle by failing to consider the merit of the conviction appeal and the numerous public safety factors supporting release.

The application was granted and bail was ordered on the terms proposed by the parties.

The appellant appealed his convictions for firearms offences, arguing the trial judge erred in failing to exclude a handgun under s. 24(2) of the Charter.

The handgun was discovered during a lawful search incident to arrest, but police subsequently breached the appellant's s. 10(b) right to counsel and s. 8 privacy rights through warrantless entries into his apartment.

The Court of Appeal found the trial judge erred by failing to consider the breaches cumulatively.

Conducting a fresh s. 24(2) analysis, the Court concluded that while the breaches were serious, their impact was minimal as they occurred after the lawful discovery of the handgun, and society's interest favoured admission.

The appeal was dismissed.

The appellant was convicted of trafficking a person under 18, procuring, advertising sexual services, and publishing child pornography, but acquitted of administering a noxious substance.

She appealed the convictions, arguing the verdicts were inconsistent.

The Crown appealed the conditional sentence of two years less a day, arguing it was demonstrably unfit for sexual offences against a child.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence supported the verdicts despite the jury rejecting the complainant's drugging allegations.

The Court also dismissed the Crown's sentence appeal, holding that the trial judge properly applied the Friesen framework and that the offender's significant mental disabilities and history of exploitation constituted exceptional circumstances justifying a conditional sentence.

The procuring conviction was stayed on consent under the Kienapple principle.

The applicant sought judicial interim release pending his conviction and sentence appeal for firearm offences, including pointing a firearm, assault with a weapon, and possessing a weapon for a dangerous purpose, stemming from a drive-by shooting.

Despite the Crown's consent, the Court of Appeal denied the application.

The court found the appeal grounds, particularly regarding the sentence, to be weak and determined that the applicant's detention was necessary in the public interest, given the serious nature of the gun violence and the need to maintain public confidence in the administration of justice.

The appellant, convicted of manslaughter, brought a motion before the Court of Appeal seeking an order to examine a juror for a reasonable apprehension of bias.

The appellant's mother, Chair of a district school board, asserted that a juror, a vice-principal within the same board, may have been influenced by this professional connection.

The Court dismissed the motion, finding the claim speculative and lacking a sufficient credible foundation to warrant an examination.

The Court emphasized the strong presumption of juror impartiality and the sanctity of jury secrecy, reiterating that an examination cannot be used to create the foundation for such a challenge.

This endorsement from the Court of Appeal for Ontario addresses a non-publication order under s. 517 of the Criminal Code that was imposed at a bail hearing in the court below.

The endorsement states that the full decision, which contains information covered by this order, will not be published online until the non-publication order ceases to be in effect.

In the interim, a physical copy of the decision is available at the Court of Appeal Registry.

The underlying matter is an application to set aside a detention order.

The appellant, Jamil Ahmad Qureshi, appealed his conviction for dangerous driving causing bodily harm and death, arguing the trial judge erred in her legal analysis of the mens rea element.

The Court of Appeal found that the trial judge misapplied principles regarding momentary lapses and conflated civil and criminal negligence standards by failing to adequately explain how the appellant's conduct constituted a "marked departure" from the standard of care.

The Court allowed the appeal and ordered a new trial, but declined to order an acquittal, finding the verdict was not otherwise unreasonable.

The appellant appealed his conviction for sexual assault, raising two grounds: an alleged error in the severance application regarding charges involving two complainants, and serious errors in the trial judge's credibility analysis.

The Court of Appeal dismissed the appeal, affirming the high deference owed to severance decisions and credibility findings.

The court found no error in the application judge's decision to not sever the charges, noting the low threshold for similar act evidence at the severance stage and the lack of injustice given the judge-alone trial and partial acquittal.

The court also upheld the trial judge's credibility assessment, finding no impermissible reasoning or unequal scrutiny.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

This is an appeal from a sexual assault conviction.

The appellant challenged the verdict, arguing the trial judge misapprehended DNA evidence, leading to an unreasonable verdict.

The complainant had no memory due to extreme intoxication.

DNA tests revealed the appellant could not be excluded as the source of DNA found on the complainant's breast, external genitalia, and vagina.

While the trial judge accepted non-sexual transfer for some DNA, she rejected the submission that there was a rational basis to explain the DNA found inside the complainant’s vagina other than direct contact.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's conclusion regarding the DNA evidence and affirming the reasonableness of the verdict.

A sentence appeal was also dismissed as abandoned.

The Crown appealed a conditional sentence imposed for prolonged sexual abuse of two children in the same household.

The Court of Appeal held that the sentencing judge committed errors in principle by failing to give primary consideration to denunciation and deterrence under s. 718.01 of the Criminal Code, by misapprehending expert evidence as establishing a significant causal connection between mental illness and the offences, and by allowing possible immigration consequences to displace proportionate sentencing.

Applying Friesen, the court held that a penitentiary term was required for repeated sexual violence against child victims involving grooming, breach of trust, penetration, pornography, and attempts to influence a witness.

The sentence appeal was allowed and a seven-year custodial sentence, less time served, was substituted.