Jessica Zita

The Crown appealed a dangerous offender sentence, arguing the sentencing judge applied the wrong legal standard ("reasonable possibility" instead of "reasonable expectation") when determining if a lesser measure than indeterminate detention would adequately protect the public.

The Court of Appeal found the sentencing judge erred in law by applying a less rigorous standard and by relying on speculative evidence of treatability and manageability.

The appeal was allowed, and a sentence of indeterminate detention was substituted.

This is a Crown appeal concerning jury instructions on the mens rea for sexual assault, specifically when the defence of honest but mistaken belief in communicated consent is unavailable.

The trial judge instructed the jury that the Crown must prove the knowledge element (accused knew of, was wilfully blind or reckless as to, absence of consent) and allowed them to consider evidence of the respondent's mistaken belief.

The Court of Appeal held that while the knowledge element is always part of the Crown's burden, the trial judge erred by failing to instruct the jury to disregard evidence of legally ineffective mistaken beliefs, effectively allowing an unavailable defence through the "back door." The court allowed the appeal, set aside the acquittal, and ordered a new trial.

The appellant, Isaiah Norlyn Simmons, appealed a global sentence of six years' imprisonment for possession for the purpose of trafficking cocaine, possession of a loaded prohibited firearm, and possession of a loaded firearm while prohibited.

The appeal raised two grounds: that the sentencing judge erred by treating the timing of the guilty plea (after a preliminary hearing) as an aggravating factor, and that the judge failed to consider the appellant's rehabilitative potential.

The Court of Appeal agreed that treating the timing of the guilty plea as an aggravating factor was an error in principle but found that this error did not impact the overall sentence given the seriousness of the offences and the appellant's prior record.

The Court also found no error in the sentencing judge's consideration of rehabilitative potential.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant, Trevor Letlow, appealed his convictions for aggravated sexual assault, assault with a weapon, assault causing bodily harm, sexual assault with a weapon, and unlawful confinement, as well as the indeterminate sentence imposed after being designated a dangerous offender.

The Court of Appeal dismissed both the conviction appeal, finding no error in the trial judge's assessment of the complainant's credibility despite a lack of independent corroboration for the sexual assault, and the sentence appeal, upholding the indeterminate sentence.

The court found the trial judge provided cogent reasons for rejecting expert opinion on age attenuation and concluding that no lesser measure could adequately protect the public.

The appellant appealed his convictions and sentence arising from two attacks on the victim, including a conviction for attempted murder.

The Court of Appeal dismissed the appeal regarding the attempted murder conviction, finding the trial judge properly considered the evidence as a whole.

However, based on a Crown concession regarding the wording of the indictment, the court quashed the conviction for the included offence of assault causing bodily harm and substituted a conviction for assault.

The concurrent sentence for that count was reduced from three years to one year, leaving the net sentence of four years and two months unchanged.

The appellant appealed her convictions for impaired operation causing death, impaired operation causing bodily harm, and failing to remain, and sought leave to appeal her global five-year sentence.

The appellant had pleaded guilty to the charges but later sought to strike her plea, alleging duress.

The Court of Appeal dismissed the conviction appeal, finding no legal error in the trial judge's conclusion that the guilty plea was voluntary and informed, noting that a change of mind after the fact is insufficient to set aside a plea.

The Court also dismissed the sentence appeal, finding the sentencing hearing was conducted fairly, the sentence was warranted by the facts and the appellant's driving record, and there was no basis to interfere with the trial judge's discretion regarding credit for pre-sentence custody.

This is an appeal from convictions for drug and firearm offences and the imposed sentence.

The appellant challenged the validity of search warrants, the warrantless "pinging" of his cell phone, and the calculation of pre-trial custody credit.

The Court of Appeal dismissed the conviction appeal, upholding the trial judge's findings on the warrants and the admissibility of evidence, including the "judge-shopping" issue.

The sentence appeal was allowed to grant additional pre-trial custody credit.

The applicant, J.M., sought an order from the Court of Appeal for Ontario under s. 684(1) of the Criminal Code for state-funded counsel to represent him in his appeal against a sexual assault conviction, after Legal Aid Ontario denied funding.

A chambers judge had previously dismissed a similar application.

The Court of Appeal dismissed the application, holding that there is no right of appeal from a chambers judge's refusal to appoint funded counsel under s. 684.

The court clarified that while it has concurrent jurisdiction with a single judge to consider such applications, it would only exercise this de novo jurisdiction if there were a sufficient change in circumstances since the initial decision, which was not present in this case.

The court also affirmed that provincial legislation cannot create rights of appeal in criminal matters.

The appellant pleaded guilty to 14 offences, including possession of stolen vehicles, operating while prohibited, failing to stop for police, drug trafficking, and firearm offences, and received a global sentence of 46 months.

He appealed the sentence, arguing that the sentencing judge failed to adequately consider mitigating factors (specifically, his guilty pleas), that the sentence was not properly individualized (lack of counselling order), and that the reasons for sentence were insufficient.

The Court of Appeal dismissed the appeal, finding that the sentencing judge did acknowledge the guilty pleas, that the individualization argument lacked support due to no submissions on counselling, and that the reasons were sufficient when read in context.

The appellant, Daniel Debassige, appealed his conviction for second-degree murder.

The appeal raised five grounds, primarily alleging errors in the trial judge's jury instructions regarding the statutory partial defence of provocation, the effect of intoxication on the fault element for murder, the review of the defence position, and the W.(D.) instruction.

The appellant also argued that the jury's verdict was unreasonable.

The Court of Appeal dismissed all grounds of appeal, affirming the conviction.

The court found that while there was an error in applying the amended provocation standard retrospectively, it was harmless given the nature of the alleged provocative conduct.

The jury instructions on intoxication, defence position, and W.(D.) were deemed adequate when viewed functionally and in context.

The verdict was found to be reasonable based on the circumstantial and admission evidence.

The appellant, Cindy Ali, appealed her conviction for first-degree murder in the death of her profoundly disabled daughter.

The Crown alleged the appellant suffocated her daughter and fabricated a home invasion story to cover it up.

The defence argued the death was seizure-related or caused by a home invader, and that the home invasion was real.

The Court of Appeal found that the trial judge erred in narrowing the jury's consideration of the cause of death to only suffocation and in unduly restricting the jury's consideration of alternative explanations for the fabricated home invasion narrative.

The trial judge's instructions effectively invited the jury to convict of murder if they found the home invasion story fabricated, without adequately considering other culpable acts (like failure to provide necessaries) or innocent explanations for the fabrication.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant, Nathan Tenthorey, appealed his conviction for aggravated assault, arguing the trial judge erred by failing to instruct the jury on the included offences of simple assault and assault causing bodily harm, and by failing to provide a *Soobrian* limiting instruction.

The Court of Appeal held that the trial judge erred in law by concluding that assault causing bodily harm was not an included offence in a non-particularized aggravated assault charge, and erred factually by finding no air of reality for either included offence.

The court clarified the test for included offences in multi-mode charges.

The appeal on the *Soobrian* instruction was dismissed.

The conviction was set aside, and a new trial ordered.

The applicant, convicted of sexual assault and sentenced to 18 months' custody, sought an order under s. 684 of the Criminal Code for government-funded legal counsel for his appeal, after Legal Aid Ontario refused coverage.

The court found the applicant lacked sufficient means but was not persuaded that it was in the interests of justice to order legal assistance.

The judge reasoned that the appeal issues were relatively straightforward and could be fairly and properly dealt with by the court on an inmate appeal, despite the applicant's learning disability and challenges with reading comprehension and communication.

The application was dismissed.

The appellant appealed convictions for sexual assault and common assault, and the imposed sentence of 45 days intermittent and two years' probation.

The appeal challenged the trial judge's assessment of the complainant's credibility and reliability, the application of the R. v. W.(D.) principles, and the consistency of the verdict.

The sentence appeal argued for restraint and a reduction due to the COVID-19 pandemic.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no basis to interfere with the trial judge's findings on credibility or the proper application of W.(D.), and upheld the sentence as appropriate and within range.

The appellant, Peter Ukwuaba, appealed his convictions for importing heroin and conspiracy to import heroin, and sought leave to appeal his concurrent 11-year sentence.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's inferences of complicity in importation and conspiracy were reasonable based on circumstantial evidence.

However, the court granted leave to appeal the sentence, reducing it from 11 years to 9 years concurrent, citing fresh evidence of the appellant's debilitating stroke post-sentencing, which significantly worsened his incarceration conditions and reduced the need for specific deterrence and incapacitation.

The appellant was convicted by a jury of importing cocaine and possession for the purpose of trafficking after cocaine was found in her rental car at a border crossing.

She appealed her conviction, arguing the trial judge's jury charge was unfair due to rhetorical questions and a failure to fully present the defence position.

She also appealed her 5.5-year sentence.

The Court of Appeal dismissed both appeals, finding no error in the jury charge and concluding the sentence was within the appropriate range for a first-time offender importing approximately 1.5 kilograms of cocaine.

The Crown appealed the respondent's acquittals on charges of sexual assault and sexual interference involving a child complainant.

The Crown argued the trial judge failed to consider all identification evidence and failed to provide sufficient reasons for the acquittals.

The Superior Court of Justice dismissed the summary conviction appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and concluding that the reasons provided a clear analytical path explaining the acquittals based on the complainant's reliability.

The defendant pleaded guilty to break and enter of a dwelling house, possession of a loaded prohibited firearm, and breach of a firearms prohibition order.

The defendant broke into a residence in Markham, was chased by the homeowner's son, and dropped a bag containing stolen wallets and cannabis.

Police subsequently executed a search warrant on the defendant's residence and located a loaded, sawed-off shotgun with the serial number removed in the defendant's bedroom closet.

The defendant was subject to a lifetime firearms prohibition order and a probation order prohibiting weapon possession at the time of the offences.

The court imposed a global sentence of 4.5 years in the penitentiary, with credit for pre-sentence custody and enhanced credit for harsh detention conditions.

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, J.C.J., appealed his convictions for sexual assault and incest, and his five-year sentence for incest (concurrent three years for sexual assault).

The conviction appeal was based on ineffective assistance of counsel, specifically regarding a failed s. 11(b) application and inadequate preparation for testimony.

The Court of Appeal dismissed the conviction appeal, finding no prejudice.

The sentence appeal argued errors in applying s. 155(2) as a guide, failing to properly weigh mitigating factors, considering defence conduct as aggravating, and imposing an s. 161 order for an over-18 complainant.

The Court dismissed the sentence appeal, except for setting aside the s. 161 order, which the Crown conceded was inapplicable.