Jill D. Makepeace

The accused was tried for sexual assault arising from an evening of drinking that culminated in sexual activity on a couch in his office.

The Crown alleged that the complainant was asleep during the sexual activity and did not consent, while the defence asserted that the sexual touching occurred consensually while she was awake and that the only non-consensual act was photographing her while asleep.

Applying the sexual assault consent framework, the Villaroman approach to circumstantial proof, and the W.(D.) principles, the court found the complainant’s evidence on the core alleged sexual activity unreliable in several material respects and accepted the toxicology evidence that the complainant was not incapacitated, though possibly in a deep sleep.

The court further held that the DNA evidence did not exclude reasonable inferences consistent with the defence account.

The accused was acquitted because the Crown failed to prove beyond a reasonable doubt that the complainant did not consent to the sexual touching.

The accused, a neurologist practising in an urgent neurology clinic, faced 48 remaining counts of sexual assault arising from allegedly inappropriate medical examinations of female patients over a lengthy period.

After a very long trial, the court held that the prosecution failed to prove that the impugned touching was objectively sexual in nature, failed to prove that the accused used medical examinations as a fraudulent ruse to gain sexual access to patients' bodies, and failed to displace the reasonable alternative inference that the examinations were carried out for medical purposes.

The court admitted the Crown's expert neurology evidence and the cross-count similar fact evidence, but assigned the expert's opinion little or no weight on key issues because of scope problems, inconsistencies, anecdotal foundations, and situational bias, and found the similar fact evidence ultimately incapable of carrying the Crown's burden.

The court repeatedly found complainant evidence unreliable or tainted by media and CPSO publicity, accepted the accused's evidence that he proposed, explained, and performed the examinations in accordance with his training and standard methods, and concluded that the proven examinations were medical examinations to which the patients consented.

All 48 remaining counts resulted in acquittals.

The accused, a doctor, was charged with two counts of sexual assault and two counts of uttering threats against a former patient and friend.

The Crown's case relied entirely on the complainant's evidence.

The defence argued the complainant had a motive to fabricate the allegations, pointing to evidence that she extorted the accused for money and threatened to report him if he stopped paying.

The court found significant inconsistencies in the complainant's testimony regarding the alleged assaults, threats, and cash payments.

Concluding that the complainant's evidence lacked credibility and reliability, the court was left with a reasonable doubt and acquitted the accused of all charges.

The accused, a family physician, was charged with sexual assault with a weapon (a needle) in relation to a patient who attended his clinic complaining of a headache and sinus infection.

The complainant alleged that during the administration of a Demerol injection, the accused unnecessarily lowered her clothing, inappropriately touched her, engaged in grinding motions against the examination table, discussed her sexual experiences, and ejaculated.

The accused maintained that the procedure was entirely professional and appropriate.

The trial judge found that while the complainant honestly perceived she had been sexually assaulted, the Crown failed to prove beyond a reasonable doubt that the touching was objectively sexual in nature.

The trial judge identified numerous material inconsistencies in the evidence of the complainant and her witnesses, including contradictions regarding the location of meetings, contents of a gift bag, the existence and content of recordings, and the presence of a diagram.

The trial judge also found credibility concerns with the accused's evidence.

Ultimately, the trial judge concluded that the Crown had not met its burden of proof and entered an acquittal.

Sentencing following conviction of a physician for sexually assaulting an adult patient during a medical appointment.

The court treated the breach of trust, the intrusive sexual conduct, and the significant impact on the complainant as aggravating, while giving substantial weight to the offender's lack of record, age, medical fragility, remorse, community support, collateral consequences, and low risk of reoffence.

Applying the requirement that aggravating facts be proven beyond a reasonable doubt, the court declined to treat an alleged sexualized breast examination, premeditation, and deliberate note manipulation as aggravating.

A custodial sentence of 20 months less pre-sentence credit, followed by 18 months' probation and ancillary DNA, SOIRA, weapons, and surcharge orders, was imposed.

The appellant, a physician, appealed his conviction on three counts of sexual assault and sought leave to appeal his sentence.

The Court of Appeal for Ontario considered grounds including the admission and use of cross-count similar act evidence, the sufficiency of the trial judge's reasons, errors in credibility and reliability assessment, and the trial judge's treatment of prior consistent statements and motive to fabricate.

The Court found no errors in the trial judge's handling of similar act evidence, the sufficiency of reasons, or the credibility assessments.

It also found no error in the application of the totality principle in sentencing.

The conviction appeal was dismissed, and leave to appeal sentence was granted but the sentence appeal was also dismissed.

The appellant, C.D., appealed convictions and sentence for six counts of sexual assault against five complainants, including patients and a niece.

The conviction appeal centered on the trial judge's admission and use of count-to-count similar act evidence, and failure to sever counts.

The sentence appeal challenged the treatment of aggravating factors.

The Court of Appeal dismissed both the conviction appeal, finding no error in the similar act evidence analysis or its use, and the sentence appeal, upholding the 15-month imprisonment sentence as the trial judge did not err in principle regarding aggravating factors like age disparity, duration of offences, impact on victims, or risk of recidivism.

Dr. Wameed Ateyah was convicted of 16 counts of sexual assault and one count of sexual exploitation involving 13 female patients.

The court considered aggravating factors including breach of trust, the number of victims, the intrusive nature of the offences, and falsification of medical records.

Mitigating factors included lack of criminal antecedents, otherwise good character (though attenuated due to breach of trust), collateral consequences (loss of medical license), and physical/mental health issues.

The Crown sought a 9-year sentence, while the Defence sought 3 years.

The court emphasized denunciation, deterrence, and public protection as dominant sentencing objectives.

Applying the principle of totality, the court imposed a global sentence of nine years in jail, with credit for pre-trial custody, resulting in a final sentence of eight years and 357 days.

The defendant, a doctor, was charged with 24 counts of sexual assault and one count of sexual interference involving fifteen female patients.

The Crown alleged that the defendant intentionally touched patients' breasts and/or genitals for sexual purposes under the guise of medically unnecessary examinations, capitalizing on his position of trust.

The defense argued that some events did not occur or were medically appropriate, and alleged collusion among complainants.

The court granted the Crown's similar fact evidence application, finding a distinctive pattern of behavior and false record-keeping.

The court found the defendant's testimony lacked credibility and reliability.

Ultimately, the defendant was found guilty of 16 counts of sexual assault and 1 count of sexual interference, and acquitted on other counts due to insufficient evidence or Crown's request.

The complainant (J.N.) alleged sexual assault by her former family doctor, Romeo Tan, during a physical exam in May 2014.

J.N. had no memory of the incident for three and a half years until she read a newspaper article.

The defence argued the assault did not occur and highlighted inconsistencies in J.N.'s memory and the implausibility of the events.

The court found J.N. to be a sincere and credible witness but was not satisfied beyond a reasonable doubt that her recovered memory was reliable, given her general poor memory, suggestibility, the delay in recollection, and the lack of independent corroboration.

The defendant was acquitted.

The accused physician was charged with one count of sexual assault against a patient.

The complainant alleged the accused inserted his hand into her vagina without consent following a medical examination.

The trial judge found significant credibility and reliability issues with the complainant's testimony, including inconsistent statements about how she obtained newspaper articles about the accused, a refusal to answer questions during cross-examination, and the unavailability of her personal notes.

Applying the W.(D.) principles, the court concluded the prosecution failed to prove the case beyond a reasonable doubt and acquitted the accused.

The appellant sought leave to appeal a 20-year custodial sentence for 18 counts of home invasion sexual assaults and related offences committed between 1985 and 1987.

The appeal argued two errors by the sentencing judge: improper application of the totality principle and failure to adequately consider the passage of time and the appellant's advanced age as mitigating factors.

The majority of the Court of Appeal granted leave to appeal but dismissed the appeal, finding no error in principle in the sentencing judge's approach to totality or the consideration of mitigating factors.

A dissenting judge would have allowed the appeal and reduced the sentence to 14 years, arguing that the trial judge erred in her consideration of the "laying low" factor and the appellant's life expectancy, leading to a disproportionate and "crushing" sentence.

In a judge-alone criminal trial involving allegations of historical sexual touching by a physician against a former patient, the court held that the Crown failed to prove the offences beyond a reasonable doubt.

The court treated delay in disclosure and continued contact with the accused as neutral considerations, but found serious reliability concerns arising from the genesis of the complaint during a psychological assessment and from numerous inconsistencies between the complainant’s prior statements and trial evidence.

The court concluded that the complainant may have been sincere but mistaken, and that her stated memories were not shown to be anchored in real-life events.

The accused was acquitted on both counts.

The appellant, convicted of second-degree murder and offering an indignity to human remains, appealed his conviction and sentence.

The conviction appeal grounds included the trial judge's ruling on solicitor-client privilege over seized notes, the dismissal of an alternate suspect application, and the failure to leave manslaughter as an available verdict to the jury.

The sentence appeal sought a reduction in the 17-year parole ineligibility period.

The Court of Appeal dismissed all grounds of appeal, upholding the conviction and the imposed sentence, finding no error in the trial judge's rulings or the sentencing decision.

The appellant appealed his conviction for sexual assault and the 30-month sentence.

The conviction appeal was based on the trial judge's alleged uneven scrutiny of evidence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of credibility and reliability, despite a minor misapprehension regarding the planning of the offence.

The sentence appeal was allowed, and the sentence was reduced to two years less a day, as the trial judge erred in finding an aggravating factor (methodical planning) that was not proven beyond a reasonable doubt.

The court also considered the appellant's cognitive deficits and the appropriate sentencing range for similar offences.

The appellant appealed his conviction for sexual assault arising from an incident on January 31, 2016, where he met the complainant in a bar and took her to his parents' apartment.

The complainant testified that after consensual kissing, she expressed that she did not want to have sex, but the appellant proceeded with non-consensual vaginal intercourse and anal contact.

The appellant testified that the intercourse was consensual and denied anal contact.

The trial judge convicted the appellant based on acceptance of the complainant's credibility and rejection of the appellant's evidence.

The appellant raised three grounds of appeal: insufficiency of reasons, improper use of prior consistent statements, and uneven scrutiny of evidence.

The Court of Appeal dismissed all grounds and upheld the conviction.

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.

The Crown applied for a search warrant under s. 487 of the Criminal Code to search the accused's password-protected smartphone, along with an assistance order under s. 487.02 to compel the accused to unlock the device.

The court granted the search warrant but dismissed the application for the assistance order.

The court held that compelling the accused to reveal his password or unlock the phone would violate his right to pre-trial silence and protection against self-incrimination under s. 7 of the Charter, and that the use immunity proposed by the Crown was insufficient to cure the breach.

The appellant appealed his conviction for sexual assault, arguing the trial judge applied different standards of scrutiny to the evidence, misapprehended his evidence, and reversed the burden of proof.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's credibility assessments were entitled to deference, there was no misapprehension of evidence, and the trial judge's approach to the complainant's inconsistencies was measured and fair.

The court also found no reversal of the burden of proof regarding the Agreed Statement of Fact.

An appeal of conviction and sentence for historical sexual offences.

The appellant, a pediatrician, was convicted of three counts of indecent assault relating to two former female patients, with offences spanning from 1964 to 2013.

The trial judge found the appellant guilty based on the complainants' evidence while rejecting his denials.

The Court of Appeal allowed the appeal and set aside all three convictions, ordering a new trial based on multiple misapprehensions of evidence by the trial judge, including erroneous inferences drawn from uncontradicted evidence and improper reliance on the absence of motive to lie as a credibility enhancer.