John David McInnes

A police officer was convicted of sexually assaulting a complainant by performing searches of her while transporting her to a police station.

At trial, the trial judge admitted a prior consistent statement made by the complainant to a female officer at the police station, in which the complainant stated she had already been searched three times.

The summary conviction appeal judge quashed the conviction, finding the trial judge erred in admitting and relying on the prior consistent statement.

The Crown appealed to the Court of Appeal for Ontario.

The Court of Appeal allowed the appeal and restored the conviction, holding that the prior consistent statement was admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements, and that the trial judge properly used the statement to assess the complainant's credibility by considering the context, timing, and spontaneous nature of the complaint.

The accused pleaded guilty to internet child luring.

Following his arrest, police issued a media release that disclosed his HIV-positive status, which they had learned from a lawful search of his vehicle.

At trial, the judge found the disclosure violated the accused's section 7 Charter rights, refused a stay of proceedings, but imposed a conditional sentence below the mandatory minimum as a section 24(1) remedy.

On appeal, the Court of Appeal upheld the refusal of the stay but found the trial judge erred in finding a section 7 breach, as the disclosure did not have a serious and profound effect on the accused's psychological integrity beyond the stress of the charges themselves.

The Court also held that a sentence reduction below the statutory minimum was not an appropriate remedy.

The Crown's sentence appeal was allowed, and the sentence was varied to one year of imprisonment, but stayed as the accused had already served the conditional sentence.

The respondent pleaded guilty to making child pornography for the purpose of publication.

The trial judge found that the respondent's rights under ss. 7 and 9 of the Charter were breached due to mistreatment in custody and a delayed bail hearing.

Invoking s. 24(1) of the Charter, the trial judge imposed a 21-month conditional sentence, overriding the one-year mandatory minimum sentence and the statutory prohibition on conditional sentences for this offence.

The Crown appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred in finding the Charter breaches and in using s. 24(1) to impose a sentence outside statutory limits.

A 21-month prison sentence was substituted but stayed as the respondent had already served the conditional sentence.

The appellant, a lawyer, appealed her conviction for criminal contempt and the resulting fine after failing to attend a peremptory court hearing for her client.

The Court of Appeal upheld the finding of contempt, concluding the trial judge made no palpable and overriding error in rejecting the appellant's explanation of an honest mistake due to illness.

However, the Court found the trial judge breached natural justice by imposing a sentence without allowing submissions.

The Court set aside the conviction and fine, substituting an absolute discharge and a referral to the Law Society for practice mentoring.

The appellant, Andrew Wilby, a police officer, appealed his conviction for dangerous driving.

The conviction arose from an incident where he drove his police cruiser onto a sidewalk, colliding with a fleeing suspect, Cammalleri, during an apprehension attempt.

The appellant argued that the trial judge erred by using speculation, applying a harsher standard of scrutiny to defence evidence, and rendering an unreasonable verdict.

The appeal court found that the trial judge was entitled to reject certain defence evidence and draw inferences that logically flowed from the accepted facts, including that the appellant deliberately drove onto the sidewalk to obstruct the suspect's path.

The court also found no error in the trial judge's credibility assessments or the application of the dangerous driving test.

The appeal was dismissed.

The Crown appealed a trial judge's order requiring it to pay over $580,000 in costs to the respondents following a mistrial caused by the late disclosure of cellphone records.

The trial judge found the Crown's negligence violated s. 7 of the Charter and awarded costs on a substantial indemnity scale using the civil costs regime.

The Court of Appeal allowed the appeal and set aside the costs order, holding that costs against the Crown in criminal proceedings are only appropriate where there is a marked and unacceptable departure from reasonable standards, which was not present here.

The Court also held that the trial judge erred in importing the civil costs regime into the criminal context.

The applicant sought leave to appeal a summary conviction appeal court decision affirming his convictions for assault and assault with a weapon against his daughter.

He argued the trial judge erred in law by invoking the collateral facts rule to curtail cross-examination of the complainant regarding internet postings.

The Court of Appeal refused leave, finding that second appeals in summary conviction proceedings are exceptional and the proposed ground of appeal did not raise a question of law of general significance or demonstrate a clear legal error.

The appellant sought leave to appeal his conviction for failing to stop a vehicle while being pursued by police.

He argued the summary conviction appeal judge erred in widening the offence to include momentary movement and finding that flight on foot constitutes vehicular flight.

The Court of Appeal refused leave, finding the appellant misstated the record regarding the vehicular stop and that the flight on foot was properly used as evidence of mens rea, not as an element of the offence.

The appellant appealed a conviction for sexual assault arising from an alleged improper search conducted during an arrest.

The appeal argued that the trial judge erred by admitting and relying on a prior consistent statement made by the complainant to another officer, by failing to consider inconsistencies in the complainant’s accounts of the searches, and by failing to weigh credibility concerns arising from the complainant’s admitted dishonesty about drug use.

The court held that prior consistent statements are presumptively inadmissible and found that the trial judge improperly admitted and relied upon such a statement to bolster the complainant’s credibility.

The court concluded that the statement was used for the truth of its contents and as a significant foundation for the credibility finding.

As this constituted an error affecting an important piece of evidence, the conviction could not stand.

The appellant, a car mechanic, issued a Safety Standards Certificate for a truck without conducting the required inspection.

The truck was later involved in a fatal accident.

At the preliminary inquiry, the appellant was discharged on a count of criminal negligence causing death based on a break in the chain of causation.

The Crown successfully applied for certiorari to quash the discharge.

On appeal, the appellant argued there was insufficient evidence that the steering defect existed when the certificate was issued.

The Court of Appeal dismissed the appeal, finding sufficient evidence, including expert testimony and witness accounts, for a properly instructed jury to find the appellant's actions were a significant contributing cause of the death.

The appellant appealed his convictions for aggravated assault and assault with a weapon arising from an incident outside a bar.

He argued the trial judge erred in assessing his police statements under the W.D. principles and in assessing witness testimony.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the reasonable doubt standard, correctly rejected the appellant's inconsistent statements, and was entitled to accept the consistent evidence of the key witnesses identifying the appellant as the assailant.

The appellant appealed his convictions for sexual assault and sexual touching of his daughter.

The Court of Appeal found that the trial judge erred in law by engaging in a credibility contest and misapplying the burden of proof under the W.(D.) framework.

The trial judge's reasons indicated he based his decision on whose evidence he preferred rather than determining whether the evidence raised a reasonable doubt.

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

The appellant pleaded guilty to defrauding her employer of over $300,000 over 14 months.

She appealed her 10-month carceral sentence, seeking a conditional sentence.

The Court of Appeal dismissed the appeal, finding no error in principle.

The court noted the breach of trust, the duration of the scheme, and concluded the sentence was already very lenient despite mitigating factors such as self-reporting and a guilty plea.

The Crown appealed the acquittal of a police officer charged with assault causing bodily harm following the 'grounding' of an arrested individual in a holding cell.

The Crown argued the trial judge exhibited a reasonable apprehension of bias by prejudging the lawfulness of the initial arrest under the Liquor License Act before hearing submissions.

The Superior Court of Justice agreed, finding the trial judge's comments created a perception that he had prematurely decided the issue.

The appeal was allowed and a new trial ordered.

The appellant, a police officer, was convicted of sexual assault after forcing a masseuse to perform oral sex while he was on duty.

He appealed his conviction and 15-month custodial sentence, arguing that his police memo-book notes were unlawfully seized in violation of his Charter rights and that the trial judge erred in assessing credibility.

The Summary Conviction Appeal Court dismissed the appeal, finding no reasonable expectation of privacy in police notes, no violation of the right against self-incrimination, and no error in the trial judge's credibility findings or the sentence imposed.

The appellant was convicted of first degree murder in the shooting death of his estranged wife.

On appeal, he argued that the trial judge erred in admitting gunshot residue (GSR) evidence found on his hands and clothing, claiming it was obtained following an unlawful arrest and arbitrary detention in violation of ss. 8 and 9 of the Charter.

He also argued the GSR evidence's prejudicial effect outweighed its probative value, and that the trial judge misdirected the jury on the use of his post-arrest statements to police.

The Court of Appeal found that while the arrest was unlawful and the detention arbitrary, the GSR evidence was properly admitted under s. 24(2) of the Charter.

The court also found no error in the admission of the GSR evidence on a probative value/prejudicial effect analysis, and concluded the jury instructions regarding the appellant's statements did not prejudice him.

The appeal was dismissed.

Five criminal appeals arising from a major gang investigation challenged informer-privilege procedures, wiretap authorizations, general warrants, covert searches, no-knock take-down warrants, a warrantless vehicle search, jury instructions, and expert opinion evidence.

The court held that an ex parte, in camera first-stage informer privilege hearing was proper, that Criminal Code ss. 186(1.1) and 487.01 were constitutionally valid, and that the wiretap authorizations and general warrants were lawfully issued and executed.

Although one warrantless vehicle search was conducted in an unreasonable manner and one aspect of the conspiracy jury charge was erroneous, the evidence was properly admitted under s. 24(2) and the charge error caused no substantial wrong.

All convictions were upheld and all appeals were dismissed.

The appellant appealed his conviction for second-degree murder, arguing that his videotaped confession was involuntary and obtained in breach of his s. 10(b) Charter rights, and that the Crown's failure to disclose police background checks of prospective jurors caused a miscarriage of justice.

The Court of Appeal dismissed the appeal, finding that the trial judge made no errors in admitting the confession, as the police reasonably believed the appellant had spoken to counsel and the statements were voluntary.

Furthermore, applying the Yumnu test, the Court held that although the Crown improperly failed to disclose the jury vetting results, there was no reasonable possibility that the jury would have been differently constituted.

The appellant, a 23-year-old first-time offender, appealed his sentence of 5 years' imprisonment for sexually assaulting two acquaintances on successive dates.

The offences involved planning, violence, threats, and attempted rape.

The Court of Appeal dismissed the appeal, finding that the serious nature of the offences required a penitentiary sentence and that the 5-year sentence was lenient, reflecting the appellant's youth and lack of a prior record.

The appellant was convicted of first-degree murder as an aider or abettor to a shooting during a drug rip-off.

The principal shooter was convicted of second-degree murder in a separate trial.

The appellant appealed, arguing the jury instructions were inadequate and unbalanced, and that his conviction for a more serious offence than the principal violated section 7 of the Charter.

The Court of Appeal dismissed the appeal, finding the jury charge adequate and affirming the principle that an aider or abettor's culpability is not limited by the liability of the principal.