John Fennel

The appellant appealed his dangerous offender designation and indeterminate sentence following convictions for sexual assault and choking.

He argued the sentencing judge committed a 'Boutilier error' by failing to consider his treatment prospects and intractability at the designation stage, and misapprehended psychiatric evidence regarding his antisocial personality disorder diagnosis.

The Court of Appeal dismissed the appeal, finding that while the judge erred by not considering intractability at the designation stage, there was no reasonable possibility of a different outcome given the judge's findings at the penalty stage that the appellant posed a grave, intractable threat with no reasonable treatment prospects.

The court also found no misapprehension of the psychiatric evidence.

This decision concerns the sentencing of H.W., who was found guilty by a jury of three counts of sexual assault and three counts of sexual interference against the daughters of his common-law partner.

The court considered aggravating factors including the victims' young age (10-13), abuse of trust within a familial context, multiple victims, and the significant, long-lasting impact on the complainants.

Mitigating factors included the offender's own traumatic history as a child victim of sexual abuse, lack of support, experience with anti-Black racism, a substantial gap in his criminal record, and the collateral consequences of serving a sentence during the COVID-19 pandemic.

The Crown sought 4-5 years, while the defence sought 3 years.

The court imposed a global sentence of 4 years imprisonment, with three sexual assault counts stayed.

Ancillary orders included a DNA order, a lifetime Sex Offender Information Registration Act order, a 10-year weapons prohibition, and a non-communication order with the victims.

The applicant brought an application for certiorari to quash his committal for trial on a charge of possession of fentanyl for the purpose of trafficking.

He argued that the preliminary hearing judge improperly admitted hearsay evidence and that the circumstantial evidence was insufficient to support a committal.

The Superior Court of Justice dismissed the application, holding that evidentiary rulings are questions of law not reviewable on certiorari, and that there was sufficient circumstantial evidence from which a reasonable inference of guilt could be drawn.

During a trial for sexual assault and sexual interference, the accused brought a Corbett application to exclude his prior criminal record if he chose to testify.

The accused's record consisted of eight convictions between 1992 and 2011, including assault and drug possession.

The court applied the Corbett factors and found that the defence had attacked the character and credibility of the Crown witnesses, making the accused's record relevant to provide a balanced picture to the jury.

The application was dismissed, allowing the Crown to cross-examine the accused on his record if he testifies.

During a trial for sexual assault and sexual interference, the Crown applied to amend the indictment to expand the date range of the alleged offences to conform to the evidence of the first witness.

The defence opposed the application, arguing prejudice to their cross-examination and theory of the case.

The court granted the application, finding that the date of the offences was not an essential element and the amendment would not prejudice the accused's ability to meet the charges.

The Crown applied for an assessment under s.752.1 of the Criminal Code to determine if the accused, who pleaded guilty to possessing and accessing child pornography, should be declared a dangerous or long-term offender.

The central issue was whether these offences qualified as "serious personal injury offences" under s.752, a prerequisite for such an assessment.

The court, distinguishing from previous cases like Patterson based on the quantity and nature of the child pornography, the accused's repeat offender status, and compelling victim impact evidence, found that the offences did meet the definition of serious personal injury offences.

Consequently, the court ordered the assessment.

Sentencing for convictions for accessing, possessing, and making child pornography available arising from peer-to-peer file sharing of highly aggravating material depicting very young children and explicit abuse.

The court exercised its discretion to hear a moot constitutional issue and held that the one-year mandatory minimum sentences in ss. 163.1(3) and 163.1(4.1) of the Criminal Code violate s. 12 of the Charter and are of no force or effect, following prior Superior Court authorities and the Court of Appeal's guidance in Sullivan.

Applying Friesen, the court emphasized denunciation and deterrence, found numerous aggravating features including the nature of the collection, the ages of the children, and online dissemination, and rejected mitigation based on COVID-19 and bail conditions beyond standard pre-sentence credit.

The accessing conviction was stayed under Kienapple, and concurrent custodial sentences of 2 years and 3 years were imposed, together with DNA, forfeiture, SOIRA, and ten-year s. 161 orders.

The applicant, who was found guilty of child pornography offences, applied for a stay of sentencing under s. 11(b) of the Charter, arguing unreasonable delay between the verdict and the sentencing hearing.

The court applied the Jordan framework and found that the presumptive ceiling of five months for sentencing delay was exceeded.

However, the court dismissed the application, concluding that the delay was reasonable due to the exceptional circumstances of the COVID-19 pandemic, which caused a suspension of regular court operations and a significant backlog.

The accused was charged with robbery at gunpoint, pointing a firearm, using an imitation firearm during the commission of an offence, theft of a motor vehicle, driving while prohibited, failing to comply with bail, and possessing weapons and ammunition while prohibited.

The Crown's case relied primarily on the complainant's identification of the accused as the person who robbed him at gunpoint on a rural road.

The defence raised an alibi defence, arguing the accused was at a pharmacy during the relevant time.

The trial judge found the alibi evidence incredible and rejected it, drawing adverse inferences from the late disclosure and the accused's failure to testify.

However, the judge found reasonable doubt regarding who actually drove the stolen vehicle away from the scene, noting evidence suggesting the complainant's female companion may have been the driver.

The judge acquitted on the robbery and firearm charges but convicted on the driving-related offences.

The judge also dismissed a Charter application regarding lost security video footage, finding no actual prejudice to the defence.

The accused sought to re-elect his mode of trial from provincial court to superior court after his originally scheduled provincial court trial was adjourned on the first day due to counsel's withdrawal.

The central issue was whether the "day first appointed for the trial" under s. 561(2) of the Criminal Code had passed, thereby extinguishing the accused's statutory right to re-elect.

The court held that despite no substantive trial activity occurring on the scheduled date, the day constituted the "day first appointed for the trial" because the trial had become an established reality with both parties ready to proceed.

The application was dismissed.

The applicant, charged with sexual assault and sexual interference, brought an application arguing that the abolition of peremptory challenges under Bill C-75 should not apply retrospectively to his case.

The court held that the repeal of section 634 of the Criminal Code is purely procedural and does not affect the applicant's substantive rights.

Consequently, the new jury selection regime applies retrospectively to the applicant's trial.

The Crown appealed the acquittal of the respondent on charges of criminal harassment.

The trial judge had found that while the respondent's conduct caused the complainants subjective fear, that fear was not objectively reasonable in the circumstances.

The Crown argued the trial judge applied the wrong legal test by importing a proportionality requirement and misapprehended the evidence.

The Superior Court of Justice dismissed the appeal, finding that the trial judge correctly applied the objective standard from R. v. Sim and that his factual findings regarding the nature of the respondent's emails and the complainants' reactions were supported by the evidence.

The applicants, William Cummins and Matthew Moreira, charged with first-degree murder and robbery alongside Patrick Smith, sought severance from Mr. Smith for their joint trial.

The motion was based on the potential impact of Mr. Smith's statement to undercover officers, which they argued was exculpatory for them and necessary for their full answer and defence.

The court dismissed the application, emphasizing the legal presumption in favour of joint trials for co-accused acting in concert, the risk of inconsistent verdicts, and the truth-seeking function of a single trial.

The court found that antagonistic defences were likely to arise, and that carefully crafted jury instructions could mitigate any prejudice.

The accused, Simon Gares, was charged with assault causing bodily harm and breach of probation after violently attacking a 5-year-old child.

The trial proceeded by judge alone after a mistrial.

The central issue was whether Gares was not criminally responsible (NCR) due to mental disorder under s. 16 of the Criminal Code.

Two forensic psychiatrists provided divergent opinions on Gares' mental state and capacity to know his actions were morally wrong.

The court found Gares guilty, concluding that he failed to prove on a balance of probabilities that he was NCR, as his post-offence conduct suggested an awareness of wrongdoing and there was evidence of malingering.

The appellant appealed her convictions for possession of morphine and possession of morphine for the purpose of trafficking, as well as an eight-month sentence imposed by the trial judge.

The appellant argued that the trial judge erred in assessing the credibility of a key defence witness and failed to properly apply Gladue principles in sentencing.

The Court of Appeal dismissed both the conviction and sentence appeals, finding that the trial judge properly rejected the defence evidence and adequately considered the appellant's Aboriginal background and personal circumstances in imposing a fit sentence.

The appellant was convicted of assault causing bodily harm following an altercation in a correctional facility where he punched the complainant 25 to 30 times in the head.

The sole defence at trial was self-defence.

The trial judge found that the Crown had disproved self-defence beyond a reasonable doubt, concluding that the appellant had launched a pre-emptive attack to maintain his status as the "heavy" rather than in genuine self-defence.

The appellant appealed, arguing that the trial judge failed to adequately consider the prison context and the "inmate's code." The Court of Appeal dismissed the appeal, holding that while the prison setting must be considered as a contextual factor, it does not override the Criminal Code's legal definition of self-defence.