Kevin Pitt

This appeal concerns a partial stay of proceedings granted by a trial judge due to Charter violations arising from an unauthorized "no-knock" police entry into the accused's residence to effect an arrest.

The Court of Appeal found the trial judge erred in granting a partial stay based on a factual misapprehension and in rejecting alternative remedies.

The Court concluded that while the police misconduct was serious, a stay was not warranted given the lack of evidence of a systemic problem and the availability of alternative remedies like a strong judicial reprimand and potential sentence reduction.

The Crown's appeal was allowed, vacating the stay, and the accused's cross-appeal was dismissed.

The appellant, B.W., appealed his conviction for multiple sexual offences and his six-year global custodial sentence, which included a lifetime Sex Offender Information Registration Act (SOIRA) order and a ten-year internet ban.

The appeal challenged the trial judge's credibility assessment of the complainants, alleging collusion, unaddressed inconsistencies, and misapprehension of evidence.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding errors in the trial judge's credibility findings or assessment of collusion risk.

However, the court granted leave to appeal the sentence, substituting the lifetime SOIRA order with a twenty-year order based on the unconstitutionality of the previous SOIRA provisions (R. v. Ndhlovu) and removing the ten-year internet ban, which was erroneously included in the prohibition order.

The appellant, Jorge Berganza-Zaldana, appealed his conviction for possession of child pornography.

Police found child pornography on a digital backup of his phone on a desktop computer.

The appellant argued the Crown failed to prove knowledge and intent, suggesting the backup was created automatically and without his knowledge.

The trial judge, relying on circumstantial evidence and *R. v. Villaroman*, found the only reasonable inference was that the appellant intentionally created the backup with knowledge.

The Court of Appeal dismissed the appeal, finding the trial judge's inferences were reasonable and supported the conviction, upholding the application of the circumstantial evidence standard.

The Crown applied to revoke the appellant's bail release order under s. 679(6) of the Criminal Code due to new charges.

The appellant cross-applied for a fresh bail release pending appeal.

The court found reasonable grounds to believe the appellant committed an indictable offence while on release, leading to the revocation of the existing bail.

The court then denied the appellant's application for fresh bail, concluding that while the appeal was not frivolous, the appellant's detention was necessary in the public interest due to public safety concerns (risk of further fraud) and the need to maintain public confidence in the administration of justice, especially given the new charges and the weak nature of the appeal grounds.

The appellant was convicted of multiple firearm and driving offences, including possession of a loaded restricted firearm, dangerous driving, and assaulting a peace officer.

He appealed his convictions, arguing the trial judge erred in applying the reasonable doubt standard regarding mens rea for dangerous driving and assaulting a police officer, and that the firearm verdicts were unreasonable due to a lack of knowledge regarding the weapon's characteristics.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of mens rea or credibility of witnesses.

The court concluded there was sufficient circumstantial evidence to establish the appellant's possession and knowledge of the firearm's loaded and restricted nature, noting that modifications to the weapon suggested intent for it to be operable.

The sentence appeal was abandoned.

The appellant, Joshua Rodrigues, appealed his conviction for unreasonable verdict and his sentence regarding a victim fee surcharge.

The conviction appeal argued that the trial judge used illogical reasoning to reject the appellant's testimony.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were detailed, comprehensive, and not illogical or inconsistent with the evidence.

The appeal against sentence, specifically concerning the $1,800 victim fee surcharge, was allowed on consent, and that portion of the sentence order was set aside.

The appellant, M.L., appealed convictions for four counts, including exercising control for exploitation, receiving financial benefit from exploitation, receiving financial benefit from prostitution, and advertising sexual services.

The Crown's case relied primarily on K.G.B. statements provided by the complainant, who later recanted at trial.

The Court of Appeal found no error in the trial judge's admissibility analysis of these statements or in his assessment of their reliability.

The trial judge's approach of seeking corroborative evidence, effectively treating the complainant as a Vetrovec witness, was upheld.

The conviction appeal was dismissed, and the sentence appeal was abandoned.

The appellant was convicted in a judge-alone trial of two counts of sexual assault and one count of choking, receiving a three-year sentence.

He appealed his convictions, arguing errors in the assessment of corroborative evidence, conflation of credibility and reliability, and reliance on stereotypes regarding witness reticence.

He also sought leave to appeal his sentence.

The Court of Appeal dismissed the appeal from conviction, finding the trial judge's assessment of evidence, including an audio recording, was sound and that any comment on witness reticence was not material to the decision.

Leave to appeal sentence was granted, but the sentence appeal was also dismissed, as the sentence was deemed entirely fit given the serious nature of the assaults, breach of trust, and attempts to subvert justice.

The appellant, Andrew Myles, appealed his conviction for sexual assault, arguing that the trial judge erred in her assessment of credibility and reliability by relying on stereotypical reasoning, finding fabricated evidence, and implicitly finding tailored evidence.

The Court of Appeal dismissed the appeal, affirming that the trial judge's factual findings were rooted in the evidence and did not constitute impermissible stereotypical inferences or improper findings of tailored evidence.

The court emphasized the high degree of appellate deference owed to trial judges on credibility assessments.

The appellant appealed a disposition of the Ontario Review Board that ordered his detention in a secure forensic unit, arguing for a hybrid order allowing the hospital discretion over placement.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable given the uncontested evidence that the appellant remained a significant threat to public safety and posed a high risk of absconding.

The accused was charged with firearms offences after police searched his rental vehicle incident to an arrest for a two-year-old homicide.

The police found a loaded firearm in the vehicle.

The accused brought an application to exclude the evidence, arguing the search violated his s. 8 Charter rights.

The court found that the search was not truly incident to the arrest, as there were no valid safety concerns and no reasonable prospect of locating the homicide firearm in the vehicle two years later.

The court concluded that the police conduct was deliberate and routine, demonstrating a flagrant disregard for Charter rights.

The application was granted, and the firearm and other evidence were excluded under s. 24(2) of the Charter.

On a Crown application in a judge-and-jury prosecution for sexual assault and sexual interference involving the daughters of the accused's common-law partner, the court admitted evidence from another child of the household as similar fact evidence.

Applying the framework in Handy, the court found the proposed evidence highly probative on the actus reus issue and on the complainants' credibility insofar as it related to whether the charged acts occurred, based on a situation-specific propensity involving pre-pubescent female children of the partner, abuse in the family home, touching of the vaginal area, and assaults occurring while the children slept or awoke.

The court found the witness's account capable of belief and rejected an air of reality to collusion despite opportunities for communication among siblings.

Any moral or reasoning prejudice was found manageable through limiting instructions, and the probative value outweighed the prejudicial effect.

Renata Migdalski was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration over 80 mg.

The trial addressed two main issues: an alleged violation of her section 10(b) Charter right to counsel and whether the Crown proved impairment beyond a reasonable doubt.

The court found no Charter breach, concluding that police acted diligently and the accused did not express dissatisfaction with duty counsel.

Based on consistent witness observations and video evidence, the court found the accused guilty of impaired operation.

The over 80 charge was conditionally stayed.

Following conviction after a judge-alone trial, the court sentenced the offender for repeated sexual abuse of three young complainants who were daughters of family friends temporarily living with him.

Applying the sentencing guidance in sexual offences against children, the court emphasized the inherent wrongfulness of the conduct, the abuse of trust, the multiple victims, the threats used to secure silence, and the serious long-term harm caused.

Although separate victims ordinarily favoured consecutive sentences, the court held that a fully consecutive structure would offend the totality principle and instead imposed concurrent sentences reflecting the gravamen of the overall misconduct.

The offender received a global sentence of eight years' imprisonment together with firearms, child-protection, DNA, SOIRA, and no-contact ancillary orders.

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.

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 accused was charged with sexual assault and failure to comply with a recognizance.

The complainant alleged that the accused forced vaginal and anal intercourse upon her without consent between March 2015 and August 2017, and subsequently contacted her on Facebook in breach of a non-communication order.

The court found significant inconsistencies in the complainant's testimony regarding the frequency and nature of the alleged assaults, her credibility regarding the initiation of reconciliation, and the circumstances surrounding the peace bond application.

The court also found the evidence regarding the Facebook messages to be uncertain.

Both charges were dismissed due to reasonable doubt arising from the reliability concerns with the complainant's evidence.

The accused pleaded guilty to possession of a weapon for a dangerous purpose after pulling a knife during a bar fight while intoxicated.

The Crown sought a suspended sentence, while the accused sought a conditional discharge to avoid a criminal record that could impact his employment and immigration status.

The court found that a conditional discharge was in the accused's best interest and not contrary to the public interest, given his lack of prior record, remorse, and the fact that no injuries occurred.

The accused was granted a conditional discharge with 24 months of probation.

The accused was charged with operating a motor vehicle with a blood alcohol concentration over the legal limit of 80 mg/100 ml of blood.

The Crown obtained breath readings of 140 and 130 mg/100 ml.

The defence sought to exclude these readings under sections 9, 10(b), and 24(2) of the Canadian Charter of Rights and Freedoms.

The court found no breach of section 10(b) rights regarding the delay in informing the accused of his right to counsel.

However, the court found a breach of section 9 rights due to an unjustified six-hour overholding of the accused.

The court determined the breath readings were obtained in a manner that violated the Charter and excluded them under section 24(2), resulting in dismissal of the charge.