Sexual assault

The Court of Appeal for Ontario dismissed Baba Ouedraogo’s appeal from sentence, except to vacate the sentencing judge’s recommendation for phallometric testing.

The appellant challenged the imposition of a second Long Term Supervision Order (LTSO), the finding of substantial risk of reoffence, the imposition of lifetime prohibition orders, and the recommendation for phallometric testing.

The court found no error in the sentencing judge’s approach to issue estoppel, risk assessment, or the imposition of prohibition orders, but held that a recommendation for phallometric testing was not legally available without the offender’s consent.

The Court of Appeal for Ontario considered cross-appeals from both the Crown and D.L. regarding convictions and acquittals arising from allegations of intimate partner violence.

The Crown appealed acquittals on sexual assault and extortion charges and sought a harsher sentence, while D.L. appealed his convictions, arguing errors in the trial judge’s assessment of evidence and sufficiency of reasons.

The Court dismissed both appeals, upheld the trial judge’s findings, and stayed certain duplicative counts.

The decision addresses the proper approach to consent in sexual assault, the scope of appellate review, and the principles guiding sentencing for intimate partner violence.

The Court of Appeal for Ontario dismissed Stephen Young’s appeal from his convictions for sexual assault and forcible confinement, as well as his sentence appeal.

The court found that the trial judge’s credibility findings were entitled to deference and that the trial judge had properly addressed the evidentiary and credibility issues raised by the appellant.

The sentence of 5.5 years less presentence custody was found not to be unfit.

The appeal is subject to a publication ban under s. 486.4 of the Criminal Code.

The Court of Appeal for Ontario dismissed the appeals of David Beak and Yostin Murillo from their convictions for first degree murder and sexual assault in the killing of Rhoderie Estrada.

The court found that the trial judge’s instructions to the jury on constructive first degree murder, post-offence conduct, and the handling of evidence and objections were accurate and complete.

The grounds of appeal advanced by both appellants, including issues of causation, post-offence conduct, jury instructions, and procedural fairness, were all rejected.

The appellant, Harvin Fraser, appealed his conviction for sexual assault, arguing that the trial judge misapprehended the evidence regarding whether the complainant’s sexual interaction with the appellant included oral sex as well as sexual intercourse.

The Court of Appeal found no error in the trial judge’s assessment of the evidence and dismissed the appeal, deferring to the trial judge’s credibility and reliability findings.

The Court of Appeal for Ontario dismissed Gerrard De Souza’s appeal from convictions for indecent assault and sexual assault.

The appellant raised three grounds of appeal, all relating to the trial judge’s assessment of credibility and reliability.

The Court found no error in the trial judge’s approach, holding that her findings were grounded in the evidence and not in stereotypes or improper reasoning.

The Court also found no error in the trial judge’s handling of inconsistencies in the complainant’s evidence or in her rejection of the defence theory of motive to fabricate.

The conviction appeal was dismissed.

The appellant, Ahmed Othman, appealed his conviction for sexual assault, arguing that the trial judge erred by not leaving the defence of honest but mistaken belief in communicated consent with the jury.

The Court of Appeal held that the trial judge was correct in concluding there was no air of reality to the defence, as the evidence presented diametrically opposed versions of events—consent or no consent—without a situation of ambiguity that could support the defence.

The appeal was dismissed.

The Court of Appeal for Ontario allowed the Crown's appeal from a stay of proceedings in a sexual assault case, finding that the premature disclosure of defence materials to the complainant’s counsel was an innocent error and did not result in prejudice to trial fairness.

The court held that a stay of proceedings is a drastic remedy reserved for the clearest of cases and that alternative remedies were available.

The matter was remitted for trial before a different judge.

The appellant, S.D.C., appealed his convictions for sexual assault and sexual interference against his daughter.

He argued that the trial judge unevenly scrutinized the evidence and failed to properly apply the principles from R. v. W.(D.).

The Court of Appeal found no error in the trial judge’s approach, holding that her reasons were careful, comprehensive, and entitled to deference.

The appeal was dismissed.

The appellant, Gregory Whalen, was convicted of multiple sexual offences against his stepdaughter, V.K., and appealed his conviction.

The central issue on appeal was the admissibility of surreptitious audio recordings made by V.K.’s mother during phone calls with the appellant.

The Court of Appeal upheld the trial judge’s decision to admit the recordings, finding that their probative value outweighed any prejudicial effect and that the trial judge’s instructions to the jury were appropriate.

The appeal from conviction was dismissed.

The appellant, A.N., appealed convictions for three counts of sexual interference and three counts of sexual assault, arguing that his right to be tried within a reasonable time under section 11(b) of the Charter was infringed.

The appeal focused on whether a 60-day period of delay, attributed by the trial judge to COVID-19 as an exceptional circumstance, was properly deducted from the total delay.

The Court of Appeal upheld the trial judge’s reliance on local knowledge and internal court statistics to find the delay was justified, and dismissed the appeal.

The appellant, Charles Kennedy, appealed his conviction for unlawful confinement, assault causing bodily harm, and sexual assault.

He sought the appointment of counsel under section 684 of the Criminal Code.

The Court of Appeal reviewed the trial judge’s findings and the legal standards for appointing counsel, ultimately dismissing the application on the basis that the grounds of appeal did not surpass the "arguability" threshold and were not legally complex enough to require appointed counsel.

The Court of Appeal for Ontario dismissed Conal Quinn’s appeal from his conviction for sexual assault.

The court found no reversible error in the trial judge’s exclusion of evidence under section 276 of the Criminal Code, nor in the exclusion of expert evidence regarding methamphetamine use and sexual impulsivity.

The court also rejected arguments regarding the sufficiency of the trial judge’s reasons and the finding that any consent would have been vitiated by abuse of authority.

The decision affirms the trial judge’s careful application of the law regarding sexual history evidence and the proper approach to expert testimony in the context of sexual assault prosecutions.

The appellant, P.R., appealed his convictions for sexually assaulting two 15-year-old complainants.

The Court of Appeal for Ontario dismissed the appeal, finding that the trial judge did not misapprehend the appellant’s evidence regarding his sexual preferences or rely on unsupported generalizations or stereotypes.

The trial judge’s findings were grounded in the evidence, and the reasons were read in context and as a whole.

The appellant, D.R., appealed convictions for sexual assault, assault with a weapon, assault, and uttering threats, as well as the imposition of a lifetime SOIRA order.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge’s reasoning or credibility assessments.

The court granted leave to appeal the sentence but dismissed the sentence appeal, holding that the evidentiary record was insufficient to substitute a 20-year SOIRA order for the lifetime order.

The appellant retains the right to apply to the Superior Court to vary the SOIRA order’s length.

The Court of Appeal for Ontario dismissed Samer Al-Akhali’s conviction appeal for sexual assault but allowed his sentence appeal, reducing his penitentiary sentence from five years to three.

The court found that the trial judge properly rejected the defence of honest but mistaken belief in communicated consent, and that the trial was procedurally fair.

However, the trial judge erred by not giving sufficient weight to the principles of rehabilitation and restraint applicable to youthful first-time offenders.

The appellate court emphasized that, while denunciation and deterrence are important in serious sexual assault cases, rehabilitation and restraint must be prioritized for young, first-time offenders, and the sentence must be proportionate and individualized.

The Court of Appeal for Ontario allowed the appeal of P.J.C., who had been convicted of assaulting his three stepchildren and sexually assaulting one of them.

The central issue was whether the trial judge erred in admitting expert evidence from Dr. Lori Haskell on the neurobiology of trauma and its effects on memory.

The Court found that the expert evidence was not necessary for the trial judge to assess the credibility and reliability of the complainants, and that its presentation—particularly through hypotheticals closely tracking the complainants’ evidence—improperly bolstered their credibility.

The prejudicial effect of the evidence outweighed any probative value.

The Court declined to apply the curative proviso and ordered a new trial.

The Ontario Court of Justice found that the accused, Adebiyi Adekunle, experienced a violation of his section 11(b) Charter right to be tried within a reasonable time due to excessive delay of over 20 months from charge to trial.

The delay was primarily attributed to the Crown's inaction and failure to move the case forward, including missed pre-trials and lack of timely communication.

The court rejected the Crown's arguments that portions of the delay were caused solely by the defence or justified by case complexity.

The remedy of a stay of proceedings was granted.

This decision addresses the issue of consent in a sexual assault trial where the complainant had no memory of the sexual activity due to intoxication.

The court carefully analyzes the circumstantial evidence, including the complainant’s testimony, prior consistent statements, and an online conversation between the parties.

The judge applies established legal principles on consent, capacity, and the evidentiary value of prior consistent statements, ultimately finding the accused guilty based on the totality of the circumstantial evidence proving non-consent beyond a reasonable doubt.

The accused, R.O., was sentenced for sexual touching and invitation to sexual touching of his 12-year-old stepdaughter, with the sexual assault conviction stayed under the Kienapple principle.

The court emphasized denunciation and deterrence as primary sentencing objectives for child sexual abuse, as per R. v. Friesen.

Despite the accused being a first-time offender with a low risk of reoffending and strong community support, the court found that a conditional sentence would not adequately reflect the gravity of the offences or the offender's moral blameworthiness due to the breach of trust and protracted nature of the abuse.

The court imposed a sentence of two years less a day imprisonment, followed by three years of probation, along with various ancillary orders including DNA sample, Sex Offender Information Registration, weapon prohibition, and non-contact orders.

A victim fine surcharge was waived due to undue hardship.