Kimberley Julia Walker

The applicant sought a review of his detention order based on a material change in circumstances after resolving subsequent charges incurred while on bail.

Although the court agreed the resolution of the subsequent charges constituted a material change, it dismissed the application.

The court found that the applicant's extensive criminal record, history of breaching court orders, and the overwhelming strength of the Crown's case demonstrated a substantial likelihood that he would reoffend, making his continued detention necessary on the secondary ground.

The offender was convicted of multiple firearms offences, including possession of a prohibited firearm with readily accessible ammunition.

Despite the seriousness of the offences, which typically attract a penitentiary sentence, the court found exceptional circumstances.

The offender demonstrated extraordinary rehabilitation, securing employment, volunteering extensively, and becoming a role model for at-risk youth.

The court imposed a two-year conditional sentence, finding that the offender's service in the community would not endanger public safety and that denunciation and deterrence could be achieved through strict conditions, including house arrest.

The accused, Sean Gellvear, faced 14 counts of arson and mischief related to two fires in Kensington Market.

The Crown relied on surveillance videos, witness identification, and similar fact evidence to prove identity.

The defence challenged the identification, arguing the video quality was poor and witness descriptions were inconsistent.

The court found that the video evidence was insufficient for positive identification beyond a reasonable doubt, even with non-expert recognition evidence from acquaintances.

The court emphasized that "similar" clothing or circumstances are not enough to prove identity beyond a reasonable doubt.

Consequently, the accused was found not guilty on all counts.

On a summary conviction appeal from a conviction for refusing to comply with a roadside breath demand, the appellant argued for the first time that the arresting officer misstated the legal consequences of failing the approved screening device and that he therefore was not obliged to comply, or alternatively had a reasonable excuse under s. 254(5) of the Criminal Code.

The appeal court held that appellate courts generally do not entertain arguments not raised at trial, absent rare circumstances where the issue can be fully, effectively and fairly addressed on the existing record.

Here, the trial record contained no evidentiary or legal foundation for the new ground.

The appeal was dismissed.

Summary conviction appeal from an order requiring the appellant to enter into a two-year recognizance under s. 810.2 of the Criminal Code.

The sole issue pursued on appeal was whether the hearing judge's conduct gave rise to a reasonable apprehension of bias.

Applying the established objective test for judicial bias, the court held that disagreements with credibility findings, reliance on risk evidence, and dissatisfaction with the result did not amount to cogent evidence of bias.

The appeal was dismissed.

The Crown appealed a stay of proceedings granted by the trial judge on charges of impaired driving and 'over 80'.

The trial judge had found that the institutional delay of 11.5 months exceeded the Morin guidelines and breached the respondent's right to a trial within a reasonable time under s. 11(b) of the Charter.

On appeal, the Superior Court found that the trial judge erred by characterizing neutral delay as institutional, reducing the actual institutional delay to 9 months, which falls within the guidelines.

The court also found the trial judge erred by failing to balance society's interest in a trial on the merits against the right to a trial within a reasonable time.

The appeal was allowed and a new trial ordered.

Summary conviction appeal from a conviction for assault causing bodily harm arising from a Christmas Day attack with a golf club.

The appellant argued the trial judge misapplied the second and third branches of the W. (D.) analysis by failing to consider whether Crown evidence supported self-defence, and failed to address alleged consciousness of guilt by certain Crown witnesses.

The appeal court held the trial judge properly considered the appellant's state of mind, made supported factual findings that there was no threat and an available retreat, and was entitled to reject the self-defence claim.

The reasons were responsive to the live issues and permitted appellate review.

The conviction appeal was dismissed.

The appellant appealed convictions for assault, unlawful confinement, and breach of recognizance arising from allegations made by a complainant in a former intimate relationship.

Although the court rejected the argument that the trial verdict was unreasonable, it admitted as fresh evidence the complainant's later trial testimony giving a materially different account of the incident.

Applying the Palmer framework and recantation authorities, the court held that the later sworn evidence had substantial impeachment value on the decisive issue of credibility.

The appeal was allowed and a new trial was ordered.

Summary conviction appeal arising from a road rage incident involving convictions for dangerous operation of a motor vehicle and assault with intent to resist arrest.

The appellant argued the trial judge erred in the findings of guilt and in refusing to stay the charges after finding a s. 7 Charter breach based on excessive force by an off-duty police officer.

The appeal court held that the trial judge misstated and misapplied the W.(D.) framework and failed to properly address the Crown's burden to disprove self-defence on the assault count.

Because the appellant's roadside state of mind was linked to the driving conduct, the court ordered a new trial on both counts rather than a limited retrial.

The stay issue was left to the trial judge if the Crown proceeds on the new trial.

The appellant appealed convictions for assault with a weapon and assault causing bodily harm arising from a nightclub attack in which the victim was choked and struck in the face with a bottle.

He argued that the trial judge improperly treated his utterances to police, applied uneven scrutiny to the evidence of a key Crown witness and the defence, and misapprehended aspects of the evidence.

The court held that the impugned utterances were used only to assess the credibility of the appellant's claim that he was acting as a peacemaker, that no uneven scrutiny was shown, and that any alleged misapprehensions were peripheral rather than material.

The appeal was dismissed.

The Crown appealed an acquittal for refusing to provide a breath sample under s. 254(2) of the Criminal Code.

The trial judge had acquitted after finding reasonable doubt as to whether the accused actually had alcohol in her system.

The Superior Court held that the trial judge erred by conflating the requirement of reasonable suspicion for a roadside demand with proof that alcohol was actually present.

The proper inquiry was whether the officer had an objectively reasonable basis to suspect alcohol in the accused’s body at the time of the demand.

Because the officer testified that he smelled alcohol on the accused’s breath and the trial judge accepted that evidence, the reasonable suspicion threshold was met.

The appeal was allowed and a new trial ordered.

The Crown appealed a summary conviction acquittal for uttering a death threat under s. 264.1(1)(a) of the Criminal Code, arguing the verdict was unreasonable and that the trial judge misapprehended the evidence regarding the accused’s mens rea.

The trial judge had accepted that the words were spoken but concluded the Crown failed to prove beyond a reasonable doubt that the accused intended the threat to be taken seriously or to intimidate the correctional officer.

On appeal, the court held that acquittals grounded in the presumption of innocence and the Crown’s failure to meet the burden of proof are not findings of fact but conclusions based on the standard of proof.

Such determinations are generally not amenable to appellate intervention absent legal error or palpable and overriding error.

Finding no misapprehension of evidence or other reviewable error, the appeal was dismissed.

The appellant appealed convictions for attempting to disarm a police officer, assaulting a police officer, assaulting a police officer to prevent arrest, and two counts of breach of probation.

The appellant argued that the trial judge improperly treated the case as a credibility contest contrary to the principles in R. v. W.D., and that the judge shifted the burden of proof by drawing adverse inferences from the absence of defence evidence.

The appeal court held that the trial judge properly assessed credibility, rejected the appellant’s testimony with reasons, and then considered whether the remaining evidence left a reasonable doubt.

The judge’s comments regarding the absence of corroborating evidence merely observed the evidentiary record and did not shift the burden of proof.

The convictions were upheld.

The appellant appealed his conviction and sentence for assault with a weapon against his girlfriend.

At trial, the judge accepted the complainant's evidence that the appellant smashed a beer glass over her head, rejecting the appellant's denial.

On appeal, the appellant argued the verdict was unreasonable, the trial judge misapprehended evidence, there was a reasonable apprehension of bias, and sought to introduce fresh evidence.

The Superior Court of Justice dismissed the conviction appeal, finding the verdict reasonable, no misapprehension of evidence, no bias, and rejecting the fresh evidence.

The sentence appeal was also dismissed, with the court upholding the four-month custodial sentence and probation as fit for an act of domestic violence.

Two young persons were charged with sexual assault and gang sexual assault, as well as robbery with violence, arising from an incident on September 20, 2009, in Toronto.

The complainant, a sex worker, engaged in sexual activity with four young men in a stolen red Honda vehicle and was subsequently beaten and robbed.

The court found that while the defendants participated in the robbery, the Crown failed to prove sexual assault beyond a reasonable doubt.

The court determined that although the complainant may have had subjective misgivings about the sexual activity, her outward conduct and words were consistent with consent, and the defendants could have held an honest but mistaken belief in her consent.

The court rejected the Crown's argument that consent was vitiated by fraud or the subsequent robbery.

A self‑represented applicant sought prerogative relief after a justice of the peace declined to accept a proposed private prosecution information alleging multiple Criminal Code offences against a utility company and its officials.

The court held that the justice of the peace erred in law by refusing to receive the information under s. 504 of the Criminal Code, as the informant had an absolute right to swear an information alleging offences known to law.

However, the court concluded that the error caused no prejudice because the evidence disclosed no prima facie case for any of the alleged offences, meaning process would inevitably have been refused under s. 507.1.

Applying discretionary principles governing mandamus, the court declined to grant relief.

The application for mandamus was therefore dismissed.

The accused appealed convictions for multiple counts of assault and theft under $5,000 arising from two late‑night group robberies of pedestrians.

The appellant argued the verdicts were unreasonable and unsupported by the evidence, and alternatively that the sentence of a suspended sentence with 30 months’ probation was unfit because the trial judge declined to grant a conditional discharge.

The court reviewed the standard governing appellate intervention for unreasonable verdicts and concluded the trial judge’s findings were supported by the evidence, including eyewitness identification, the discovery of stolen property at the appellant’s feet in the vehicle, and credibility findings rejecting the appellant’s testimony.

The court held that the trial judge was entitled to rely on the identification evidence and reject exculpatory testimony from both the appellant and a co‑accused attempting to minimize the appellant’s role.

The sentence was also upheld, with the court finding that a conditional discharge would have been contrary to the public interest given the planned and intimidating nature of the assaults and thefts.

The appellant appealed a conviction for assault with a weapon following a trial in the Ontario Court of Justice, where an absolute discharge had been imposed.

The case largely turned on the credibility of the complainant, the sole witness.

On appeal, the appellant sought to introduce fresh evidence suggesting the complainant may have misled the court about whether he had read a letter from his son before providing it to the Crown.

The court admitted the fresh evidence, finding it could reasonably have been used to impeach the complainant’s credibility and might have created reasonable doubt.

The conviction was set aside and a new trial ordered.

The appellant appealed a conviction for assault following a trial in the Ontario Court of Justice, arguing that the trial judge misapprehended the evidence, applied uneven scrutiny to the testimony of the complainant and the accused, and failed to recognize implausibilities in the complainant’s account.

The Superior Court reviewed the trial judge’s credibility findings and the alleged inconsistency between the complainant’s trial testimony and her prior police statement.

The court held that the discrepancy related only to the timing of events and was reasonably characterized by the trial judge as not material.

The court also found no basis to conclude that the trial judge applied different standards of scrutiny to the evidence or failed to apply the principles in R. v. W.(D.).

The conviction was upheld.

The appellant appealed a conviction for dangerous operation of a motor vehicle arising from an incident in which a vehicle accelerated toward pedestrians and police officers in a parking lot after a confrontation outside a bar.

The appellant argued the trial judge materially misapprehended the evidence and erred in assessing his testimony, particularly regarding whether pedestrians posed a threat and whether he stopped when police ordered him to do so.

The court reviewed the strict standard for establishing a material misapprehension of evidence and emphasized the deference owed to a trial judge’s credibility findings.

The court held the factual findings were reasonably open on the evidence and that the trial judge properly applied the principles governing credibility and reasonable doubt.