Kimberley Julia Walker

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.

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.

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.

The appellant appealed convictions for assault with a weapon, assault causing bodily harm, and possession of a weapon for a dangerous purpose arising from a road rage incident.

He argued the trial judge misapprehended evidence and erred in rejecting the defence theory that the altercation was a consensual fight.

The court held that the trial judge’s credibility findings and conclusion that the appellant was the aggressor were entitled to deference and were supported by the evidence.

Although the appellate judge identified speculative reasoning regarding whether the complainant’s wound was caused by a sharp-edged instrument, the error was immaterial because the trial judge properly concluded the altercation was non‑consensual.

Applying Kienapple principles, the conviction for assault with a weapon was stayed but the appeal was otherwise dismissed.

The Crown appealed a provincial court ruling granting a judicial stay of impaired driving charges under s. 11(b) of the Charter for unreasonable delay.

The trial judge had attributed portions of delay to the Crown and institutional causes and concluded the appropriate time to trial was eight months, resulting in a stay after approximately 372 days from charge to trial.

On appeal, the Superior Court held that the trial judge erred in assessing inherent intake time, improperly characterized certain periods as Crown delay, and overstated prejudice to the accused arising from disclosure-related attendances.

The court also found insufficient consideration of the strong societal interest in prosecuting impaired driving offences.

Rebalancing the Morin factors, the court concluded that systemic delay was within acceptable administrative guidelines and that the stay was unwarranted.

The appellant appealed a summary conviction decision finding him not criminally responsible on account of mental disorder for assault and uttering threats after spitting on and threatening a bus driver.

The trial judge had accepted psychiatric evidence diagnosing schizophrenia and concluding that delusional beliefs rendered the appellant incapable of knowing his actions were wrong under s. 16 of the Criminal Code.

On appeal, the appellant argued the NCR finding was unreasonable because the expert did not explicitly ask whether he knew his actions were wrong and because he testified that he did.

The Superior Court held that the trial judge reasonably relied on the psychiatric evidence and the appellant’s disorganized testimony to conclude that his delusions prevented him from knowing his actions were morally wrong.

The evidentiary record supported the NCR finding on a balance of probabilities.

The appellant appealed a conviction for failing to attend court contrary to s. 145(2)(b) of the Criminal Code.

The sole issue at trial was whether the accused had a lawful excuse for failing to attend a scheduled court appearance after admitting the actus reus of the offence.

On appeal, the appellant argued that the trial judge misapprehended evidence relating to whether his retained counsel had appeared with him on an earlier date, which allegedly affected the credibility assessment.

The appeal court acknowledged that a misapprehension occurred but held that it related to a collateral issue and did not play an essential role in the trial judge’s reasoning process.

The conviction and sentence appeals were therefore dismissed.