Kim Motyl

Scott Lombardi appealed his conviction for "over 80" under the Criminal Code, raising two grounds: denial of his Charter right to counsel and the Crown's failure to prove the accuracy of breath samples beyond a reasonable doubt.

The trial judge had dismissed the Charter application, finding that Lombardi's right to counsel was not breached as he had consulted Duty Counsel and declined further specific counsel despite being given reasonable opportunities.

On the second ground, the trial judge found the accuracy of the breath samples proven under the common law doctrine of scientific instruments, as the statutory presumption was not relied upon.

The Superior Court of Justice dismissed the appeal, upholding the trial judge's findings on both grounds, concluding that Lombardi's right to counsel was not violated and that the breath sample accuracy was adequately established.

The appellant, Mohaned Alobedi, appealed his conviction for sexual assault.

The appeal centered on the admissibility of "fresh evidence" from Uber, comprising user data and GPS data, which was not presented at trial.

The court applied the Palmer test, as refined by Reference re Truscott, to evaluate the cogency and due diligence criteria for admitting new evidence.

Despite a lack of due diligence by trial counsel, the court determined that the fresh evidence was sufficiently cogent to have potentially altered the trial verdict, as it corroborated aspects of the appellant's testimony and contradicted the complainant's account regarding the duration of a car stop and the reason for a route deviation.

Consequently, the appeal was allowed, the conviction was set aside, and a new trial was ordered.

The Crown appealed an acquittal for impaired driving by drugs.

The trial judge had excluded the accused's urine sample, finding insufficient grounds for the demand as a 'non-Charter' issue, leading to acquittal.

The accused cross-appealed the finding of reasonable and probable grounds for arrest and drug evaluation.

The Superior Court found the trial judge erred by treating the urine sample exclusion as a non-Charter issue, misapplying principles of reasonable and probable grounds, and improperly excluding the accused's statement from the Charter analysis.

The court concluded that the officer had reasonable and probable grounds for the demand and that, even if there was a Charter breach, the evidence would be admissible under s. 24(2).

The court dismissed the cross-appeal, finding sufficient grounds for the initial arrest.

The Crown's appeal was allowed, and a new trial was ordered.

The appellant appealed his summary conviction for criminal harassment.

The trial judge had convicted the appellant based on two text messages sent consecutively to the complainant, finding they constituted 'repeated communication'.

The Superior Court of Justice allowed the appeal, holding that two text messages sent at the same time constitute a single communication, not repeated communication.

The court also found the trial judge's conclusions that the complainant was harassed and that her fear was objectively reasonable were unreasonable, given the lack of threats and the context of the messages.

The conviction was quashed and an acquittal entered.

The appellant appealed his conviction for assault causing bodily harm arising from a sexual encounter with the complainant.

The trial judge had found the appellant not guilty of sexual assault but guilty of assault causing bodily harm based on bruising to the complainant's thighs.

On appeal, the appellant argued the trial judge misapprehended the evidence by stating it was 'clear' the complainant did not consent to an earlier slap on the walk home, when her actual testimony indicated a lack of memory.

The summary conviction appeal court agreed, finding the misapprehension was on a matter of substance and played a central role in the trial judge's reasoning process regarding non-consent to the force that caused the bruising.

The appeal was allowed and a new trial ordered.

The offender pleaded guilty to five child pornography-related charges and one count of sexual assault of his five-year-old daughter.

The offender had engaged in online communications with a UK offender discussing the sexual abuse of their own children and exchanging child sexual abuse material.

Police discovered 212 child sexual abuse images and 2 videos on the offender's devices, including images of his own daughter.

The offender had a prior 2010 conviction for possessing and importing child pornography.

The court imposed a global sentence of 8 years less 983 days of pretrial custody, with 5 years concurrent on the child pornography charges and 3 years consecutive on the sexual assault charge.

The court emphasized denunciation and deterrence as paramount sentencing objectives given the severity of crimes against children.

The Crown appealed the acquittal of Brian Walsh on a charge of driving with a blood alcohol level "over 80".

The trial judge had found two s.8 Charter violations: lack of reasonable suspicion for an Approved Screening Device (ASD) demand and failure to administer the ASD test "forthwith," leading to the exclusion of breath samples under s.24(2) of the Charter.

The appeal court found that the trial judge erred in her assessment of "reasonable suspicion" by misapprehending evidence and incorrectly applying legal principles regarding innocent explanations.

While agreeing there was a "forthwith" violation, the appeal court found it less serious than characterized by the trial judge.

The appeal court also determined that the trial judge erred in her s.24(2) Charter analysis by overstating the gravity of the violations and incorrectly assessing the impact on the accused, particularly by considering the entire arrest procedure rather than just the minimal intrusiveness of the breath sample itself.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

Siobhan O’Shea, suffering from mental illness, was arrested for impaired driving and refusing a breath sample.

The trial judge acquitted her, finding Charter breaches (s. 10(b)) for police failing to facilitate counsel contact.

The Crown appealed.

The Superior Court found the police erred in not advising O'Shea of her right to contact another lawyer after her chosen counsel was unreachable, especially given her vulnerable mental state.

This constituted a s. 10(b) breach.

The court excluded the evidence of refusal under s. 24(2) but found roadside observations were not obtained in a manner infringing the Charter.

The appeal for impaired driving was allowed, and a new trial ordered.

The appeal for refusing a breath sample was dismissed.

The accused pleaded guilty to assault causing bodily harm (x2), assault (x2), mischief to property, and failure to comply with a recognizance (x4).

The offences involved a pattern of violent and degrading abuse against his dating partner over several months, including physical assault, humiliation, property damage, and confinement.

The accused violated court-ordered conditions by continuing contact with the victim.

The court imposed a custodial sentence of 17 months less credit for pre-sentence custody, resulting in a further 10 months incarceration, followed by three years probation with strict conditions including no contact and counselling.

The Crown applied for an order under section 117.05(4) of the Criminal Code to forfeit the Firearms Possession Acquisition Licence of the respondent and to prohibit him from possessing weapons for five years.

The application arose from multiple incidents involving the respondent's alcohol abuse, mental health issues, violent threats against family members, and aggressive behaviour.

The respondent admitted to being an alcoholic and acknowledged his alcohol abuse contributed to violent outbursts.

The court found that it was not desirable in the interests of safety that the respondent possess weapons and ordered forfeiture of the licence and a three-year prohibition on weapon possession, reduced from the maximum five years to allow for treatment and rehabilitation.

The accused, a 23-year-old first-time offender, pleaded guilty to impaired driving causing death.

On August 16, 2015, after consuming alcohol at a party, he drove his vehicle at excessive speed through a red light, colliding with two other vehicles at an intersection in Toronto.

His passenger, a close friend, was not wearing a seatbelt and sustained catastrophic head and neck injuries, dying shortly after arrival at hospital.

Two other occupants in the struck vehicles sustained soft tissue injuries.

The sentencing court considered aggravating factors including the accused's prior traffic violations, high blood-alcohol level, and deliberate decision to drive while impaired, balanced against significant mitigating factors including his youth, lack of criminal record, genuine remorse, and strong community support.

The court imposed a sentence of four years and six months imprisonment, an eight-year driving prohibition, and ancillary orders for DNA sample and firearms prohibition.

Sentencing following convictions for a planned jewellery store robbery involving firearms where an employee was shot and seriously injured.

The offender was found guilty of multiple offences including robbery with a firearm, aggravated assault, using a firearm to commit aggravated assault, discharging a firearm with intent to endanger life, masked robbery, and firearms possession offences while under prohibition orders.

The court emphasized denunciation and deterrence given the premeditated nature of the robbery, the offender’s extensive criminal record, and his disregard for firearms prohibition orders.

A global sentence of 12 years’ imprisonment was determined appropriate prior to credit for pre-sentence custody.

After applying 1.5:1 credit for 29 months of pre-sentence custody, the effective remaining sentence was reduced to approximately 8 years and 4.5 months.

The offender was sentenced for his role in a violent armed robbery of a jewellery store, during which his co-accused shot and wounded an employee.

The court considered the offender's significant cooperation with police in a separate murder investigation, which placed him at great personal risk and resulted in harsh pre-sentence custody conditions.

The court determined a global sentence of six years was appropriate, which was reduced to 27.5 months after applying enhanced credit for pre-sentence custody.