Baaba Forson

This decision concerns a Crown appeal from sentence, focusing on the tension between proportionality and public protection in sentencing a repeat violent offender.

The Court of Appeal found that the sentencing judge erred by failing to give sufficient weight to the respondent’s extensive criminal record and the seriousness of her recent offences, and by anchoring the analysis solely to a previous sentence.

The Court substituted a penitentiary sentence and imposed a 10-year Long-Term Supervision Order (LTSO), emphasizing the need for public protection and the proper application of sentencing principles.

The appellant, Garett Roy, appealed convictions for three counts of sexual assault.

The Court of Appeal for Ontario dismissed the appeal, finding no error in the trial judge’s credibility assessment or in the handling of alleged inconsistencies in the evidence.

The court held that the trial judge’s reference to trauma was properly contextualized and did not reverse the burden of proof.

The court also found no material misapprehension regarding evidence about rent payments.

The appeal was dismissed.

The Court of Appeal for Ontario allowed the appeal of P.P. from convictions for assault, sexual assault, uttering threats, unlawful confinement, and attempted extortion, setting aside the convictions and ordering a new trial.

The court found that the trial judge made errors by relying on unsupported assumptions about arranged marriages, improperly relying on an evidentiary fact without giving counsel an opportunity to make submissions, and drawing conclusions based on government COVID protocols without evidentiary foundation.

These errors rendered the convictions unsafe.

The Court of Appeal for Ontario dismissed Riley Kostuk’s appeal from his conviction for second degree murder.

Kostuk argued that his right to counsel under s. 10(b) of the Charter was violated, that the trial judge erred in admitting evidence of prior discreditable conduct, and that evidence of his schizophrenia was improperly admitted or not properly limited.

The court found no error in the trial judge’s rulings, holding that the appellant had an operating mind when consulting counsel, that the prior conduct evidence was properly admitted for motive and identity, and that the references to mental health did not prejudice the trial.

The appeal was dismissed.

The appellant was convicted of second-degree murder following a fatal stabbing during an altercation.

At trial, he relied on self-defence and the partial defence of provocation.

During deliberations, the jury asked several questions seeking clarification on the elements of provocation, specifically the meaning of 'sudden' and 'sufficient'.

The trial judge's answers failed to adequately clarify the issues and amounted to misdirection regarding what conduct had to be sudden.

The Court of Appeal found the answers deficient, allowed the appeal, and ordered a new trial.

The appellant, B.B., appealed his conviction for sexual interference.

The appeal raised two grounds: an alleged error by the trial judge in finding a breach of the rule in Browne v. Dunn and giving a prejudicial jury instruction, and an error in the jury instruction regarding the use of the complainant's prior consistent statements.

The Court of Appeal found that the trial judge erred in applying the Browne v. Dunn rule, as there was no unfairness or prejudice to the witness or the trial process, and the resulting jury instruction was prejudicial to the appellant.

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

The second ground regarding prior consistent statements was not decided but the court reiterated important principles on their admissibility and proper jury instructions.

The appellant, W.M., appealed his conviction for sexual assault.

The central issue on appeal was whether the trial judge misapprehended the appellant's evidence regarding the complainant's state of consciousness at the start of the sexual contact.

The trial judge had found the appellant's evidence on this "crucial detail" to be "internally incompatible and exaggerated" and inconsistent with prior statements.

The Court of Appeal found no misapprehension of evidence by the trial judge, concluding that it was open to the trial judge to reject the appellant's evidence.

The appeal was dismissed.

The appellant, Haleigh Hutchinson, appealed the length of a 10-year driving prohibition imposed after pleading guilty to dangerous driving causing death.

The collision occurred when the appellant was driving significantly over the speed limit, resulting in the victim's death.

The sentencing judge imposed a conditional sentence, a probation order, and a 10-year driving prohibition.

The appellant argued the judge erred in principle by relying on a benchmark case (R. v. Frickey) and by failing to consider a pre-sentence license suspension.

The Court of Appeal dismissed the appeal, finding no error in principle.

The court affirmed that deterrence and denunciation are paramount sentencing objectives in dangerous driving cases and that the sentencing judge appropriately considered the overall sentence.

The court found the distinctions from Frickey were not material enough to warrant a shorter prohibition and that the judge's discretion regarding credit for the pre-sentence suspension was not erred.

The appellant, R.K., appealed his conviction for aggravated sexual assault, sexual interference, and breach of recognizance, and his designation as a dangerous offender.

The appeal challenged the trial judge's admission of hearsay evidence (complainant's preliminary hearing testimony and videotaped statement) under the *Khan* test, the adequacy of the *W.(D.)* analysis, the general adequacy of reasons, and the application of the *Kienapple* principle.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's rulings on hearsay, the *W.(D.)* analysis, or the dangerous offender designation.

The *Kienapple* argument was declined as it was not raised below and had no practical effect.

The appellant, a former law firm employee, appealed her convictions for fraud over $5,000 and uttering a forged document, and her total 18-month imprisonment sentence.

The convictions stemmed from unauthorized cheques totaling nearly $100,000 and a fraudulent divorce order.

The Court of Appeal dismissed the conviction appeal, finding no material misapprehension of evidence or error in assessing motive or credibility.

The court also dismissed the sentence appeal, concluding that the trial judge's mistaken belief that the appellant was a licensed paralegal did not impact the fitness of the sentence, as the breach of trust and abuse of position within a law firm were the primary aggravating factors.

The sentence was found to be within the appropriate range.

The appellant appealed his convictions for numerous offences, including sexual assault, sexual exploitation, incest, and child pornography, committed against his biological daughter.

The grounds of appeal included allegations of uneven scrutiny of evidence by the trial judge, material misapprehension of evidence, and reasonable apprehension of bias due to the trial judge's strong language.

The Court of Appeal dismissed the appeals, finding no reversible error.

The court affirmed that credibility findings are entitled to significant appellate deference, that any misapprehension of evidence was not material to the outcome, and that while the trial judge's language was strong, it did not demonstrate a reasonable apprehension of bias when viewed in the context of a thorough and even-handed analysis.

Korey Rudder appealed convictions for firearm and breach offences, which were based on a constructive possession finding.

The Court of Appeal found that the trial judge materially misapprehended evidence, failed to respect a factual admission by the Crown regarding vehicle ownership, and misapplied the "sufficient connection test" for third-party suspect evidence.

These errors affected the evaluation of constructive possession beyond a reasonable doubt.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant, Shane Williamson, appealed his convictions for multiple firearms offences, including possession and discharging a firearm, stemming from a shooting incident where the sole issue at trial was the identity of the male shooter.

The appellant argued that the trial judge erred by failing to properly consider the exculpatory aspects of his statements to police (that he was a bystander/victim) under the framework of R. v. W.(D.), and that the trial judge's reasons were inadequate, particularly regarding eyewitness evidence frailties and other shortcomings in the Crown's circumstantial case.

The Court of Appeal dismissed the appeal, finding that the trial judge had applied the substance of W.(D.) by considering and rejecting the defence's "alternative explanation" through the Villaroman framework for circumstantial evidence.

The Court also found the reasons sufficient, explaining the path of reasoning and addressing the key issues in context, noting that the case was based on circumstantial evidence rather than direct eyewitness identification.

The appellant appealed his conviction for two counts of possession of child pornography, arguing the trial judge erred in credibility assessments of a key defence witness, reversing the onus of proof in assessing circumstantial evidence, misinterpreting expert evidence, and failing to give a Vetrovec warning regarding another witness.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's findings.

The court emphasized deference to trial judges' credibility assessments and affirmed that the trial judge correctly applied the circumstantial evidence test, concluding that the defence's alternative theory was speculative and did not raise a reasonable doubt.

The appellant, R.G., appealed his convictions for sexual abuse of his daughter, arguing the trial judge erred in dismissing his application to reopen the trial based on new cell phone evidence.

The Court of Appeal found that the trial judge misapplied the legal test for cogency and placed excessive weight on due diligence.

The new evidence, consisting of cell phone records, significantly undermined the complainant's credibility regarding a key incident and an uncharged incident, despite the defense's lack of due diligence in obtaining it earlier.

The Court concluded that the interests of justice required the convictions to be set aside and a new trial ordered.

The appellant, Sean Hirnam, appealed his conviction for sexual assault, raising three grounds: uneven scrutiny of evidence by the trial judge, erroneous reliance on a prior case (R. v. J.J.R.D.), and error in applying the test for communicated consent.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed the evidence, including the appellant's exaggerated injury and the complainant's minor inconsistencies.

The court also found that the trial judge's reference to R. v. J.J.R.D. was a passing one and not material, and that her finding of no communicated consent, based on the ambiguity of the complainant's conduct, was a call within her discretion and not subject to interference on appeal.

The appellant, A.B., appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching against his stepdaughter, and the imposed seven-year sentence.

The conviction appeal grounds included the trial judge's assessment of the complainant's credibility, alleged failure to assess motive to fabricate, failure to address material inconsistencies, and material misapprehension of evidence.

The Court of Appeal dismissed the conviction appeal, affirming the trial judge's findings and deference to credibility assessments.

The sentence appeal argued that the trial judge erred in imposing a sentence exceeding the Crown's request (five years) without prior notice or opportunity for submissions, and that the sentence was unfit.

The Court of Appeal found an error in principle regarding the lack of notice for the increased sentence, per R. v. Nahanee, and reduced the sentence to five years imprisonment, finding it sufficient for denunciation and deterrence.

The appellant, M.V., appealed a sexual assault sentence, arguing for enhanced credit for time served in federal custody after his initial conviction was overturned and a new trial ordered.

The trial judge had granted 1:1 credit for this period, reasoning that the appellant had access to federal programs.

The Court of Appeal found this to be an error in principle, as the trial judge failed to consider that this time would not count towards parole eligibility and statutory release for the new sentence.

The appeal was allowed, and the appellant was granted an additional 368 days of credit, reducing his net sentence from two years to one year.

The appellant, found not criminally responsible for assault and uttering threats, appealed a disposition by the Ontario Review Board (ORB) ordering her detention at the Centre for Addiction and Mental Health (CAMH).

She argued the ORB erred in finding she posed a significant threat, seeking an absolute or conditional discharge.

The Court of Appeal dismissed the appeal, finding the ORB's determination of significant threat was reasonable, based on her history of violence, treatment-resistant schizophrenia, lack of insight into her illness and medication, and the risk of decompensation leading to violent behaviour if medication ceased.

The court also upheld the ORB's refusal of a conditional discharge, noting its inquisitorial function was fulfilled and a detention order was necessary for public safety, as the Mental Health Act would not provide sufficient control in all foreseeable situations.

The appellant, L.T., appealed a sentence, specifically challenging the imposition of a s. 161 order under the Criminal Code.

The Court of Appeal for Ontario dismissed the appeal, affirming the sentencing judge's discretionary decision.

The court emphasized that s. 161 orders are entitled to substantial deference on appeal and do not require the underlying offence to have been committed in prescribed circumstances.

The absence of an objection to the order at the time of sentencing was also noted as relevant to its fitness.