Dan Guttman

The appellant, Mohsin Mirza, appealed his conviction for sexual assault.

The trial judge had found the sexual encounter non-consensual.

The appeal raised three issues: errors in assessing the complainant's credibility and reliability, improper reliance on stereotypes in treating the appellant's evidence, and applying an uneven standard of scrutiny.

The appellate court dismissed the appeal, finding that the arguments essentially amounted to a disagreement with the trial judge's factual findings and that no material misapprehension of evidence or reversible error in credibility assessment was demonstrated.

The appellants appealed their guilty pleas and suspended sentences for assault, claiming ineffective assistance of counsel.

They sought to introduce fresh evidence demonstrating they were misinformed by both their criminal and immigration lawyers regarding the immigration consequences of their pleas, specifically that they would face deportation.

The Superior Court of Justice admitted the fresh evidence, finding the pleas were uninformed and non-consensual.

The appeals were allowed, the convictions set aside, and a new trial ordered.

The applicant, who pled guilty to manslaughter in 1986, sought a post-conviction disclosure order from the Crown in aid of an application for a Ministerial Review under s. 696.1 of the Criminal Code, claiming he had falsely confessed and was wrongfully convicted.

The Superior Court of Justice dismissed the application for a disclosure order as premature (because the applicant had not exhausted his appeals) and moot (because the Crown had already disclosed all available documents).

However, the court granted declaratory relief, holding that the superior court has jurisdiction under s. 24(1) of the Charter to make post-conviction disclosure orders in aid of a Ministerial Review, and that convicted persons do not need the Crown's consent to communicate with public officials regarding their convictions.

The applicant sought a declaratory judgment affirming the Superior Court's jurisdiction under section 24(1) of the Charter to order post-conviction disclosure for individuals claiming wrongful conviction.

The respondent, the Attorney General of Ontario, brought a motion to strike the application, arguing the applicant lacked standing, the application was premature, and it failed to meet the section 7 Charter test.

The court dismissed the motion to strike, finding that the respondent had not met the high threshold of demonstrating it was plain, obvious, and beyond doubt that the application could not succeed.

The appellant appealed a conviction for breaching a recognizance under s. 810 of the Criminal Code by allowing his dogs to be outside unattended.

The trial judge focused on whether the appellant had made arrangements for others to care for the dogs and applied the “air of reality” analysis relating to exceptions to court orders.

On appeal, the court held that this approach misapprehended the defence evidence, which was a denial of the actus reus rather than reliance on an exception.

The trial judge improperly rejected a defence that had never been advanced and failed to address the core issue of whether the appellant had allowed the dogs to be outside.

The conviction was set aside and a new trial ordered.

The media applicants brought an application for a declaration that the police practice of impersonating journalists for criminal investigation and surveillance of public protests violates s. 2(b) of the Charter.

The court found no evidence that plainclothes officers engaging in surveillance held themselves out as journalists.

The court held that the evidentiary record did not support a finding that the practice of plainclothes surveillance in the presence of media had a chilling effect on news gathering.

The application was dismissed.

On a summary conviction appeal from an assault causing bodily harm conviction arising from a nightclub incident, the appellant argued that the trial judge compromised trial fairness by independently downloading a Google Street View image and using it to reject the defence explanation for an injury.

The court held that while judges may take judicial notice of indisputable facts from reliable internet sources, they must not conduct their own investigation or rely on material not fairly put to the accused.

Because the image was not put to the appellant and was used to support an adverse credibility finding, a reasonable observer would conclude that the fairness of the trial was compromised.

The argument that the trial judge reversed the burden of proof was rejected when the reasons were read as a whole.

The appeal was allowed and a new trial was ordered.

The appellants appealed their sentences after their aggravated assault convictions were set aside, leaving only convictions for common assault.

The Court of Appeal found that deference to the trial judge was not warranted given the changed circumstances.

Noting the appellants' youth, first-offender status, lack of serious injury to the victim, and the time elapsed since the offence, the Court granted leave to appeal, allowed the appeals, and imposed conditional discharges with two years of probation and 200 hours of community service.

The appellant appealed convictions for impaired care and control and having a blood alcohol level over 80 mg, arguing the trial judge erred in dismissing a s. 11(b) Charter motion and misapplied the law on care and control following the Supreme Court’s decision in R. v. Boudreault.

The Superior Court held that although the trial judge mischaracterized part of the delay as entirely neutral, the total Crown and institutional delay remained within the permissible range and did not violate the right to be tried within a reasonable time.

On the merits, the court found no error in the trial judge’s conclusion that the accused failed to rebut the statutory presumption of care and control and that the circumstances established a realistic risk of danger.

The accused was extremely intoxicated, seated in the driver’s seat of a running vehicle parked at a busy downtown intersection, and his evidence regarding an alternate plan not to drive was rejected as not credible.

The findings were consistent with the principles in Boudreault concerning realistic risk of danger.

The appellants were convicted of common assault and aggravated assault following a bar fight.

They appealed their aggravated assault convictions, arguing the trial judge erred by failing to properly instruct the jury on the doctrine of common purpose under s. 21(2) of the Criminal Code, despite the Crown heavily relying on it.

The Court of Appeal agreed, finding that the trial judge's brief reference to a 'joint criminal enterprise' without a full explanation of the elements of common purpose left the jury without adequate guidance.

The appeals were allowed, the convictions for aggravated assault were set aside, and a new trial was ordered.

The appellant appealed his conviction for unlawful confinement, raising four issues including the admission of out-of-court videotaped statements, eyewitness identification frailties, failure to establish the elements of the offence, and the trial judge's treatment of a witness's testimony.

The Court of Appeal dismissed the appeal, finding no reversible error in the admission of the statements under the Khelawon threshold reliability test.

The court also upheld the trial judge's acceptance of the eyewitness identification and his decision to accept the witness's evidence in chief over cross-examination due to the appellant's outburst in court.

The appellant appealed his conviction.

The Crown conceded that the statutory presumption did not apply and it bore the onus to prove the absence of bolus drinking, which was a critical assumption underlying the expert's opinion.

The Court of Appeal found that the Crown failed to meet this onus and that the trial judge misunderstood the burden of proof.

The appeal was allowed and a verdict of acquittal was substituted.

The appellant sought leave to appeal his sentence.

The Court of Appeal refused leave, noting that totality was taken into account when the appellant was sentenced for further offences subsequent to this sentence.

Furthermore, three years had elapsed, the appellant was facing new charges, and the appeal would have no practical impact.

The youth appellant was convicted of three robberies and the Crown sought Serious Violent Offence (SVO) designations under the Youth Criminal Justice Act.

The Crown relied on victim impact statements to prove serious bodily harm, and the youth justice court judge denied the appellant's request to cross-examine the victims.

On appeal, the Court of Appeal held that an SVO designation is part of the sentencing process, making victim impact statements admissible.

The Court further held that while offenders have a right to cross-examine on disputed facts at sentencing, this right is not automatic for victim impact statements; the offender must satisfy an 'air of reality' test that the facts are disputable and the request is not specious.

The appeal was dismissed as the appellant's request lacked an air of reality.

The respondent was convicted of four weapons offences, including possession of a restricted firearm with ammunition and weapons trafficking, while subject to a weapons prohibition.

The sentencing judge imposed a one-year sentence plus two months of pre-trial custody, mistakenly believing only two offences carried a one-year minimum.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding the sentence fell markedly below the acceptable range for such serious weapons offences.

The sentence was varied to a total of two years less a day in addition to time served.