David B. Butt

The Court of Appeal for Ontario dismissed Conal Quinn’s appeal from his conviction for sexual assault.

The court found no reversible error in the trial judge’s exclusion of evidence under section 276 of the Criminal Code, nor in the exclusion of expert evidence regarding methamphetamine use and sexual impulsivity.

The court also rejected arguments regarding the sufficiency of the trial judge’s reasons and the finding that any consent would have been vitiated by abuse of authority.

The decision affirms the trial judge’s careful application of the law regarding sexual history evidence and the proper approach to expert testimony in the context of sexual assault prosecutions.

This decision concerns a Stage Two hearing under s. 278.92 of the Criminal Code regarding the admissibility of two documents authored by the complainant and given to the accused.

The accused sought to adduce these documents to challenge the complainant's credibility, arguing they were inconsistent with her police statement about the nature of their relationship.

The Crown and complainant opposed the admission, citing risks of twin myths and prejudice.

The court found the documents relevant and of significant probative value, not substantially outweighed by the danger of prejudice to the proper administration of justice.

The application was allowed, permitting the accused to cross-examine the complainant on the documents for the limited purpose of establishing any inconsistency, with the scope of questioning to be carefully circumscribed by the court.

The public complainants appealed the penalty imposed on a police officer found guilty of neglect of duty and discreditable conduct in relation to the sudden death investigation of an Indigenous man.

The Hearing Officer had ordered an 18-month demotion and cultural competency training.

The complainants argued the officer should be dismissed, citing the public interest, the importance of reconciliation, and region-specific demands regarding anti-Indigenous racism.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer reasonably weighed all relevant factors, including the public interest and reconciliation, and did not err in concluding that dismissal was not warranted.

The Appellant, a Staff Sergeant, appealed a Hearing Officer's decision finding him guilty of neglect of duty and discreditable conduct under the Police Services Act, and the resulting penalty of an 18-month demotion.

The charges arose from his role as the lead investigator into the sudden death of an Indigenous man, where he prematurely concluded the death was non-criminal and failed to conduct a basic investigation.

The Commission found the Hearing Officer's conclusions reasonable, including the finding that the Appellant's deficient investigation was rooted in racial bias and stereotypes.

The appeal was dismissed and the findings and penalty were confirmed.

A Toronto Police Service officer, Constable Quinn, was charged with one count of sexual assault of E.W. while on duty.

The Crown alleged the sexual activity was non-consensual, and that Quinn manipulated the situation by faking a phone call to his partner and creating opportunities to be alone with the complainant.

Quinn testified the activity was consensual and instigated by the complainant.

The court found Quinn's testimony not credible, particularly regarding the fake phone call and his efforts to engage with the complainant outside of police duties.

The court accepted the complainant's evidence that she did not consent and found her credible and reliable.

The court also determined that, even if there had been apparent consent, it would have been vitiated by Quinn's abuse of his position of trust, power, or authority as an on-duty police officer.

Constable Quinn was found guilty of sexual assault.

The appellant police officer appealed a penalty of demotion imposed after he pleaded guilty to discreditable conduct, insubordination, and unlawful use of force against an Indigenous civilian.

The appellant argued the Hearing Officer erred by failing to give appropriate weight to medical evidence of his PTSD and rehabilitation, failing to consider the civilian's lack of complaint, and failing to apply the principle of progressive discipline.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer reasonably weighed the dispositional factors, including the seriousness of the misconduct and the damage to the reputation of the police service, in determining that demotion was the appropriate penalty.

The appellant police officer appealed a penalty decision demoting her from first-class to third-class constable for one year, followed by one year as second-class constable, after she pleaded guilty to discreditable conduct relating to her refusal to comply with COVID-19 vaccine mandates at a hockey arena and subsequent inappropriate social media posts.

The Commission allowed the appeal in part, finding that making her progression through the ranks conditional on the 'concurrence' of her unit commander improperly granted unfettered discretion.

The condition was varied to 'as confirmed by her unit commander'.

The appeal was otherwise dismissed, as the Hearing Officer made no errors in principle in weighing the appellant's rehabilitative efforts, expressions of remorse, or the consistency of the disposition.

The complainants sought leave to appeal the penalty imposed on a police officer who was found guilty of neglect of duty and discreditable conduct regarding his investigation into the sudden death of an Indigenous man.

The officer had been demoted for 18 months and ordered to complete cultural competency training.

The Commission granted leave to appeal, finding that the issues raised regarding the appropriate penalty and the consideration of the Indigenous community's perspective were of significant importance to the policing profession and the community at large.

The accused, a police officer, pleaded guilty to breach of trust after using his position to access confidential vehicle registration information for his son.

The son subsequently used this information to commit a home invasion that resulted in a homicide.

The court weighed the paramount sentencing principles of deterrence and denunciation against the accused's guilty plea, lack of prior record, and the fact that he did not foresee the homicide.

The court imposed a 12-month conditional sentence order.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

This appeal concerned the applicability of the third-party records regime under sections 278.1-278.9 of the Criminal Code to a former police officer's anticipated testimony and a draft statement of claim in a criminal trial.

The appellants, J.R. (the former officer) and Toronto Police Service, sought to overturn a subpoena requiring J.R. to testify and to prevent the use of the draft statement of claim.

The Court of Appeal upheld the lower courts' findings that the third-party records regime did not apply to oral statements made by J.R. and, in the specific circumstances, did not apply to the draft statement of claim.

Furthermore, even if the regime applied to the draft statement, its production was deemed necessary in the interests of justice.

The appeal was dismissed, and an interim stay was set aside, making the lower court's unsealing and set aside orders effective.

Patryk Myszka pleaded guilty to voyeurism (s. 162(1) Criminal Code) for secretly recording his common-law partner in their home for a sexual purpose.

The Crown sought a conditional sentence of 5 months followed by 18 months probation, while the defence sought a conditional discharge with probation.

The court considered aggravating factors, including the planned nature of the offence, breach of trust, and significant victim impact, alongside mitigating factors such as the guilty plea, lack of prior criminal record, and engagement in counselling.

The judge determined that a conditional discharge was not in the public interest due to the seriousness of the offence, but a conditional sentence was also not necessary.

A suspended sentence with 18 months probation and a forfeiture order for the recording devices was imposed, emphasizing denunciation, general deterrence, and the victim's protection.

The appellant, a police sergeant, appealed a Hearing Officer's decision finding her guilty of discreditable conduct under the Police Services Act.

The charge arose from an incident where the appellant and three other officers responded to a noise complaint and forcibly entered an apartment without a warrant.

The Hearing Officer found the entry unlawful as there were no exigent circumstances, and held the appellant responsible as the supervising officer who directed the entry, while acquitting the other three officers.

On appeal, the appellant argued the Hearing Officer misapplied the test for discreditable conduct and rendered inconsistent verdicts.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer's conclusion that no emergency justified the entry was reasonable, and that the appellant's own evidence establishing her supervisory role and direction to breach the door justified the different verdicts.

The applicants, a police constable and the Toronto Police Service, brought an application for certiorari to quash a trial judge's ruling issuing a subpoena to the constable to testify on a Charter application in a criminal trial.

The applicants argued that a draft statement of claim and information provided to the defence by another officer were protected by settlement privilege and unlawfully disclosed, triggering the third-party records regime.

The Superior Court dismissed the application, finding no jurisdictional error or error of law on the face of the record in the trial judge's conclusions that settlement privilege did not apply, the disclosure was not unlawful, and the test for issuing a subpoena was met.

The Black Action Defence Committee applied for leave to intervene in a subpoena motion and procedendo application related to an ongoing criminal trial.

The accused, charged with human trafficking, alleged racial profiling and subpoenaed a police officer to testify.

The officer applied to quash the subpoena.

The proposed intervenor sought to make submissions on racial profiling.

The Superior Court of Justice dismissed the application, finding that interventions in criminal proceedings are rare and the proposed intervenor would not offer a contribution beyond what the accused could already provide.

The appellant police officer appealed a finding of Discreditable Conduct under the Police Services Act Code of Conduct for using profanity towards a member of the public during a tense investigation.

The Ontario Civilian Police Commission found that the Hearing Officer erred by equating the use of profanity with Discreditable Conduct absolutely, without applying the required objective test.

The Commission held that an objective test, viewed from the perspective of a reasonable person in the community and considering the context of the situation, must be applied.

Given the tense and potentially dangerous circumstances of the call, the Commission concluded the single use of an expletive did not meet the objective test for Discreditable Conduct and revoked the finding.

The complainant, A., sought certiorari to quash a trial judge's decision regarding the admissibility of her sexual history evidence under s.276 of the Criminal Code in a sexual assault trial.

The trial judge had admitted certain prior sexual activity as relevant to the accused's belief in communicated consent, while prohibiting its use for propensity reasoning.

The Superior Court dismissed the application, finding no error of law going to jurisdiction and exercising its discretion to refuse interlocutory review, emphasizing the need to minimize delay in criminal trials and the non-final nature of the ruling at that stage.

The appellant was convicted of two counts of attempting to purchase sexual services from a young person through an undercover police sting operation (Project Raphael).

He was sentenced to eight months in jail and two years of probation.

On appeal, the appellant challenged his conviction on Charter grounds and sought leave to appeal his sentence.

The Court of Appeal dismissed the conviction appeal, finding the arrest was lawful and the trial judge properly applied the legal test for objective reasonableness.

However, the Court allowed the sentence appeal, reducing the sentence to six months less one day to preserve the appellant's right of appeal to the Immigration Appeal Division, as a sentence exceeding six months would result in deportation as a permanent resident.

The accused, a police officer, pleaded guilty to impaired driving and dangerous driving.

The court imposed a $3,000 fine, an 18-month driving prohibition, and 18 months probation with conditions including mandatory attendance at counselling and rehabilitative programs.

The sentencing emphasized the seriousness of impaired driving, the aggravating factors (police officer status, prior suspended sentence, accident involvement), and the mitigating factors (guilty plea, 169 days sobriety, participation in AA, genuine remorse, and steps taken toward rehabilitation).

The defendant, A.C., brought an application challenging the constitutionality of subsections 278.94(2) and 278.94(3) of the Criminal Code, arguing they violated sections 7 and 11(d) of the Charter of Rights and Freedoms.

The challenge asserted infringements on the right to a fair trial, against self-incrimination, and prosecutorial independence due to the complainant's right to appear and make submissions at admissibility hearings for sexual activity evidence.

The court applied the Mills/Darrach approach for constitutional challenges to legislation and dismissed the application, finding no Charter breach.

The court clarified that the complainant's involvement is limited to providing perspective on the admissibility of evidence, combating myths and stereotypes, and does not transform the complainant into a second prosecutor or infringe on the accused's fundamental rights.