Sunil S. Mathai

The Court of Appeal for Ontario allowed Norma Walton’s appeal from her convictions for theft over $5,000, finding that the trial judge’s repeated and intrusive questioning of the accused during her testimony, both in chief and in cross-examination, undermined the fairness of the trial.

The court held that the trial judge’s interventions usurped the role of counsel, created the impression of alignment with the Crown, and prevented the defence from presenting its case in an orderly fashion.

A new trial was ordered.

The appellant was convicted of firearms offences and possessing proceeds of crime after a trial judge admitted evidence despite a s. 10(b) Charter breach.

The police delayed the appellant's access to counsel for nearly ten hours, based on an operational plan to secure search warrants first.

The Court of Appeal found the trial judge erred in the s. 24(2) Charter analysis by underestimating the impact of the breach on the appellant's security of the person.

The Court concluded that the breach was serious and deliberate, outweighing society's interest in admitting the evidence, and ordered the exclusion of the gun and cash, leading to acquittals.

The appellant, Nicholas Necan, appealed his conviction for second-degree murder, having previously pleaded guilty to manslaughter.

The appeal raised four grounds concerning the trial judge's jury charge: inadequate anti-bias instruction (specifically regarding the appellant's Indigenous identity and the 'firewater myth'), confusing instructions on intoxication, failure to provide an after-the-fact conduct instruction, and failure to provide a propensity reasoning instruction.

The Court of Appeal dismissed the appeal, finding that the jury charge, while not perfect, adequately equipped the jury to judge the case, and that no reversible errors occurred regarding the challenged instructions.

The appellant, a former police officer, appealed his convictions for bribery, attempting to obstruct justice, breach of trust, and trafficking cocaine, as well as his 13-year sentence and a $250,000 fine in lieu of forfeiture.

The convictions arose from a corrupt relationship with a drug trafficker, from whom the appellant accepted bribes for protection.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's jury instructions on reasonable doubt and credibility, admission of evidence, or handling of late disclosure.

The sentence appeal was also dismissed, with the court finding the 13-year sentence fit given the gravity of the police corruption.

The fine in lieu of forfeiture was upheld, but the time to pay was varied to one year from the date of the appellant's release from custody.

The appellant, T.C., appealed his convictions for five counts of assault and one count of sexual assault, and his five-year sentence.

The appeal against convictions was based on two alleged errors by the trial judge: allowing the Crown to recall a complainant after closing its case, and failing to sufficiently instruct the jury on prior inconsistent statements.

The sentence appeal argued that the assault sentences should have been concurrent rather than consecutive.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's discretion to allow the recall of the witness for a limited purpose, no error in the jury instructions regarding inconsistencies, and no error in principle in the imposition of consecutive sentences.

The appellant, Maurice Johnson, appealed his convictions for kidnapping and sexual assault.

He argued that the trial judge misapprehended evidence, failed to address inconsistencies in the complainant's testimony, and did not properly consider the issue of consent.

The Court of Appeal for Ontario dismissed the appeal, finding that any alleged misapprehensions were immaterial, the purported inconsistencies did not negate the elements of the offences, and the trial judge's conclusion that the complainant did not consent to the sexual activity was legally and factually sound, given the coercive circumstances of the three-day ordeal.

The appellant appealed his convictions for aggravated assault, dangerous operation of a motor vehicle, break and enter, and other offences.

He argued the trial judge erred in assessing exculpatory eyewitness identification evidence, accepting the testimony of a witness to whom he confessed, and dismissing a lost evidence application regarding a glove and mitten.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the identification evidence, deferring to the credibility findings regarding the confession, and upholding the factual findings on the lost evidence application.

This is a sentence appeal from a conviction for manslaughter.

The appellant challenged his 8.5-year sentence on two grounds: the trial judge's treatment of his pre-trial offer to plead guilty to manslaughter, and the consideration of his pre-trial in-custody misconduct as an aggravating factor.

The Court of Appeal found that the trial judge erred in principle by characterizing the defence as an attempt to mislead and by treating post-offence misconduct as an aggravating factor rather than negating a mitigating one.

However, the Court concluded that these errors had no practical impact on the overall sentence, which was deemed fit given the appellant's participation in an armed home invasion with knowledge of firearm use.

The appeal was dismissed.

The appellant appealed his conviction for attempted murder following a stabbing.

At trial, the Crown's case relied heavily on the testimony of a single witness.

The appellant argued the trial judge made two reversible errors in the jury charge: removing the defence's argument that the absence of the victim's DNA on the appellant's clothing raised a reasonable doubt, and failing to correct the Crown's unsupported closing submissions regarding a toxicology report.

The Court of Appeal agreed, finding both errors were material and undermined the defence.

The appeal was allowed and a new trial ordered.

The appellant, Sean Gibbs, appealed his conviction for aggravated assault, arguing his guilty plea was involuntary and uninformed due to mental illness exacerbated by segregation, and that he received ineffective assistance of trial counsel.

The Court of Appeal dismissed the appeal, finding that the appellant's plea was voluntary and informed, as he understood the nature and consequences of the plea.

The court also found that trial counsel's assistance was not ineffective, as the alleged deficiencies did not result in a miscarriage of justice.

The appellant, Roger Mercury, appealed his convictions for several drug and firearm related offences and his nine-year sentence.

He argued that the trial judge's findings were unreasonable, misapprehended material facts, and failed to consider other reasonable possibilities inconsistent with guilt, specifically regarding his presence in the apartment and evidence from a car.

The Court of Appeal dismissed both the conviction and sentence appeals, finding that the trial judge's verdicts were reasonable and based on a careful assessment of formidable evidence, including video surveillance and key fob records, which supported the appellant's control over the car and unit.

The court concluded that the trial judge correctly applied the law on constructive possession and circumstantial evidence and adequately addressed the appellant's submissions.

The Crown brought an application for certiorari with mandamus in aid to quash a preliminary hearing judge's decision committing the accused to stand trial for conspiracy to commit theft rather than conspiracy to commit robbery.

The Crown argued the judge impermissibly weighed evidence and failed to consider the whole of the evidence, specifically wiretap intercepts suggesting the accused was armed with a firearm.

The Superior Court found no error in the judge's handling of competing inferences but concluded the judge committed a jurisdictional error by failing to consider the whole of the evidence regarding the firearm.

The matter was remitted to the preliminary hearing judge for reconsideration.

The appellant, Joshua Brown, appealed his convictions for accessing, possessing, and making available child pornography, and his three-year penitentiary sentence.

The conviction appeal grounds were unreasonable verdict and insufficient trial judge reasons.

The sentence appeal grounds included reliance on an incorrect volume of child pornography and unproven aggravating factors.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's verdict reasonable and reasons sufficient, and that the inference of guilt was the only reasonable one.

The court granted leave to appeal sentence but dismissed the sentence appeal, finding that while the trial judge erred in considering 2,500 files instead of 500, this error did not impact the fitness of the significant sentence warranted by the large quantity of child pornography.

The appellant appealed his convictions for firearms offences and sought leave to appeal his eight-year sentence.

The conviction appeal raised two issues: whether the trial judge reversed the burden of proof by using a 911 call to corroborate Crown evidence, and whether the trial judge erred by taking judicial notice of the time required to stash a firearm and move a vehicle.

The sentence appeal argued that the trial judge double-counted breaches of weapons prohibition orders.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no errors in the trial judge's assessment of evidence or sentencing approach.

The appellant, D.E., appealed convictions for sexual interference and invitation to sexual touching.

The primary defence at trial was an honest but mistaken belief in the complainant's age, as per s. 150.1(4) of the Criminal Code.

The trial judge found that the appellant did not honestly believe the complainant was 16 years of age and did not take all reasonable steps to ascertain her age, concluding that he acted with reckless indifference.

The Court of Appeal found no error in the trial judge's analysis or findings, including a minor misapprehension of evidence that was not material to the outcome.

The appeal was dismissed.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in assessing eyewitness identification evidence.

The appellant contended that the trial judge improperly treated a witness's testimony as recognition evidence, failed to adequately consider alleged tainting of identification, and erred by not self-instructing on cross-racial identification.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to recognition evidence, her treatment of alleged tainting from a name utterance and Facebook photo, or the absence of a specific self-instruction on cross-racial identification given the trial context and the nature of the recognition evidence.

The appellant appealed his conviction for possession of a loaded prohibited firearm and sought leave to appeal his six-year custodial sentence.

He argued the trial judge erred in not finding various Charter infringements (ss. 7, 9, 10(a), 10(b), 11(d)) that should have led to the exclusion of the firearm, and in her assessment of circumstantial evidence.

He also contended his sentence was unfit.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's Charter analysis, her factual and credibility findings, or her conclusion on circumstantial evidence.

Leave to appeal sentence was denied as the sentence was deemed fit and not demonstrably unfit.

The appellant, G.M.C., appealed his convictions for assault and compliance charges, following a 12-day trial.

The appeal was based on three grounds: the trial judge's alleged improper judicial notice of "memory science" uneven scrutiny of evidence (including credibility assessment, demeanour, and use of bad character evidence), and reasonable apprehension of bias.

The Court of Appeal dismissed all grounds, finding that the trial judge's observations on memory were common sense, that there was no reversible error in the credibility assessments or application of different standards, and that the isolated incidents did not give rise to a reasonable apprehension of bias.

The court affirmed the convictions.

The appellant, found not criminally responsible in 2008 for aggravated assault, appealed the Ontario Review Board's decision to continue her detention order.

She sought an absolute or conditional discharge, arguing the Board failed to adequately explain its finding that she remained a significant threat to public safety and neglected its inquisitorial duty to explore less restrictive dispositions.

The Court of Appeal dismissed the appeal, finding the Board's reasons transparent and intelligible, and that it had no further inquisitorial duty given the record and the appellant's position that she did not want restrictions.

The appellant, found not criminally responsible, appealed the Ontario Review Board's decision to continue his detention order.

The Court of Appeal found the Board erred in its application of the "significant risk" test, concluding there was insufficient evidence to establish that the appellant posed a significant threat to public safety.

The appeal was allowed, and an absolute discharge was granted.