Lindsay Board

The Crown appealed a stay of proceedings entered after a jury verdict of guilty on one count of sexual assault.

The application judge found a breach of the respondent's s. 11(b) Charter right to be tried within a reasonable time, concluding that net delay exceeded the 30-month Jordan ceiling.

On appeal, the Crown argued that the adjournment of the first trial to await the Supreme Court of Canada's decision in R. v. J.J. constituted a discrete exceptional event.

The Court of Appeal held that the application judge was not functus officio after the jury's verdict for purposes of a s. 11(b) application, distinguishing prior authorities.

The court further held that adjourning a trial to await guidance from a higher court in a different proceeding does not constitute a discrete exceptional event under the Jordan framework, but rather is a factor in assessing case complexity.

The appeal was dismissed.

The Court of Appeal for Ontario considered cross-appeals from both the Crown and D.L. regarding convictions and acquittals arising from allegations of intimate partner violence.

The Crown appealed acquittals on sexual assault and extortion charges and sought a harsher sentence, while D.L. appealed his convictions, arguing errors in the trial judge’s assessment of evidence and sufficiency of reasons.

The Court dismissed both appeals, upheld the trial judge’s findings, and stayed certain duplicative counts.

The decision addresses the proper approach to consent in sexual assault, the scope of appellate review, and the principles guiding sentencing for intimate partner violence.

The appellant, Krishan Arora, appealed his sentence of seven years and two months for four counts of forcible confinement and one count of extortion.

The Court of Appeal for Ontario dismissed the appeal, finding no error in the sentencing judge’s approach to aggravating and mitigating factors.

The court held that the sentencing judge did not double count aggravating circumstances and properly considered the appellant’s guilty plea, remorse, and gambling debts.

The sentence was found to be fit given the seriousness of the offences and their impact on the victims.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in dismissing his application to adduce evidence of prior sexual activity under s. 276(2) of the Criminal Code, assessing his credibility, finding the requisite mens rea, and handling a post-trial application to re-open the trial involving solicitor-client privilege.

The Crown requested an in camera hearing for the appeal, which the Court of Appeal denied, finding alternative measures sufficient to protect the complainant's privacy.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's evidentiary rulings, credibility assessments, or application of the subjective mens rea standard.

D.L. brought a motion to bifurcate the Crown's sentence appeal from his conviction appeal and the Crown's appeal from his acquittals.

The court dismissed the motion, reiterating the general principle that conviction and sentence appeals should be heard together for efficiency and to avoid contradictory outcomes, unless there are compelling reasons.

The court found no such compelling reasons, noting that potential complexities could be addressed by remitting sentencing to the trial court if necessary, rather than requiring pre-emptive bifurcation.

J.P., convicted of sexual assault and sentenced to three and a half years incarceration, was denied release pending appeal by a single judge.

J.P. sought a panel review of that decision, arguing the motion judge erred in principle by relying on public safety, misassessing the appeal's strength, and incorrectly finding serious compliance issues.

The Court of Appeal dismissed the request for a release order, finding no palpable and overriding error or material error in principle in the motion judge's decision, which was based on the public confidence component of the public interest test, incorporating public safety and compliance concerns.

Lorne Hytman pleaded guilty to one count of voyeurism and four counts of criminal harassment involving multiple young female victims.

The court considered aggravating factors, including the persistent nature of the behaviour and the vulnerability and significant impact on the young victims.

Mitigating factors included the offender's genuine remorse, guilty plea, first offender status for the current charges, public embarrassment, and a delay in his bail hearing.

The Crown sought a 6-month conditional sentence, while the defence argued for a suspended sentence with probation.

The court determined that a sentence of imprisonment was not required and imposed a suspended sentence with a three-year probation order, including conditions for mandatory counselling, adherence to medical advice, non-contact orders with victims, and 150 hours of community service, along with a DNA order.

The appellants, convicted of murder, appealed on grounds of reasonable apprehension of bias by the trial judge and violation of their right to be present.

The trial judge repeatedly encouraged guilty pleas in chambers and directly to the accused, expressing strong opinions on the evidence and linking rulings to plea outcomes.

The Court of Appeal found that the judge's conduct created a reasonable apprehension of bias and infringed the accused's right to be present under s. 650(1) of the Criminal Code, compromising the fairness and integrity of the trial.

The appeals were allowed, and a new trial was ordered for both appellants.

The appellant, Elijah McGibbon, appealed a one-year custodial sentence for assault causing bodily harm.

The appeal was based on three grounds: improper admission of a victim impact statement, error in applying the Proulx analysis for a conditional sentence, and an unfit sentence.

The court dismissed the appeal, finding the sentencing judge did not err in considering the victim impact statement, properly weighed sentencing principles including rehabilitation and deterrence, and imposed a fit sentence given the gravity of the offence.

In a sexual assault trial, the defence sought an order compelling the complainant to provide contact information for her partner and mother, arguing it was necessary to investigate the complainant's truthfulness regarding her disclosures to them.

The Crown argued the evidence was irrelevant under the collateral facts rule.

The court dismissed the application, finding the information collateral to the main issue of the sexual assault and primarily related to credibility on a minor point.

The court also noted the defence had ample opportunity for a pre-trial motion for third-party disclosure.

The Crown brought a pre-trial motion seeking an order to compel the defence to file a s. 278.3 application for the production of third-party records of the complainant in an upcoming sexual assault trial.

The Crown argued that such an application should be brought before trial to avoid delays and ensure an orderly proceeding.

The court dismissed the motion, finding that compelling the defence to bring a specific application could conflict with counsel's instructions or tactical assessments and would be an inappropriate exercise of judicial trial management powers, potentially compromising the judge's impartiality.

The court emphasized that while judges have broad trial management powers to ensure timely and fair proceedings, these powers do not extend to dictating a party's strategic decisions or compelling them to take specific procedural steps.

J.R., charged with sexual assault, brought a disclosure motion seeking various communications between the Crown and the complainant/counsel, the Victim Witness Assistant Program (VWAP), and details regarding the storage and destruction of J.R.'s DNA sample from a previous, unrelated case.

The defence argued these materials were relevant to the admissibility of extrinsic sexual activity, the similar fact witness's knowledge, and potential Crown misconduct.

The court dismissed the motion, finding the requested communications irrelevant to the evidence and the DNA sample issue unrelated to the current case.

The court also determined that the defence's claim of Crown misconduct was speculative and not supported by evidence of an abuse of process, thus not warranting the broad disclosure sought.

The appellant, M.C., appealed his conviction for child luring and sought leave to appeal his sentence.

The core issue was whether the trial judge erred by excluding M.C. and his counsel from an ex parte hearing during a s. 278 Criminal Code third-party records application.

The Court of Appeal found that the s. 278 application was part of the trial, making M.C.'s exclusion a jurisdictional error under s. 650 of the Criminal Code.

The Crown failed to rebut the presumption of prejudice, as the exclusion impacted M.C.'s ability to make full answer and defence and harmed the appearance of justice.

The court allowed the appeal, set aside the conviction, and ordered a new trial.

The appellants, C.I. and M.G., appealed their convictions for sexual assault.

The appeal raised four grounds: improper leading questions during examination-in-chief of the complainant, denial of cross-examination of a co-accused, failure to properly instruct the jury on the limited use of the complainant's prior consistent statements, and erroneous exclusion of video and photographic evidence under s. 278.92 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that while some procedural errors occurred, they did not result in a miscarriage of justice, and the trial judge's exclusion of the video and photographs was proper given their minimal probative value and significant prejudicial effect on the complainant's dignity and privacy.

The appellant appealed his sentence for child abduction contrary to a parenting order and disobeying a court order.

He argued the sentencing judge erred in applying the R. v. Proulx analysis for a conditional sentence, treated an essential element of the offence as an aggravating factor, failed to account for R. v. Duncan credit for onerous presentence custody conditions, and imposed a demonstrably unfit sentence.

The Court of Appeal dismissed the appeal, upholding the custodial sentence, finding no reversible error in the sentencing judge's approach to deterrence, denunciation, and the application of presentence credit principles, despite acknowledging a minor error regarding aggravating factors.

The Crown sought to admit similar fact evidence from a prior sexual assault allegation (F.J.) against the accused (J.R.) in his current trial for sexual assault (D.F-H.).

The defence argued the evidence was inadmissible due to issue estoppel, abuse of process, or failure to meet the orthodox test for similar fact evidence.

The court found that a prior stay of proceedings for delay (s. 11(b) Charter) on the F.J. charges did not constitute a determination on the merits, thus issue estoppel and abuse of process did not apply.

The court further found that the F.J. evidence met the test for admissibility as similar fact evidence, demonstrating sufficient similarities in context and method, and that any prejudice was minimized in a judge-alone trial.

The Crown's application was allowed.

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.

This is an appeal from convictions for firearm offences.

The appellants argued Charter breaches (s. 8, 9, 10(b)) and unreasonable verdicts based on misapprehension of evidence.

The Court of Appeal found no Charter breaches, disagreeing with the trial judge's s. 8 finding.

However, it allowed both conviction appeals, finding that the trial judge's conclusion regarding an "exchange of gunfire" was based on a fundamental misapprehension of evidence, and that the use of cellphone photographs to infer possession was improper due to lack of similarity and risk of propensity reasoning.

Ahmed's convictions were quashed and acquittals entered, while Yusuf's convictions were quashed and a new trial ordered.

The appellant, Yunlong Li, appealed his conviction for impaired driving causing bodily harm on two grounds: the trial judge's refusal to re-open the trial for a "bolus drinking" defence, and the failure to exclude breathalyzer samples obtained after his initial arrest but before his re-arrest for the more serious charge.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly exercised discretion in refusing to re-open the case, as the new evidence would not have altered the outcome and the bolus drinking defence was not made out.

The court also found no Charter violations regarding the appellant's right to counsel or the communication of jeopardy, noting his English comprehension and the police's subjective grounds for arrest.

The defendant, Ronald Baider, was charged with sexual assault against L.L., a security guard he supervised.

The incident involved a search for a lost work phone, during which L.L. alleged Baider touched her breasts and inner thighs.

The Crown proceeded summarily.

The court found that the touching, as described by an independent witness, was brief and not sexual in nature, thus not constituting sexual assault.

While the court found L.L. did not subjectively consent to the search, it also found that the Crown failed to prove beyond a reasonable doubt that Baider knew L.L. was not consenting, given the possibility she acquiesced by saying "ok".

Consequently, the charge was dismissed.