Luke Schwalm

The appellant appealed his conviction for sexual assault and sentence of 15 months' imprisonment plus one year probation.

The appellant argued that the trial judge erred in failing to account for his cognitive difficulties and memory problems when assessing his credibility, and that the judge used these difficulties against him.

The Court of Appeal rejected this submission, finding that the trial judge provided ample reasons for rejecting the appellant's testimony that were unrelated to his cognitive difficulties, including identifying patently untrue aspects of his evidence and noting collusion between the appellant and his mother.

The conviction appeal was dismissed.

The appellant did not identify any error in principle in the sentence, which the court found to be entirely fit.

Leave to appeal sentence was granted, but the sentence appeal was dismissed.

The appellant was convicted of two counts of sexual assault following a jury trial.

On appeal, the court considered whether the trial judge erred in admitting evidence of the appellant's failure to appear at his original trial date as post-offence conduct evidence, and whether the jury was properly instructed on the use of such evidence.

The majority found that the trial judge erred by refusing to allow the appellant to testify on the voir dire regarding his explanation for non-appearance, and by failing to properly instruct the jury on alternative explanations for the post-offence conduct.

The majority held that these errors undermined the fairness of the trial and ordered a new trial.

The dissent argued that the trial judge had sufficient information to make an informed decision on admissibility and that the jury instructions were adequate.

The appellant appealed his conviction and sentence from the Superior Court of Justice.

The Court of Appeal found that the trial Crown improperly invited the jury to use prior consistent statements of the complainant for the truth of their content in closing address.

The trial judge failed to correct this submission and provided no instructions to the jury on the limited use of prior consistent statements.

This error in law tainted the conviction, particularly as the evidence concerning one complainant was used as similar fact evidence in relation to another complainant.

Additionally, the trial judge failed to provide a meaningful review of the evidence at trial beyond a cursory review of similar fact evidence.

The appeal was allowed, convictions were set aside, and a new trial was ordered.

The appellant was convicted of sexually assaulting and sexually interfering with the complainant, his spouse's daughter, over a period when the complainant was between 9 and 11 years old.

The appellant appealed on two grounds: (1) the trial judge misapprehended his evidence regarding a January 2011 assault on the complainant's mother; and (2) the trial judge applied a higher standard of scrutiny to his evidence than to the complainant's.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the evidence or her credibility findings.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated September 19, 2017.

The appellant, found not criminally responsible on account of mental disorder in 2009, sought transfer from Waypoint Centre for Mental Health Care to a less secure facility.

Although the parties agreed a transfer was appropriate, the Board majority refused the transfer.

The appellant challenged the decision on grounds of procedural unfairness and failure to impose the least onerous and least restrictive disposition.

The Court of Appeal allowed the appeal and remitted the matter to the Board, finding that while procedural fairness was maintained and the Board's decision fell within the range of reasonable outcomes, the Board erred by failing to consider ordering an independent psychiatric assessment given the uncertainty surrounding the appellant's diagnosis.

The appellant appealed his conviction on one count of unlawful possession of a loaded prohibited firearm.

During a police raid on an apartment, officers found a gun that came loose from the appellant's hands as he fell to the ground after being tackled by a lead officer.

The appellant testified that he did not possess a gun, did not put his hands out when falling, and did not see a gun on the floor.

The trial judge rejected the appellant's evidence and accepted the officer's testimony.

On appeal, the appellant argued the trial judge failed to adequately scrutinize the officer's evidence regarding certainty versus reliability, stress effects on recollection, split-second observations, and potential reconstruction.

The Court of Appeal dismissed the appeal, finding the trial judge properly scrutinized the evidence and reached conclusions entitled to deference.

The appellant was charged with operating a motor vehicle without insurance contrary to the Compulsory Automobile Insurance Act.

He was convicted in absentia at trial and his conviction was affirmed on appeal to the Ontario Court of Justice.

On appeal to the Court of Appeal for Ontario, a statutory declaration from an insurance company employee established that the vehicle was covered by a valid policy of insurance at the time of the alleged offence.

The Crown conceded that the statutory declaration was admissible evidence and that it proved the appellant did not commit the offence.

The appeal was allowed, the conviction set aside, and an acquittal entered.

The appellant was convicted of impaired driving causing death and dangerous driving causing death after a head-on collision on Highway 17 that killed the other driver.

On appeal, the appellant challenged the admission of expert opinion evidence from a police accident reconstruction officer, arguing the evidence was tainted by bias and that the Crown failed to disclose draft reports.

The Court of Appeal upheld the conviction, finding that while there were concerns about the expert's independence, the trial judge properly circumscribed the scope of admissible evidence and that any disclosure violation did not impair the appellant's right to make full answer and defence.

The appellant appealed his conviction for sexual assault entered by the Ontario Court of Justice.

The appeal raised two grounds: first, that the trial judge erred in refusing to permit the defence to re-open its case after conviction to adduce evidence of an alleged recantation by a key Crown witness; and second, seeking leave to introduce fresh evidence consisting of a subsequent recantation by the witness and a 911 call that had not been disclosed prior to trial.

The Court of Appeal dismissed the appeal, finding that the trial judge did not err in refusing to re-open the defence case, that the proposed fresh evidence of recantation was inadmissible as hearsay and could not be used for impeachment purposes given the witness's death, and that while the 911 call should have been disclosed under Stinchcombe, the failure to disclose did not impair the appellant's right to make full answer and defence.

The appellant appealed his conviction for driving a motor vehicle while disqualified and his four-year sentence.

The sole issue on appeal concerned the trial judge's treatment of identification evidence.

The appellant argued that the trial judge failed to properly account for frailties in the identification evidence provided by Officer Snyder and erred in relying on corroborating evidence from a witness.

The Court of Appeal upheld both the conviction and sentence, finding that the identification circumstances were excellent and the corroborating evidence was properly used.

The appellant's extensive history of similar driving offences supported the fitness of the sentence imposed.

The appellant appealed his conviction for indecent assault, a historical sexual assault, on the ground that the verdict was unreasonable.

The appellant argued that the complainant's evidence regarding the timing of the assault was unreliable, as her memory was hazy and she could not pinpoint the exact date.

The indictment particularized the offence as occurring between January 1, 1977 and December 1, 1983.

The complainant testified the assault occurred when she was between seven and nine years old, but the offence of indecent assault was repealed on January 4, 1983.

The appellant contended that a reasonable trier of fact could not be satisfied beyond a reasonable doubt that the offence did not occur in the eleven-month period from January 1983 to December 1983, which would have rendered it a nullity.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's analysis and concluding the verdict was reasonable.

The appellant was convicted of first degree murder for driving a taxi from which a youth shot and killed the deceased.

The Crown's case relied on evidence from two witnesses: the front-seat passenger who testified that the appellant knew of the plan to kill the deceased, and the shooter himself who testified that the appellant had no knowledge of his plan.

The trial judge made numerous interventions during the shooter's testimony, expressing disparaging views about his credibility and reliability.

The trial judge also gave a Vetrovec instruction regarding the shooter's evidence, permitted re-examination of the passenger on prior consistent statements, and instructed the jury on the standard of proof.

The appellant appealed on five grounds.

The appellant appealed his conviction for attempt to obstruct justice, arguing that the trial judge erred in applying the standard of reasonable doubt and that the evidence did not support a finding of intent to obstruct justice.

The trial judge had found that the appellant drove a person to a remote property north of Parry Sound to familiarize him with the location so that a false confession to a marijuana cultivation charge would be credible.

The Court of Appeal upheld the conviction, finding that the trial judge's findings were reasonable on the evidence and that once the trial judge accepted the Crown's evidence regarding the trip to the property, it was open to conclude that the appellant had the requisite intent.

The appellant appealed his conviction for impaired driving causing bodily harm under section 255(2) of the Criminal Code.

The primary ground of appeal concerned the trial judge's admission of a prior inconsistent statement made by a defence witness for the truth of its contents.

The Court of Appeal found that while the trial judge erred in conducting an analysis regarding whether the statement could be used for its truth (a matter neither party had addressed), this did not constitute reversible error.

The trial judge had only used the statement for the proper purpose of assessing the witness's credibility and had not relied upon it for its truth in reaching the conviction.

The appeal was dismissed.

The appellant was convicted of one count of break and enter with intent to commit an indictable offence, two counts of break and enter and commit an indictable offence, and three counts of possession of break-in instruments, arising from three Subway restaurant break-ins in Sault Ste.

Marie over five days in July 2012.

The Crown relied on similar fact evidence to connect the appellant to all three incidents.

On appeal, the Court found that the trial judge erred in his use of the appellant's criminal record and made material misapprehensions of the evidence regarding DNA on a balaclava, the appellant's cast on his right arm, and glass particles on his clothing.

These errors were essential to the trial judge's reasoning process and undermined the fairness of the trial.

The appellant was convicted of assaulting his wife and appealed on several grounds, including ineffective assistance of counsel.

The court found that trial counsel's failure to cross-examine the complainant on pre-charge text messages, which could have negatively impacted her credibility, constituted ineffective assistance.

These messages contained no allegations of physical abuse, a claim of self-harm not supported by evidence, and expressed a desire to reconcile, contradicting her testimony of fear.

The court determined that this omission fell below the standard of competence and created a reasonable probability that the verdict would have been different, thus undermining the reliability of the conviction.

The Crown appealed the acquittal of the respondent on three fraud-related charges, where the critical issue at trial was identity.

The trial judge acquitted the respondent, finding reasonable doubt based primarily on a visual comparison of a Money Mart photo with the accused in court.

The Crown alleged the trial judge erred by failing to consider other material circumstantial evidence of identity, such as matching names, dates of birth, and addresses between the sworn Information and Money Mart records.

The appellate court found that the trial judge's failure to refer to this material circumstantial evidence constituted a misapprehension of evidence and rendered the reasons insufficient for effective appellate review.

Consequently, the appeal was allowed, and a new trial was ordered before a different judge.

The appellant appealed his convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80.

He argued that his statement to police and the officer's observations of the smell of alcohol were inadmissible under section 7 of the Charter, as he was statutorily compelled to report the accident under the Highway Traffic Act.

The Superior Court of Justice dismissed the appeal, finding that the officer's observations were not conscriptive evidence and that the appellant failed to establish an honest and reasonably held belief that he was required by law to make the statement.

The appellant appealed his convictions for sexual assault and breach of an undertaking, as well as a mandatory lifetime SOIRA order.

He argued the trial judge erred in admitting and relying on MSN messages to find consciousness of guilt and to reject his testimony.

The Superior Court dismissed the conviction appeal, finding the trial judge properly considered circumstantial evidence, including the content of the messages and the appellant's own testimony, to authenticate the electronic correspondence.

The court quashed the sentence appeal, concluding there is no statutory jurisdiction to appeal a mandatory SOIRA order made under section 490.012(1) of the Criminal Code.

The appellant appealed his global sentence of 20 months' imprisonment for mischief, causing a disturbance, and breach of probation.

The offences occurred when the appellant made loud, anti-Muslim comments on a subway train, intimidated passengers, and refused to disembark, causing significant transit delays.

The appellant argued the sentencing judge erred by imposing consecutive sentences without reasons and failing to consider the totality principle.

The Superior Court of Justice dismissed the appeal, finding that consecutive sentences were justified as the offences involved distinct legally protected interests.

Although the failure to expressly consider totality removed appellate deference, the court found the sentence was not demonstrably unfit given the appellant's extensive record, the hate-motivated nature of the offences, and the significant public disruption caused.