Marc E. Schiffer

The appellant sought leave to appeal his sexual assault conviction from the Summary Convictions Appeal Court.

He raised four issues: (1) admission of fresh expert evidence regarding the complainant's medical condition; (2) admission of the complainant's undisclosed criminal record; (3) admissibility of the complainant's videotaped hearsay statement under the Khelawon framework; and (4) whether a Charter s. 11(b) delay violation occurred.

The Court of Appeal dismissed all grounds of appeal, finding no error in the lower courts' decisions and holding that the Jordan framework did not apply retroactively to trials completed before its release.

The appellant appealed his sentence of 15 months plus two years' probation for sexual assault.

He argued that the sentencing judge applied the wrong sentencing range, contending that the appropriate range for intercourse with an unconscious complainant was 12 to 14 months to three years, rather than the 21 months to four years range for forced intercourse with a spouse.

The appellant submitted that a sentence of six to ten months was fit.

The Court of Appeal dismissed the appeal, finding that the sentencing judge properly applied the sentencing range and that the sentence imposed was fit in the circumstances.

The appellant appealed his convictions for sexual assault and sexual interference against a child complainant, arguing the verdict was unreasonable and the trial judge misapprehended the evidence due to inconsistencies in the child's testimony.

The Court of Appeal found no error in the trial judge's application of the common sense approach to child witnesses or her credibility findings.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and sexual interference against his stepson, as well as his designation as a dangerous offender.

The appellant argued the trial judge erred in her findings of guilt and in rejecting expert psychiatric evidence that suggested his risk could be managed in the community under a long-term offender designation.

The Court of Appeal dismissed the conviction appeal, finding the verdicts reasonable and supported by the evidence.

The sentence appeal was also dismissed, as the trial judge properly assessed the risk management evidence and was entitled to conclude that the community supervision plan, including the Circles of Support and Accountability program, lacked the necessary resources to safely manage the appellant's risk.

The appellant sought to admit fresh evidence on appeal regarding the arresting officer's misconduct and cocaine habit.

The Crown conceded that the fresh evidence met the Palmer test and could reasonably have affected the verdict by impacting the trial judge's assessment of the officer's credibility and motive.

The Court of Appeal admitted the fresh evidence, allowed the appeal, set aside the convictions, and ordered a new trial.

The appellant appealed his conviction on two charges of sexual assault against two young family members.

The appellant argued the trial judge did not properly deal with inconsistencies in the complainants' testimony and erred in relying on the evidence of a nurse practitioner regarding the causes of one complainant's sexually transmitted infection.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed credibility and that there was abundant evidence supporting the conviction.

The appellant, convicted of drug-related offences, brought a motion for production of records relating to pending criminal and disciplinary charges against the arresting officer.

The appellant sought these records to develop a fresh evidence application on appeal, arguing the officer had an ulterior motive for the arrest and challenging his credibility.

The Court of Appeal held that on a motion for production of third-party records on appeal, the applicant must first satisfy the Trotta relevancy threshold before the O'Connor test for privacy interests is engaged.

The Court found that certain records relating to the officer's alleged drug use and related misconduct met the threshold.

The Court ordered the Provincial Crown to disclose relevant portions of its criminal investigation records, finding they were not employment records subject to a reasonable expectation of privacy, but requested further submissions regarding records held by the Barrie Police Service.

The appellant appealed his convictions for robbery and aggravated assault, arguing that the trial judge erred in admitting his videotaped confession.

The Court of Appeal found that the trial judge failed to properly consider the voluntariness of the statement given the suspect nature of the unrecorded interrogations that preceded it.

Furthermore, the Court held that the appellant's s. 10(b) Charter rights were violated because police failed to provide him with access to a telephone after he requested to speak with a lawyer.

The statements were excluded under s. 24(2) of the Charter, the appeal was allowed, and an acquittal was entered.

The young person appealed their conviction and sentence.

The sentence appeal was abandoned.

On the conviction appeal, the appellant argued the trial judge erred in assessing identification evidence and the appellant's failure to testify.

The Court of Appeal found that while the trial judge's reasons were brief, it was open to him to accept the identification evidence, which included specific details about the assailant's glasses and braces.

The court also noted that while the trial judge could not use the appellant's failure to testify to make the Crown's case, he was nonetheless satisfied of guilt beyond a reasonable doubt.

The appeal was dismissed.

The appellant was convicted of importing cocaine after it was found in her luggage at Pearson Airport.

She appealed, arguing the trial judge made errors in the jury charge.

The Court of Appeal found two errors: the trial judge improperly instructed the jury that they could only draw inferences from evidence they accepted as fact, which shifted the burden of proof, and improperly instructed them that there was no evidence the cocaine was part of someone else's project, which undermined the core of the defence.

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

The appellant appealed his robbery conviction, arguing the trial judge erred in ruling his unrecorded confession to police was voluntary.

The Court of Appeal found that the trial judge failed to provide sufficient reasons for his credibility findings on the voir dire, particularly regarding the police officer's intent in entering the interview room and the appellant's claim of an inducement.

Applying the principles from Moore-MacFarlane and Sheppard, the Court held that the failure to analyze the conflicting evidence and explain the findings was an error of law.

The appeal was allowed and a new trial ordered.

The young person appealed his conviction and sentence for an offence related to a stolen van.

He argued that his acquittal for theft was inconsistent with his conviction for possession.

The Court of Appeal dismissed the conviction appeal, finding the trial judge erred in law by failing to consider joint enterprise for the theft, rather than making inconsistent findings of fact.

The sentence appeal was also dismissed, as the young person committed the offence while on probation, had a prior record, and committed a further offence while awaiting sentence, justifying secure custody.

The appellant appealed his convictions for break, enter and theft, and attempted break and enter, as well as his sentence.

The Court of Appeal found a reasonable basis for the convictions based on the evidence, including a telephone found at the scene.

However, the Crown conceded that the sentence imposed fell outside the appropriate range.

The appeal from conviction was dismissed, but leave to appeal the sentence was granted and the sentence was reduced to eighteen months concurrent on each count.