Margaret Bojanowska

The appellant pled guilty to defrauding her employer of over $210,000 through fraudulent schemes and forgeries over several years.

She appealed her sentence of two years less a day, arguing the sentencing judge erred by not imposing a conditional sentence.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's emphasis on the appellant's significant criminal record for similar offences and the need for specific and general deterrence, despite her guilty plea and full restitution.

The youth accused, charged with sexual assault, brought a motion for directions and a Stage 1 application under the Criminal Code to admit text messages exchanged with the complainant.

The court divided the messages into two groups.

Most of the first group were deemed not to be private records, with some exceptions.

For the second group, which were conceded to be private records, the court allowed some to proceed to a Stage 2 hearing for potential use in challenging credibility.

However, the court held that explicitly sexual messages failed the Stage 1 threshold, as they had no lawful purpose and their admission would cause severe prejudice and harm to the young complainant.

The court also declined to prohibit the Crown from using the non-record messages at trial.

The appellant pleaded guilty to numerous offences including break and enter, robbery, dangerous driving, and assault causing bodily harm, and received a global sentence of five years' incarceration pursuant to a joint submission.

On appeal, the appellant challenged only the lifetime driving prohibition imposed for the single count of dangerous driving, which the Crown conceded was not available under the Criminal Code.

The Court of Appeal allowed the sentence appeal in part, reducing the driving prohibition from life to the maximum available period of ten years and nine months, but declined the appellant's request for a work-related carve-out from the prohibition.

The appellant was convicted of sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault against his stepdaughter beginning when she was 15 years old, with violations occurring over approximately 20 months.

The trial judge relied heavily on an audio recording surreptitiously captured by the complainant in her bedroom on November 3, 2019.

The appellant appealed on grounds that the trial judge unfairly amplified the audio recording during deliberations, misapprehended its contents, misapprehended evidence relating to chronology of events, erred in assessing credibility of both the complainant and appellant, and misused a prior consistent statement.

The Court of Appeal dismissed all grounds of appeal, finding no trial fairness issues, no misapprehension of evidence, and no credibility errors.

The Court of Appeal for Ontario allowed the appeal of Kathleen Thur from convictions for obstructing justice and uttering a forged document.

The court admitted fresh expert evidence regarding the authorship of a disputed letter, finding that the new reports could reasonably be expected to have affected the verdict.

While the court set aside the conviction, it ordered a new trial rather than an acquittal, holding that the interests of justice required a retrial in light of the new evidence.

Mitchell Miskie was charged with sexual assault.

He relied on the defence of extreme intoxication akin to automatism, arguing that his consumption of alcohol, marijuana, cocaine, and Xanax rendered him an automaton with no willed control over his actions.

The defence presented expert psychiatric evidence supporting a blackout state.

The court, applying the principles from R. v. Brown and R. v. Sullivan, found that while the accused was significantly intoxicated and claimed no memory, his coherent speech and responsive actions during the assault, along with police observations post-arrest, indicated he was not in a state of automatism.

The court emphasized that a mere blackout or memory loss does not equate to involuntariness.

The defence of extreme intoxication was not made out, and the accused was found guilty.

The appellants appealed their convictions for second-degree murder and manslaughter/robbery, respectively, stemming from a fatal assault.

The Court of Appeal allowed the appeal for second-degree murder, ordering a new trial due to the improper admission and use of lay opinion evidence regarding the likelihood of death, and the trial judge's failure to conduct a voir dire or provide a limiting instruction.

The appeal for manslaughter was also allowed, and a new trial ordered, due to inadequate jury instructions on aiding and abetting.

The robbery conviction was upheld.

The court dismissed other grounds of appeal, including challenges to the pathologist's cross-examination limits and the delay argument under the Charter.

H.P. was found guilty of five sexual offences against his stepdaughter, with two counts conditionally stayed.

The Crown sought a six-year sentence, while the defence proposed a conditional sentence of two years less a day.

The court considered significant aggravating factors, including the profound impact on the victim, the breach of trust, and the protracted nature of the abuse.

Mitigating factors included the offender's lack of criminal record, pro-social life, and low risk of re-offending.

The court rejected a conditional sentence, emphasizing that such sentences are rarely appropriate for sexual violence against children, and imposed a sentence of four and a half years of incarceration.

Ancillary orders included a DNA order, a non-communication order, and a lifetime weapons prohibition.

The court granted an exemption from SOIRA registration due to the low risk of re-offending but imposed specific s. 161 prohibitions to protect children.

The appellant, Jerome Derby, appealed his global sentence for firearm-related offences, including discharge of a firearm with intent to endanger life and possession of a firearm while prohibited.

He argued that the trial judge erred by imposing a consecutive sentence for possession while prohibited, having already considered this as an aggravating factor, which constituted double counting.

The Court of Appeal agreed, finding that the approach was erroneous and constituted double counting, and therefore allowed the appeal in part.

The defendants, jointly charged with firearms offences, brought a Garofoli application to quash a search warrant and exclude seized firearms.

The court found that the Information to Obtain (ITO) lacked reasonable grounds to search the specific condominium unit where the firearms were found, thus quashing the warrant and finding a Section 8 Charter breach.

However, applying the Grant test, the court determined that admitting the evidence would not bring the administration of justice into disrepute, considering the seriousness of the offences, the police's good faith, and the reliability of the evidence.

The application to exclude the evidence was dismissed.

The accused was charged with sexual assault causing bodily harm and choking following a sexual encounter with the complainant.

The complainant alleged the accused violently grabbed, bit, and choked her without consent, while the accused maintained the encounter was consensual 'rough sex' and denied biting or choking her.

The court admitted expert evidence from a forensic pathologist who testified the complainant's injuries were inconsistent with bite marks.

Applying the W.(D.) framework, the court found the Crown failed to prove the charges beyond a reasonable doubt due to inconsistencies in the complainant's evidence and corroboration of the accused's account by the expert.

The appellants, Daye, Isaac, and Saunders, appealed their drug-related convictions.

Isaac also sought leave to appeal his sentence.

The Court of Appeal dismissed all appeals from conviction, finding no errors in the trial judge's rulings regarding Charter breaches (s. 10(b), s. 9, s. 11(b)), refusal to permit cross-examination of the affiant, or the issuance of search warrants.

The court also found Saunders' conviction for constructive possession reasonable.

However, Isaac was granted leave to appeal his sentence, and his six-year global sentence was reduced to four years, as the trial judge failed to adequately consider his de facto guilty plea.

Following a judge-alone criminal trial on a charge of sexual assault, the court found the accused guilty under s. 271 of the Criminal Code.

The central issue was the complainant’s credibility in the face of numerous inconsistencies concerning sequencing, details of the sexual acts, and post-incident reporting.

The court held those inconsistencies did not raise a reasonable doubt when assessed against the totality of the evidence, including forensic blood and ejaculate evidence, documented physical injuries, and evidence of the complainant’s post-offence demeanour.

The reasons expressly cautioned against impermissible stereotypical reasoning about how victims of sexual assault are expected to behave.

A publication ban under s. 486.4 applied.

The applicant, charged with sexual assault, brought an application for a stay of proceedings alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was 36 months, exceeding the 30-month presumptive ceiling.

The court deducted 7.5 months of delay caused by the exceptional circumstances of the COVID-19 pandemic and a subsequent technical issue at the preliminary inquiry.

The remaining delay of 28.5 months fell below the presumptive ceiling, and the applicant failed to establish that it was a clear case of unreasonable delay.

The application was dismissed.

The applicant, Joshua Isaac, sought bail pending appeal of his drug trafficking convictions.

His initial bail was revoked after he was charged with new firearms offences, allegedly committed while on bail.

The Crown opposed his re-release, arguing that his detention was necessary to maintain public confidence in the administration of justice.

The court, applying the principles from R. v. Oland, found that while the appeal grounds were not frivolous, they were not particularly strong.

Given the serious nature of the new charges, the alleged breach of prior bail conditions, and concerns about the effectiveness of the proposed supervision plan, the court concluded that re-release would diminish public confidence.

The application for bail pending appeal was denied.

The appellant physician appealed decisions of the Discipline Committee finding him guilty of professional misconduct and incompetence, refusing to re-open the hearing, and revoking his certificate of registration.

The appellant had failed to attend the discipline hearing, claiming a medical emergency, but the Committee proceeded in his absence and later dismissed his motion to re-open, finding his claims of illness lacked objective evidence and were part of a pattern of delay.

The Divisional Court dismissed the appeal, finding no errors in the Committee's decisions to deny adjournments, proceed in absentia, refuse to re-open the hearing, or impose revocation as a penalty for grossly inadequate clinical care and dishonest billing.

The appellant, Shawn Clyke, appealed his convictions for assault and assault causing bodily harm, arguing that the Crown's closing submissions at trial contained serious improprieties that rendered his trial unfair.

The Court of Appeal found that the Crown's closing submissions improperly invited the jury to engage in propensity reasoning, used inflammatory language to evoke sympathy for the complainant and revulsion for the accused, and attempted to bolster the complainant's credibility through unsupported theories and personal endorsement.

Despite the trial judge's corrective instructions, the cumulative effect of these improprieties was deemed to have prejudiced the appellant's right to a fair trial, particularly given the non-overwhelming nature of the Crown's case.

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

This addendum to an appeal decision addresses the Court of Appeal's inherent jurisdiction to permit publication of its reasons, which contain information subject to a statutory publication ban under s. 278.95 of the Criminal Code.

The court determined that despite the ban, and the trial judge not having lifted it, it possessed inherent jurisdiction to publish its reasons unredacted, provided the complainant's privacy (protected by a separate s. 486.4 ban) and the interests of justice were considered.

The court found that the complainant was comfortable with publication and that the development of jurisprudence on s. 276 applications would benefit.

The appellant, Matthew Moreira, sought leave to appeal his sentence for manslaughter and robbery.

The Court of Appeal for Ontario granted leave, finding that the sentencing judge erred in determining the factual basis for the manslaughter conviction and in assessing the appellant's degree of fault, and also materially misapprehended evidence regarding pre-sentence custody conditions (Duncan credit).

The Court set aside the 12-year manslaughter sentence, substituting a 10-year sentence, while upholding the 1-year consecutive sentence for robbery.

The total global sentence was reduced from 13 years to 11 years, resulting in a net sentence of 6 years and 5 months after pre-sentence custody credit.

The appellant was convicted of sexual assault, uttering a threat to cause death, and two counts of assault.

The appeal primarily concerned the trial judge's failure to instruct the jury on the permitted and prohibited uses of the complainant's prior consistent statements, which were introduced to rehabilitate her credibility after a defence attack.

The Court of Appeal found this omission, exacerbated by instructions given only on prior inconsistent statements, constituted a reversible error.

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

The court also affirmed the dismissal of a pre-trial third-party records application, finding the records were not "likely relevant."