Mark Luimes

The Court of Appeal for Ontario dismissed Aleksandr Shaporov’s conviction and sentence appeals for possessing and accessing child pornography.

The court addressed arguments regarding delay under section 11(b) of the Charter, the sufficiency and candour of the search warrant ITO under section 8, and alleged errors in the trial judge’s handling of the burden of proof and evidence.

The court found that, even after correcting for double-counted and misattributed periods of delay, the case’s complexity justified the time taken.

The trial judge’s findings on the ITO’s sufficiency and candour were upheld, as were his credibility findings and sentencing approach.

The applicant, convicted of four counts of sexual interference against young step-grandchildren and sentenced to 6 years 3 months, sought bail pending appeal.

The Court of Appeal assessed the three conditions for release under s. 679(3) of the Criminal Code: whether the appeal was frivolous, the likelihood of surrender, and public interest.

While the appeal grounds regarding jury instructions on accused's bias and complainant collusion were deemed "not frivolous," they were considered weak.

Despite the applicant's prior compliance with release conditions, the court found that given the serious nature of the sexual offences and the weak appeal grounds, releasing the applicant would undermine public confidence in the administration of justice.

The application for bail pending appeal was dismissed.

The appellant, convicted of sexual assault and sexual interference against a child, applied for bail pending appeal.

The Court of Appeal for Ontario dismissed the application, finding that while the appeal was not frivolous, the appellant failed to demonstrate that his detention was not necessary in the public interest.

The court weighed the high enforceability interest due to the seriousness of the crime against the weak reviewability interest, concluding that a reasonable member of the public would lose confidence in the administration of justice if the appellant were released.

The appeal was ordered to be expedited.

The appellant appealed his convictions and sentence, arguing his guilty plea was uninformed due to a lack of awareness of potential immigration consequences.

The Court of Appeal dismissed the appeal against conviction, finding it unbelievable that the appellant, given his prior immigration history, was unaware of the potential consequences.

However, the court allowed the appeal against sentence, varying it to reflect the joint submission that had been made at the time of the guilty plea.

The appellant, found not criminally responsible on account of mental disorder in 2003, appealed the Ontario Review Board's disposition that continued his detention at a forensic psychiatric hospital.

He sought an absolute or conditional discharge, arguing the Board failed to apply the "significant threat" test and consider all relevant factors for a necessary and appropriate disposition.

The Court of Appeal dismissed the appeal, finding the Board properly applied the "significant threat" test and reasonably concluded that a detention order was required given the appellant's ongoing mental illness, lack of insight, and risk of aggression, despite some progress.

The appellant, a 13-year-old, appealed his conviction for sexually assaulting his seven-year-old half-sister.

The appeal raised two grounds: insufficient trial judge reasons and an unreasonable verdict.

The Court of Appeal found the trial judge's reasons, though brief, were sufficient, adequately explaining her decision and addressing the victim's limitations and the defence arguments.

The court also found the verdict was not unreasonable, applying the high threshold for unreasonableness.

The appeal was dismissed.

The applicant sought leave to appeal a summary conviction for operating a motor vehicle while exceeding 80 mg of alcohol in 100 mL of blood.

The trial judge found Charter breaches (ss. 8, 9, 10(a)) but admitted breath sample evidence under s. 24(2) of the Charter, leading to a conviction.

The Summary Conviction Appeal (SCA) judge upheld the conviction.

The applicant argued errors in admitting uncorroborated police evidence, relying on a defective breath certificate, and admitting evidence despite Charter breaches.

The Court of Appeal denied leave to appeal, finding no legal error by the SCA judge and no issue of broader legal significance, affirming that corroboration of police testimony by an Approved Screening Device is not required and that the breath certificate met statutory requirements.

The appellant, S.R., appealed convictions for sexual assault, touching for a sexual purpose, and invitation to touching for a sexual purpose.

The appeal focused on the trial judge's assessment of the appellant's credibility, specifically alleging material misapprehensions of evidence and a failure to properly assess the evidence of another witness (the complainant's father).

The Court of Appeal found that the trial judge's misapprehensions of the appellant's evidence were substantial and central to the credibility assessment, leading to a miscarriage of justice.

The court also noted an error in failing to assess the credibility of the complainant's father's evidence, which contradicted the complainant's testimony in some respects and supported the appellant's.

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

The appellant, found not criminally responsible by reason of mental disorder, appealed the Ontario Review Board's decision to continue a conditional discharge.

The appellant argued that the Board's conclusion that he remained a significant threat to public safety lacked evidentiary support, particularly concerning the link between substance use and mental decompensation or medication non-compliance.

The Court of Appeal found that the Board's decision was reasonable and supported by the expert opinion of the appellant's treatment team, which was based on years of experience.

The appeal was dismissed.

The appellant appealed her conviction for dangerous driving.

The Crown conceded that the trial judge relied on inadmissible hearsay to find that the appellant was the driver of the tractor trailer involved in the collision.

As there was no other admissible evidence tying the appellant to the accident, the Court of Appeal allowed the appeal and entered an acquittal.

The appellant, found not criminally responsible, appealed the Ontario Review Board's decision to impose a detention order instead of a conditional discharge, arguing procedural unfairness due to lack of notice regarding the rejection of a joint submission.

The Court of Appeal found that a joint submission for conditional discharge did exist, despite the Crown's initial reservation and a dispute over a cannabis condition.

However, the court determined that the Board members' probing questions during the hearing provided adequate, albeit not ideal, notice that the joint submission was in peril.

Fresh evidence of the appellant's subsequent readmissions to hospital further supported the reasonableness of the detention order.

The appeal was dismissed.

The appellant appealed his sentence for robbery, specifically challenging the calculation of presentence custody and credit for restrictive bail terms (Downes credit).

The parties jointly agreed that the sentencing judge was misinformed about the actual time spent in presentence custody and on restrictive bail conditions, leading to an incorrect credit calculation.

The Court of Appeal granted an additional 37 days of credit to remedy the error.

The appellant pleaded guilty to multiple offences including assault, dangerous driving, and driving while disqualified.

At sentencing, the trial judge imposed a global sentence of three years' incarceration, agreeing with the Crown's position that the sentence should be in addition to 63 days of pre-sentence custody.

The appellant appealed, arguing the sentencing judge erred by not crediting the pre-sentence custody.

The Court of Appeal dismissed the appeal, finding that the reduced three-year sentence already accounted for the guilty plea, the COVID-19 pandemic, and the pre-sentence custody.