Martin Sabat

Derrick Harvey, an American citizen, appealed his 2011 guilty pleas for assault and failing to comply with a recognizance, which subsequently led to his permanent residence application being refused due to criminality.

He argued his plea was not informed as his trial counsel failed to advise him of the significant immigration consequences.

The Superior Court of Justice, on summary conviction appeal, found that Harvey's plea was not informed because he was unaware of the critical ramifications, specifically the distinction between border entry and criminal inadmissibility for permanent residence.

The court emphasized that a plea must be voluntary, unequivocal, and informed, including collateral consequences.

It was not necessary to find counsel ineffective.

The appeal was allowed, the guilty plea set aside, and a new trial ordered, with the decision to re-prosecute left to the Crown.

The Crown appealed acquittals for assault with intent to resist lawful arrest.

The trial judge found the arrest unlawful because the officer lacked objectively reasonable grounds to believe the respondent breached a bail condition by "attending" a prohibited location, considering only his walking past it.

The appellate court found the trial judge erred in law by limiting the circumstances considered for objective reasonableness, failing to include the respondent's prior drug trafficking arrest at the location, the nature of the location, and physical barriers.

The court also held that the respondent's flight, occurring after the decision to arrest but before its execution, was a relevant factor for objective grounds.

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

Following conviction for sexual assault, the Crown sought a dangerous offender designation and an indeterminate sentence.

The court held that the predicate offence was a serious personal injury offence and that the offender had demonstrated a failure to control sexual impulses, a pattern of repetitive and aggressive conduct, and a likelihood of causing future injury, pain, or other evil to women and children.

Relying heavily on forensic psychiatric evidence, extensive prior offending, deviant writings, and failed prior treatment and supervision, the court found the risk of violent and sexually violent recidivism to be unmanageable.

The court further concluded there was no reasonable possibility of eventual control in the community under the long-term offender regime, because any effective conditions would virtually replicate incarceration.

A dangerous offender designation was therefore made and an indeterminate sentence imposed.

The appellant, Martin Bartholomew, appealed his convictions for three counts of assault involving the inappropriate touching of a 13-year-old student.

The appeal raised three grounds: the trial judge's alleged failure to properly consider witness contamination by the complainant's mother, an error in admitting a witness statement as past recollection recorded, and the insufficiency of the trial judge's reasons regarding the complainant's credibility.

The court dismissed the appeal, finding that the trial judge adequately addressed the contamination issue, correctly applied the test for past recollection recorded, and provided sufficient reasons for the convictions.

The appellant appealed a common law peace bond order, arguing that it could only be made on consent, that the Crown failed to prove the complainant feared for their life, and that the peace bond hearing breached natural justice.

The court dismissed the appeal, clarifying that common law peace bonds do not require consent, the threshold is a "reasonably apprehended breach of the peace" and natural justice was observed as the appellant had notice, made submissions, and gave evidence, with the trial judge relying on evidence adduced at the prior criminal harassment trial.

The Crown appealed the acquittal of the respondent on charges of impaired care or control and over 80.

The respondent was involved in a single motor vehicle accident and was later arrested after registering a fail on an approved screening device.

The trial judge acquitted the respondent, finding that he had successfully rebutted the statutory presumption of care or control for the period between a tow truck's arrival and police arrival.

The Superior Court found that the trial judge erred by failing to apply the presumption of care or control under section 258(1)(a) of the Criminal Code to the entire relevant time period, specifically the period of driving leading up to the collision.

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

The appellant, Paul J. Lochner, appealed his conviction for assault and the conditional discharge and 18 months probation sentence.

The trial judge found the appellant guilty after a trial marked by significant disruptions from the appellant and his family.

The appellant argued the trial judge erred in credibility findings and by failing to provide adequate reasons.

The appeal judge dismissed the appeal, finding that the trial judge's credibility findings were supported by the record, and that the appellant could not complain about inadequate reasons given his and his family's disruptive behavior that forced the trial judge to cut short his ruling.

The court also rejected the appellant's motion for recusal and adjournment.

The appellant, Arafat Bakshi, appealed his conviction for sexual assault, arguing that the trial judge failed to provide adequate reasons and misapplied the principles from R. v. W.D. The Superior Court of Justice dismissed the appeal, finding that the trial judge provided detailed and careful reasons, correctly instructed herself on the reasonable doubt standard, and properly applied the W.D. principles by assessing the complainant's credibility and finding the appellant's evidence implausible.

The court emphasized the deference owed to trial judges in credibility assessments.

The appellant appealed two separate convictions resulting from guilty pleas to charges including uttering death threats, criminal harassment, and failing to comply with a recognizance.

He argued that his pleas were uninformed and involuntary due to ineffective assistance of counsel, specifically alleging a failure to advise him of the immigration consequences of his pleas and the elements of the offences.

The Superior Court of Justice dismissed the appeals, finding the appellant's testimony lacked credibility and that he failed to establish either incompetence by his former counsel or any resulting prejudice.

The accused applied for a bail review after being denied bail on nine firearm-related charges.

The accused argued there was a material change in circumstances based on a firearm property report indicating blank bullets were used, and a new proposed plan of supervision involving his common law spouse as a surety.

The court found that the report did not materially change the Crown's case and that the new supervision plan was deficient.

The court concluded there was a substantial likelihood the accused would re-offend and that his detention was necessary to maintain public confidence in the administration of justice.

The application was dismissed.

The appellant appealed his convictions for committing an indecent act and mischief, arguing the trial judge erred in treating the TTC employee's identification evidence as recognition rather than eyewitness identification.

The Superior Court of Justice dismissed the appeal, finding the trial judge properly cautioned herself on the frailties of eyewitness identification.

The court noted the witness had significant prior encounters with the appellant and that the identification was corroborated by circumstantial evidence found upon arrest.

The appellant appealed two sentences imposed by the Ontario Court of Justice, arguing that the sentencing judges should have imposed nominal fines to reduce the mandatory Victim Fine Surcharge (VFS).

In one case, the judge imposed a sentence of custody, probation, and a nominal fine, which the Crown conceded was an illegal sentence under s. 731(1) of the Criminal Code.

The Superior Court of Justice held that the use of nominal fines solely to circumvent the mandatory VFS is impermissible and distorts the sentencing process.

The appeal against the first sentence was allowed to the extent that the nominal fines were quashed, leaving the custody and probation intact.

The appeal against the second sentence, where the judge declined to impose a nominal fine, was dismissed.

The Crown appealed a sentence imposed on Mr. Waisanen for impaired driving.

Mr. Waisanen had initially received a conditional discharge and no driving prohibition, despite a conviction for impaired driving, due to a trial judge's finding of a Charter breach (arbitrary detention).

A previous appeal had overturned the stay of proceedings and clarified that the police conduct, while a Charter breach, was not egregious enough to warrant such a significant sentencing reduction.

This court found the conditional discharge and lack of driving prohibition to be an unfit sentence, emphasizing the paramount sentencing objectives of general and specific deterrence, especially given the high blood alcohol readings.

The appeal was allowed, and the sentence was varied to a fine and a mandatory driving prohibition.

The accused was convicted of failing to remain at the scene of an accident, manslaughter, and criminal negligence causing death after his vehicle struck a pedestrian.

The accident was not his fault, but he left the scene for 20-25 seconds, during which time the pedestrian was run over by a truck and killed.

The court stayed the manslaughter conviction under the Kienapple principle.

Considering the highly unusual mitigating circumstances and collateral immigration consequences, the court sentenced the accused to six months less a day imprisonment, followed by 18 months of probation.

The accused struck a 90-year-old pedestrian in a crosswalk while making a right turn on a red light.

The victim died from her injuries two days later.

The accused fled the scene after briefly stopping and observing the victim's severe injuries.

The court found that the accused's failure to stop before striking the pedestrian, despite having a clear view and sufficient time to react, constituted a marked departure from the standard of care of a reasonable driver.

The accused was found guilty of dangerous driving causing death and failing to remain at the scene of an accident.

The accused was charged with criminal harassment and breach of probation after leaving a series of unwanted, obsessive voicemails for the complainant at her workplace in 2012.

The accused and the complainant had no contact for 12 years following a previous criminal harassment charge and peace bond in 2001.

The court found that the accused's conduct constituted repeated communication that caused the complainant to reasonably fear for her safety.

The court also found the accused possessed the requisite mens rea of recklessness, as he subjectively appreciated the risk his conduct posed but persisted anyway.

The accused was found guilty of both charges.

The accused was charged with two counts of possession of child pornography arising from photographs and a three‑volume journal containing images and written commentary seized during search warrants.

The accused conceded possession but argued that some materials were not child pornography and that the journal fell within the judicially created private-use exception recognized in R. v. Sharpe.

The court held that several images clearly met the definition of child pornography under s. 163.1(1) of the Criminal Code and that significant portions of the journal advocated or counselled sexual activity with persons under eighteen.

The Sharpe private-use exception did not apply because the journal incorporated pornographic images sourced from outside materials rather than being created solely by the accused.

The court found the accused guilty on both counts.

The accused applied to sever a five-count indictment involving sexual assault, criminal harassment, breach of probation, and two child pornography possession charges.

Applying the balancing framework from R. v. Last, the court considered prejudice to the accused, factual nexus between counts, strategic decisions about testifying, and trial efficiency.

The court found that the historical sexual assault allegation, involving a different complainant and events more than a decade earlier, lacked a legal or factual nexus to the other charges and risked significant moral prejudice if tried together.

The remaining four charges arising from events in 2012 were also severed into two separate trials to preserve the accused’s ability to testify selectively.

The court ordered three separate trials, with the sexual assault charge to be heard by a different judge.

The court conducted a voir dire to determine whether Ms. Kathleen Hao, a conditionally accredited Tagalog interpreter, was qualified to provide interpretation assistance for the defendant's trial on charges of sexual assault and sexual interference.

The Crown sought to qualify Ms. Hao for simultaneous interpretation, alternatively for consecutive interpretation.

The defence opposed qualification on both grounds, arguing that her conditional accreditation status and occasional use of English words rendered her unqualified.

The court found Ms. Hao not qualified for simultaneous interpretation but qualified for consecutive interpretation, based on her passing score in consecutive interpretation on the MAG test, combined with her background, training, and courtroom experience.