Matthew R. Gourlay

The appellant, John McRae, appealed his conviction for second-degree murder and the life sentence with a 12-year parole ineligibility period for stabbing his son to death.

The appeal raised four grounds: the trial judge's failure to instruct the jury on provocation, errors in the Scopelliti and Corbett rulings regarding character evidence, an erroneous hearsay caution, and an excessive parole ineligibility period.

The Court of Appeal dismissed all grounds, finding no air of reality to the provocation defence, no significant prejudice from the character evidence rulings, the hearsay caution was not undermining, and the sentence was fit, including the application of the position of trust aggravating factor.

The appellant appealed convictions for assault, sexual assault, and uttering threats, and the custodial sentence.

The appeal against conviction argued the trial judge erred in applying R. v. W.(D.) by failing to find a reasonable doubt due to alleged inconsistencies in the complainant's evidence regarding the timing of disclosure to her brother.

The appeal against sentence argued it was excessive and that enhanced credit for COVID-19 conditions was warranted.

The Court of Appeal dismissed both appeals, finding no material inconsistency in the evidence and no error in the trial judge's W.(D.) analysis or the fitness of the sentence.

A young person convicted of sexual assault appealed on the basis that the verdict was unreasonable, arguing the trial judge illogically accepted selective parts of the accused's evidence while rejecting others due to intoxication.

The majority held the verdict was reasonable, finding the trial judge provided sound reasons for accepting some portions of the accused's evidence while rejecting others.

The appellant also challenged the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which denies young persons the automatic appeal rights available to adults under s. 691 of the Criminal Code.

The majority upheld s. 37(10) as consistent with ss. 7 and 15 of the Charter, while Abella J. (with Karakatsanis and Martin JJ.) found it to be an unjustified breach of s. 15.

The appeal was dismissed, with Côté J. dissenting on the reasonableness of the verdict and declining to address the constitutional questions as moot.

The respondent, a Traditional Chinese Medicine practitioner, was acquitted of sexually assaulting three clients.

The Crown appealed, arguing the trial judge erred in assessing the relevance and probative value of a complainant's evidence regarding a phone call with the respondent, and in her similar fact evidence ruling.

The Court of Appeal dismissed the appeal, finding that the trial judge's determination on the reliability of the complainant's evidence was a finding of fact, not an error of law, and therefore not appealable.

The appellant appealed convictions for attempted murder, assault of a police officer with intent to resist arrest, and firearm offences.

The Court of Appeal allowed the appeals for attempted murder and assault police, finding the trial judge erred in inferring specific intent for attempted murder given the circumstances (distance, lack of motive, possibility of unintended target) and erred in convicting for assault police based on recklessness rather than specific intent.

The firearm convictions were upheld.

The aggravated assault charge, previously stayed, was remitted to the trial judge for conviction and sentencing.

The applicant father sought to re-open an already decided appeal based on new text message evidence from the respondent mother, which he argued undermined her previous narrative regarding their child's residency in Dubai.

The Court of Appeal for Ontario dismissed the application, reiterating that re-opening an appeal is a rare event reserved for cases of "very serious injustice." The court found the new evidence irrelevant to its original decision, which focused on the need to respect a U.K. Consent Custody Order and for the father to pursue the matter in the U.K. first, rather than making credibility findings.

Costs were awarded against the father.

The appellant, Brandon Morgan, appealed his sentence for aggravated assault and failing to comply with court orders, seeking a reduction due to the impact of the COVID-19 pandemic on his incarceration conditions.

The Court of Appeal for Ontario dismissed the appeal, finding that while judicial notice could be taken of the pandemic's general impact, the requested sentence reduction would render the sentence disproportionate to the gravity of the offence and the offender's blameworthiness, even considering collateral consequences.

The court noted that the original sentence was already lenient and that parole authorities could consider the pandemic's impact.

The father brought an application under s. 40 of the Children's Law Reform Act (CLRA) seeking the return of their child to Dubai, claiming wrongful retention in Ontario.

The application judge ordered the child's return to Dubai, erroneously applying the Hague Convention framework despite the UAE not being a signatory.

The Court of Appeal found this was an error, as s. 40 CLRA is distinct from the Hague Convention, particularly regarding the concept of "habitual residence" and the court's broad discretionary powers.

The appeal was allowed, the lower order set aside, and the father's application stayed on condition he commence proceedings in the UK, where a prior consent custody order existed.

The appellant, Abdulaziz Al-Enzi, appealed his conviction for aggravated assault and his 30-month sentence, which arose from a jailhouse altercation.

The appeal challenged the trial judge's decision to proactively invite submissions and grant a defence motion to reopen the case after noticing discrepancies in video evidence during judgment preparation.

The Court of Appeal dismissed both the conviction and sentence appeals.

The court affirmed the trial judge's judicial exercise of discretion in reopening the trial, finding it was done in the interest of fairness and consistent with the Hayward test.

The court also found the sentence fit, citing serious aggravating factors including the assault's occurrence in a correctional facility, the use of a concealed weapon, and the complainant's permanent injuries.

The appellant appealed his convictions for two counts of uttering a threat to a police officer and one count of possession of a weapon for a dangerous purpose, as well as a sentence term of probation that included banishment from the City of London.

The conviction appeal argued the trial judge erred by finding no air of reality to the self-defence claim and by applying a "totally objective" test.

The Court of Appeal found that, reading the trial judge's reasons as a whole, she had considered the appellant's subjective circumstances (history with police, psychological fear) and correctly determined there was no air of reality to the self-defence under s. 34(1) or s. 34(3) of the Criminal Code.

The sentence appeal, specifically regarding the banishment term, was also dismissed as it was part of a joint submission.

The appellant appealed his conviction for importing and possession for the purpose of trafficking cocaine following his third trial.

The appeal raised three grounds: (1) whether the trial judge erred in treating a pre-trial agreement regarding the admission of trucking logs as governed by section 655 of the Criminal Code; (2) whether the trial judge erred in admitting an out-of-court statement by Mr. Jackson; and (3) whether the trial judge erred in refusing to provide a Bosley credit in sentencing.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's decisions.

The appellant appealed both his conviction and sentence imposed by the Ontario Court of Justice.

The appellant abandoned his conviction appeal.

On the sentence appeal, the Court of Appeal found that while the sentencing judge correctly identified the appropriate range as four to six years, the imposition of a six-year sentence at the absolute top of the range was too harsh.

Considering significant mitigating factors including a history of sexual assault trauma and the appellant's limited prior criminal record, the court reduced the sentence to five years and set aside the victim surcharge.

The appellant appealed his conviction for sexual assault following a six-day trial.

He raised two grounds of appeal: first, that the trial judge improperly relied on the complainant's absence of motive to lie in assessing her credibility; and second, that the trial judge impermissibly allowed a speculative theory that the complainant had been drugged with GHB into the trial.

The Court of Appeal dismissed both grounds, finding that the trial judge's analysis of the absence of motive was consistent with established precedent and that the GHB issue, while arising from defence counsel's error, did not compromise trial fairness or affect the conviction, which was based on the complainant's credibility and corroborating evidence.

A violin teacher was acquitted at trial of 44 counts of sexual offences, including sexual assault, indecent assault, sexual interference, and sexual exploitation, arising from his conduct of requiring young female students to remove their bras and measuring their breasts under the guise of fitting shoulder rests for violins.

The trial judge found the touching was not for a sexual purpose and acquitted on all counts.

The Crown appealed, arguing the trial judge erred in law by conflating the requirement of sexual purpose (applicable only to sexual interference and sexual exploitation) with the requirement that conduct occur in circumstances of a sexual nature (applicable to sexual assault and indecent assault).

The appellate court allowed the appeal in part, setting aside the acquittals on sexual assault and indecent assault charges and entering convictions, while upholding the acquittals on sexual interference and sexual exploitation charges.

The appellant, Ashwin Senthamilselvan, appealed his convictions for two counts of sexual assault and his sentence, which arose from incidents at a "haunted house" event.

The trial judge had found him guilty, relying in part on adverse inferences drawn from the appellant's failure to apologize to one complainant and his failure to question family members about the second alleged assault.

The Superior Court of Justice allowed the appeal, finding that the trial judge erred by impermissibly relying on assumptions and generalizations about how an innocent person would behave.

Such reasoning, particularly when based on misapprehensions of evidence, was deemed unsound and unsafe.

The court emphasized the need for caution in applying "common sense" to unusual or stressful circumstances and in drawing inferences from an accused's post-allegation conduct or silence.

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

Two appellants were convicted of sexual assault and related offences following a trial in the Ontario Court of Justice.

The appellants appealed their convictions on two grounds: (1) the trial judge erred in finding that text messages and photographs had not been properly authenticated and thus had no probative value, and (2) the trial judge misapprehended evidence relating to photographs upon which one complainant was cross-examined.

The appellants sought to adduce fresh evidence from a computer forensic examiner regarding the authenticity and integrity of the electronic documents and from trial counsel regarding due diligence.

The Court of Appeal allowed the appeal, finding that the trial judge applied an overly stringent authentication standard, misapprehended material evidence, and that the fresh evidence satisfied the conditions for admission on appeal.

A new trial was ordered.

The appellant appealed the sentence imposed by the Ontario Court of Justice, specifically challenging the duration of a driving prohibition.

On consent and limited to the issue of the driving prohibition duration, the Court of Appeal reduced the prohibition from a lifetime ban to one expiring on May 20, 2022, pursuant to section 259(1) and (2) of the Criminal Code.

The appellant appealed his convictions on two counts of assault using a weapon and one count of assault causing bodily harm arising from an altercation at a pizza store.

The trial judge found the appellant used a screwdriver to assault the store owner and employee, and rejected his self-defence claim.

The Court of Appeal allowed the appeal, finding that the trial judge's excessive interventions during the appellant's testimony undermined the appearance of fairness and resulted in actual unfairness.

The trial judge's pointed cross-examination of the appellant, belittling comments to defence counsel, and persistent challenging of the appellant's account prevented him from presenting his version of events.

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

The appellant was convicted of voyeurism under s. 162(1)(b) of the Criminal Code for taking still photographs from a live video stream during intimate video chats with the complainant without her knowledge or consent.

The appellant appealed, arguing that the complainant could not have had a reasonable expectation of privacy since she willingly appeared nude on camera, and that he did not act "surreptitiously" because the complainant never explicitly objected to screenshots being taken.

The Court of Appeal dismissed the appeal, holding that the complainant had a reasonable expectation of privacy in the circumstances and that the appellant acted surreptitiously with the intent that the complainant remain unaware of the recording.

The appellant was convicted of sexual assault under s. 271 of the Criminal Code for acts committed over five months and sentenced to three years' imprisonment.

He appealed on the basis of ineffective assistance of trial counsel.

Trial counsel had presented telephone records purporting to show over 900 calls between the appellant and the complainant to support a defence of consensual contact, but failed to authenticate the records as required by law.

The trial judge disregarded the unauthenticated records, found the complainant credible, and convicted the appellant.

The Court of Appeal found that trial counsel's failure to address authentication fell below the standard of reasonable competence and prejudiced the appellant in a manner that might have impacted the verdict.

The court admitted fresh evidence, allowed the appeal, set aside the conviction, and ordered a new trial.