Michael Bartlett

An appeal concerning a non-publication order imposed under section 517 of the Criminal Code at a bail hearing.

The Court of Appeal for Ontario issued reasons for decision regarding the applicability and scope of the publication ban, which restricts the publication, broadcast, or transmission of evidence, information, representations, and reasons given at the bail hearing.

The Court of Appeal for Ontario allowed the appeal of Varinder Singh, who had been convicted after a jury trial of obtaining sexual services for consideration.

The court found that the trial judge erred by directing a verdict of guilt on a lesser included offence, rather than leaving the verdict to the jury.

The court held that, even where the evidence is overwhelming, an accused is entitled to the jury’s verdict.

A new trial was ordered on the included offence.

The appellant, Jason Windebank, appealed his designation as a Dangerous Offender and the imposition of an indeterminate sentence following convictions for violent offences against his domestic partner.

The Court of Appeal for Ontario dismissed the appeal, finding that the sentencing judge’s errors were immaterial, that Gladue principles were sufficiently considered, and that the judge properly exercised her discretion in imposing an indeterminate sentence.

The Court of Appeal for Ontario allowed the Crown’s appeal from a sentencing decision that declined to impose a SOIRA order on the respondent, who had pled guilty to sexual interference with a 15-year-old.

The appellate court found that the sentencing judge erred in principle by failing to apply the statutory presumption in favour of a SOIRA order and by not properly considering all relevant factors under s. 490.012(4) of the Criminal Code.

The court set aside the exemption and imposed the SOIRA order.

The appellant was convicted of sexual assault following a home invasion at a university residence and sentenced to nine years' imprisonment.

On appeal, he argued the trial judge erred in jury selection, misdirected the jury on reasonable doubt, and that the verdict was unreasonable.

He also appealed his sentence, arguing the trial judge misapprehended an expert opinion on his likelihood of re-offending.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's jury screening or instructions, and upheld the sentence as eminently fit given the gravity of the offence and the appellant's extensive criminal record.

The appellant was convicted of manslaughter for acting as the getaway driver in a premeditated murder-for-hire plot.

He was sentenced to nine and a half years' imprisonment.

On appeal, he argued the sentencing judge erred in finding he was aware the shooter had a gun and that the sentence was unfit.

The Court of Appeal dismissed the appeal, finding the sentencing judge's factual conclusions were supported by the evidence and consistent with the jury's verdict.

The sentence was held to be fit given the appellant's significant moral culpability and the premeditated nature of the offence.

D.S. appealed convictions for unlawful confinement and sexual assault, and sought leave to appeal the sentence of 15 months custody followed by 12 months probation.

The appellant argued the trial judge misapprehended or misapplied evidence of text messages regarding consent and erred in sentencing by not adequately considering the lack of a criminal record and principles of restraint/rehabilitation.

The court dismissed both the conviction and sentence appeals, finding the trial judge properly used the text messages as circumstantial evidence of the complainant's pre-existing attitude and that the sentence was fit, with no reversible errors in its imposition.

The accused, Kenny Raposo, pleaded guilty to 17 criminal offences, including 10 counts of break and enter, breaches of release conditions, possession of break-in tools, obstructing justice, mischief, and theft, committed over five months, primarily motivated by a crack cocaine addiction.

The offences targeted small businesses and community hubs, causing financial loss and property damage.

The Crown and Defence presented a joint submission for an 18-month conditional sentence (adjusted to 16 months due to additional pre-sentence custody), a 3-year probation order, restitution, and a DNA order.

The court accepted the joint submission, finding it consistent with sentencing principles and not contrary to the public interest, balancing the aggravating factors of a lengthy criminal record and crime spree with significant mitigating factors, including a guilty plea, remorse, substantial rehabilitative efforts in custody, and strong family support.

The Crown appealed the acquittal of the respondent on charges including sexual exploitation and sexual assault.

The appeal argued that the trial judge erred by relying on stereotypical reasoning in assessing the complainant's credibility and by overemphasizing peripheral inconsistencies in the context of childhood abuse.

The Court of Appeal found that the trial judge's repeated focus on why the complainant continued to engage with the respondent, despite knowing the risk of assault, constituted stereotypical reasoning, which is an error of law.

This error was deemed to have materially affected the verdict, as the trial judge's assessment of the respondent's credibility was inextricably linked to her flawed assessment of the complainant's credibility.

The appeal was allowed, and a new trial ordered.

The appellant sought leave to appeal his sentence of seven years imprisonment for possession of cocaine for the purpose of trafficking and possession of proceeds of crime, which was consecutive to a prior four-year sentence for similar offences.

The appellant argued the sentencing judge failed to apply the totality principle, resulting in an unfit total sentence of eleven years.

The Court of Appeal found that the sentencing judge did consider the totality principle and that the combined sentences were fit, emphasizing denunciation and deterrence given the quantity of drugs, commercial gain, and the commission of new offences while on release.

The accused, Y.Y., was convicted by a jury of assault and sexual exploitation against his daughter.

A sexual assault conviction was stayed under the Kienapple principle.

The assault, occurring when the complainant was 14, involved a prolonged physical attack including choking.

The sexual exploitation, when the complainant was 16, involved non-penetrative sexual touching.

The court considered aggravating factors such as breach of trust, the victim's age, and the profound psychological impact, including suicidal ideation and family ostracization.

Mitigating factors included no prior criminal record, stable employment, and low risk of reoffending.

Emphasizing denunciation and deterrence as per R. v. Friesen, the court imposed a total sentence of two years and six months imprisonment: two years for sexual exploitation and six months consecutive for assault.

Ancillary orders included DNA, weapons prohibition, non-communication, and SOIRA registration.

A s. 161 order was not available as the complainant was 16 at the time of the sexual offence.

The applicant, facing a sexual assault trial, brought a renewed application for a stay of proceedings under s. 11(b) of the Charter after his first trial ended in a mistrial due to late Crown disclosure.

The court found the mistrial was caused by police negligence in failing to disclose two potential witnesses.

After apportioning some delay to the defence for failing to hold open a proposed trial date, the net delay was calculated at 30 months and 16 days, exceeding the 30-month presumptive ceiling.

Finding no exceptional circumstances, the court ordered a stay of proceedings.

The applicant, Teshome Daste Adane, sought a stay of proceedings for unreasonable delay under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, arguing the total delay of 45 months exceeded the 30-month presumptive ceiling for Superior Court proceedings established in R. v. Jordan.

The court analyzed the timeline, attributing significant portions of the delay to both the Crown (for disclosure delays) and the defence (for not diligently pursuing a Judicial Pre-trial and not choosing the earliest trial date due to a planned trip).

After subtracting periods attributable to defence conduct and exceptional circumstances (delay in arrest due to the applicant being abroad, and the COVID-19 pandemic), the net delay fell below the 30-month ceiling.

The application for a stay of proceedings was dismissed, as the court found no basis to exercise its residual discretion.

The appellant, William Savage, appealed his conviction for first-degree murder.

The appeal raised several grounds, including issues with oath-helping evidence, the sufficiency of cautionary instructions regarding a key witness's reliability, the use of ante-mortem statements, instructions on post-offence conduct, alleged misstatements by Crown counsel in closing arguments, the W.(D.) instruction, and the trial judge's decision to instruct the jury on included offences (second-degree murder and manslaughter).

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's instructions or the Crown's conduct that would warrant a new trial.

The four applicant defendants, charged with multiple residential break and enters, brought pre-trial Charter applications alleging violations of their rights under ss. 8, 9, 10(a), and 10(b).

They challenged the lawfulness of their arrests, the subsequent searches, the promptness and language of their arrest notifications, and the implementation of their right to counsel.

One applicant also alleged a s. 8 breach regarding video surveillance in his holding cell.

The Superior Court of Justice dismissed the applications, finding that police had reasonable grounds for the arrests and that the searches were lawful.

While the court found a s. 10(b) implementation breach for two applicants due to unexplained delays in contacting counsel, it declined to exclude the seized clothing under s. 24(2) of the Charter.