Neville Golwalla

The appellant appealed his conviction and sentence for sexual assault with a weapon against his spouse.

The central issue at trial was the reliability of the complainant's memory, given she suffered a traumatic brain injury two months after the assault.

The trial judge relied heavily on the testimony of a treating psychologist, treating her assessment of the complainant's memory as expert evidence despite her not being qualified as an expert.

The Court of Appeal found this was an error, as the trial judge improperly gave the psychologist's lay opinion expert weight.

However, the Court applied the curative proviso, concluding the error did not cause a substantial wrong because ample other admissible evidence supported the trial judge's findings on the complainant's memory.

The conviction and sentence were upheld.

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching against a child complainant.

The appellant argued the trial judge erred in assessing the complainant's credibility, misapplied the W.(D.) framework, and relied on facts not in evidence.

The Court of Appeal found no reviewable errors, holding that the trial judge properly assessed credibility, did not shift the burden of proof, and grounded his findings in the evidence.

The appeal was dismissed.

The appellant appealed convictions for sexual interference, invitation to sexual touching, and making sexually explicit material available to a child, arguing that the trial judge's reasons were insufficient because they did not meaningfully address defence evidence from the appellant's mother.

The court held that appellate review of reasons is functional and contextual, and that the impugned defence evidence was largely hearsay and of limited probative value.

Even if accepted, that evidence could not materially support the defence theory or give rise to a reasonable doubt in light of the trial judge's credibility findings rejecting the appellant's account and accepting the complainant's evidence.

The appeal was dismissed.

The appellant, Fouad Barkouk, appealed his conviction for sexual assault arising from his conduct as a driving instructor.

The appeal was allowed due to a material misapprehension of evidence by the trial judge, specifically regarding whether the appellant admitted to touching the complainant’s leg.

The court found that this error was significant in the trial judge’s reasoning and remanded the matter for further proceedings.

This decision addresses whether the accused, Peter Nygard, put his character in issue during his evidence-in-chief in a multi-complainant sexual assault trial, and the resulting scope of permitted Crown cross-examination.

The court found that Nygard did put his character in issue by repeatedly asserting he was not the type of person to commit the offences charged.

The ruling details the careful limits placed on the Crown’s cross-examination to avoid undue prejudice, and provides a thorough analysis of the law regarding character evidence and rebuttal in criminal trials.

This addendum clarifies the status of a publication ban in a criminal proceeding.

The complainant, M.C., has confirmed they do not wish to rescind the publication ban protecting their identity.

The court reinstates the publication ban regarding M.C.'s identity and confirms that the publication ban for witness A.B. remains in effect.

This decision concerns an application to vary or revoke a publication ban under section 486.51 of the Criminal Code.

The complainant, M.C., requested that the publication ban regarding her identity be revoked, while a witness, A.B., wished the ban to remain in place for her own identity.

The court granted the application in part, rescinding the publication ban as it related to M.C. but maintaining it for A.B., emphasizing the legislative purpose of such bans and the statutory rights of witnesses.

Sentencing following jury convictions on four counts of sexual assault arising from historic assaults committed against multiple complainants in circumstances involving manipulation, isolation, and forced penetrative sexual acts.

The court found significant aggravating factors including violence, degradation, the offender’s use of wealth and status to gain access to victims, the prolonged period over which the offences occurred, and the age of one complainant as a statutory aggravating factor.

The court rejected the Crown’s submission that the offender occupied a position of trust, declined to order restitution because pecuniary losses were not readily ascertainable, and imposed a 20-year rather than lifetime SOIRA order due to the offender’s age and physical condition.

Applying proportionality, totality, Summers credit, and limited consideration of custody-related medical issues, the court imposed an 11-year global sentence with ancillary orders.

This ruling addresses the Crown's application to admit expert evidence from Dr. Lori Haskell on the neurobiology of trauma in a sexual assault trial against Peter Nygard.

The defence opposed the application, arguing the evidence was irrelevant, unnecessary, and that Dr. Haskell was not properly qualified.

The court applied the Mohan framework and a cost-benefit analysis, finding the evidence relevant to disabuse the jury of myths and stereotypes about victim behaviour, necessary to assist in credibility assessment, and that Dr. Haskell possessed the requisite expertise.

The application was allowed, permitting Dr. Haskell to testify for the limited purpose of explaining general responses to trauma.

This ruling addresses the Crown's application to adduce count-to-count similar fact evidence against Peter Nygard in his sexual assault trial.

The court granted the application, finding a significant degree of similarity in the alleged acts and circumstances, which demonstrated a specific propensity and connected to the issues of actus reus and complainant credibility.

The similarities included the use of a unique, hidden private space at 1 Niagara Street, Mr. Nygard's control over access, aggressive physical assaults, berating of complainants, and the use of his wealth and power to lure victims.

The court also addressed the defence's arguments regarding tainting and collusion, concluding that while an opportunity for inadvertent tainting existed due to media reports and shared therapy, there was no air of reality to actual collusion, and the issue of reliability was left to the jury.

Leon Wasser applied under s. 490.015 of the Criminal Code to terminate a 20-year Sex Offender Information Registration Act (SOIRA) order, which took effect in 2010 following his conviction for criminal harassment.

The court granted the application, finding that the impact of continuing the SOIRA order on the applicant's privacy and liberty was grossly disproportionate to the public interest in maintaining the registry, given his significant rehabilitation, lack of re-offending, and full record suspension.

The Crown applied to introduce similar fact evidence from a ninth complainant (S.R.) in a sexual assault and forcible confinement trial against Peter Nygard.

The court analyzed the probative value of S.R.'s evidence, considering similarities with the on-indictment complainants, potential for collusion, and credibility issues.

The judge found sufficient similarity and high probative value, concluding that the probative value outweighed the prejudicial effect, and allowed the Crown's application.

The accused, C.T., charged with sexual assault, brought a pre-trial motion for directions seeking a ruling that photos and videos in his possession, taken in close temporal proximity to the alleged assault, fall outside the protections of section 276 (evidence of other sexual activity) and section 278.91 (private records) of the Criminal Code.

The court ruled that the materials were exempt from sections 276 and 278.92-94, finding they did not constitute 'sexual activity' under section 276 or 'private records' under section 278.91, as they were integrally connected to the alleged assault and the complainant had no reasonable expectation of privacy in them.

The court also addressed the procedure for such motions, including complainant participation and disclosure to the Crown, and declined to issue an order restricting the Crown from discussing the motion's contents with the complainant.

The applicant sought an order of certiorari to quash his committal for trial on charges of aggravated assault and sexual assault.

The charges arose after the applicant engaged in consensual sex with a sex trade worker, then choked her to unconsciousness and robbed her.

The court dismissed the application regarding aggravated assault, finding that choking to unconsciousness provided some evidence of endangering life.

However, the court granted the application to quash the sexual assault committal, ruling that the preliminary inquiry judge committed a jurisdictional error by finding the subsequent robbery vitiated the complainant's consent to the preceding sexual activity.

The offender pleaded guilty to sexual interference against a child victim between 2008 and 2011, when the victim was eight to ten years old.

The offender was involved in an extra-marital affair with the victim's mother, who facilitated the abuse.

The court imposed a sentence of two years less-a-day in the reformatory followed by two years' probation, rejecting the Crown's submission for four years in the penitentiary.

The court found that while the offence was serious and caused significant harm, the offender was not a predator and did not systematically groom the victim.

Mitigating factors included the offender's guilty plea, lack of criminal record, remorse, low risk of reoffending, and excellent prospects for rehabilitation.

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.

The accused applied for bail pending his appeal of an impaired driving conviction.

He argued that his s. 10(b) Charter rights were violated when police defaulted to duty counsel instead of allowing him to contact his counsel of choice, and that the trial judge erred in treating his blood alcohol reading as an indicia of impairment.

The court found that the roadside indicia of impairment were obtained prior to the alleged Charter breach and lacked a sufficient temporal, contextual, or causal connection to be excluded under s. 24(2).

The court also rejected the argument regarding the trial judge's factual introduction.

Concluding that the appeal was frivolous, the court denied bail pending appeal.

The Crown appealed the respondent's acquittal on a charge of criminal harassment.

The trial judge had acquitted the respondent because he was not satisfied that the only reasonable inference from the circumstantial evidence was that the respondent was watching and besetting his ex-wife's house.

The Crown argued the trial judge erred by failing to identify what the other reasonable inferences were.

The Superior Court dismissed the appeal, holding that a trial judge is not required to identify specific alternative inferences to acquit, but only to determine whether the Crown has proven the actus reus beyond a reasonable doubt.

The appellant, Seyenthan Sivakumaran, appealed his conviction for sexual assault by the Ontario Court of Justice.

The appeal argued that the trial judge misapprehended various aspects of the evidence and engaged in speculation, leading to an erroneous rejection of the appellant's account and acceptance of the complainant's.

The appellate court reviewed the trial judge's eight reasons for credibility findings, including the improbability of the appellant's account, the complainant's injuries, and the rejection of the defence theory of "concoction." The court found no errors in the trial judge's reasoning, concluding that the findings were entitled to significant deference and were supported by the evidence.

The appeal against conviction was dismissed.

The applicant brought a certiorari application to quash her committal to trial on charges of robbery, forcible confinement, and aggravated assault arising from a home invasion.

She argued there was no evidence she aided or abetted the robbery, as she left the scene before it occurred.

The reviewing judge found that while there was no evidence she aided the robbery, her prior agreement to participate and her act of travelling to the scene provided some evidence upon which a jury could find she abetted the perpetrators.

The application to quash the committal was dismissed.