Neville Golwalla

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.

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.

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.

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 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 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 appellant, a health care professional, appealed his conviction for two counts of sexual assault.

The Crown cross-appealed against the lenient three-month jail sentence.

The appellant argued unreasonable verdict, misapprehension of evidence, and unfairness due to improper re-examination of the complainant.

The court dismissed all grounds of appeal, finding the trial judge's assessment of credibility reasonable, no misapprehension of evidence, and proper re-examination procedures.

The court also dismissed the Crown's cross-appeal against sentence, noting the Crown was not seeking re-incarceration and the sentence, while lenient, was not a reversible error in the circumstances.

The Crown brought a motion under s. 714.1 of the Criminal Code to permit three complainants (RF, GR, and RG) to testify by video link in a sexual abuse trial.

The accused, William Robert Metcalfe, consented to RF testifying by video link but opposed for GR and RG.

The court granted the application for RF and RG, but dismissed it for GR.

For GR, the court found that his willingness to travel and the relatively low cost did not justify video testimony.

For RG, the court balanced factors including his reluctance to attend, fear of job loss, and the limited value of in-person demeanour assessment, concluding that video link was appropriate to ensure the truth-seeking function of the trial without negatively impacting the accused's right to a fair trial.

The Crown appealed a conditional discharge sentence imposed on the respondent for assault and sexual assault of a minor.

The Superior Court found the original sentence manifestly unfit, emphasizing that denunciation and general deterrence are primary considerations for serious crimes involving the abuse of a person under 18, as per ss. 718.01 and 718.1 of the Criminal Code.

The sentencing judge erred by overemphasizing rehabilitation, failing to adequately consider aggravating factors, and not explaining why a conditional discharge was not contrary to the public interest.

The appeal was allowed, and a four-month custodial sentence was substituted.

The appellant, Jose Manuel Lopes-Cabral, appealed his impaired driving conviction, arguing the trial judge erred in dismissing his application to stay charges for unreasonable delay under *R. v. Jordan*.

The appellant contended the 18-month presumptive ceiling was breached, or alternatively, that the delay was unreasonable even if below the ceiling.

The court found the total delay did not exceed 18 months, placing the onus on the defence to show unreasonable delay and meaningful steps to expedite.

The court upheld the trial judge's finding that the defence failed to take meaningful and sustained steps, particularly by refusing to schedule a Crown pre-trial meeting while awaiting disclosure.

The appeal was dismissed.

The appellant, Michael Johnston, appealed his conviction for Over 80.

The appeal focused on the trial judge's failure to address a conceded Section 10(a) Charter breach and to provide reasons for rejecting it, thereby denying counsel an opportunity to make submissions on the point.

The Superior Court found that the trial judge erred by not notifying counsel of her intention to reject the concession and by failing to provide adequate reasons for her decision regarding the Charter breaches.

The appeal was allowed, and a new trial was ordered.

The Crown brought a certiorari application to quash a trial judge's refusal to issue a publication ban protecting the identity of a doctor who testified at the accused's trial for disrupting an abortion clinic.

The Superior Court found the trial judge made a jurisdictional error by applying the common law Dagenais/Mentuck test instead of the statutory test under s. 486.5 of the Criminal Code.

Although the trial judge was functus officio following the accused's conviction, the Superior Court invoked its inherent jurisdiction to grant the publication ban, finding a real and substantial risk of harm to the doctor.

The applicants sought an order of mandamus to compel a justice of the peace to issue process on a private information charging three police officers and a paralegal with forcible entry, theft, and unlawful interception of private communications.

The charges arose from an incident where the applicants were removed from their daughter's condominium.

The Superior Court of Justice dismissed the application, finding that the justice of the peace made no jurisdictional error in concluding that the applicants failed to establish a prima facie case for any of the offences.

The offender, Mitchell Irwin, pleaded guilty to dangerous driving causing death, failing to stop, and failing to comply with a recognizance.

The Crown and defence presented a joint submission for a four-year and fourteen-day term of imprisonment, which the court accepted.

The primary contested issue was the length of the driving prohibition.

Considering aggravating factors such as excessive speed, aggressive driving, prior infractions, and leaving the scene to dispose of evidence, alongside mitigating factors including youth, prior good character, and remorse, the court imposed a total sentence comprising the agreed imprisonment, a 6-year driving prohibition (effective 8 years), a DNA order, a no-contact order, and a 10-year weapons prohibition.