Rick Nathanson

The applicant, charged with sexual assault and uttering threats against his estranged wife, brought an application under s. 278.3 of the Criminal Code for production of Toronto Children's Aid Society records relating to the complainant's care of their children.

The applicant argued the records were relevant to the complainant's credibility and a motive to fabricate related to child custody.

The court found the first-stage test for likely relevance was met and reviewed the records.

At the second stage, the court largely dismissed the application, finding the undisclosed portions had a high privacy interest and lacked probative value, though it ordered the disclosure of a limited category of unredacted information.

The accused, charged with sexual assault and uttering threats, sought the appointment of the same judge to hear both a pre-trial third-party records application under s. 278.2 of the Criminal Code and the subsequent trial.

The court denied this request, clarifying that a case management judge is empowered to hear such pre-trial applications under s. 551.3 of the Criminal Code.

The decision emphasized that a trial judge can revisit pre-trial rulings made by a different judge if fresh evidence or a material change in circumstances arises, as explicitly permitted by s. 551.1(4) of the Criminal Code and common law principles.

The accused was convicted of two counts of sexual interference against a 14-year-old victim on January 27, 2014.

The offender, then 36 years old, gave the victim hallucinogenic drugs (ketamine and ecstasy) at his residence and engaged in multiple acts of sexual contact, including digital penetration, attempted intercourse, and fellatio.

He also photographed the victim during the sexual assault.

The sentencing hearing addressed the Crown's request for a 4.5-year penitentiary sentence and the defence's request for a blended sentence of one year imprisonment followed by one year conditional.

The court imposed a total sentence of 4.5 years (54 months) imprisonment, with 2 years on the first count and 2.5 years consecutive on the second count, along with a lifetime Sex Offender Information Registration Act order and a DNA order.

The offender, a bar manager, was convicted of sexual assault and voyeurism after luring an employee into a basement office, sexually assaulting her, and surreptitiously filming the assault.

The court found the predatory nature of the offence, the breach of trust, and the voyeuristic purpose to be highly aggravating factors.

The offender was sentenced to a global term of 18 months imprisonment, followed by three years of probation, along with DNA, weapons prohibition, and sex offender registry orders.

The defendant, Enzo Dario De Jesus Carrasco, was charged with sexual assault, voyeurism, and transmitting an intimate image.

The court found the defendant's testimony to be untruthful and inconsistent with text messages.

The complainant's evidence, despite some inconsistencies, was found credible and consistent with corroborating text messages.

The court convicted the defendant of sexual assault and voyeurism, finding that the touching was sexual, non-consensual, and that the complainant had a reasonable expectation of privacy in the basement office where she was filmed.

The defendant was acquitted of transmitting an intimate image due to reasonable doubt regarding criminal intent, based on a text message indicating the image was sent by mistake.

Following a jury's guilty verdict for gang sexual assault and administering a stupefying drug, the court delivered reasons for sentencing Gavin MacMillan and Enzo DeJesus Carrasco.

Each offender received a total sentence of nine years imprisonment (seven years for gang sexual assault and two years consecutive for administering a stupefying substance), with credit for pre-sentence custody.

The court found that the victim never consented to the sexual activity, and the offenders had no mistaken belief of consent, rejecting their characterization of events as consensual BDSM.

Ancillary orders included DNA, lifetime prohibition, 20-year SOIRA, and non-communication.

The Crown brought an application during a trial for gang sexual assault to admit the expert testimony of an emergency room physician and a sexual assault nurse-examiner.

The proposed evidence concerned the effects of alcohol and drugs on the complainant's consciousness and capacity to consent, as well as the interpretation of her physical injuries.

The accused opposed the physician's evidence, arguing she lacked toxicological expertise and was biased due to her advocacy for sexual assault survivors.

The court admitted the evidence, finding it relevant, necessary, and reliable, and held that the physician's social media posts did not demonstrate an inability to provide impartial evidence.

The accused, charged with gang sexual assault and other offences, brought applications under s. 276 of the Criminal Code to adduce evidence of the complainant's prior sexual comments, gestures, and interest in a sex club to support their defence of honest but mistaken belief in communicated consent.

The court dismissed the application regarding the prior sexual comments and gestures, finding the evidence irrelevant and based on prohibited twin-myth reasoning.

The court permitted limited evidence regarding discussions about attending a sex club solely to provide context for a text message sent by one of the accused, with strict instructions against using it to infer consent.

Evidence of conversations immediately prior to the sexual encounters was ruled admissible.

The accused brought a pre-trial motion arguing that recent amendments to the Criminal Code eliminating peremptory challenges in jury selection should not apply retrospectively to their trial.

The court applied the rule of coordinate jurisdiction, noting that two other Ontario Superior Court judges had already ruled the amendments were procedural and applied retrospectively.

Finding no cogent reason to depart from those decisions, the court dismissed the application and ordered jury selection to proceed under the amended procedure.

The Crown sought to admit a post-arrest statement made by the accused, who was charged with multiple sexual offences.

The accused challenged the voluntariness of the statement, arguing that his English comprehension was insufficient and that the police caution regarding his right to silence was inadequate.

The court found that the accused's English skills were reasonably sophisticated and that the police officer went to great lengths to ensure the accused understood his right to silence.

The statement was ruled voluntary and admissible.

The accused, charged with sexual assault, applied to challenge prospective jurors for cause based on pre-trial publicity and the #MeToo movement, specifically the #IBelieveHer hashtag.

The court permitted modified questions regarding pre-trial publicity but dismissed the request to ask questions about the #MeToo movement and the hashtag.

The court held there was an insufficient evidentiary basis to take judicial notice of widespread bias or that jurors would be incapable of setting aside such bias despite trial safeguards.

The accused was convicted of sexual interference with a 14-year-old victim.

The Crown sought a mandatory minimum sentence of 90 days in jail.

The defence challenged the constitutionality of the mandatory minimum under section 12 of the Charter, arguing it would be grossly disproportionate.

The court found that while 90 days was not grossly disproportionate for the particular offender, the mandatory minimum violated section 12 as applied to reasonably foreseeable hypothetical offenders.

The violation could not be saved under section 1 of the Charter.

The court imposed a conditional sentence of 45 days to be served in the community, followed by 3 years of probation, along with DNA and SOIRA orders.

The accused, O.K., was charged with sexual assault.

The complainant, S.H., testified that the sexual contact (oral sex and vaginal penetration) occurred without her consent while she was heavily intoxicated.

The accused claimed consensual activity and honest but mistaken belief in consent.

The court disbelieved the accused's testimony, finding his claims of consent and lack of awareness of intoxication to be untrue and lacking an air of reality.

The court accepted the complainant's account, finding her memory issues due to intoxication did not undermine her credibility regarding the assault itself.

The accused was found guilty.

The Crown appealed an acquittal for impaired driving based on “care or control” of a motor vehicle.

The trial judge found the accused intoxicated in the driver’s seat attempting to start a damaged vehicle but concluded there was no realistic risk of danger because the vehicle was inoperable.

On appeal, the court held the trial judge misapplied the presumption in s. 258(1)(a) of the Criminal Code.

Where the accused occupies the driver’s seat and fails to rebut the presumption by proving no intention to set the vehicle in motion, the elements of care or control are deemed established without additional proof of a realistic risk of danger.

The appeal was allowed and a conviction entered.

The Crown appealed a summary conviction acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg under the Criminal Code.

The trial judge had excluded the breathalyzer evidence after finding the Crown failed to prove the samples were taken “as soon as practicable” under s. 258(1)(c)(ii), because police facilitated a 30‑minute telephone call between the accused and his mother before testing.

On appeal, the Crown argued the trial judge applied the wrong legal standard and effectively required testing “as soon as possible.” The Superior Court held the trial judge applied the correct legal test and that the determination regarding the reasonableness of the delay was a factual finding entitled to deference.

As there was evidence supporting the finding that the delay rendered the samples not taken as soon as practicable, no palpable and overriding error was established.

The appellant appealed summary conviction findings of guilt for prowl by night and assaulting a peace officer.

The trial judge had rejected the appellant’s evidence as not credible and accepted the arresting officer’s testimony despite minor inconsistencies.

On appeal, the appellant raised arguments concerning credibility assessment, alleged failure to consider motive, the absence of a witness connected to a 911 call, and alleged procedural irregularities.

The court held that the trial judge properly applied the principles in R. v. W.(D.) and that appellate courts owe deference to findings of fact and credibility.

No errors of law or findings unsupported by the evidence were demonstrated, and the appeal was dismissed.

The appellant appealed summary conviction findings of guilt for sexual assault against an adult complainant and simple assault against a child arising from an incident in an apartment elevator.

The appellant argued that the verdicts were unreasonable and that the trial judge improperly rejected his evidence.

The Superior Court held that the trial judge correctly applied the credibility framework from R. v. W.(D.) and was entitled to accept the complainant’s testimony while rejecting the appellant’s inconsistent and contradictory evidence.

The appellate court emphasized the high degree of deference owed to credibility findings made at trial.

Finding no legal or factual error and concluding that the verdicts were reasonable on the evidence, the court dismissed the appeal.

The applicant sought to quash a common law peace bond imposed after acquittal on criminal harassment charges.

The trial judge had ordered the peace bond to prevent further misconduct toward the complainants, finding a reasonable apprehension of a future breach of the peace.

The applicant argued the order was imposed without proper notice or representation, that his hearing impairment prevented him from following proceedings, and that the peace bond was unnecessary.

The court rejected these arguments, finding that the applicant received fair notice and representation, accommodations for his hearing disability were provided, and the evidentiary record supported the trial judge’s conclusion that a peace bond was justified.

The court further held that the proper mechanism to challenge the order was a statutory appeal rather than an application for certiorari.

The appellant appealed a conviction for assault causing bodily harm arising from a nightclub altercation where a single punch knocked out three of the complainant’s teeth.

The primary issue at trial was whether the accused acted in self‑defence after being pushed.

The appellant argued the trial judge improperly assessed proportionality by focusing on the injuries rather than the force used, that new self‑defence provisions enacted by the Citizen’s Arrest and Self‑Defence Act should apply retroactively, and that the trial reasons were inadequate.

The court held the trial judge properly assessed proportionality by considering the nature of the force and surrounding circumstances, not merely the resulting injuries.

It further held the new statutory self‑defence provisions do not apply retroactively to completed trials on appeal and found the reasons for judgment adequate.

The Crown appealed a sentence imposed following a guilty plea to sexual assault arising from the non‑disclosure and transmission of genital herpes (HSV‑2) during unprotected sexual intercourse.

The sentencing judge had imposed a conditional discharge with one year of probation, emphasizing the offender’s lack of criminal record, guilty plea, remorse, and potential immigration consequences.

The Crown argued the sentence was manifestly unfit and that the sentencing judge improperly minimized the importance of denunciation and general deterrence.

The Superior Court held that the sentencing judge made no error in principle and that the disposition was defensible in the context of a novel “test case” with little appellate guidance.

The Crown’s appeal from sentence was dismissed.