Robert Sinding

The appellant, D.L., appealed convictions for sexual assault and sexual exploitation, and the concurrent 18-month and two-years-less-a-day sentences.

The appeal raised issues regarding the trial judge's application of the W.(D.) formula, credibility assessment, sufficiency of reasons, reliance on demeanour evidence, and the application of the Kienapple principle.

The court dismissed all grounds of appeal, upholding the convictions and sentences, finding no palpable and overriding errors in the trial judge's findings or application of legal principles.

The appellant, R.K., appealed his conviction for aggravated sexual assault, sexual interference, and breach of recognizance, and his designation as a dangerous offender.

The appeal challenged the trial judge's admission of hearsay evidence (complainant's preliminary hearing testimony and videotaped statement) under the *Khan* test, the adequacy of the *W.(D.)* analysis, the general adequacy of reasons, and the application of the *Kienapple* principle.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's rulings on hearsay, the *W.(D.)* analysis, or the dangerous offender designation.

The *Kienapple* argument was declined as it was not raised below and had no practical effect.

The appellant appealed his summary convictions and sentences for two counts of sexual assault and two counts of assault with a weapon against his former spouse.

He argued the trial judge misapplied the W. (D.) framework, provided inadequate reasons, and erred in sentencing.

The Superior Court of Justice dismissed the appeal for the assault with a weapon counts and one sexual assault count, finding the trial judge's credibility assessments and reasons sufficient.

However, the court allowed the appeal and ordered a new trial for the second sexual assault count, finding the trial judge erred by concluding the appellant offered no evidence on consent when he had explicitly denied forcing himself on the complainant.

The sentence for the remaining sexual assault conviction was reduced from 10 months to 8 months.

P.B. appealed convictions for two counts of sexual assault and two counts of assault with a weapon.

The appeal court found the trial judge erred in concluding the accused offered no evidence regarding consent for one sexual assault count (anal sex), leading to that conviction being set aside and a new trial ordered.

The court upheld the convictions for the other sexual assault and the two assault with a weapon charges, finding no palpable and overriding error in the trial judge's application of the R. v. W.(D.) framework or assessment of credibility.

The sentence for the remaining sexual assault conviction was reduced from 10 to 8 months due to the removal of an aggravating factor.

The Crown brought a similar fact application to admit evidence of prior discreditable conduct, specifically a sexual assault conviction against accused E.L. involving the same complainant.

The court assessed the relevance, materiality, and probative value of the evidence against its potential prejudicial effect, particularly for co-accused V.S. The court found the evidence highly probative, especially given the child complainant and the pattern of behaviour alleged, and that its probative value outweighed the prejudice.

The application was granted, allowing the conviction and decision to be admitted, with a restriction on questioning the complainant about the substance of the prior conviction.

The Registrar appealed a License Appeal Tribunal decision that declined to revoke the respondents' funeral director and establishment operator licences.

The respondent had previously pleaded guilty to stealing approximately $86,000 from a local charity to pay business debts.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Tribunal's assessment that the respondent's conduct was out of character, that he had insight into his misconduct, and that public protection did not require revocation.

The appellants appealed the dismissal of their action for delay under Rule 48.14(7) of the Rules of Civil Procedure.

The action, alleging historic sexual and physical abuse from 1966-1974, was filed in 2015 but had seen little progress by 2020.

The motion judge found no acceptable explanation for the delay, including an 18-month period where former counsel explored a class action.

The appellants argued the judge failed to contextualize the delay given the absence of limitation periods for their claims and erred in characterizing counsel's decision to suspend the action.

The Court of Appeal dismissed the appeal, affirming the contextual approach to delay but finding no error in the motion judge's conclusion that the delay was egregious and unexplained, despite the nature of the claims.

Costs were awarded to the respondents.

The Ontario Trial Lawyers Association (OTLA) brought a motion for leave to intervene as a friend of the court in an appeal.

The underlying appeal concerned the dismissal of an action for delay, specifically involving claims of historical sexual and physical abuse.

OTLA proposed to argue that the Rules of Civil Procedure create an "absurdity" by allowing certain plaintiffs whose actions are dismissed for delay to re-commence their actions, but not those dismissed at a status hearing, particularly for claims not subject to limitation periods.

The motion was dismissed for several reasons, including that the proposed intervention introduced new issues and arguments not raised by the appellants, lacked factual evidence, would significantly expand the scope of the appeal, and was a tardy motion that would likely require an adjournment.

Costs were awarded against OTLA.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) seeking to extend the timeline to set the action down for trial.

The action, involving allegations of historic physical and sexual abuse while in foster care, had been delayed for over five years without examinations for discovery being completed.

The court found that the plaintiffs failed to provide an acceptable explanation for the delay, particularly a 26-month period where the action was held in abeyance while former counsel contemplated a class proceeding.

The motion was dismissed, and the action was dismissed for delay.

The plaintiff moved to extend the timetable for procedural steps in an action alleging historic sexual assault while in foster care.

The defendant Children's Aid Society cross-moved to dismiss the action for delay.

The court found that while the plaintiff's counsel initially caused delay by unilaterally cancelling discoveries, the defendant subsequently engaged in 'scorched earth' tactics that actively obstructed the litigation's progress.

Applying the Reid criteria, the court granted the extension, dismissed the cross-motion, and ordered the action into case management.

The plaintiff requested the appointment of a case management judge for her action.

The court, acting as Civil Team Lead, deemed this request premature because one of the defendants had already brought a motion to transfer the action from the Toronto Region to the Northwest Region (Kenora).

The endorsement clarified that the plaintiff could renew her request if the transfer motion was dismissed.

It also noted that opposed requests for case management must be brought by way of motion, in accordance with the Consolidated Practice Direction for Civil Actions in the Toronto Region.

The plaintiff brought a motion for a contested status hearing under Rule 48.14(5) to prevent the dismissal of her historic sexual abuse action for delay.

The defendants argued for dismissal due to the plaintiff's delay and alleged prejudice.

The court found that the plaintiff provided an acceptable explanation for the delay, attributing significant portions to the defendants' procedural tactics and unusual circumstances like a catastrophic office fire suffered by plaintiff's counsel.

The court also found no non-compensable prejudice to the defendants, noting their shared responsibility for delays and lack of urgency.

The motion to dismiss was denied, and a timetable was imposed for the action to proceed to trial.

The appellant was convicted of sexual assault and designated a dangerous offender with an indeterminate sentence.

He appealed both conviction and sentence.

The Court of Appeal upheld the conviction, finding the evidence of sexual assault of an unconscious, highly intoxicated complainant was overwhelming.

On the sentence appeal, the court confirmed that the trial judge's findings satisfied the requirements of intractability and high likelihood of harmful recidivism established in R. v. Boutilier.

The court rejected arguments regarding misapprehension of prior criminal record, consideration of unproven allegations, and failure to consider Gladue factors and alternative measures.

The appeal was dismissed.

The accused, Jonathan Green, brought an application challenging the jury panel for his sexual assault trial, alleging it was not representative of the District of Rainy River's population and thus non-compliant with the Juries Act.

The application was summarily dismissed as the Supreme Court of Canada's jurisprudence in *R. v. Kokopenace* emphasizes that representativeness focuses on the jury selection process, not the resulting composition of the jury roll or panel.

The court found no evidentiary basis to attack the selection process, and further, applied the principles from *R. v. Cody* regarding summary dismissal of applications lacking a reasonable prospect of success.

The Crown applied to admit a videotaped statement made by the accused, Jonathan Green, who was charged with sexual assault.

Green argued the statement was involuntary due to the absence of a standard caution and right to counsel.

The court found that Green was not detained and was not initially a suspect when he voluntarily attended the police station.

Although the police questioning later shifted to directly implicating Green without a caution, the court determined that Green was not compelled or overborne, and no inducements or oppression were present.

The court ruled the statement voluntary and admissible in evidence.

The accused, charged with sexual assault, applied for a stay of proceedings under s. 11(b) of the Charter, citing institutional and Crown delay.

The total delay from charge to anticipated end of trial was 27.5 months.

The court deducted three months of delay attributable to bringing the application, resulting in a net delay of 24 months.

As the delay fell below the 30-month ceiling established in Jordan, the onus was on the accused to show the delay was unreasonable.

The court found the accused failed to demonstrate that the case took markedly longer than it reasonably should have, particularly given the transitional tolerance for institutional delay.

The application for a stay was dismissed.

The accused, Barry Mandamin, applied to remove the Kenora Crown Attorney's Office from prosecuting his charges due to an alleged conflict of interest.

This arose because his former defence counsel accepted employment with the Kenora Crown Attorney's Office shortly before his trial.

The court applied the principles from *MacDonald Estate v. Martin* and found that the Crown failed to provide clear and convincing evidence of institutional safeguards to rebut the strong inference of disclosure of confidential information.

Given the early stage of proceedings and the high potential for misuse of confidential information, the application was granted, and the prosecution was ordered to be conducted by a Crown Attorney's Office from outside the District of Kenora.

The appellant, Zachary Leonard, appealed a decision where a reviewing judge, upon a breach of a conditional sentence, collapsed consecutive conditional sentences and ordered a custodial sentence that exceeded the maximum allowable for summary conviction offences.

The Superior Court of Justice considered whether consecutive conditional sentences merge for the purpose of reviewing a breach and if the reviewing judge exceeded her jurisdiction.

The court found that conditional sentences do not merge for breach review purposes and that the reviewing judge erred in principle by imposing a custodial sentence of 207 days, which exceeded the 180-day maximum for summary conviction offences under the Criminal Code.

The appeal was allowed, the sentence adjusted, and the appellant ordered released to resume his conditional sentence.

The Crown brought a dangerous offender application against the respondent, an Indigenous man convicted of sexual assault.

The respondent had a lengthy criminal record involving 18 violent offences over nearly 30 years.

The court considered Gladue factors but found the respondent's severe childhood trauma did not mitigate the high risk of future violent and sexual re-offending.

The court declared the respondent a dangerous offender based on a pattern of persistent aggressive behaviour and imposed an indeterminate sentence, finding that lesser measures would not adequately protect the public.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching against his former common-law partner's granddaughter.

The complainant, who was a child at the time of the alleged offences, testified to multiple incidents of inappropriate touching.

The accused testified and denied all allegations.

Applying the W.(D.) framework for assessing credibility, the court found the complainant's evidence unreliable due to significant memory gaps regarding the alleged incidents and subsequent disclosures.

The court was left with a reasonable doubt and acquitted the accused on all counts.