Roger Shallow

The Court of Appeal for Ontario issued a correction to an earlier endorsement dated April 28, 2006.

The correction clarified that all references to the appellant in the previous endorsement should be changed to refer to the respondent.

The Crown appealed the imposition of a 20-month conditional sentence for domestic violence offences and breach of probation.

The Court of Appeal found that the trial judge erred by underestimating the gravity of the offences and that a penitentiary sentence was clearly warranted.

However, because the respondent had already served almost 12 months of house arrest and completed a rehabilitation program, the Court declined to reincarcerate him and dismissed the appeal.

The appellant appealed his conviction for first degree murder.

He argued the trial judge erred by reversing a ruling that had excluded derivative evidence of the victim's severed head, and by improperly instructing the jury on post-offence conduct, reasonable doubt, and police investigation deficiencies.

The Court of Appeal dismissed the appeal, finding that the defence's own questioning necessitated the admission of the head evidence to restore trial fairness.

The court also upheld the trial judge's jury instructions and evidentiary rulings, concluding the Crown presented an overwhelming circumstantial case.

The appellant was convicted of assault and assault with a weapon against his wife and son, based on his wife's unsworn videotaped statement to police, which she later recanted at trial.

On appeal, the appellant argued the trial judge's mid-trial comments about believing the son's videotaped statement created a reasonable apprehension of bias, and that the wife's statement should not have been admitted.

The Court of Appeal found the trial judge's comments did create a reasonable apprehension of bias, necessitating a new trial.

However, the Court upheld the admission of the wife's videotaped statement, finding the surrounding circumstances provided sufficient threshold reliability despite the lack of an oath.

The appellant challenged convictions for sexual assault, sexual touching of a young person, and inviting a young person to touch him for sexual purposes, arguing multiple errors in the jury charge and seeking relief from a four-month custodial sentence.

The Court of Appeal held that the trial judge properly prevented the jury from speculating about collusion where no evidentiary foundation had been laid through cross-examination, and that the charge, read as a whole, adequately conveyed the defence position and the relevance of prior inconsistent statements to credibility.

On sentence, the court found no misapprehension of the psychologist’s evidence, no error in principle, and no basis for a conditional or intermittent sentence given the breach of trust, criminal record, and need for denunciation.

The conviction appeal was dismissed, leave to appeal sentence was granted, and the sentence appeal was dismissed.

The appellant appealed his conviction, arguing the verdict was unreasonable due to frailties in the identification evidence and seeking to introduce fresh evidence.

The Court of Appeal found the verdict was not unreasonable, as several witnesses identified the appellant.

However, the court admitted the fresh evidence of a new witness, finding it was reasonably capable of belief and could have affected the result given the frailties in the identification procedure.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that there was evidence to sustain the Board's finding of significant risk and that the order was not unreasonable when issued.

However, noting that the appellant's regular review was overdue and that fresh evidence suggested an emerging consensus that the appellant was fit to reside in the community under supervision, the Court ordered the Board to expedite the review.

The appellant challenged jury convictions for multiple sexual offences against two child complainants and appealed an eight-year penitentiary sentence.

The court rejected the unreasonable verdict argument, holding that despite material inconsistencies, the core allegations remained intact and the jury was properly instructed on credibility concerns.

The court also held that medical opinion evidence concerning vaginal penetration was relevant to one complainant but irrelevant to counts involving the other complainant; however, the evidentiary error and absence of a limiting instruction caused no substantial wrong and were cured under s. 686(1)(b)(iii) of the Criminal Code.

On sentence, the court found the trial judge had set the range too high by over-relying on a more aggravated comparator case and reduced the custodial sentence to six and a half years, in addition to pre-sentence custody.

The appellant was convicted of assaulting his mother-in-law and father-in-law following a family dispute.

The trial judge relied on the appellant's failure to apologize after colliding with his mother-in-law as post-offence conduct to infer intent and reject his claim that the contact was accidental.

On appeal, the Crown conceded that neither the appellant nor the victim was asked about an apology during their testimony.

The Court of Appeal held that the trial judge erred in making this finding and using it to assess credibility and intent.

The court declined to apply the curative proviso, allowed the appeal, and ordered a new trial.

The appellant appealed his convictions for sexual assault.

The Court of Appeal found no rational basis to differentiate between the evidence of the alleged sexual assaults on September 1 and September 8, 2001.

Given the acquittals for the September 1 charges, the guilty verdicts for the September 8 charges were deemed unreasonable.

The appeal was allowed, the guilty verdicts were set aside, and acquittals were entered.

The appellant appealed his conviction for break and enter and assault, and his sentence of 36 months.

He argued the trial judge failed to provide clear jury instructions regarding his defence.

The Court of Appeal dismissed the conviction appeal, finding the jury understood the defence position despite the lack of a precise legal label.

However, the sentence appeal was allowed because the trial judge misstated the standard of proof for aggravating factors.

The sentence was reduced to time served.

The appellant appealed his sentence, arguing against the length of the probationary period.

The trial judge had imposed a lesser custodial term than the three years suggested in a joint submission, but included a three-year probationary period.

The Court of Appeal found no error in the custodial term and held that the probationary period, while high, was not unreasonable given the facts of the offence.

The sentence appeal was dismissed.

The appellant appealed his convictions for sexual interference, invitation to sexual touching, and sexual assault.

At trial, the Crown introduced highly prejudicial statements the appellant made to a probation officer during a pre-sentence report interview following a guilty plea that was later withdrawn.

The trial judge also permitted the complainant's mother to testify about prior consistent statements and instructed the jury they could be used to support the complainant's credibility, despite no allegation of recent fabrication.

The Court of Appeal allowed the appeal, finding the admission of the probation officer's evidence rendered the trial unfair and the jury instructions regarding the mother's evidence were erroneous.

A new trial was ordered.

The appellant appealed her conviction for possession of counterfeit money.

She argued the trial judge erred in inferring she knew the bills were counterfeit.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find the appellant gave two inconsistent stories when confronted, and to use those inconsistent statements to infer knowledge that the bills were counterfeit.

The appellant appealed a disposition of the Ontario Review Board that found him dangerous and issued a detention order.

The Court of Appeal dismissed the appeal, finding that the Board correctly applied the legal framework from Pinet v. St. Thomas Psychiatric Hospital and that its factual findings regarding dangerousness and the necessity of a detention order were fully supported by the evidence.

The appellant appealed his conviction and sentence.

The Court of Appeal held that the trial judge was entitled to conclude the appellant's statement was an admission of guilt and to accept the complainant's evidence on the issue of lack of consent despite inconsistencies.

The conviction appeal was dismissed.

The court found no error in principle in the sentence, granting leave to appeal but dismissing the sentence appeal.

The appellant appealed his conviction and sentence.

He argued the trial judge misapprehended evidence regarding a fraudulent document (exhibit 4).

The Court of Appeal dismissed the conviction appeal, finding no misapprehension and noting the trial judge rejected the appellant's evidence primarily because it was inconsistent with his admitted mode of practice.

The sentence appeal regarding a term of the probation order was also dismissed as the term was agreed to by counsel, not punitive, and had rehabilitative potential.

The appellant pleaded guilty to possession of stolen property under $5,000 after taking stickers from his employer.

On appeal, he argued his plea was equivocal because his trial counsel submitted during sentencing that he honestly believed he was entitled to take the stickers due to common employee practice.

The Court of Appeal dismissed the appeal, finding the plea was not equivocal, the facts supported the plea, and the explanation offered in mitigation did not amount to a defence in law.

The appellant was convicted of sexual touching and sexual assault against his stepdaughter.

He appealed the convictions, arguing the trial judge erred by admitting evidence of prior consistent statements and other allegations without a ruling, and by misapprehending the evidence, leading to an unreasonable verdict.

The Court of Appeal dismissed the evidentiary ground, noting the defence had relied on the impugned evidence at trial.

However, the Court allowed the appeal on the basis that the trial judge failed to address important defence evidence regarding the complainant's history of embellishment and relied on unsupported reasons to accept her testimony.

The conviction was quashed and a new trial ordered.

The appellant was charged with criminal negligence causing bodily harm and committed for trial.

His application for certiorari was dismissed by the Superior Court of Justice.

On appeal, the Court of Appeal found no error, agreeing that there was evidence upon which the preliminary inquiry justice could form the opinion that the appellant should be committed for trial.

The appeal was dismissed.