Saman Wickramasinghe

The Court of Appeal for Ontario dismissed the appeal of Robert Ashley Williams from his conviction for second degree murder.

The appellant argued that the trial judge erred by not leaving the partial defence of provocation with the jury and by misdirecting the jury on the defence of self-defence.

The court found that the evidence did not support leaving provocation with the jury, as the appellant's actions made the victim's response foreseeable and there was no air of reality to the loss of self-control or suddenness elements.

The court also found no error in the trial judge's self-defence instructions.

The appeal was dismissed.

The accused, Anis Rehman, was charged with sexual assault and invitation to sexual touching involving a young complainant at a private daycare in 2019.

The court reviewed the evidence of the complainant, the accused, and defence witnesses, and applied the principles of reasonable doubt and credibility assessment, especially as they relate to child witnesses.

The court found the complainant credible but concluded that the defence evidence raised a reasonable doubt.

The accused was acquitted on both counts.

This ruling addresses a third-party records application brought by the accused in a sexual assault case.

The accused sought disclosure of the complainant's therapist's records and Children's Aid Society (CAS) records.

Applying the two-stage analysis under section 278 of the Criminal Code, the court ordered the therapist's records produced to the court for a Stage 2 review, finding them likely relevant and necessary due to the circumstances surrounding the complainant's memory resurfacing.

However, the CAS records were not ordered produced, as they failed to meet the "likely relevant" threshold at Stage 1, lacking an evidentiary foundation beyond conjecture and having weak probative value compared to the complainant's privacy interests.

The accused, William Schatz, pleaded guilty to one count of sexual exploitation of a 17-year-old student.

The court considered aggravating factors, including the egregious breach of trust by a teacher and the profound, long-lasting impact on the victim and her sister.

Mitigating factors included the accused's guilty plea, lack of prior criminal record, and strong community support.

The Crown sought a two-year penitentiary sentence, while the defence proposed a 6 to 12-month conditional sentence.

The court rejected the conditional sentence, emphasizing that carceral sentences are the norm for sexual offences against children, and imposed an 18-month incarceration period followed by two years of probation.

The court declined to impose a SOIRA order, finding it disproportionate given the accused's low risk of reoffending and the significant time elapsed since the offence.

The defendant, Colin Ramsay, pleaded guilty to communicating with a person under 18 for the purpose of facilitating sexual exploitation.

The Crown proceeded summarily, which carried a six-month mandatory minimum sentence.

The defence challenged the constitutional validity of this mandatory minimum under s.12 of the Charter.

The court, applying the principles of horizontal stare decisis from R. v. Sullivan, found itself bound by R. v. Hems, which held s.172.1(2)(b) of the Criminal Code to be unconstitutional, rendering the mandatory minimum inoperative.

Considering aggravating factors such as abuse of trust, planning, and significant interference with the victim, balanced against mitigating factors including the offender's guilty plea, first-offender status, low risk of recidivism, and his role as sole caregiver for his disabled brother, the court imposed a conditional sentence of two years less a day with strict house arrest.

This sentence was deemed to adequately address denunciation and general deterrence while also serving rehabilitative and restorative goals by allowing the offender to continue caring for his brother.

The appellant was charged with manslaughter and firearms offences in December 2015.

Trial was scheduled within the Jordan ceiling but delays arose when the Crown refused to consent to a judge-alone trial, causing the net delay to reach approximately 35 months, exceeding the 30-month ceiling.

The trial judge denied a stay of proceedings by applying a transitional exceptional circumstance, finding the parties had reasonably relied on pre-Jordan law.

The Supreme Court held that no transitional exceptional circumstance applied: after Jordan was decided in July 2016, the parties could not have reasonably relied on the prior state of the law, and the delay was attributable to the Crown's refusal to adapt rather than insufficient time for the system to do so.

The Court also rejected a bright-line rule that would characterize all delay following defence counsel's rejection of a court-offered date as defence delay.

The appellant appealed a four-year sentence for importing five kilograms of cocaine, arguing the sentencing judge overemphasized general deterrence, leading to a disproportionate sentence.

The Court of Appeal found no error in principle, noting the sentencing judge thoroughly considered all factors and imposed a sentence significantly below the typical range.

The court also rejected fresh evidence regarding the appellant's mother's deteriorating health, finding it did not meet the Palmer test for admitting new evidence on appeal.

The appellant appealed his convictions for possessing and accessing child pornography, arguing that evidence obtained during the execution of a search warrant should have been excluded due to breaches of his Charter rights, specifically the right to counsel under s. 10(b).

The Court of Appeal found that the trial judge erred in concluding that the appellant was not detained prior to his formal arrest, applying the R. v. Grant factors.

The court determined that the appellant was psychologically detained from the moment police entered his home, and his s. 10(b) rights were violated.

Applying the s. 24(2) Grant factors, the court found the Charter breach serious, the impact on the appellant significant, and society's interest in the administration of justice favoured exclusion.

Consequently, the appeal was allowed, convictions quashed, and acquittals entered.

The appellant, Dia 'Eddin Hanan, appealed his conviction for manslaughter and firearms-related offences, and his sentence, following a jury trial.

The appeal raised two main grounds: an alleged breach of his s. 11(b) Charter right to be tried within a reasonable time, and alleged errors in the trial judge's jury charge regarding the burden of proof and self-defence.

The majority of the Court of Appeal dismissed both the conviction and sentence appeals.

They upheld the trial judge's assessment of delay, including the attribution of defence delay and the application of the transitional exceptional circumstance under R. v. Jordan.

They also found no reversible error in the jury instructions, concluding that the charge, read as a whole, adequately conveyed the burden of proof and the W.(D.) rule.

A dissenting judge would have allowed the appeal, finding a s. 11(b) breach and serious errors in the jury instructions.

R.K. was charged with sexual assault and sexual exploitation involving two complainants (B and T) from different time periods (1997 and 2017).

R.K. applied for severance of the counts, and the Crown brought a cross-application for similar fact evidence.

The court dismissed the Crown's similar fact application, finding insufficient probative value and significant prejudice due to the generic nature of alleged similarities, the 20-year time gap, and differing allegations.

The court granted R.K.'s severance application, concluding that the interests of justice required separate trials.

This decision was based on the lack of admissible similar fact evidence, the accused's reasonable desire to testify on some counts but not others, and the absence of a strong factual or legal nexus between the remote allegations.

During a retrial for first-degree murder, the Crown sought to introduce evidence of two unidentified cell phone calls made to the victim moments before he stepped outside and was shot.

The Crown argued the calls supported the theory that the victim was lured to an ambush.

The Superior Court of Justice ruled the evidence inadmissible, finding no direct or indirect evidence connecting the calls to the accused.

The court held that inferring the calls lured the victim outside, contrary to family testimony that he went to buy juice, would be based on impermissible speculation and conjecture.

The applicants, jointly charged with first degree murder, applied for directed verdicts of acquittal on first and second degree murder at the close of the Crown's case.

The Crown relied on circumstantial evidence, including gunshot residue and the applicants' presence near the scene, to prove identity and intent.

The court found sufficient evidence for a properly instructed jury to infer that both applicants were involved in an intentional killing as either principal or aider/abettor.

However, the court concluded there was no evidence upon which a jury could reasonably infer that the killing was planned and deliberate.

The applications were allowed in part, with the court directing verdicts of acquittal on first degree murder and ordering the trial to proceed on second degree murder.

The offender was found guilty of manslaughter by a jury after shooting the victim three times following an altercation.

The court determined the factual basis for sentencing, finding that provocation played a significant role but rejecting self-defence.

Considering the offender's prior youth record for firearms offences, the use of a firearm, and the profound impact on the victim's family, the court sentenced the offender to 15 years' imprisonment, less credit for pre-trial custody.

The appellant Crown appealed the acquittal of a high school teacher charged with voyeurism under s. 162(1)(c) of the Criminal Code after he used a concealed pen-camera to surreptitiously record female students engaged in ordinary school activities in common areas of the school.

The majority of the Court of Appeal had upheld the acquittal on the basis that the students were not in circumstances giving rise to a reasonable expectation of privacy.

The Supreme Court unanimously allowed the appeal and entered a conviction, holding that circumstances giving rise to a reasonable expectation of privacy under s. 162(1) are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred, taking into account the entire context.

The majority (Wagner C.J.) adopted a multi-factor contextual test informed by s. 8 Charter jurisprudence, while a concurring minority (Rowe J.) proposed a conjunctive test requiring both loss of control over one's image and infringement of sexual integrity.

The appellant was convicted of sexual assault following an alleged non-consensual sexual encounter outside a dance.

The trial judge found the appellant guilty based primarily on the complainant's post-occurrence emotional state and an assumption that young women would not consensually engage in sexual activity in the conditions described.

The Court of Appeal found the trial judge erred by relying on a behavioural assumption about young women, failing to consider that the complainant was upset before the alleged assault, and failing to resolve material inconsistencies in the complainant's evidence or grapple with exculpatory evidence supporting the appellant's version of events.

The appeal was allowed and a new trial was ordered.

The appellants were convicted of first degree murder in the shooting death of Joel Waldron.

The Crown could not prove which appellant was the shooter but argued both were guilty as one was the shooter and the other aided or abetted the killing.

The appellants appealed on grounds that the trial judge's charge to the jury was deficient in relating evidence to the elements of aiding and abetting and planning and deliberation.

The Court of Appeal found the jury charge was factually unbalanced and failed to properly relate evidence to the necessary legal elements, particularly regarding aiding and abetting.

While the court did not find the verdict unreasonable, it quashed the convictions and ordered a new trial due to the deficiencies in the charge.

The appellant appealed a conviction entered by Justice Chapin of the Ontario Court of Justice on July 15, 2014.

The appeal was allowed on consent.

The conviction was quashed and an acquittal was entered.

Appeal from conviction and sentence for conspiracy to import a narcotic.

The appellant was convicted of conspiring to import cocaine from St. Maarten to Montreal.

The appeal raised three grounds: whether the verdict was unreasonable, whether the jury charge was inadequate, and whether the trial judge erred in dismissing a Charter s. 11(b) application regarding delay.

The court dismissed all grounds of appeal, finding the evidence supported the conviction, the jury instructions were adequate, and the delay was justified under both the Jordan framework and transitional exceptional circumstances.

The sentence of nine years was upheld as fit.

The appellant appealed his conviction and sentence imposed by the Superior Court of Justice.

The Court of Appeal upheld the conviction and the 33-month sentence as fit, finding no error in principle regarding the trial judge's characterization of the sentencing range.

However, the court varied the sentence by modifying the firearms prohibition from a lifetime ban under s. 109(2) to a ten-year ban, considering the appellant's youth and absence of prior firearm misuse.

The Crown appealed an acquittal for refusing to provide a breath sample under s. 254(2) of the Criminal Code.

The trial judge had acquitted after finding reasonable doubt as to whether the accused actually had alcohol in her system.

The Superior Court held that the trial judge erred by conflating the requirement of reasonable suspicion for a roadside demand with proof that alcohol was actually present.

The proper inquiry was whether the officer had an objectively reasonable basis to suspect alcohol in the accused’s body at the time of the demand.

Because the officer testified that he smelled alcohol on the accused’s breath and the trial judge accepted that evidence, the reasonable suspicion threshold was met.

The appeal was allowed and a new trial ordered.