Samuel Greene

The Crown appealed a conditional sentence imposed on the respondent for a third child pornography conviction.

The Court of Appeal found that the sentencing judge erred by failing to apply the two-stage Proulx framework, specifically by not determining an appropriate sentence of less than two years and by not assessing the danger to the community or consistency with sentencing principles (denunciation and deterrence).

Given the respondent's repetitive conduct and lack of genuine rehabilitation, the conditional sentence was deemed manifestly unfit.

The appeal was allowed, and a three-year penitentiary sentence was substituted, with credit for pre-sentence custody, time on house arrest bail, and time served on the conditional sentence.

The appellant, convicted of breaking and entering, sought to re-open his dismissed appeal and admit fresh evidence, including his own and his co-accused's affidavits denying his participation.

The Court of Appeal dismissed the application, finding the fresh evidence not reasonably capable of belief due to inconsistencies, implausibilities, and contradictions with trial counsel's evidence and physical evidence.

The court emphasized the finality principle in re-opening appeals and the high threshold for admitting fresh evidence.

The appellant, convicted of dangerous driving and arson, appealed only the arson conviction.

The appellant argued that the trial judge misapprehended expert evidence regarding the cause of the fire, specifically in excluding the possibility that a cigarette accidentally caused it.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence by the trial judge.

The court affirmed the trial judge's entitlement to accept or reject expert testimony and to conclude, based on the evidence, that the fire was intentionally set by the appellant.

The appellant, A.A., appealed his conviction for aggravated assault, arguing that the trial judge did not make a finding that the complainant's life was endangered and that the evidence did not support such a finding.

The conviction stemmed from an incident where A.A. sprinkled ignitable fluid on the complainant's hair while holding a lit torch.

The Court of Appeal dismissed the appeal, holding that the actus reus of aggravated assault, specifically "endangerment of life" was met.

The court found there was a "realistic possibility" that the complainant's hair would ignite, even if the appellant's intent was merely to scare.

The court affirmed that the mens rea for aggravated assault was also established, as the risk of bodily harm from the dangerous conduct was objectively foreseeable.

The Court of Appeal for Ontario heard an appeal concerning convictions and sentencing.

Counsel for both the appellant and the Crown agreed that the matter should be remitted to the trial judge for sentencing on the failure to provide necessaries charge.

The Court ordered the remittal.

The appellant, a police officer, arrested an individual who was highly intoxicated by methamphetamine.

He later transferred custody to the OPP without seeking medical assistance, and the individual subsequently died of methamphetamine toxicity.

The trial judge convicted the appellant of failing to provide the necessaries of life and criminal negligence causing death.

On appeal, the Court of Appeal upheld the conviction for failing to provide the necessaries of life, finding the appellant's failure to seek medical assistance was a marked departure from the standard of care.

However, the Court quashed the conviction for criminal negligence causing death, concluding that the trial judge's finding that the appellant deliberately misled the OPP was unreasonable and that causation was not established.

The appellant was convicted of possessing and making child pornography and received a conditional sentence.

He appealed his conviction, arguing the trial judge erred in finding a position of trust and in failing to apply the private use exception to sexting.

The Crown appealed the sentence, arguing it was unfit.

The Court of Appeal dismissed the conviction appeal, upholding the finding of a position of trust and declining to expand the private use exception to include sexting.

While agreeing that the conditional sentence was unfit and a carceral sentence should have been imposed, the court dismissed the Crown's sentence appeal due to the appellant having largely served the conditional sentence, deeming it inappropriate to substitute a carceral term at that stage.

The Crown appealed the acquittal of the respondent on a sexual assault charge, asserting errors in the trial judge's articulation and application of consent law, and insufficiency of reasons.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly set out the law on consent and that the reasons were sufficient, particularly as the acquittal rested on the Crown's failure to prove lack of consent beyond a reasonable doubt due to the complainant's unreliability.

This endorsement addresses two applications for leave to intervene in a criminal appeal from conviction, brought by the Canadian Police Association, Toronto Police Association, and Police Association of Ontario.

The underlying appeal concerns a police officer convicted of criminal negligence causing death and failing to provide necessaries of life to an intoxicated individual.

The court granted intervener status, finding that the associations had a substantial interest and could offer useful perspectives on legal issues such as the standard of care for police officers, the relevance of mistake of fact in objective liability offences, and the need for expert evidence on professional standards, provided they confined their submissions to legal arguments and avoided the merits of the appeal.

The appellant, Brenda Elliot, appealed her conviction for fraud over $5,000 and two counts of uttering a forged document, and her three-year sentence.

She argued that her s. 11(b) Charter right to a trial within a reasonable time was breached, and that her sentence was demonstrably unfit, offending the step principle, parity, and proportionality.

The Court of Appeal found no error in the application judge's calculation of trial delay, noting that even if there were errors, the net delay remained below the Jordan presumptive ceiling.

Regarding the sentence, the Court affirmed that the sentencing judge properly considered the step principle, parity, and proportionality, along with aggravating factors such as breach of trust, significant impact on victims (a non-profit agency), and the appellant's extensive criminal record for similar offences.

The Court dismissed the appeal against conviction and, while granting leave to appeal sentence, dismissed the sentence appeal.

The appellant, licensed for medical marijuana, was arrested after an officer, ignorant of the relevant regulations, disbelieved his medical card.

A search incident to arrest yielded a handgun and cocaine.

The appellant sought to exclude this evidence under ss. 8 and 9 of the Charter.

The Court of Appeal found that the officer's belief was objectively unreasonable, leading to Charter violations.

However, applying the s. 24(2) Grant analysis, the court determined that despite the institutional and individual police failings, the seriousness of the conduct was at the less serious end of the spectrum.

Given the appellant's reduced expectation of privacy in the vehicle and the high reliability and importance of the evidence (gun and drugs), its admission would not bring the administration of justice into disrepute.

The appeal against conviction was dismissed.

The appellant appealed his conviction for robbery and wearing a disguise with intent, and his four-year sentence.

The primary issue was the reliability of identification evidence provided by the appellant's sister, who recognized him from surveillance videos.

The Court of Appeal found no error in the trial judge's assessment of the identification evidence, noting the judge's careful analysis and caution regarding frailties.

The court also rejected the admission of fresh evidence and found the sentence to be fit.

The appeal was dismissed.

The appellants, David Kaczmarek and Terrell Sullivan, appealed their convictions for sexual assault and Mr. Sullivan also appealed his sentence.

The trial judge had found the complainant lacked the capacity to consent due to extreme intoxication and did not agree to the sexual activity.

The Court of Appeal upheld the trial judge's finding of incapacity, rejecting arguments that the judge erred in the order of findings, equated lack of memory with incapacity, or reversed the burden of proof.

Mr. Kaczmarek's claim of ineffective assistance of counsel, alleging his counsel prevented him from testifying, was also dismissed, as the court found counsel's advice was sound and the decision not to testify was ultimately Mr. Kaczmarek's.

Mr. Sullivan's sentence appeal was dismissed, with the court affirming that continuing sexual activity after consent is withdrawn is not less morally blameworthy than engaging in sexual activity with someone who never consented or lacked capacity.

The Crown brought a motion for directions seeking a declaration that a co-accused, Jason Hamilton, had waived solicitor-client privilege over communications with his trial counsel regarding the accuracy and creation of an Agreed Statement of Facts.

Hamilton and the appellant, Haldane Smithen-Davis, were convicted based on this statement, and Smithen-Davis sought to reopen his appeal, relying on Hamilton's affidavit which challenged the statement's veracity and his counsel's advice.

Despite Smithen-Davis waiving his privilege, Hamilton refused.

The Court of Appeal found that Hamilton's partial and selective disclosure in his affidavit, and his reliance on it to explain his actions, constituted an implied waiver of privilege due to fairness.

The court ordered that Hamilton had waived privilege regarding the Agreed Statement of Fact's accuracy and origin, and directed cross-examination on these issues.

The appellant sought leave to appeal an eight-year total sentence for impaired driving causing death, criminal negligence causing death, and failing to comply with probation.

The appeal raised issues regarding credit for pre-trial incarceration conditions, house arrest bail, and the application of the parity principle compared to a co-accused.

The Court of Appeal granted leave but dismissed the appeal, finding no error in the trial judge's sentencing, particularly given the appellant's impairment, criminal record, and probation status, which justified a higher sentence than his co-accused.

The appellant was convicted of sexual assault and sexual interference against two young sisters.

He appealed his conviction, arguing the trial judge erred in dismissing his application for third-party records from the Children's Aid Society (CAS) and in making credibility determinations.

He also sought leave to appeal his sentence.

The majority of the Court of Appeal set aside the convictions and ordered a new trial, finding that the CAS records were likely relevant to credibility and motive to fabricate and should have been reviewed by the trial judge.

The sentence appeal was dismissed.

The Crown sought leave to appeal two sentences imposed on the respondent for failing to remain at the scene of an accident and firearms offences, arguing that the first sentencing judge erred in calculating pretrial custody credit, which impacted the subsequent sentence.

The Court of Appeal granted leave for both appeals.

For the first sentence (Marshall #1), the Court found the trial judge erred by departing from an agreed-upon "Duncan" credit and by "double counting" mitigating factors, varying the pretrial custody credit from 39 days to 107 days, but not altering the suspended sentence.

For the second sentence (Marshall #2), the Court dismissed the Crown's appeal, upholding the suspended sentence, finding that the trial judge was entitled to give substantial credit for guilty pleas given the unique circumstances of the COVID-19 pandemic's impact on the justice system.

The Court of Appeal for Ontario heard two motions arising from two notices of appeal filed by the appellant, Deepan Budlakoti.

The Crown sought to quash a 'Charter Appeal' concerning a pre-trial application dismissal, arguing it was an interlocutory order without a right of appeal.

Mr. Budlakoti sought reconsideration of a decision refusing his application for appointment of counsel for his 'Habeas Appeal' challenging detention conditions.

The court granted the Crown's motion, quashing the Charter Appeal as an interlocutory criminal appeal.

Mr. Budlakoti's motion for counsel was dismissed, as the court agreed there was no arguable ground of appeal for the Habeas Appeal.

The appellant, found not criminally responsible for sexual assault, appealed the Ontario Review Board's disposition ordering his continued detention.

The primary issue was whether he should be transferred to a less secure facility.

The Court of Appeal found that the Board applied the correct legal standard of "least onerous and least restrictive" and that its decision, based on the assessment of expert evidence regarding the appellant's readiness for transfer, was reasonable.

The appeal was dismissed, affirming the continued detention.

The appellant appealed convictions for sexual assault and common assault, and the imposed sentence of 45 days intermittent and two years' probation.

The appeal challenged the trial judge's assessment of the complainant's credibility and reliability, the application of the R. v. W.(D.) principles, and the consistency of the verdict.

The sentence appeal argued for restraint and a reduction due to the COVID-19 pandemic.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no basis to interfere with the trial judge's findings on credibility or the proper application of W.(D.), and upheld the sentence as appropriate and within range.