Stephanie DiGiuseppe

In a criminal case involving sexual assault charges against a physiotherapist, the defence brought a motion for directions regarding Crown disclosure of private records.

The central issue was whether documents disclosed by the Crown required an admissibility hearing under s. 278.92 of the Criminal Code, or if Crown disclosure implied a full waiver of privacy interests by the complainant.

The court, Molloy J., affirmed the binding nature of prior Superior Court decisions (R. v. J.K., R. v. Martiuk) which established a presumption that Crown disclosure constitutes a full waiver, negating the need for a s. 278.92 hearing.

However, the judge found that in this specific case, the Crown had failed to obtain proper, informed waivers from the complainants.

This lack of valid waivers constituted "evidence to the contrary," rebutting the presumption.

Consequently, the court ruled that admissibility hearings under s. 278.92 would indeed be required for the disclosed records.

The appellant, David Lanktree, appealed his 5-year prison sentence for drug and weapons offences, arguing the trial judge erred by not imposing a conditional sentence, treating community drug problems as an aggravating factor, and failing to consider Duncan credit for harsh pre-sentence custody conditions.

The Court of Appeal dismissed the appeal, finding the sentencing judge correctly determined a conditional sentence was inappropriate given the appellant's history of re-offending and breaches.

The court also found the judge did not err in principle by considering the community impact of drug trafficking for denunciation and deterrence, and that the discretion regarding Duncan credit was properly exercised.

The appellant was convicted of sexual assault and overcoming resistance by choking.

He appealed both the convictions and the sentence.

The Court of Appeal dismissed the appeals, finding that the trial judge's assessment of the complainant's credibility and the minor inconsistencies in her evidence was entitled to deference.

The court also affirmed that corroboration is not a requirement for conviction in such cases.

The sentence appeal was not pursued.

The appellant, Christopher Husbands, appealed the life sentences imposed for two counts of manslaughter and other related offences stemming from a 2012 shooting at the Eaton Centre.

The appeal raised four main categories of error: misapplication of social context evidence (IRCA), incorrect test for PTSD link to conduct, misapplication of delayed parole test and failure to remedy Charter breaches, and demonstrably unfit sentence.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the legal principles, including those related to social context evidence (consistent with Morris), mental disorder as a mitigating factor (consistent with Prioriello and Hilbach), and the two-stage Zinck test for parole eligibility.

The court concluded that the life sentences were not demonstrably unfit, emphasizing the seriousness of the crimes, the profound victim impact, and the paramountcy of general deterrence and denunciation in such cases.

Sarah Nolan pleaded guilty to possession of 6.5 kilograms of cocaine and 29.74 grams of fentanyl for the purpose of trafficking.

The Crown sought an eight-year sentence, while the defence proposed five to six years, both agreeing to a 10-month reduction for Charter breaches.

The court considered aggravating factors, including the quantity and nature of the drugs and the duration of involvement, alongside significant mitigating factors such as Nolan's first offender status, vulnerability due to cognitive deficits, guilty plea, remorse, and extensive rehabilitation efforts.

A global sentence of six years was deemed appropriate, reduced to five years and two months (62 months) after the agreed-upon reduction.

The sentence included a 10-year weapons prohibition, a DNA order, and forfeiture of seized items.

The appellant, J.D., appealed his conviction for sexual interference involving his five-year-old niece, arguing the complainant's evidence was fabricated.

The Court of Appeal upheld the trial judge's credibility findings, which favoured the complainant's consistent testimony and rejected the defence witness's "goal-based" evidence.

The court found no error in the trial judge's application of the W.D. analysis.

The conviction appeal was dismissed, and the sentence appeal was abandoned.

The appellant, found not criminally responsible (NCR) for attempted murder and assault, appealed a DNA order granted by the trial judge under s. 487.051(3) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the test for imposing a DNA order on an NCR offender and did not err in granting the order based on stereotypical reasoning or speculation, as the conclusions were anchored in evidence.

The appellants, convicted of first-degree murder and attempted murder, appealed their convictions and sentences.

The Court of Appeal allowed the appeals for first-degree murder convictions, ordering a new trial due to the trial judge's error in restricting routes to liability and failing to leave included offenses (second-degree murder and manslaughter) to the jury.

The court found that the murder and attempted murder charges were not inextricably linked.

The appeals on the attempted murder convictions were dismissed, and leave to appeal the life sentences for attempted murder was granted but the appeals were dismissed, finding no error in principle in the sentencing.

The appellant, Margaret Lee Cole, appealed her conviction for first-degree murder in the death of Richard Humble, who died in a house fire.

The Crown's case was based on circumstantial evidence, including the appellant's financial motive (forged documents and will), the presence of a sedative (Alprazolam) in the victim's system (prescribed to the appellant), a false alibi, and other suspicious circumstances.

The Court of Appeal found that the trial judge erred in admitting extrinsic misconduct evidence (the "Chapman letters") and in the jury's instruction on its use, as well as in the jury's instruction on the fabricated alibi.

However, the Court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that the Crown's case was overwhelmingly strong and that the errors did not cause a miscarriage of justice.

The appeal was dismissed, and the conviction upheld.

The applicants sought to set aside a motion judge's order dismissing their application for leave to appeal under s. 131(1) of the Provincial Offences Act, arguing jurisdictional error.

The Court of Appeal dismissed the application, finding it barred by s. 131(3) of the POA, which prohibits appeals or reviews from leave decisions.

The court also found no jurisdictional failure even if the cited precedent applied.

The appellant was convicted by jury of aggravated assault and three firearm offences arising from an incident at an after-hours restaurant where the appellant allegedly fired a gun twice inside the establishment and then shot the victim in the stomach and hand upon exit.

The central issue at trial was identification.

Three witnesses recanted prior statements to police in which they had identified the appellant, but the trial judge admitted the prior statements as hearsay evidence based on procedural reliability.

The Court of Appeal upheld the conviction, finding the verdict was not unreasonable and the trial judge properly instructed the jury on identification evidence and post-offence conduct.

The appellant's sentence of 12 years global (8 years for aggravated assault, 4 years concurrent for careless use of firearm, 4 years consecutive for pointing firearm, 4 years concurrent for possession of weapon, less 32 months pre-sentence custody credit) was upheld as fit.

The appellant appealed a sentence of five years imprisonment imposed by the trial judge, with credit for 1,226 days of presentence custody resulting in a custodial term of 599 days followed by three years' probation.

The Court of Appeal upheld the five-year custodial sentence as appropriate given the seriousness of the offence and the appellant's mental condition.

However, the court agreed with the parties that the appellant was entitled to an additional 41 days credit for presentence custody, reducing the custodial term to 558 days (time served).

The court rejected the appellant's argument to reduce the probation term from three years to one year, finding the probation order with treatment and counselling terms essential to public protection.

The victim surcharge was deleted.

Christopher Husbands was on trial for murder and aggravated assault following a shooting incident.

The defence sought verdicts of Not Criminally Responsible on account of Mental Disorder (NCRMD) due to a dissociative state.

During jury deliberations, a question arose regarding whether the accused should be found NCR if he was able to appreciate the nature and quality of some, but not all, of the shots fired.

The judge instructed the jury to consider the defence's onus to prove NCRMD for the shots that caused the deaths and injuries, emphasizing the lack of evidentiary basis to parse the shots.

The jury ultimately found Husbands guilty of two counts of manslaughter, five counts of aggravated assault, and other firearm-related counts.

Christopher Husbands, facing a retrial for murder and aggravated assault stemming from the Toronto Eaton Centre shooting, applied to exclude viva voce evidence or prior testimony of a 13-year-old victim and his family.

The defence argued that given the accused's admissions and the live issues at trial (specifically, a Not Criminally Responsible defence based on PTSD), the prejudicial impact of such emotional testimony would outweigh its probative value.

The Crown opposed, suggesting the evidence would balance sympathy for the accused.

The court allowed the defence's application, ruling that the evidence of the victim and his family would be presented via agreed statements of fact, read to the jury and filed as exhibits, rather than through live testimony or prior audio, as the latter would be highly prejudicial without significant probative value on the contentious issues.

The Crown applied to admit an audio-taped hearsay statement from Nisan Nirmalendran, a deceased witness, regarding the 2012 Eaton Centre shooting where the accused, Christopher Husbands, admitted firing shots.

Husbands' defence was not criminally responsible due to PTSD and dissociation.

The court dismissed the Crown's application, finding the statement lacked necessity due to other available evidence and failed to meet the threshold reliability criteria.

Key reasons for denying admissibility included the absence of an oath or affirmation, lack of cross-examination, potential tainting from news reports, and significant motives for the declarant to fabricate or downplay his actions.

Christopher Husbands, facing a retrial for murder and aggravated assault, asserted a Not Criminally Responsible (NCR) defence based on mental disorder automatism due to PTSD.

The defence applied to exclude expert references to Antisocial Personality Disorder (ASPD) and to limit references to malingering.

The court dismissed both applications, ruling that ASPD could be referenced, with limitations on propensity aspects, focusing on its manipulation, malingering, and deception components relevant to the NCR defence.

The court also allowed Crown experts to refer to malingering concerns, emphasizing its relevance to the NCR issue and providing jury instructions to distinguish it from the presumption of innocence regarding the elements of the offence.

Christopher Husbands, facing charges including second-degree murder, applied to challenge prospective jurors for cause based on potential bias related to mental illness, specifically concerning a "not criminally responsible" defence.

The defence proposed a third challenge question regarding preconceptions about mental illness, in addition to agreed-upon challenges for race and publicity.

The court considered expert testimony on public stigma against mental illness but found that the evidence did not establish a widespread bias specific to the mental disorder at issue (PTSD) or that jurors would be unable to set aside such bias despite judicial instructions.

The application for the additional challenge for cause question was dismissed.

The Applicant, Faith Bazos, sought to avoid paying costs to the Respondent, Bell Media Inc., after her application challenging Bell Media's refusal to run her political advertisements was dismissed for lack of jurisdiction.

Bazos argued she was a public interest litigant and should be exempt from costs or pay reduced costs.

The court found that the jurisdictional issue was not novel and did not qualify her as a public interest litigant for the purpose of costs.

The court also found that it was not necessary for her to invoke the Superior Court's jurisdiction instead of the CRTC.

Consequently, the Respondent, as the successful party on the jurisdictional issue, was entitled to partial indemnity costs.

The court fixed costs at $43,117.90, inclusive of fees, disbursements, and HST, finding the amount reasonable given the urgency and complexity of the jurisdictional hearing.

The applicant, a municipal election candidate, sought a declaration and mandatory order from the Superior Court of Justice to compel the respondent broadcaster to run her political advertisements, relying on CRTC regulations and the Charter.

The court dismissed the application, finding that the CRTC had exclusive jurisdiction over the interpretation and enforcement of its regulations.

While the court had concurrent jurisdiction for Charter claims, it declined to exercise it, determining that the entire application should be heard by the specialized tribunal.