Stephen A. Whitzman

The appellant was convicted of sexually assaulting the complainant while she was sleeping.

At trial, the appellant denied any sexual contact, but on appeal argued the trial judge erred by not considering the defence of honest but mistaken belief in consent.

The Summary Conviction Appeal Judge found no air of reality to this defence.

The Court of Appeal denied leave to appeal, finding no clear error in the lower court's conclusion that a defence incompatible with the accused's own testimony lacked an air of reality.

A spouse in a 30‑year common law relationship sought temporary spousal support following separation, alleging the respondent failed to make full financial disclosure and understated his income through a closely‑held corporation.

The respondent asserted a dramatic decline in business income and inability to pay support.

The court held that incomplete disclosure justified drawing an adverse inference and applying the Federal Child Support Guidelines methodology using the respondent’s three‑year average Line 150 income.

The court rejected the claimed current income and ordered temporary spousal support based on the historical income average, together with extensive disclosure obligations and valuation of the respondent’s business and income.

The defendant was charged with three offences arising from incidents on Woodbine Beach in Toronto: voyeurism, mischief, and criminal harassment.

The Crown presented evidence of similar conduct in 2010 and 2013, involving surreptitious filming of women's buttocks using a concealed camera with zoom capability.

The court admitted similar fact evidence to establish identity.

The voyeurism charge was dismissed because the Crown failed to prove the essential element of "for a sexual purpose" beyond a reasonable doubt.

The criminal harassment charge was dismissed due to insufficient evidence that the defendant's actions caused the complainant to reasonably fear for her safety and concerns regarding the "watching or besetting" element.

The mischief charge resulted in a conviction, as the court found the defendant willfully interfered with the lawful enjoyment of public property.

The appellant appealed a conviction for driving with a blood alcohol concentration exceeding 80 mg.

The trial judge had found that the police failed to make the formal breath demand as soon as practicable under the Criminal Code, constituting a s. 8 Charter breach, but admitted the certificate of analysis under s. 24(2).

On appeal, the appellant argued that the failure to make the demand promptly should disentitle the Crown from relying on the presumption of identity and that the certificate should have been excluded.

The court held that the presumption of identity under s. 258(1)(c) remains available even if the demand was not made as soon as practicable, and that the proper remedy for any breach lies under the Charter exclusion analysis.

Applying the Grant framework, the trial judge’s decision to admit the evidence was entitled to deference and disclosed no error.

The appellant appealed a summary conviction for dangerous driving under s. 249(1)(a) of the Criminal Code, arguing the trial judge erred in finding identity beyond a reasonable doubt and provided inadequate reasons.

The appellant contended the trial judge improperly relied on the contents of a telephone statement to establish identity and that the circumstantial evidence permitted other reasonable inferences.

The appeal court held there was sufficient independent evidence on a balance of probabilities to admit the statement and that, when combined with other circumstantial evidence, the only rational inference was that the appellant was the driver involved in the incident.

The court also found the trial judge’s reasoning was apparent from the record and adequate for appellate review.

On a summary conviction appeal from a conviction for refusing to comply with a roadside breath demand, the appellant argued for the first time that the arresting officer misstated the legal consequences of failing the approved screening device and that he therefore was not obliged to comply, or alternatively had a reasonable excuse under s. 254(5) of the Criminal Code.

The appeal court held that appellate courts generally do not entertain arguments not raised at trial, absent rare circumstances where the issue can be fully, effectively and fairly addressed on the existing record.

Here, the trial record contained no evidentiary or legal foundation for the new ground.

The appeal was dismissed.

The appellant sought leave to appeal his summary conviction for operating a motor vehicle with a prohibited blood alcohol level.

He argued that the trial judge erred in finding the roadside breath demand was made 'forthwith' under s. 254(2)(b) of the Criminal Code.

The Court of Appeal refused leave, holding that the proposed ground of appeal involved well-established legal principles and a fact-specific inquiry that did not raise a question of law alone of general importance.

The appellant appealed his convictions for three counts of touching for a sexual purpose, arguing the trial judge erred in assessing the reliability of the complainant's evidence, particularly regarding delayed disclosure and alleged recovered memories.

The Court of Appeal dismissed the appeal, finding the trial judge carefully scrutinized the evidence, properly accounted for the historical nature of the offences, and made no palpable and overriding error in finding the complainant credible and reliable.