Wayne Arthur Cunningham

The appellant appealed his conviction for aggravated sexual assault, which was based on his failure to disclose his HIV-positive status to the complainant.

The appellant was an "elite controller" with a naturally low/undetectable viral load, not on anti-retroviral therapy.

The Court of Appeal admitted fresh expert evidence, which clarified that the risk of HIV transmission from an elite controller with a suppressed viral load is negligible, similar to individuals on ART.

The court found this fresh evidence decisive, concluding that no reasonable trier of fact could convict the appellant given the negligible risk of transmission.

The appeal was allowed, the conviction was set aside, and an acquittal was entered.

The Crown appealed, with leave, a summary conviction appeal judge's decision that set aside a sexual assault conviction and ordered a new trial.

The complainant testified to waking up unconscious during sexual activity with the respondent.

The trial judge found the complainant unable to and did not consent, concluding she was unconscious.

The summary conviction appeal judge (SCAJ) criticized the trial judge's reasons for insufficiency, particularly regarding the timing of unconsciousness, prior consent, and the handling of expert toxicological evidence and post-offence conduct.

The Court of Appeal found the SCAJ unduly critical, reiterating that trial judges are not required to detail every piece of evidence and that expert evidence, while not definitive, supported the complainant's account.

The Court of Appeal rejected the SCAJ's suggestion of drawing an adverse inference against the Crown for perceived deficiencies in expert evidence presentation, deeming it unprecedented.

It also found the trial judge's use of post-offence conduct, though equivocal, was not fatal in a judge-alone trial.

Applying the principle that an unconscious person cannot consent, the Court of Appeal concluded the trial judge was entitled to find an absence of consent.

The appellant, J.C., appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching related to K.M., while he was acquitted of charges related to C.M. The appeal raised four main issues: the admission of similar act evidence from C.Y., the consideration of cross-count similar act evidence between K.M. and C.M., the lack of a jury instruction on the prohibited use of bad character evidence from Facebook communications, and the refusal to permit a challenge for cause during jury selection.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's decisions regarding the admissibility and use of similar act evidence, the jury instructions, or the refusal to allow a challenge for cause.

The Crown appealed the 9-month sentence imposed on the respondent for sexual assault against a child, arguing it was demonstrably unfit and failed to properly apply sentencing principles from *R. v. Friesen*.

The Court of Appeal granted leave, found the trial judge erred in principle by overemphasizing mitigating factors and underestimating the gravity and harm of the offence, and imposed a demonstrably unfit sentence.

The Court increased the sentence to 24 months but, based on fresh evidence that the respondent had completed his original sentence and was on parole, stayed the execution of the additional incarceration.

Ala Al Safi pleaded guilty to ten counts of aggravated sexual assault or attempted aggravated sexual assault and breaching a recognizance condition related to his HIV status and sexual encounters.

The court imposed a ten-year sentence, reduced by enhanced pre-sentence custody credit, and declared him a Long-Term Offender, imposing a ten-year Long-Term Supervision Order with specific conditions aimed at public safety and rehabilitation, particularly regarding HIV disclosure and medication adherence.

The offender pleaded guilty to five child pornography-related charges and one count of sexual assault of his five-year-old daughter.

The offender had engaged in online communications with a UK offender discussing the sexual abuse of their own children and exchanging child sexual abuse material.

Police discovered 212 child sexual abuse images and 2 videos on the offender's devices, including images of his own daughter.

The offender had a prior 2010 conviction for possessing and importing child pornography.

The court imposed a global sentence of 8 years less 983 days of pretrial custody, with 5 years concurrent on the child pornography charges and 3 years consecutive on the sexual assault charge.

The court emphasized denunciation and deterrence as paramount sentencing objectives given the severity of crimes against children.

The appellant was convicted of fraud over $5,000 and possessing proceeds of crime for allegedly misappropriating $530,788 from her former employer between 2007 and 2012 through unauthorized cheques, fraudulent payroll entries, and unauthorized credit card charges.

She appealed on three grounds: (1) the application judge erred in denying her Rowbotham application for state-funded counsel; (2) the trial was rendered unfair by Crown misconduct; and (3) the trial judge erred in refusing to hear her Charter s. 11(b) application on procedural grounds.

The Court of Appeal dismissed the first two grounds but allowed the appeal on the third ground, finding the trial judge's refusal to hear the s. 11(b) application was unreasonable.

The appellant appealed a conviction entered by the Ontario Court of Justice, raising two issues: first, that the trial judge erred in admitting a video-recording of the complainant's police statement under s. 715.1 of the Criminal Code; and second, that the trial judge erred in assessing the complainant's credibility and reliability.

The Court of Appeal dismissed both arguments, finding that defence counsel had expressly consented to the video-recording's admission and that the trial judge had adequately considered the whole of the complainant's testimony while providing sufficient reasons for the conviction on the one incident.

The accused was charged with sexually assaulting a 13-year-old boy at the YMCA.

The defence sought production of third-party incident reports held by the YMCA documenting other alleged misconduct by the complainant with other men at the facility.

The court dismissed the application, finding that the defence failed to meet the "likely relevance" threshold under section 278.3 of the Criminal Code.

The court determined that the records were sought as part of a speculative fishing expedition to portray the complainant as the initiator of sexual activity, relying on impermissible stereotypes and myths about sexual assault victims.

Appeal from a dangerous offender designation imposed by the Superior Court of Justice.

The appellant was convicted of assault causing bodily harm and theft.

The Crown sought and obtained a dangerous offender designation under section 753 of the Criminal Code based on evidence including police synopses of prior convictions, correctional records, and expert psychiatric evidence.

The appellant challenged the admissibility and reliability of police synopses and argued that the trial judge erred in finding their contents proven beyond a reasonable doubt.

The Court of Appeal held that while police synopses are generally admissible at sentencing, they must be treated with caution and their contents cannot be accepted in their entirety as proven beyond a reasonable doubt.

However, the court found that the trial judge's error was harmless because the dangerous offender finding was well-supported by other evidence in the record, including the appellant's extensive criminal history, expert psychiatric evidence of high risk of violent recidivism, and corroborating evidence from guilty plea transcripts and institutional records.

The Court allowed the accused’s appeal and held that, on the totality of circumstances, he had a reasonable expectation of privacy in text messages recovered from the recipient’s phone, giving him standing to challenge the search under section 8.

With standing conceded, the warrantless search was unreasonable, and the text-message evidence was excluded under section 24(2) because admission would bring the administration of justice into disrepute.

Without that evidence the convictions could not stand, and the curative proviso did not apply.

The accused, an HIV and HSV positive individual, was charged with three counts of aggravated sexual assault for non-disclosure of HIV status to three complainants, one count of sexual assault causing bodily harm for allegedly transmitting HSV to one complainant, and two counts of failing to comply with a recognizance.

The Crown alleged the accused engaged in intimate relationships without disclosing his viral status.

The trial focused on whether non-disclosure vitiated consent and whether there was a realistic possibility of HIV transmission.

The court found that while the accused failed to disclose his HIV status, his undetectable viral load for more than six months negated any realistic possibility of transmission, distinguishing the case from the Supreme Court's decision in Mabior.

The court also found insufficient evidence to prove causation of the HSV infection.

All charges were dismissed.

The appellant appealed his conviction for aggravated assault arising from an attack on the victim in his bedroom.

The appellant was acquitted of attempted murder, unlawful confinement, and assault with a weapon.

The trial judge found the appellant was one of three assailants based on evidence including his association with known assailants before and after the attack, the presence of the victim's blood on the appellant's pants, and corroborating testimony.

The Court of Appeal rejected four grounds of appeal and upheld the conviction.

The appellant appealed his conviction for sexual assault of his sister-in-law, alleging the conviction was unreasonable.

The complainant alleged approximately 10-50 sexual assaults occurred between 1997 and 1999 when she was 16-17 years old.

The Court of Appeal found that important aspects of the complainant's evidence were demonstrably false, including her claims of being enslaved and controlled.

The trial judge herself had significant misgivings about the complainant's credibility and found that the Crown had not proven most of the alleged assaults beyond a reasonable doubt.

The appellate court determined that the risk of wrongful conviction was too high and set aside the conviction, entering an acquittal.

The Crown brought an application under section 490(9)(d) of the Criminal Code for forfeiture of USD $32,279.78 and CAD $3,060.50 seized from the respondent's account.

The respondent had been acquitted of all charges, including money laundering.

Both parties agreed the funds were proceeds of crime from an illegal ephedrine exportation scheme.

The court granted the forfeiture order despite acknowledging that TD Bank had violated a Superior Court Restraint Order by withdrawing $35,000 from the account and sending it to Citi Bank, and despite the Crown's minimal efforts to enforce the breach.

The court found that the funds remained proceeds of crime and that Parliament's intention to deprive offenders of criminal proceeds outweighed the equitable considerations arising from TD Bank's breach.

The accused, a lawyer, was charged with multiple counts of money laundering, possession of proceeds of crime, fraud, and conspiracy related to an international ephedrine exportation scheme operated by Afshin Dastani.

The Crown's case relied heavily on the testimony of Dastani, who admitted to operating an illegal drug exportation business and claimed he disclosed the illicit nature of his activities to the accused.

The court found Dastani to be an unreliable and discredited witness due to numerous inconsistencies in his evidence and a pattern of deception toward family, friends, legal advisors, and government authorities.

Without credible evidence of the accused's knowledge that funds were proceeds of crime, the court acquitted the accused on all charges.