Andrew Menchynski

Two appellants, both found not criminally responsible on account of mental disorder and incapable of consenting to medical treatment under provincial law, appealed detention orders imposed by the Ontario Review Board.

The central issue was whether an accused person incapable of consenting to medical treatment could nonetheless consent to a condition regarding psychiatric or other treatment under section 672.55(1) of the Criminal Code.

The Court of Appeal held that the capacity required to consent to such a condition differs from the capacity required to consent to the treatment itself.

An accused need only understand information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to it, including potential consequences for liberty.

The Court overruled its prior jurisprudence to the contrary and allowed the appeals, remitting the matters back to the Board for re-hearing.

The accused was charged with offences relating to forcing two minors to work in the sex trade.

She pleaded guilty to two counts of receiving a material benefit from the sexual services of minors pursuant to section 286.2(2) of the Criminal Code.

The Crown sought the mandatory minimum sentence of two years imprisonment.

The defence argued for a suspended or conditional sentence and challenged the constitutionality of the mandatory minimum provision.

The court found that while the mandatory minimum was grossly disproportionate to the offender's circumstances, it could not be saved under section 1 of the Charter.

The court imposed a sentence of eight months incarceration, finding that the offender's own history of sexual exploitation and ongoing victimization at the time of the offences substantially reduced her moral culpability, despite the serious nature of the crimes and the harm caused to the young victims.

The appellant appealed his convictions for two counts of assault and one count of sexual assault arising from incidents in a domestic relationship.

The Crown's case relied primarily on the complainant's testimony, which the appellant denied.

The appeal raised three grounds: whether the trial judge erred in failing to instruct the jury on the limited use of prior consistent statements; whether the trial judge erred in refusing to instruct the jury on the defence of mistaken belief in consent; and whether the trial judge erred in refusing to admit evidence of other sexual activity between the appellant and the complainant.

The Court of Appeal dismissed the conviction appeal and the sentence appeal.

The applicant was convicted of refusing to provide a breath sample and sentenced to a fine, probation, and a 12-month driving prohibition.

She appealed the conviction and applied for a stay of the driving prohibition pending the appeal.

The court applied the test for a stay pending appeal, finding that the appeal was not frivolous, continuation of the prohibition was not necessary in the public interest, and granting the stay would not detrimentally affect public confidence in the administration of justice.

The application for a stay was granted.

The appellant appealed both his conviction and sentence from the Ontario Court of Justice.

On the conviction appeal, the appellant raised two grounds: that the trial judge erred in her similar fact ruling regarding collusion between complainants, and that the trial judge unevenly scrutinized the evidence of the complainants versus the appellant's evidence.

The Court of Appeal found that the trial judge properly considered the possibility of innocent collusion, made findings on the extent of discussions between complainants that were supported by the record, and properly assessed credibility.

The appellant's defence of shady business dealings was found to lack credibility and was contradicted by corporate documents.

Both the conviction appeal and sentence appeal were dismissed.

The Crown brought a motion for directions seeking to abridge time, dismiss the appellant's appeal from conviction and sentence, and issue a warrant for the appellant's arrest.

The appellant had been convicted of conspiracy to commit fraud and falsely obtaining a refund or credit under the Income Tax Act, and was sentenced to 30 months imprisonment.

Released pending appeal with a surrender date of May 1, 2017, the appellant failed to surrender and lost contact with counsel.

The Court of Appeal granted all three orders, finding the appellant in breach of his recognizance and deeming his failure to surrender as an abandonment of his appeal.

The appellant was convicted by jury of second degree murder of his common law partner and sentenced to 17 years parole ineligibility.

He appealed both conviction and sentence.

Amicus raised two grounds of appeal: (1) the trial judge erred in failing to declare a mistrial when new evidence emerged during jury deliberations regarding the blue bathrobe used as a murder weapon, and (2) the trial judge improperly limited cross-examination of the officer-in-charge regarding information from a confidential informant about the appellant's alleged ties to organized crime.

The appellant also raised additional arguments regarding Charter violations.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's handling of the new evidence, the evidentiary rulings, or the sentence imposed.

The appellant appealed his conviction for possession of crack cocaine for the purpose of trafficking.

The sole issue on appeal was whether his trial counsel provided ineffective assistance.

The appellant argued that his counsel was in a conflict of interest by representing both him and a potential third party suspect, the owner of the vehicle in which the drugs were found.

The counsel failed to advance a third party suspect defence and did not disclose the conflict to the appellant.

The Court of Appeal found that an actual conflict of interest existed, that the counsel's representation was materially and adversely affected by the conflict, and that a miscarriage of justice occurred.

The conviction was set aside and a new trial was ordered.

The appellant appealed her conviction on two counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm.

While backing out of a parking spot at a Costco store, the appellant's vehicle accelerated in reverse and crashed into the store's front entrance, killing two individuals and injuring two others.

The appellant claimed her foot became stuck under the brake pedal, preventing her from stopping the vehicle.

The trial judge rejected this explanation as implausible and found the appellant created a dangerous situation by reversing at high speed and taking no corrective action for at least five seconds.

The Court of Appeal upheld the conviction, finding the trial judge properly applied the legal standard for dangerous driving and that the verdict was reasonable.

The appellant appealed his convictions for aggravated sexual assault and forcible confinement.

During and after the trial, the jury foreperson participated in a radio broadcast where he made derogatory and homophobic comments about the trial participants and discussed the case.

The majority of the Court of Appeal found that the juror's conduct created a reasonable apprehension of bias, necessitating a new trial.

The concurring judge found no reasonable apprehension of bias but agreed a new trial was required because the trial judge failed to adequately instruct the jury against using evidence from one count to support findings on other counts.

The appellant was convicted of possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime, receiving an eight and one-half year sentence.

On appeal, he argued the trial judge erred by presuming police truthfulness, applying uneven scrutiny to his testimony, misapprehending evidence, and engaging in speculation.

The Court of Appeal rejected all conviction grounds, finding the trial judge's credibility assessments and factual findings were well-supported by the record.

The sentence appeal was allowed only to the extent of granting 65 days of pre-sentence custody credit that the trial judge had overlooked.

The Crown appealed a declaration that the restriction on enhanced pre-sentence custody credit in s. 719(3.1) of the Criminal Code was unconstitutional.

The Court held that denying enhanced credit to offenders denied bail primarily because of prior convictions is overbroad under s. 7 because the provision captures persons unrelated to the public safety objective and affords limited meaningful review of endorsements.

The infringement was not saved by s. 1, as the measure was not minimally impairing and its deleterious liberty effects outweighed its benefits.

The Court also rejected the proposition that proportionality in sentencing process is an independent principle of fundamental justice under s. 7.

The appellant appealed a disposition of the Ontario Review Board ordering his detention.

The Court of Appeal found no basis to interfere with the Board's finding that the appellant posed a significant risk to the public.

While the appellant argued that a treatment impasse had been reached requiring an alternative assessment, this request was not made before the Board.

The appeal was dismissed, but the Court encouraged the Board to consider exercising its jurisdiction to address the treatment impasse at the upcoming annual review.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence following a guilty plea for sexual interference.

He argued the sentencing judge misapprehended evidence regarding his ability to manage his risk in the community using sex-drive reducing medication (Lupron) and sought to introduce fresh evidence of his progress on the medication.

The Court of Appeal dismissed the appeal, finding the sentencing judge reasonably concluded that the mere possibility of taking medication did not adequately reduce the high risk he posed to the public.

The court also dismissed the application to adduce fresh evidence, noting it was not credible due to the appellant's manipulative nature and was more appropriately a matter for parole authorities.

The appellant was charged with firearms and drug-related offences.

During a resolution discussion, the trial Crown offered to recommend a conditional sentence if the appellant pleaded guilty and provided a statement admitting he gave false evidence and his counsel knew it.

The appellant rejected the offer and applied for a stay of proceedings, alleging abuse of process.

The trial judge dismissed the application, ruling the discussion was protected by settlement privilege and the appellant failed to provide extrinsic evidence of prosecutorial misconduct.

The Court of Appeal allowed the appeal, finding that an exception to settlement privilege applied due to the allegation of prosecutorial misconduct, and that the unusual nature of the offer met the threshold evidentiary burden to review the Crown's exercise of discretion.

A new trial was ordered.

The appellant appealed a disposition of the Ontario Review Board that continued his conditional discharge.

The Court of Appeal dismissed the appeal, finding that the Board's order was reasonable and that the Board did not misapprehend evidence regarding cultural reactions to mental illness or the attitude of the appellant's parents toward his illness.

The appellant appealed a summary conviction decision declaring him not criminally responsible (NCR) for several offences, including criminal harassment, assault causing bodily harm, uttering a death threat, and breaching a recognizance.

He argued the NCR finding was unreasonable and based on a misapprehension of the evidence.

On appeal, the court admitted fresh psychiatric evidence that was unavailable at trial and which raised significant questions about the NCR conclusion.

Accepting the Crown’s concession, the court held that the fresh evidence could reasonably have affected the result.

The appeal was allowed and a new trial was ordered, limited solely to the NCR determination.

The accused appealed his convictions for drug and firearms offences, arguing arbitrary detention and racial profiling.

The Crown appealed the sentence, challenging the trial judge's finding that s. 719(3.1) of the Criminal Code, which limits pre-sentence custody credit to 1:1 when bail is denied primarily due to a previous conviction, violates s. 7 of the Charter.

The Court of Appeal dismissed both appeals.

The Court upheld the conviction, finding no arbitrary detention or racial profiling.

On the sentence appeal, the Court held that s. 719(3.1) violates the principle of proportionality in sentencing under s. 7 of the Charter by subjecting identically placed offenders to different periods of incarceration based on bail outcomes, and is not saved by s. 1.

The provision was declared of no force and effect.

The moving party, a mental health centre, brought a motion to suspend a placement decision of the Ontario Review Board pending appeal.

The respondent, a dual status offender, was ordered by the Board to be transferred from a federal penitentiary to the mental health centre.

The moving party argued that the transfer posed a safety risk and that the Board lacked jurisdiction.

The Court of Appeal dismissed the motion, holding that the test for suspending a placement decision is whether the moving party has shown a compelling reason to doubt the reasonableness of the Board's decision concerning the mental condition of the accused.

The moving party failed to meet this heavy burden.

The young person appealed a sentence of 12 months' closed custody and supervision followed by 12 months' probation for sexual interference.

The appellant, who had intellectual limitations and a high risk to re-offend, argued the trial judge erred by denying pre-sentence custody credit and imposing a sentence focused on incapacitation contrary to the Youth Criminal Justice Act.

The Court of Appeal dismissed the appeal, finding this was an exceptional case where denying pre-sentence credit was justified, and the sentence appropriately prioritized rehabilitation and accountability in a highly structured setting.