Eric H. Siebenmorgen

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 6, 2018.

The appellant sought a conditional discharge from a detention order, arguing that the proposed conditional discharge terms would provide equivalent public protection.

The Court of Appeal dismissed the appeal but allowed it in part, finding that while the Board's refusal to order a conditional discharge was reasonable and supported by evidence, the Board had erred by failing to remove the 24-hour supervision requirement from the disposition.

The court amended the disposition to remove this phrase, allowing the appellant to continue his transition to less supervised community living.

The appellant appealed the sentence imposed on February 1, 2011 by Justice Gary T. Trotter of the Superior Court of Justice.

On consent, the Court of Appeal for Ontario varied the sentence in one respect only: the credit for presentence custody was reduced from 6 months to 6 months less one day.

The appellant appealed his conviction for second-degree murder and assault, as well as his sentence of life imprisonment with 17 years parole ineligibility.

The appellant sought to introduce fresh psychiatric evidence from Dr. John Bradford concluding that he suffered from severe treatment-resistant schizophrenia at the time of the offence and met the threshold for a not criminally responsible (NCR) defence under Criminal Code section 16.

The Court of Appeal rejected the fresh evidence, finding that while the diagnosis might be credible, Dr. Bradford's conclusion regarding moral wrongfulness was grounded in medical rather than legal definitions.

The court noted that the appellant's conduct before, during, and after the killing, as well as his own statements, were inconsistent with an NCR defence.

The sentence appeal was also dismissed as the 17-year parole ineligibility period was not found to be unfairly imposed or too harsh.

Appeal from conviction for two counts of first degree murder.

The appellant killed two friends and attempted suicide, raising a not criminally responsible on account of mental disorder (NCR) defence.

The trial judge convicted after finding the appellant had the capacity to know that society would regard his actions as morally wrong, despite suffering from a mental disorder.

The appellant raised four grounds of appeal: (1) misinterpretation of "knowing that it was wrong" under s. 16(1) of the Criminal Code; (2) misapprehension of evidence regarding psychotic state; (3) request to recognize diminished responsibility as a partial defence; and (4) request to recognize suicide pact as a partial defence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant, a pediatrician, was convicted at trial of sexual assault following a genital examination of a 15-year-old patient during an initial consultation for attention deficit disorder.

The trial judge found that the appellant did not forewarn the patient of the genital examination and did not palpate the patient's testicles, and concluded the touching was gratuitous and for a sexual purpose.

The Court of Appeal found the trial judge misapprehended material evidence regarding the reliability of the complainant's testimony, the significance of the appellant's contemporaneous medical notes, and the expert evidence regarding the medical necessity and appropriateness of the examination.

The court concluded that on a correct apprehension of the evidence, no reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.

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 appellant was convicted of second degree murder for shooting and killing Andrew Christie in the doorway of Christie's apartment on December 19, 2004.

Although charged with first degree murder, the jury convicted him of the lesser charge.

He was sentenced to life imprisonment with parole ineligibility of 17 years.

On appeal, the appellant challenged the admission of evidence regarding an accomplice's manslaughter conviction, the deceased's ante-mortem statements, and the trial judge's jury instructions on post-offence conduct, self-defence, and provocation.

The appellant also challenged the sentence as unreasonable.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's evidentiary rulings or jury instructions, and finding the sentence fit.

The appellant was convicted of fraud over $5,000 for directing corporate rebate cheques to a company he owned, defrauding his employer of nearly $4 million.

He was sentenced to five years' imprisonment and ordered to pay over $3.4 million in restitution.

On appeal, he argued the trial judge improperly intervened during his testimony, failed to exclude banking records obtained in breach of an implied undertaking, and erred in ordering restitution.

The Court of Appeal dismissed the appeal, finding the trial judge's interventions were appropriate to assist a self-represented accused.

Assuming the banking records were obtained in breach of the appellant's Charter rights, the Court applied the Grant framework and concluded the evidence should not be excluded under s 24(2).

The restitution order was also upheld.

A criminal appeal considered whether a nearly three-year period between charge and trial infringed the accused’s s. 11(b) Charter right to be tried within a reasonable time.

Applying the new Jordan framework, the majority held the net delay exceeded the 30-month ceiling for superior court matters and was not justified by exceptional or transitional circumstances.

The Court found the matter was relatively straightforward, institutional delay was substantial, and the Crown did not establish reasonableness.

A stay entered by the provincial appellate court was upheld, with dissenting reasons that would have restored the convictions under a different balancing approach.

The appellant, an Aboriginal man adopted by non-Aboriginal parents, pleaded guilty to serious firearms and robbery offences and was sentenced to 13 years' imprisonment.

The sentencing judge declined to consider the appellant's Aboriginal heritage, finding no causal link between his background and the offences.

On appeal, the Court of Appeal held that the sentencing judge erred by requiring a causal connection and failing to consider the intergenerational systemic factors that bore on the appellant's moral blameworthiness.

The Court admitted fresh evidence of the appellant's reconnection with his Aboriginal heritage and reduced the global sentence to nine years.

The appellant appealed a decision of the Ontario Review Board ordering that he remain under a conditional discharge, seeking an absolute discharge.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and supported by the treating physician's opinion that the appellant continued to pose a significant risk to the public if he discontinued his medication.

The Board had appropriately recognized the appellant's progress by reducing his conditions, and left open the possibility of an absolute discharge at the next annual hearing.

The appellant appealed a conviction but failed to surrender into custody as required by the judicial release order.

Consequently, the Court of Appeal dismissed the appeal as abandoned.

The appellant challenged convictions for sexual offences against two child complainants on the basis that the trial judge misapprehended key defence evidence.

The Court of Appeal held that the trial judge incorrectly concluded the appellant first mentioned a cushion during cross-examination, when that detail had already been given in examination-in-chief, and then used that mistaken premise as the main articulated basis for rejecting the appellant's credibility.

Applying the material misapprehension standard, the court found the factual error infected the core reasoning on credibility and rendered the convictions unsafe.

The appeal was allowed, the convictions were quashed, and a new trial was ordered at the Crown's discretion.

The appellant was convicted of assault and break and enter to commit assault arising from a home invasion.

She was sentenced to two years less a day imprisonment followed by two years of probation.

On appeal, she argued the trial judge erred by not imposing a conditional sentence.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded a conditional sentence was unfit given the seriousness of the offence, the appellant's role as a principal, and the need for denunciation and deterrence.

The appellant appealed his conviction and sentence.

On the conviction appeal, he challenged the admission of opinion evidence from witnesses identifying him as the "kicker" in a video of an assault, and the trial judge's failure to address certain exculpatory evidence.

The Court of Appeal dismissed the conviction appeal, holding that the witnesses' prior acquaintance with the appellant and their viewing of the video immediately after the assault placed them in a better position than the trial judge to make an identification.

The court also found no error in the trial judge's treatment of the evidence.

The sentence appeal was dismissed as the appellant had served his custodial term and abandoned the appeal.

The appellant appealed his conviction for mischief and his 17-month sentence for mischief and sexual exploitation.

The mischief occurred when the appellant pulled the parking brake of a moving vehicle driven by his stepdaughter, who had refused to let him out.

The appellant argued the driver was unlawfully confining him, meaning she was not in lawful use of the vehicle.

The Court of Appeal dismissed the conviction appeal, finding the Crown negated unlawful confinement as it requires a significant period of time.

The sentence appeal was also dismissed, as the cumulative sentence reflected no error in principle given the breach of trust and vulnerability of the sexual exploitation complainant.

The appellant was convicted of a large-scale, complex fraud and sentenced to five years' imprisonment with a $100,000 restitution order.

On appeal, the Court of Appeal found no error in the trial judge's reasoning, noting that denunciation and deterrence are dominant for such offences.

However, based on sealed material regarding post-sentence events, the parties consented to a sentence reduction.

The Court allowed the appeal and reduced the sentence to three years.

The young person appealed his manslaughter conviction arising from a group assault that resulted in the victim's death.

He argued his right to silence was violated when the Crown cross-examined him using information allegedly derived from his compelled testimony at the adult co-accuseds' preliminary hearing.

He also challenged the trial judge's jury instructions on duress and aiding and abetting, and the admission of the co-accuseds' guilty pleas.

The Court of Appeal dismissed the appeal, finding no violation of the right to silence, adequate jury instructions, and that any error regarding the guilty pleas caused no substantial wrong or miscarriage of justice.

The appellant, who was 17 at the time of the offences, appealed the imposition of an adult sentence following his conviction for second degree murder and offering an indignity to a dead body.

He argued that the sentencing judge mischaracterized the jury’s implied factual findings and erred in concluding that the presumption of diminished moral culpability under the Youth Criminal Justice Act had been rebutted.

The court held that, on the evidentiary record and jury instructions, the finding that the appellant inflicted at least one stab wound reasonably flowed from the verdict.

The court further held that the sentencing judge undertook a full and balanced analysis under s. 72 of the YCJA and properly concluded that a youth sentence would not be sufficient to hold the appellant accountable.

Fresh evidence concerning rehabilitation, institutional placement, and possible transfer to Germany did not alter that conclusion.

The appellant appealed his two murder convictions, arguing the trial judge erred in admitting evidence from his cellphone and workplace computer obtained in violation of his s. 8 Charter rights.

He also challenged the Crown's closing address, alleged factual errors in the jury charge, and complained about a summary chart of victim statements.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's s. 24(2) Grant analysis, which correctly assessed the privacy impact of the computer search as minimal.

The court also rejected the appellant's other grounds, finding no prejudice from the Crown's address, the minor jury charge error, or the evidentiary chart.