Geneviève McInnes

The Court of Appeal for Ontario allowed the Crown's appeal from sentence, finding that the sentencing judge erred in imposing a conditional sentence and in failing to order a consecutive sentence for participation in a criminal organization.

The court also set aside a restitution order that was not directed to a victim.

In light of the respondent's rehabilitation and time already served, the court substituted a sentence reflecting appropriate credit and stayed the remainder of the sentence and the criminal organization conviction.

The appellant, Ezra Harely, appealed his convictions for possession and production of marijuana for the purpose of trafficking and his 18-month custodial sentence.

The appeal raised three grounds: a flawed s. 8 Charter analysis and admission of seized evidence, improper jury instructions, and the trial judge's refusal to impose a conditional sentence.

The Court of Appeal dismissed the appeal, finding no legal error in the trial judge's s. 8 Charter analysis or findings of fact regarding the search warrants, no reversible error in the jury charge, and no unfitness or error in principle in the imposed custodial sentence given the scale of the operation and the need for deterrence and denunciation.

The Crown appealed a sentence, specifically challenging the trial judge's finding that fine in lieu of forfeiture provisions were unconstitutional.

This decision addresses two issues: the Court of Appeal's jurisdiction to remit a sentence to the trial court and the terms of a fine in lieu of forfeiture.

The court confirmed it lacks jurisdiction to remit sentencing to the trial court on a sentence appeal under s. 687 of the Criminal Code, and, based on joint submissions, imposed a fine in lieu of forfeiture of $74,560 with a default imprisonment term of 18 months and a ten-year payment period.

The Crown appealed a trial judge's decision that sections 462.37(3) and (4) of the Criminal Code, concerning fines in lieu of forfeiture and default imprisonment, were unconstitutional under s. 12 of the Charter in certain foreseeable circumstances.

The Court of Appeal allowed the appeal, holding that the trial judge was bound by a prior ONCA decision (R. v. Chung) and, in the alternative, that the provisions do not violate s. 12 as they serve a different purpose than victim surcharges and offer judicial discretion and flexibility.

Jacques Trudel was found guilty of possession of over two kilograms of methamphetamine for trafficking, possession of hydromorphone, and possession of proceeds of crime.

The Crown sought a penitentiary sentence of seven to nine years, while the defence proposed a conditional sentence or two to three years.

The court considered aggravating factors, including the quantity of drugs, Trudel's principal role, and his lengthy criminal record, and mitigating factors such as his age, serious health conditions (HIV, Hepatitis C), and four years under strict house arrest.

The court rejected a conditional sentence, distinguishing Trudel's case from that of a co-accused due to his leadership role and failure to seek addiction treatment.

While acknowledging the impact of age, health, and house arrest, the court found these factors did not warrant a substantial reduction from the appropriate sentencing range for drug trafficking.

Trudel was sentenced to six and a half years of incarceration for trafficking, with concurrent sentences for the other offences.

The accused, Jacques Trudel, was convicted of trafficking crystal methamphetamine, possession of hydromorphone, and possession of proceeds of trafficking following a high-speed police chase and the seizure of drugs and cash.

The central issue was whether Mr. Trudel had constructive possession of the crystal methamphetamine.

The court found, based on circumstantial evidence, that the accused had knowledge and control over the drugs, given his active role in the common venture with his co-accused, his control over the vehicle's contents, and his instruction to evade police.

The defence's arguments regarding police testimony reliability and gaps in the Crown's case were rejected.

The appellant appealed convictions for multiple drug and firearm offences, alleging the trial judge failed to provide adequate reasons for dismissing a Charter motion and misapprehended evidence.

The Court of Appeal found the trial judge's reasons adequate, noting no obligation to reconcile every inconsistency, only those relevant to the Charter application.

While conceding a misapprehension regarding the location of the appellant's wallet, the court determined it had no impact on the verdicts due to overwhelming evidence of possession, including a padlock code found in the appellant's wallet connecting him directly to contraband.

The appeal was dismissed.

Colleen Cahill, charged with multiple provincial and federal offences including theft, break and enter, and administration of justice offences, sought a bail review under s. 520 of the Criminal Code after being detained on primary and secondary grounds.

The Superior Court of Justice granted judicial interim release, finding that the COVID-19 pandemic constituted a material change in circumstances, particularly given Cahill's HIV-positive status and chronic lung disease, which placed her at significant risk in detention.

The court determined that her proposed release plan, involving supervision by the John Howard Society and continuation of a methadone program, sufficiently mitigated the risks of non-attendance and reoffending, and that her release would not undermine confidence in the administration of justice.

The accused was charged with sexual assault, robbery, and fraud.

The court found the accused guilty of sexual assault and fraud.

For the robbery charge, the court found the accused guilty of the lesser included offence of theft under five thousand dollars, as the timing between the theft and the subsequent sexual assault was unclear, preventing a finding of "immediate" connection required for robbery.

The decision involved a detailed analysis of consent in sexual assault cases, the reliability of witness testimony given intoxication and memory gaps, and the application of reasonable doubt principles.

The accused, David John Mayne Bullen, faced seven charges related to cocaine trafficking and conspiracy, including instructing an offence for a criminal organization and historical trafficking charges.

The trial was the second for the accused, following a mistrial.

The Crown relied on evidence from "Project Mayday" and "Project Adelaide," involving police surveillance and intercepted communications.

The Defence admitted guilt for a smaller conspiracy involving the first three police agent cocaine purchases but disputed the larger conspiracy and criminal organization charges.

The court applied the Carter analysis for co-conspirator hearsay and found the accused guilty of conspiracy to traffic cocaine, trafficking cocaine, and possession for the purpose of trafficking (Counts #1, #2, #3) related to the main conspiracy and the first three police agent buys.

However, the court found the accused not guilty of directing a criminal organization (Count #4) and the historical trafficking charges (Counts #5, #6, #7), citing insufficient evidence for a criminal organization and reliability issues with the police agent's testimony for the historical charges.

The Crown appealed a sentencing decision in which the trial judge refused to impose a section 161 Criminal Code prohibition order against a respondent convicted of sexual assault and sexual interference.

The respondent had been found guilty of more than twenty acts of sexual intercourse with his step-daughter over a 2.5-year period when she was between six and eight years old.

The trial judge imposed a 6.5-year sentence but declined the prohibition order, citing concerns about personal liberty.

The appellate court found that the trial judge failed to adequately consider the respondent's continued risk to children and imposed a tailored section 161 prohibition order for 15 years from release.