Holly Ann Akin

This addendum clarifies the payment deadline for fines imposed in the main appeal decision (2021 ONCA 665).

The respondent requested clarification, and the court ordered that the fines be paid within seven days of the release of this addendum.

The Crown appealed a summary conviction appeal judge's decision that reduced fines and eliminated a custodial sentence for environmental offences under the Canadian Environmental Protection Act (CEPA).

The Court of Appeal agreed with the appellate judge that the sentencing judge erred in principle by comparing the case to one involving deliberate environmental harm, thus upholding the elimination of the custodial sentence for the individual respondent.

However, the Court of Appeal disagreed with the reduction of fines, finding no error in the original sentencing judge's imposition of separate fines for each count, and restored the original fines for both the corporate and individual respondents.

The individual and corporate accused appealed their sentences for environmental offences under the Canadian Environmental Protection Act, 1999, involving the failure to safely dispose of PCBs and comply with an environmental protection compliance order.

The sentencing judge had imposed significant fines and an intermittent jail term on the individual.

The Superior Court of Justice found that the sentencing judge erred in principle by relying on a precedent involving a much higher degree of moral culpability and actual harm, whereas the present case involved passive negligence and potential harm.

The appeal court vacated the jail sentence for the individual and reduced the fines for both accused, emphasizing the principle of restraint in regulatory sentencing and the distinction between actual and potential harm.

The appellant was acquitted of importing cocaine but convicted of conspiracy to import cocaine and possession of cocaine for the purpose of trafficking in connection with a 112-kilogram cocaine shipment from Guyana.

He was sentenced to 17 years concurrent on each count.

On appeal, the appellant challenged the legal basis for the conspiracy conviction, the admissibility of overheard utterances, and the fitness of the sentence.

The Court of Appeal dismissed the conviction appeal but granted leave to appeal sentence and reduced it to 15 years concurrent, finding the trial judge erred in treating the appellant's level of participation as equal to that of the primary importer.

The Crown brought a motion to quash an appeal of a section 11(b) Charter order.

At the opening of the hearing, counsel for the respondent advised that the trial was scheduled for July 29, 2019, and abandoned the appeal at that time.

The Crown withdrew its motion to quash.

The appeal and motion were both dismissed as abandoned, with the understanding that the respondent was not precluded from raising the same issue on a future appeal after trial.

The applicant sought a stay of proceedings for importing cocaine, alleging a violation of his Section 11(b) Charter right to be tried within a reasonable time.

The total delay was nearly four years, exceeding the 30-month Jordan ceiling.

The court found that at least 22 months of the delay were attributable to the applicant's obstructionist conduct, including failing to appear, refusing to cooperate with court processes, and difficulties retaining counsel.

Deducting this defence-generated delay brought the net delay below the Jordan ceiling.

The application for a stay was dismissed.

The accused, Jaime Hodge, was convicted by a jury of importing 1.34 kilograms of cocaine into Canada.

The court considered sentencing principles, including general deterrence as the overriding factor for cocaine importation, and the established sentencing range of three to five years for similar amounts.

Mitigating factors included the accused's youth, lack of prior record, compliance with release terms, and a "horrific" background involving abuse and family trauma.

Aggravating factors included the sophisticated concealment and high purity of the cocaine.

The court gave limited weight to Gladue factors due to insufficient evidence of their contextual impact on the accused's moral culpability.

Ultimately, the court imposed a sentence of three years imprisonment, with credit for one month of pre-trial custody, resulting in a net sentence of 35 months, along with a 10-year and life weapons prohibition and a DNA order.

Crown's appeal of the acquittal of the respondent on charges of conspiracy to import a narcotic and importing a controlled substance (cocaine).

The respondent was jointly tried with a co-accused who was convicted of the conspiracy count.

The Crown raised two issues on appeal: whether the trial judge wrongly excluded evidence tying the respondent to the conspiracy, and whether the trial judge erred by imposing a reasonable doubt standard at step two of the Carter test for conspiracy membership.

The appellate court dismissed the Crown's appeal, finding no error in the trial judge's evidentiary rulings or jury instructions.

Appeal from conviction and sentence for conspiracy to import a narcotic.

The appellant was convicted of conspiring to import cocaine from St. Maarten to Montreal.

The appeal raised three grounds: whether the verdict was unreasonable, whether the jury charge was inadequate, and whether the trial judge erred in dismissing a Charter s. 11(b) application regarding delay.

The court dismissed all grounds of appeal, finding the evidence supported the conviction, the jury instructions were adequate, and the delay was justified under both the Jordan framework and transitional exceptional circumstances.

The sentence of nine years was upheld as fit.

The accused was charged with drug-related offences following a search warrant executed at his residence.

The defence brought an application to exclude evidence seized during the search, arguing that the Information to Obtain (ITO) supporting the warrant contained erroneous and misleading information and that the search breached section 8 of the Charter.

The Crown argued that the ITO contained sufficient reliable grounds to support the warrant's issuance.

The court conducted a detailed review of the warrant application, examining allegations of errors in the ITO regarding surveillance observations, and determined that despite certain inaccuracies, the warrant was supported by reliable grounds and that any breach would not warrant exclusion of evidence under section 24(2) of the Charter.

The applicants, Michael Wong and Michael Singh, brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings due to unreasonable delay in their criminal trial for drug production and trafficking.

The court applied the new framework established in R. v. Jordan, calculating the total delay from the date charged to the anticipated end of trial, subtracting defence-attributable delay.

The total delay for Mr. Wong was 29 months and for Mr. Singh was 28 months and three weeks, both falling below the 30-month presumptive ceiling for Superior Court cases.

The court also considered potential exceptional circumstances, such as jurisdictional issues and the striking of guilty pleas due to a misapprehension about conditional sentences, but ultimately found no breach of section 11(b) and dismissed the applications.

During a criminal jury trial for possession of cocaine for the purpose of trafficking, the defence objected to the Crown calling a police officer as an expert witness on drug trafficking practices.

Following a voir dire, the court considered the admissibility of the proposed opinion evidence under the framework from Mohan.

The court held the officer was qualified through experience in drug investigations and that his proposed testimony regarding common trafficking indicators—such as multiple cell phones, separation of drugs and cash, and possession of large amounts of currency—was relevant and necessary to assist the jury in assessing the accused’s knowledge of the drugs.

The court limited the scope of the expert evidence, ruling the officer could not opine on whether the accused possessed the drugs for the purpose of trafficking or had knowledge of the cocaine.

The evidence was admitted subject to those restrictions.

The accused applied for a stay of proceedings under ss. 11(b) and 24(1) of the Charter, alleging unreasonable delay between the laying of charges and the scheduled trial date.

The court applied the framework from R. v. Morin and assessed the total delay of approximately 36.5 months, subtracting periods attributable to defence waiver, inherent time requirements, and defence delay.

After these deductions, the net delay was calculated at approximately 18 months and one week.

The court found limited prejudice to the accused and emphasized the seriousness of the charges involving large-scale marijuana production.

Balancing the factors, the court concluded the delay did not warrant a stay of proceedings.

The accused sought Charter remedies including exclusion of evidence under s. 24(2) and a stay of proceedings under s. 24(1) based on alleged police failure to preserve text messages.

The defence filed its materials late and failed to comply with multiple requirements of the Criminal Proceedings Rules for the Superior Court of Justice, including notice, timing, and proper content of application materials.

The court found that the late and deficient filings prevented the Crown from adequately preparing to respond to the Charter applications before the scheduled trial.

Emphasizing the importance of procedural rules to ensure fairness and prevent trial ambush, the court vacated the scheduled trial date.

The resulting delay was attributed to the defence.

The accused applied to challenge prospective jurors for cause under s. 638(1)(f) of the Criminal Code on the basis of potential lack of language competency in the language of trial.

The defence argued that the right to challenge jurors on language grounds exists independently of an order under s. 530 governing the language of trial and forms part of constitutional language rights.

The court held that juror language competency is primarily a component of the right to a fair trial and that s. 638(1)(f) operates in conjunction with a prior order under s. 530.

In the absence of such an order and without evidentiary foundation demonstrating an air of reality for the concern, the court found that the standard jury vetting process sufficiently ensures linguistic competency.

The application to challenge jurors for cause was therefore denied.