Jeff A. Marshman

An appellant who was found not criminally responsible appealed the Ontario Review Board's disposition continuing his detention in a forensic hospital.

The appellant sought a conditional discharge but the primary issue was whether the Board should exercise its inquisitorial powers to investigate alternative community residential arrangements.

The Court of Appeal found that while a conditional discharge was not available due to the appellant's significant risk to public safety, the Board had erred in failing to properly exercise its inquisitorial duties to break the residential impasse.

The Court allowed the appeal and ordered a new hearing.

Appeal from conviction and sentence.

The appellant challenged alleged breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that the arrest was lawful and the search incident to arrest was lawful.

However, the court agreed that the appellant's section 10(b) rights were violated: he was not afforded an opportunity to contact counsel until approximately 80 minutes after arrest, and at the station, police failed to inform him that his named lawyer was unavailable or advise him of his right to speak to duty counsel.

Applying the section 24(2) analysis under R. v. Grant, the court found the violations were situation-specific failures rather than systemic or institutional problems.

The negative impact on the appellant's rights was moderate, and the third Grant factor strongly favoured admission of the evidence.

The conviction appeal was dismissed.

The sentence appeal was allowed and the sentence was varied to 12 months.

The appellant appealed the Ontario Review Board's disposition ordering her detention on the secure forensic unit at Providence Care Hospital, Kingston.

The appellant, who suffers from schizoaffective disorder with persecutory delusions, sought an absolute discharge, or alternatively a conditional discharge or transfer to CAMH.

The Court of Appeal dismissed the appeal, finding the Board's determination that the appellant remained a significant threat to public safety was reasonable, and that a conditional discharge was premature given the ongoing nature of her delusions and the need for medication optimization.

The appellant appealed a conviction entered by the Ontario Court of Justice on charges involving a sexual offense.

The appeal raised three grounds: whether the trial judge failed to resolve conflicts in evidence regarding the timing of a disclosure narrative, whether the trial judge erroneously conflated the absence of evidence of motive to fabricate with a proven absence of motive, and whether the trial judge subjected the appellant's evidence to a higher level of scrutiny than the complainant's evidence.

The Court of Appeal dismissed all three grounds of appeal, finding that the trial judge's reasons provided adequate insight into her credibility findings, that there was no erroneous conflation regarding motive, and that there was no material misapprehension of evidence or improper credibility assessment.

The appellant was convicted of second degree murder for stabbing the deceased 19 times during a fight.

The appellant had armed himself with a steak knife in anticipation of a confrontation and carried it openly as he approached the deceased.

When the deceased said "you're dead," the appellant responded "bring it . . . game on." The trial judge refused to instruct the jury on the partial defence of provocation.

The Court of Appeal upheld this decision, finding that the words "you're dead" did not cause the appellant to lose his power of self-control and act on the sudden, as required by the provocation defence.

The appellant's preparation for the confrontation and his state of readiness negated any element of surprise necessary for provocation.

An appeal of an Ontario Review Board disposition continuing a conditional discharge for an NCR accused.

The appellant argued that the Board's finding that he continued to pose a significant threat to public safety was unreasonable and sought an absolute discharge.

The Court of Appeal allowed the appeal, finding that the Board's risk assessment was unreasonable because it was based on speculative evidence regarding the likelihood of reoffending and failed to properly balance the seriousness of potential harm against the risk of that harm materializing.

The court emphasized that lack of insight alone is not a basis to deny an absolute discharge and that the contemplated harm fell towards the least serious end of the spectrum of serious criminal offences.

The appellant appealed his sentence imposed following conviction on multiple charges including sexual assault, assault with a weapon, simple assault, threatening to cause death, mischief, and criminal harassment, as well as guilty pleas to breach of recognizance and breach of probation.

The trial judge imposed a global sentence of nine years less four years credit for time served.

The appellant argued the sentence was demonstrably unfit and sought a reduction of two years.

The Court of Appeal upheld the sentence, finding no error in the trial judge's approach and noting that sentencing ranges are guidelines, not straitjackets, and that the trial judge had adequately explained her reasons rooted in the facts.

The Crown appealed a sentence imposed on the respondent who had pled guilty to theft, possession of stolen property, flight from police, and two counts of failing to comply with the terms of a recognizance.

The sentencing judge imposed a 6-month sentence to be served consecutively to what the parties believed was a 12-month sentence then being served, for a global sentence of 18 months.

However, the respondent had completed his prior sentence approximately one month before sentencing.

The Crown and respondent agreed that the respondent should have received credit for 32 days of pre-disposition custody on the current charges, which would equate to 48 days with the applicable credit multiplier.

The Court of Appeal granted leave to appeal, allowed the appeal, and reduced the sentence accordingly.

An appeal from an Ontario Review Board disposition that detained an NCR accused who had been under the Board's jurisdiction for over a decade following a finding of not criminally responsible for criminal harassment and failing to comply with a recognizance.

The Board determined the appellant posed a significant threat to public safety despite fresh evidence from a clinical forensic psychologist indicating low risk on stalking-specific assessment tools.

The Court of Appeal found the Board's decision unreasonable, holding that the evidence fell short of establishing a significant threat to public safety and that the Board had effectively reversed the burden of proof by relying solely on a moderate-risk HCR-20 V3 assessment without proper expert contextualization.

The Crown appealed a stay of proceedings granted on the basis of unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

The respondents, correctional officers, were charged with failing to provide the necessaries of life following the death of an inmate at the Elgin-Middlesex Detention Centre.

The application judge found the net delay exceeded the 30-month presumptive ceiling established in R. v. Jordan and that no exceptional circumstances justified the delay.

The Court of Appeal allowed the appeal, finding the application judge erred in calculating defence delay, failed to recognize a discrete event, and failed to account for case complexity.

The court concluded that the resulting delay for one respondent fell just below the ceiling and for the other fell only three weeks above, justified by case complexity and transitional exceptional circumstances.

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 appealed his conviction for two counts of production of marijuana and the dismissal of his Charter s. 11(b) application for a stay of proceedings based on unreasonable delay.

The total delay from charge to conviction was 60 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

However, the Court of Appeal found that when delay caused by defence conduct and express waivers was subtracted, the net delay was 23 months, below the presumptive ceiling.

The court also found that even if the net delay exceeded the ceiling, exceptional circumstances (two mistrials) and the transitional provisions of Jordan would justify the delay.

The appeal was dismissed.

Five appellants convicted of drug-related offences appealed their convictions, challenging the application judge's admission of evidence obtained pursuant to wiretap authorizations under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The appellants argued that the application judge erred in his s. 24(2) analysis by failing to adequately recognize the impact of prior police misconduct and by not giving appropriate effect to findings of serious carelessness in the affidavits.

Ba Tuan Tran also appealed his sentence of 15 months imprisonment.

The Court of Appeal dismissed all conviction appeals and the sentence appeal, finding the application judge's analysis fair, balanced, and correct.

In a criminal appeal, the court addressed whether the jury charge properly instructed jurors on how to assess a complainant's testimony about events allegedly occurring years earlier in childhood.

The intermediate appellate court had set aside convictions for sexual assault and sexual interference and ordered a new trial.

The court held that, read as a whole, the trial judge's instructions conveyed the correct legal approach to credibility and memory assessment.

The appeal was allowed and the convictions were restored.