Miscarriage of justice

The Court of Appeal for Ontario allowed the appeal of Andrew Zock, who was convicted of sexual assault after a judge-alone trial.

The court found that Zock received ineffective assistance of counsel because his trial lawyer elected the mode of trial (judge-alone) without Zock’s informed instructions or advice about his right to a jury trial.

The court set aside the conviction and ordered a new trial before a judge and jury, finding that the loss of the right to elect the mode of trial constituted a miscarriage of justice.

The court rejected the appellant’s argument that the verdict was unreasonable, holding that the trial judge’s finding of incapacity to consent was supported by the evidence.

The Court of Appeal for Ontario allowed J.C.'s appeal from a dangerous offender designation and indeterminate sentence, finding a miscarriage of justice due to the limited, non-adversarial role assigned to amicus curiae at the original hearing.

The Court held that, in light of subsequent Supreme Court guidance in R. v. Kahsai, the trial judge erred in principle by not appointing amicus with a broader, adversarial mandate to ensure fairness, given the appellant's self-represented and self-defeating position.

The Court ordered a new hearing.

Kristen Nagle appealed her conviction and $10,000 fine for attending a religious observation with more than ten persons, an offence under the Reopening Ontario Act during the Covid-19 pandemic.

She argued that the Justice of the Peace failed to provide reasonable assistance to her as an unrepresented accused and failed to raise a Charter issue.

The court dismissed the conviction appeal, finding that the trial justice's assistance was reasonable given Nagle's deliberate use of Organized Pseudo-legal Commercial Arguments (OPCA) tactics, and that no miscarriage of justice occurred.

However, the court allowed the sentence appeal, reducing the fine to $3,750 (plus costs and surcharges), finding the original reasons for sentence insufficient for meaningful review and considering new biographical information and aggravating factors.

The appellant, Kyle Robert Bancroft, appealed his convictions for two frauds, arguing that the trial judge failed to provide sufficient assistance to him as a self-represented accused, particularly regarding the distinction between evidence and argument and the proper procedure for impeaching witnesses.

The Court of Appeal found that the trial judge did err in not providing adequate assistance and in refusing to allow the appellant to recall witnesses or introduce banking records.

However, the court concluded that these errors were not material to the outcome, as the evidence against the appellant was overwhelming and corroborated by independent witnesses.

The appeal was dismissed.

This appeal concerns a wrongful conviction for manslaughter, stemming from the unreliable expert evidence of disgraced pathologist Dr. Charles Smith.

The appellant, convicted in 1997 for the death of a 17-month-old, sought an acquittal based on fresh expert evidence that contradicted the original "shaken baby syndrome" theory, proposing a "complex fall" as the cause of death.

The court admitted the fresh evidence, including a 911 call transcript and new expert opinions, finding that the modern forensic science undermined the trial evidence.

The court also discounted the appellant's police interview due to coercive interrogation techniques.

Given the lack of reasonable prospect for conviction, the appeal was allowed, the conviction set aside, and an acquittal entered.

The appellant, R.G., appealed his convictions for sexual abuse of his daughter, arguing the trial judge erred in dismissing his application to reopen the trial based on new cell phone evidence.

The Court of Appeal found that the trial judge misapplied the legal test for cogency and placed excessive weight on due diligence.

The new evidence, consisting of cell phone records, significantly undermined the complainant's credibility regarding a key incident and an uncharged incident, despite the defense's lack of due diligence in obtaining it earlier.

The Court concluded that the interests of justice required the convictions to be set aside and a new trial ordered.

The Defendant, Jeremiah Campbell, applied to withdraw his guilty plea for possession of fentanyl for the purpose of trafficking, entered prior to sentencing.

The prosecution opposed the application.

The court, applying the principles that a guilty plea must be voluntary, unequivocal, and informed, found that while the plea was unequivocal and informed, and the defendant's testimony was largely unconvincing, a miscarriage of justice would result if the plea were maintained.

The court exercised its residual discretion, considering the defendant's age, first-offender status, potential penitentiary sentence, existence of triable Charter issues, and the defendant's belief in his factual innocence.

The application to strike the guilty plea was granted.

The appellant was convicted of aggravated assault and uttering a threat to cause death.

The appeal centered on the alleged ineffective assistance of trial counsel, specifically the unauthorized disclosure of the appellant's statement to the Crown and its subsequent use in cross-examination, which impacted the trial judge's assessment of his credibility.

The Court of Appeal admitted fresh evidence and found that trial counsel's conduct fell below the standard of a reasonable professional, leading to a miscarriage of justice due to both trial unfairness (unilateral waiver of the right to silence) and an unreliable verdict.

The appeal was allowed, convictions were set aside, and a new trial was ordered.

The applicant, R.G., sought an order to reopen his trial and declare a mistrial after being found guilty of 10 counts of sexual abuse but before sentencing.

He presented fresh evidence, including cell phone records and affidavits, to establish an alibi for some charges and challenge the complainant's credibility.

The court applied the rigorous "exceptional circumstances" and "clearest of cases" test for vacating a guilt adjudication, incorporating the Palmer criteria for fresh evidence.

The court found that the proposed evidence could have been obtained with due diligence prior to trial and that the application was an attempt to reverse tactical decisions made by the defence.

The application was dismissed, as the test for reopening the trial or declaring a mistrial was not met.

The appellant, S.R., appealed convictions for sexual assault, touching for a sexual purpose, and invitation to touching for a sexual purpose.

The appeal focused on the trial judge's assessment of the appellant's credibility, specifically alleging material misapprehensions of evidence and a failure to properly assess the evidence of another witness (the complainant's father).

The Court of Appeal found that the trial judge's misapprehensions of the appellant's evidence were substantial and central to the credibility assessment, leading to a miscarriage of justice.

The court also noted an error in failing to assess the credibility of the complainant's father's evidence, which contradicted the complainant's testimony in some respects and supported the appellant's.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant appealed his convictions for gross indecency and sexual assault, arguing ineffective assistance of trial counsel.

The Crown conceded several areas of counsel's incompetence, including failures to thoroughly investigate collusion among complainants, explore opportunity, challenge inconsistencies in testimony, and adequately prepare the appellant for trial.

The Court of Appeal found that the cumulative impact of these failures undermined the reliability of the verdict, particularly concerning the credibility of a key complainant and the application of similar fact evidence.

The court concluded that there was a reasonable probability that the trial outcome would have been different with effective counsel.

The appellant appealed her conviction for possession of cocaine for the purpose of trafficking, alleging ineffective assistance of counsel due to a conflict of interest.

Trial counsel had previously represented the appellant's co-accused (her former husband), who was discharged after providing a statutory declaration denying knowledge of the drugs.

Counsel then represented the appellant, despite her denial of guilt and desire to plead not guilty.

Counsel conceded that the case's outcome hinged solely on a search warrant challenge, without consulting the appellant.

When the challenge failed, counsel proceeded with a nolo contendere procedure, resulting in a finding of guilt without a guilty plea.

The Court of Appeal found a clear conflict of interest, as counsel's duty to the former co-accused was adverse to the appellant's interests, rendering the verdict unreliable and a miscarriage of justice.

The appeal was allowed, the conviction set aside, and a new trial ordered, with the Crown indicating no re-prosecution.

The appellant was convicted by a jury of four counts of assault and two counts of assault with a weapon against his three children and wife.

He appealed both the conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the jury's verdict and rejecting claims of ineffective assistance of trial counsel due to a lack of prejudice.

Leave to appeal the sentence was granted, but the sentence appeal was also dismissed as no error in principle was found.

An appellant, convicted in 1998 of administering a noxious substance to her child based on flawed Motherisk Drug Testing Laboratory (MDTL) hair analysis, successfully reopened her conviction appeal.

Fresh evidence, in the form of two Ministry of the Attorney General reports (2015, 2018) detailing the unreliability of MDTL testing, was admitted.

The Court of Appeal found that without the discredited MDTL evidence, the appellant would not have been convicted.

The conviction for administering cocaine and the stayed conviction for criminal negligence were set aside, and acquittals were entered.

The court also lifted a publication ban on the appellant's name at her request, acknowledging the wrongful conviction and allowing for public correction.

The appellant, Kevin Faudar, appealed his convictions for various firearms offences, alleging ineffective assistance of counsel.

His grounds included a conflict of interest due to counsel's prior representation of a key witness (X.Y.), improper advice to testify, and general incompetence.

The Court of Appeal dismissed the appeal, finding no actual conflict of interest that impaired trial fairness, that the decision for the appellant to testify was a reasonable strategic choice given the strong circumstantial evidence of constructive possession, and that counsel's overall performance did not fall below the standard of reasonableness or result in a miscarriage of justice.

The court affirmed the convictions and the sentence.

The Ontario Court of Justice declared a mistrial in a criminal proceeding against the accused, who had been found guilty of aggravated assault.

The mistrial was initiated by the court prior to sentencing due to a finding of ineffective assistance of counsel.

Defence counsel had failed to call a qualified expert to support the accused's automatism defence, which was based on an epileptic seizure, due to a fundamental misunderstanding of the legal requirement for expert evidence in such defences.

The court found that this error rendered the trial fundamentally unfair and constituted a miscarriage of justice, as the defence could not have succeeded without the required expert testimony.

The appellant, Abadula Biya, appealed his conviction and sentence for charges including unauthorized possession of a firearm and ammunition, possession of a Schedule I controlled substance for trafficking, and possession of proceeds of crime.

The primary ground of appeal was that the trial judge materially misapprehended the evidence in rejecting the appellant's third-party suspect defence, specifically regarding the time available for a co-accused to hide contraband and his propensity.

The Court of Appeal agreed, finding that the trial judge's misapprehension of evidence was material, leading to a miscarriage of justice.

The appeal was allowed, the conviction quashed, and a new trial ordered on all counts.

The defendants sought leave to file further expert evidence on the issue of mitigation after a summary judgment motion had been heard and was under reserve.

The court denied the request, finding that the defendants failed to demonstrate due diligence in obtaining the evidence earlier and that the proposed evidence lacked cogency.

The court emphasized the importance of finality in proceedings and that a miscarriage of justice did not arise merely because the defendants feared they might not have met their onus on mitigation through their previous attempts.

The appellant, a permanent resident, appealed his convictions for drug and credit card offences, arguing his guilty pleas were uninformed due to erroneous advice from trial counsel regarding immigration consequences.

A prior deportation order had been stayed but was lifted following these convictions.

The Court of Appeal admitted fresh evidence, found that trial counsel had misadvised the appellant, leading to an uninformed plea and subjective prejudice.

The court emphasized the duty of defence counsel to advise on collateral immigration consequences.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, convicted of aggravated sexual assault and sentenced to ten years' incarceration, appealed both the conviction and sentence.

The conviction appeal was based on claims of ineffective trial counsel, including failures in cross-examination, calling witnesses, eliciting expert opinion, and exploring photo tampering, as well as suggestions of improper discussions and conflict of interest.

The sentence appeal argued the trial judge erred in treating lack of remorse as an aggravating factor and in identifying primary sentencing objectives inconsistent with Gladue factors.

The Court of Appeal dismissed the conviction appeal, finding no basis for incompetence and noting the strong Crown case supported by forensic evidence.

It also dismissed the sentence appeal, finding that even if the trial judge erred regarding remorse, it had no impact given other serious aggravating factors, and that deterrence and denunciation were appropriate objectives.