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.

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 was charged with first degree murder and denied bail under s. 515(10)(c) of the Criminal Code to maintain confidence in the administration of justice.

He challenged the constitutionality of the provision, arguing it violated the right not to be denied reasonable bail without just cause under s. 11(e) of the Charter.

The Supreme Court of Canada held that the portion of s. 515(10)(c) permitting detention 'on any other just cause being shown' is unconstitutionally vague and violates s. 11(e).

However, the Court severed this phrase and upheld the remainder of the provision, which allows bail to be denied where necessary to maintain confidence in the administration of justice.

The appeal was dismissed.

The appellant was convicted of first-degree murder based on circumstantial evidence, including his foreknowledge that the murder weapon was a homemade gun.

On appeal, the appellant sought to introduce fresh evidence in the form of an affidavit from his trial counsel, claiming ineffective assistance of counsel because the lawyer did not testify at trial to explain that he had informed the appellant about the gun.

The Court of Appeal dismissed the appeal, holding that the failure to call the trial counsel did not result in a miscarriage of justice given the overwhelming circumstantial evidence against the appellant.

The accused was convicted of manslaughter in the asphyxiation death of a four-month-old infant.

The Crown had originally charged first degree murder, but the trial judge directed a verdict of acquittal on that charge.

The accused appealed the manslaughter conviction, arguing the verdict was unreasonable and that the trial judge erred in failing to answer a jury question regarding the sequence of events.

The Crown appealed the directed verdict of acquittal.

The Court of Appeal held that the manslaughter verdict was not unreasonable when considering all the evidence, including evidence of smothering that the trial judge improperly excluded.

However, the Court allowed the accused's appeal and ordered a new trial because the trial judge erred in refusing to assist the jury with their question about the mother's evidence.

The Court also allowed the Crown's appeal, finding there was sufficient evidence of intent and smothering to leave the first degree murder charge with the jury, and ordered a new trial on that charge.

The appellant challenged her conviction on the basis that the trial judge shifted the burden of proof, unfairly assessed credibility, and erred in finding a document was concocted without independent evidence.

The court held that the impugned passage had to be read in context, that the trial judge properly applied the W.(D.) framework, and that the credibility analysis was reasonable.

It further held that the finding of concoction flowed directly from the rejection of the appellant’s evidence regarding the exhibit and was distinguishable from prior authorities requiring independent evidence.

The conviction appeal was dismissed.

Leave to appeal sentence was granted, but the sentence appeal was also dismissed as the sentence was manifestly reasonable and, if anything, lenient.

The appellant challenged the constitutionality of the tertiary bail ground in s. 515(10)(c) of the Criminal Code after being denied bail on the basis that detention was necessary to maintain confidence in the administration of justice.

The Court of Appeal held that s. 11(e) of the Charter does not freeze constitutionally valid bail grounds to attendance in court and public safety, and that Parliament may enact additional grounds if they satisfy the constitutional standard of just cause.

Applying the Pearson and Morales framework, the court concluded that the provision limits detention to a narrow set of circumstances and serves the proper functioning of the bail system.

The court further held that the phrase concerning confidence in the administration of justice, especially when read with the enumerated statutory factors, is neither vague nor overbroad.

The appeal was dismissed.

The appellant, who had a long history of psychiatric disorders and was found not criminally responsible by reason of mental disorder, challenged the constitutionality of the Criminal Code provisions governing the disposition of NCR accused.

He argued that section 672.54 of the Criminal Code violated sections 7 and 15(1) of the Charter.

The Supreme Court of Canada, relying on its concurrent decision in Winko, held that the provisions do not violate the Charter as they are carefully crafted to protect the liberty of the NCR accused while ensuring public safety.

The appeal was dismissed.