OCA 2000

The appellant challenged convictions for trafficking and conspiracy to traffic in heroin arising from two undercover drug transactions supported by surveillance, intercepted telephone conversations, and undercover officer evidence.

The court held that the circumstantial evidence compellingly established knowledge and participation in the conspiracy, and rejected arguments that the trial judge failed to identify the evidentiary basis for conviction or reversed the burden of proof.

Applying the co-conspirator evidence framework, the court found no basis to interfere with the convictions.

However, the court allowed the sentence appeal and reduced the custodial term from eleven years to eight years, placing the appellant at the lower end of the accepted range.

The appellant appealed convictions for break and enter, breaking out of a house, and failure to comply, as well as a three-year sentence.

The court held that the trial judge did not err in declining to exclude shoe evidence seized in breach of s. 8 of the Charter, emphasizing the deference owed to a trial judge’s s. 24(2) determination.

The court also rejected the unreasonable verdict argument because the eyewitness testimony was supported by footprint evidence and injuries consistent with the intruder’s escape.

The sentence appeal was dismissed after the court found no failure to consider the appellant’s background as an aboriginal offender and held the sentence fit given the criminal record.

The appellant appealed a criminal conviction and appeared in person.

The court adjourned disposition initially to obtain an expedited transcript of a witness's evidence, then reviewed the full transcripts.

The appeal turned on credibility findings made by the trial judge, who accepted the Crown witness's evidence and rejected the appellant's version of events.

The Court of Appeal found no merit in the appeal and dismissed it.

The Crown appealed an order quashing a conviction for driving with a blood alcohol concentration over the legal limit following a single-vehicle accident.

The Court of Appeal held that under s. 254(2) of the Criminal Code, the officer need only reasonably suspect that a person operating or in care or control of a vehicle has alcohol in the body; the suspicion need not separately extend to operation or care and control.

The court further held that the trial judge was entitled on the evidence to find that the respondent had not relinquished care and control of the vehicle when the roadside screening demand was made.

The appeal was allowed, the acquittal set aside, and the conviction and sentence restored.

The appellant appealed jury convictions for sexual offences against a child complainant, arguing errors in the admission of similar fact evidence, narrative evidence surrounding the complaint, limitations on cross-examination, and disclosure of a prior prosecution file.

The court held that prior sexual assault evidence involving another child was properly admitted as highly probative, and that evidence of non-sexual abuse was admissible to explain the relationship, fear, delayed disclosure, and context of the assaults.

It also found that the complaint narrative evidence was admissible, that the cross-examination issue had not been preserved, and that no prejudice arose from incomplete disclosure.

The appeal was dismissed and a publication ban was imposed to protect the identity of the complainant and other witnesses.

Crown appeal from the dismissal of an appeal from acquittals on impaired driving and driving over 80 charges.

The court held that the requirement in s. 258(1)(c)(ii) of the Criminal Code that breath samples be taken "as soon as practicable" does not require police to have a breathalyzer technician available at every detachment at all times or to organize themselves so samples are taken as soon as possible.

The proper inquiry is whether the samples were taken within a reasonably prompt time in the circumstances, including where relevant the way the police were organized and why.

The court also held that the trial judge erred in law on the impaired count by proceeding on the basis that breathalyzer readings could be used to prove degree of impairment absent expert evidence, and may have applied the wrong test for impairment.

Leave was granted, the appeal allowed, the acquittals set aside, and a new trial directed on both counts.

The appellant appealed a second degree murder conviction arising from a fatal stabbing in an apartment where multiple persons were present, including a witness with a motive to deflect blame.

The Crown conceded several material jury charge errors, including failure to give an adequate Vetrovec warning, misdirection on after-the-fact conduct, mischaracterization of an alternative suspect’s violent record, and inadequate instructions on intoxication and the manslaughter alternative.

The Court of Appeal held the errors were serious and declined to apply the curative proviso because it could not conclude the verdict would inevitably have been the same.

The court also stated that protected statements made during a mental assessment under s. 672.21 of the Criminal Code may be used only on credibility and not as positive evidence of guilt.

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

The appellant appealed convictions for sexual offences involving two stepdaughters and also appealed a nine-year sentence.

The court held that although the jury charge pre-dated the governing reasonable doubt instruction case and did not expressly address the third branch of the credibility framework, the charge as a whole adequately conveyed the presumption of innocence, the burden of proof, and the requirement that the verdict be based on the evidence.

The court rejected challenges to the answer to a jury question, the gross indecency charge, and the use of similar fact evidence, noting the limiting instruction and the strength of the Crown's case.

The sentence was held to be fit given the repeated abuse of trust and serious abuse of children in the appellant's care.

Both appeals were dismissed.

The appellant appealed a conviction for second degree murder and a sentence of life imprisonment with twenty years' parole ineligibility.

After conviction, a second phase of the jury trial addressed whether the appellant was not criminally responsible by reason of mental disorder, based on alleged Dissociative Identity Disorder.

The Court of Appeal held there was insufficient evidence of intoxication to require the requested instruction and found no reversible error in the charge concerning criminal responsibility under s. 16 of the Criminal Code.

The appeal against conviction and the appeal against sentence were dismissed.

The appellant appealed a first degree murder conviction arising from the killing of a child, where the central trial issue was his mental state and potential exemption from criminal responsibility.

The Court of Appeal held that statements made by the appellant to a psychiatrist during a court-ordered psychiatric assessment for fitness and criminal responsibility were protected under s. 672.21 of the Criminal Code and were inadmissible to prove actus reus or mens rea.

The court found the appellant's consent was limited to assessment for fitness and criminal responsibility and did not authorize substantive use of the statements to prove planning and deliberation.

Because the psychiatrist's evidence was central to the Crown's case on first degree murder, the curative proviso could not be applied.

The conviction was set aside and a new trial ordered.

The appellant challenged the constitutionality of the Criminal Code procedure governing seizure of documents from a lawyer's office during a criminal investigation.

The court held that solicitor-client privilege attracts the highest level of protection and that a statutory search procedure must impair that confidentiality only minimally.

Section 488.1 failed that standard because privilege could be lost automatically through lawyer inaction, because the provision required disclosure of the client's name to the state in order to claim privilege, and because it permitted Crown inspection of the impugned document on the privilege application.

The court concluded that the mandated procedure produced an unreasonable search and seizure contrary to s. 8 and, absent any s. 1 justification, declared the provision unconstitutional and of no force and effect.

The Crown appealed a sentence imposed after guilty pleas to impaired driving and impaired driving causing bodily harm arising from two serious alcohol-related collisions seven months apart.

The court held that the sentencing judge erred in law by failing to give proper weight to general deterrence and denunciation in the context of repeat impaired driving with extremely high blood alcohol readings and bodily harm.

Applying the conditional sentence framework under s. 742.1, the court concluded that a community-based sentence was not proportionate to the gravity and cumulative character of the offences.

Leave to appeal sentence was granted and the six-month conditional sentence was replaced with a five-month custodial term, with probation terms varied.

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 Crown appealed an order declaring s.488.1 of the Criminal Code unconstitutional as infringing the Charter of Rights and Freedoms.

The appeal was argued together with a companion case.

The court dismissed the appeal for the reasons given in the companion decision.

The appellant appealed a conviction for importing heroin and argued that the trial judge erred in admitting evidence seized from a hotel room following a warrantless arrest that violated ss. 8, 9, and 10(b) of the Charter.

The Court of Appeal held that the trial judge committed no error of law in applying the s. 24(2) analysis and was entitled to conclude that, although the breaches were serious, their seriousness was somewhat blunted by the officer’s honest belief and the surrounding circumstances.

The court rejected arguments concerning search incident to arrest, the effect of discoverability, and the alleged failure to consider a pattern of Charter breaches.

The appeal from conviction was dismissed.

The appellants challenged search warrants issued under the Mutual Legal Assistance in Criminal Matters Act in aid of foreign money laundering investigations, arguing that once improperly obtained material was excised, the warrants lacked sufficient foundation and should also be quashed for abuse of process.

The court held that review of the warrants was governed by the Garofoli standard, not a de novo reconsideration of whether the reviewing judge would himself or herself have issued the warrants.

Applying that standard, the remaining information was sufficient and also established that an evidence-gathering order under s. 18 would not have been appropriate.

The court further held that allegations concerning Charter breaches and investigative abuse were more properly addressed at the s. 15 hearing on whether seized materials should be sent to the requesting states.

The appeal was dismissed.

The appellant challenged convictions arising from two closely similar bank robberies, arguing that the verdicts were unreasonable and that the trial judge erred in his treatment of identification, forensic hair evidence, and similar fact reasoning.

The court held that the eyewitness identification evidence on the Burlington robbery, together with the appellant's association with the getaway vehicle and limited after-the-fact conduct evidence, supported the verdict.

Although the trial judge used an anchoring rather than pooling approach to similar fact evidence, the court found no prejudice because the allegedly exculpatory Hamilton evidence did not materially undermine identification of the appellant.

The appeal from conviction and sentence was dismissed.

The appellant appealed a second degree murder conviction arising from a jury trial following a shooting death.

She argued that the jury charge was deficient on intent because it did not refer to her use of prescribed anti-depressants, that the reasonable doubt instruction was inadequate, and that Crown counsel’s cross-examination created trial unfairness.

The court held that the charge on intent was adequate, the pre-Lifchus reasonable doubt instruction did not create a reasonable likelihood of jury misunderstanding when the charge was read as a whole, and the complained-of Crown conduct did not deprive the appellant of a fair trial.

The appeal was dismissed.

The appellant appealed from the rejection of an entrapment application following guilty pleas to drug trafficking and related offences.

The Court of Appeal held that the trial judge did not misapprehend the evidence and reasonably rejected the original entrapment theory advanced on the record then before the court.

However, fresh evidence established that a key police agent had perjured himself about his criminal record and raised serious concerns about possible state complicity in that perjury and incomplete disclosure.

Applying the fresh evidence framework, the court concluded the new evidence could reasonably have affected the result of the entrapment hearing.

The convictions were quashed and a new entrapment hearing was ordered, while the guilty pleas and guilty verdicts otherwise stood.

The appellants challenged an order in a bankruptcy proceeding concerning ownership of property and the bona fides of an alleged trust in favour of one respondent.

The Court of Appeal held that the motion judge acted within his discretion under the bankruptcy rules in deciding the merits on a motion rather than directing a trial of an issue, particularly given the appellants' primary position below.

Although conflicting evidence could have supported a different finding, the finding made was open to the motion judge on the totality of the record.

The appeal was dismissed with costs.