Criminal and Quasi-Criminal Law - OCA

This appeal concerned the conviction of Elaine Biddersingh for second-degree murder.

The appellant raised three grounds: the trial judge erred in dismissing her application for a judge-alone trial due to negative pretrial publicity, erred in ruling certain statements admissible, and erred in refusing to instruct the jury on an intervening act of drowning.

The Court of Appeal dismissed all grounds of appeal, upholding the conviction.

The Crown's cross-appeal was dismissed as abandoned.

J.T. appealed convictions for possessing and making child pornography available, arguing two errors by the trial judge: admitting expert evidence without qualification regarding file downloading, and committing a Sekhon error by relying on anecdotal evidence that child pornography does not automatically appear on computers.

The Court of Appeal dismissed the appeal, finding the first point did not require expertise as it was mundane factual evidence, and the second was not a Sekhon error as the testimony explained technical operation, not guilt, and did not reverse the burden of proof.

This decision addresses two appeals by an accused found not criminally responsible (NCRMD) from disposition orders of the Ontario Review Board (ORB).

The first appeal (C68888) challenged a 2020 detention order with community living privileges, which was ultimately adjourned as moot due to a subsequent disposition.

The second appeal (C69217) arose from a 2021 ORB hearing following the revocation of the accused's community living privileges and his re-detention due to new harassment incidents.

A central issue in the second appeal was the ORB's new practice of issuing general detention orders to a "Forensic Service" without specifying the security level of the unit.

The Court of Appeal expressed concern that this practice might hinder the ORB's ability to ensure the least onerous and least restrictive disposition, emphasizing the need for specificity regarding conditions and security levels.

The Court admitted fresh evidence regarding the accused's transfer to a secure unit and the withdrawal of criminal charges.

The Court maintained the 2021 disposition and dismissed the second appeal.

The appellant appealed dispositions of the Ontario Review Board dated June 23, 2016 and March 7, 2017 regarding her detention on a secure forensic unit.

The appellant was found not criminally responsible for criminal harassment and related offences in 2005 and 2006.

She argued that the Board's finding that she poses a significant threat to public safety was unreasonable and that she should receive an absolute or conditional discharge.

The Court of Appeal upheld the Board's finding that she remains a significant threat but found that the Board erred in summarily dismissing her request for a conditional discharge without further inquiry into her current behavioural status and without considering whether her risk could be managed through a conditional discharge with a consensual treatment order.

The appellant appealed his conviction for unlawful possession of heroin, cocaine, methamphetamine and ketamine for the purpose of trafficking, and possession of proceeds of crime.

The appellant argued the verdicts were unreasonable.

The Court of Appeal upheld the conviction, finding that the trial judge properly drew inferences of knowledge and control based on the appellant's possession of a key to the locked bedroom where contraband was found, his attempt to enter the bedroom immediately after police entry, and the discovery of his social insurance card in a drawer adjacent to where drugs were found, along with buy money.

The court found this constellation of evidence created a powerful inference of possession beyond a reasonable doubt.

The appellant appealed the Ontario Review Board's disposition maintaining a detention order for his care.

The appellant had been found not criminally responsible on account of mental disorder for assault, forcible confinement, and criminal harassment.

The Board accepted a joint submission from the appellant's counsel and physician to continue detention with increased community passes.

The appellant argued the Board erred in accepting the joint submission without properly discharging its inquisitorial duty.

The Court of Appeal dismissed the appeal, finding the Board was entitled to rely on the joint submission and had conducted its own inquiry concluding the appellant remained a significant threat to public safety.

The appellant pleaded guilty to conspiracy to traffic cocaine and was sentenced to two years' imprisonment, less credit for pre-sentence custody.

He appealed the sentence, arguing it was demonstrably unfit and that the sentencing judge failed to give full credit for time spent in immigration detention.

The Court of Appeal dismissed the appeal, finding the sentence was within the established range and the sentencing judge properly exercised his discretion in allocating credit for the immigration detention, which was largely triggered by unrelated factors.

The appellant was convicted of voyeurism after a man was seen peering into a women's washroom stall.

The Crown's case rested on circumstantial evidence, primarily the appellant's DNA found on a partially consumed pop bottle left in the stall.

The appellant appealed, arguing the verdict was unreasonable because the DNA evidence alone could not prove he was the perpetrator.

The Court of Appeal dismissed the appeal, finding that the totality of the evidence, including the DNA on the bottle and the lack of any other rational explanation for its presence, reasonably supported the conviction.

The appellant, convicted of two counts of first-degree murder, brought a motion under s. 684(1) of the Criminal Code for the appointment of state-funded counsel for his appeal.

The Court of Appeal found that the appeal raised arguable grounds, including the admissibility of expert evidence on 'honour killings' and the trial judge's refusal to give a modified W.D. instruction.

Given the complexity of the legal issues, the substantial record, and the appellant's limited English language skills, the Court concluded he could not effectively present the appeal without legal assistance.

The motion was granted and counsel was appointed.

The appellant operated a business arranging hotel accommodations for sports teams, receiving commissions from the hotels but no remuneration from the teams.

He was charged with acting as an unregistered travel agent under the Travel Industry Act, 2002.

The justice of the peace acquitted him, finding he did not sell travel services to the teams as a principal.

The Ontario Court of Justice reversed the acquittal and entered a conviction.

The Court of Appeal dismissed the appeal, holding that the statutory definition of 'travel agent' includes a person who sells travel services to consumers as an agent for the provider of those services.

The appellant appealed his conviction for break and enter, arguing the verdict was unreasonable.

He challenged the trial judge's reliance on shoe evidence, a CAA card found in the possession of a woman seen in a video, and video identification by police officers.

The Court of Appeal dismissed the appeal, finding the trial judge properly limited the use of the shoe evidence, appropriately weighed the CAA card evidence, and reasonably accepted the police officers' identification based on their familiarity with the appellant's distinctive features.

The Crown appealed a sentencing decision declining to designate the respondent a dangerous offender and instead declaring him a long-term offender following a predicate sexual assault causing bodily harm and an extensive history of violent sexual offending.

The Court of Appeal held that the sentencing judge erred in law by failing to make the required finding of substantial risk under s. 753.1(1)(b) of the Criminal Code and by selectively relying on evidence of treatability while ignoring significant contrary evidence.

The court emphasized that public protection is the governing objective and that a reasonable possibility of eventual control in the community must rest on evidence amounting to more than hope or speculation.

The appeal was allowed, the long-term offender designation was set aside, and a new sentencing hearing was ordered.

The appellant, a taxi driver, was convicted of trafficking heroin and conspiracy to traffic heroin alongside two co-accused.

He appealed his conviction, arguing that the trial judge erred by failing to give a Vetrovec warning regarding the testimony of his co-accused and by failing to properly explain the defence's position to the jury.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised discretion in not giving the Vetrovec caution, as the co-accused were not prosecution witnesses and trial fairness considerations were implicated.

The Court also held that the jury charge was fair, balanced, and thorough in presenting the defence's theory that the appellant did not know what his passengers were doing.

The appellant appealed his conviction and sentence.

The Court of Appeal granted leave to appeal the sentence but dismissed the appeal, finding that the trial judge was entirely justified in imposing the sentence given the gravity of the breaches, the appellant's prior record, and the need for the protection of society.

The appellant was convicted of wilfully promoting hatred against Muslims through pamphlets and a recorded telephone message.

He appealed his conviction, arguing that the trial judge erred in finding that wilful blindness satisfied the mens rea requirement for the offence under s. 319(2) of the Criminal Code, and that the defence of good faith expression of religious opinion under s. 319(3)(b) was improperly rejected.

The summary conviction appeal court dismissed the appeal.

The Court of Appeal upheld the dismissal, confirming that wilful blindness is equivalent to actual knowledge and satisfies the stringent mens rea requirement for wilfully promoting hatred, and that the appellant's statements went beyond the good faith expression of religious belief.

The Crown appealed the accused's acquittal on charges of sexual assault, forcible confinement, and uttering threats.

The sole issue on appeal was whether the trial judge erred in excluding the hearsay statement of the parties' six-year-old child, who was present in the apartment during the alleged offences but was unable to testify due to emotional trauma.

Although the trial judge found the statement met the threshold for necessity and reliability, he excluded it under his residual discretion, concluding that its admission without the opportunity for cross-examination would be fundamentally unfair to the accused.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion.

The appellant appealed convictions for uttering a forged document, breach of recognizance, and fraud under $5,000, as well as a nine-month custodial sentence.

The court rejected the challenge to the identification evidence, holding that the trial judge was entitled to accept the courier manager's identification despite an initial mistaken photo lineup selection.

The Crown conceded that the full offence of uttering had not been made out because the document was not dealt with by the intended recipient as genuine.

The appeal was therefore allowed in part by substituting a conviction for attempting to utter a forged document and reducing the sentence on that count to three months concurrent.

The appellant challenged her jury conviction for aggravated assault arising from injuries to an infant diagnosed as shaken baby syndrome, arguing several procedural errors in the conduct of the trial.

The court held that the impugned rulings concerning transcript requests, witness exclusion, disclosure of an expert report, jury note-taking, and cross-examination were all within the trial judge's discretion and disclosed no reversible error.

On sentence, both sides sought leave to appeal from a conditional sentence of two years less a day followed by three years' probation.

The court held that the sentence was within range on the exceptional facts and that the trial judge did not err in principle by imposing a conditional sentence or by setting the probationary terms.

The Crown appealed a sentence imposing a suspended sentence and probation for multiple offences arising from escalating domestic violence, criminal harassment, uttering a death threat, assaults, and repeated breaches of judicial release orders against a former intimate partner and her associates.

The court held that the sentencing judge erred in principle by focusing narrowly on breaches of court orders and failing to give proper weight to denunciation, general deterrence, specific deterrence, victim safety, and victim impact evidence.

Emphasizing the seriousness of predatory criminal harassment in a domestic context and Parliament's denunciatory approach to s. 264 of the Criminal Code, the court found that a penitentiary term was required.

The sentence appeal was allowed, the sentence was varied to 16 months' imprisonment after credit for pre-trial custody, probation was maintained and expanded to include counselling, and the firearms prohibition order was replaced.

The appellant appealed convictions entered after guilty pleas to three counts of first degree murder and sought to withdraw those pleas.

He advanced a fresh evidence application alleging the pleas were not voluntary and that he had been deprived of effective assistance of counsel, and also sought to adduce evidence from an unrelated matter involving the same defence counsel.

The court held that the record did not support involuntariness or ineffective assistance, and that the pleas were voluntary, unequivocal, and informed.

The proposed collateral affidavits from the unrelated matter were found to have no probative value.

The fresh evidence application and the appeal were dismissed.