Criminal and Quasi-Criminal Law - OCA

The appellant, Harris Haidary, appealed his sexual assault conviction.

The Court of Appeal found that the trial judge erred by relying on an impermissible inference that Mr. Haidary had "tailored" his testimony to conform to the Crown's evidence.

This form of reasoning is legally wrong, absent exceptional circumstances not present here.

Furthermore, the trial was rendered unfair because Mr. Haidary was not given notice that such an inference could be drawn against him, depriving him of the opportunity to address it.

The court declined to apply the curative proviso.

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

The appellant sought leave to appeal the global sentence of 15 months' imprisonment for drug trafficking and breach of undertaking, arguing the sentencing judge erred in assessing addiction as a mitigating factor.

The Court of Appeal found no legal error, clarifying that the sentencing judge's finding was factual and that addiction was properly weighed against aggravating factors, including the commercial motive, repeat offending, and breach of release conditions.

The Court upheld the sentence, finding it within the appropriate range and that a conditional sentence was insufficient for denunciation and deterrence.

The appellant, A.S., appealed a dangerous offender designation and indeterminate sentence imposed for multiple sexual and child pornography offences involving her minor children.

The appeal raised two arguments: that the sentencing judge failed to consider the appellant’s future treatability at the designation stage (a "Boutilier error") and erred by not considering a less restrictive sentencing option.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had properly applied the principles from R. v. Boutilier, deeply engaged with the psychiatric evidence regarding treatability and intractability, and correctly concluded that a lesser sentence would not adequately protect the public given the appellant's lifelong risk and the unlikelihood of rehabilitation within a determinate period.

Bartosz Gajewski was found not criminally responsible (NCR) for assault and forcible confinement and was subject to the Ontario Review Board (ORB) jurisdiction.

The ORB conditionally discharged him.

The Crown appealed this disposition, seeking to add a geographic boundary condition or to remit the matter for a re-hearing, arguing the ORB erred in law and was unreasonable in not imposing the boundary condition.

The Court of Appeal dismissed the appeal, finding that the ORB correctly applied the law by balancing public safety with the accused's liberty interests and that its decision not to impose the boundary condition was reasonable, as existing conditions adequately protected the victim.

The appellant appealed his convictions for firearm offences and his sentence.

At trial, the judge rejected the testimony of a defence witness who claimed ownership of the firearm found in the car driven by the appellant.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessment.

However, the sentence appeal was allowed.

The sentencing judge erred by refusing to grant credit for harsh presentence custody conditions (lockdowns) despite agreement between the parties that such credit was warranted.

The Court granted 75 days of additional credit.

The appellant was convicted of fraud over $5000, fraud under $5000, and uttering a forged document after misappropriating over $350,000 from clients of her payroll services company.

She appealed her convictions and three-year custodial sentence, alleging errors in credibility findings, unauthorized changes to her mode of trial, unreasonable delay under s. 11(b) of the Charter, improper non-disclosure, and ineffective assistance of counsel.

The Court of Appeal dismissed the conviction appeal, finding no merit in any of the grounds raised.

The sentence appeal was also dismissed, save for setting aside the victim fine surcharge.

The appellant was convicted of possessing MDMA for the purpose of trafficking and possessing proceeds of crime.

He appealed his conviction, arguing that his Charter rights under ss. 8 and 9 were violated due to unlawful continued detention and search.

The trial judge found the initial detention and pat-down lawful, but the search of the appellant's knapsack unlawful, admitting the evidence under s. 24(2) of the Charter.

The Court of Appeal upheld the trial judge's finding that the appellant's continued detention was lawful, emphasizing the totality of circumstances and the reasonable suspicion held by police in a dangerous situation.

Consequently, the appeal against conviction was dismissed, though a mandatory victim fine surcharge was quashed.

Benham Yaali sought leave to appeal a 13-year sentence for manslaughter, arguing the sentencing judge erred by considering handgun possession as an aggravating factor and by failing to properly account for provocation.

The Court of Appeal found no error in principle and that the sentence was not demonstrably unfit, upholding the sentencing judge's discretion in weighing factors.

Leave to appeal was granted, but the appeal was dismissed, except for setting aside the victim impact surcharge.

The appellant was convicted of kidnapping his friend after a judge and jury trial.

He was sentenced to seven years imprisonment.

On appeal, he challenged the conviction on four grounds: (1) the trial judge erred in her instructions on the actus reus of aiding and abetting by not emphasizing the need for actual assistance when reviewing the evidence; (2) the trial judge erred in failing to leave with the jury the included offence of "attempt to aid" a kidnapping; (3) the trial judge erred in not linking her W.(D.) instruction to the defence of duress; and (4) the trial judge erred in failing to correct Crown counsel's improper reference to hearsay evidence in closing arguments.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant, a dangerous offender, appealed his sentence of 10 years imprisonment followed by 10 years long-term supervision.

He argued that the custodial portion was unfit because the hearing judge improperly determined its length based on the time needed for rehabilitative programming rather than applying traditional sentencing principles of proportionality.

The Court of Appeal dismissed the appeal, holding that in dangerous offender proceedings under Part XXIV of the Criminal Code, hearing judges may impose fixed-term sentences exceeding the normal range for the predicate offence to ensure access to necessary treatment programs in a penitentiary, subject to three constraints: the statutory maximum for the predicate offence, applicable sentencing principles, and evidence-based nexus to public protection.

The appellant appealed his conviction for robbery of a Cash in a Flash store on November 14, 2010, arguing that the jury's verdict was unreasonable because the video evidence was extremely poor and unreliable for identification purposes.

The trial judge had given strong warnings about the frailties of the video identification evidence.

The Court of Appeal upheld the conviction, finding that while the video evidence had limitations, the totality of the evidence—including distinctive identifying details visible in multiple video recordings, photographic evidence, DNA evidence from a balaclava, and physical evidence recovered from the appellant's apartment building—provided a reasonable foundation for the jury's verdict.

The appellant appealed his conviction for extortion, arguing that the trial judge provided inadequate reasons, misapprehended evidence, and misapplied the principles of R. v. W.D. The Court of Appeal dismissed the appeal, finding that the trial judge's reasons, read as a whole, provided a detailed assessment of the evidence and credibility.

The court also found that the trial judge's inferences were supported by the evidence and that she correctly applied the burden of proof.

The applicant moved for an extension of time to appeal his convictions for mischief and theft, arguing his guilty pleas were uninformed because his lawyer failed to advise him of the immigration consequences.

The applicant, a permanent resident, faced a mandatory deportation order under the Immigration and Refugee Protection Act due to the mischief conviction.

The Court of Appeal granted the motion, finding the applicant had an arguable case that his plea was not informed and that his delay in appealing was reasonably explained by his recent schizophrenia diagnosis and the delayed receipt of the deportation notice.

The appellant was convicted of assault with a weapon after striking the complainant with a baseball bat.

On appeal, the appellant argued that the trial judge failed to appreciate the evidentiary value of a prior inconsistent statement attributed to the complainant in an ambulance report, which indicated the assailant was unknown.

The Court of Appeal dismissed the appeal, finding that the trial judge properly recognized the statement's potential for impeachment but accepted the complainant's in-court testimony that he did not make the statement.

The appellant appealed his convictions for possession of a weapon for a dangerous purpose and aggravated assault, arguing ineffective assistance of counsel.

The appellant claimed his trial counsel ignored his instructions that he wished to testify in his own defence.

Trial counsel failed to respond to the allegations and had been disbarred for similar conduct.

The Court of Appeal found that the appellant established on a balance of probabilities that his instructions were ignored, which occasioned a miscarriage of justice.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for public mischief, arguing that the false allegations he made to the Children's Aid Society did not constitute a 'report' under s. 140(1)(c) of the Criminal Code because they were not made directly to a police officer.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that a report does not need to be made directly to the police.

The court also found ample evidence that the appellant intended to mislead the police and upheld the trial judge's instruction on the burden of proof.

The appellant appealed his conviction for sexual assault, arguing the trial judge made several errors in the jury charge.

Specifically, the appellant contended the trial judge gave flawed instructions regarding the use of his extensive criminal record, misstated the W.(D.) instruction by telling the jury to consider only credible evidence, and erred in the reasonable doubt instruction.

The Court of Appeal agreed that the cumulative effect of these errors left it unclear whether the jury properly understood its task.

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

The appellants pleaded guilty to criminal negligence causing death, abandoning children, and fraud after leaving their five children in the care of a 10-year-old, during which time their six-month-old infant choked to death.

On appeal, they sought to introduce fresh evidence claiming they had left the children with an adult relative, which the court rejected as not reasonably capable of belief.

The court dismissed the conviction appeal, finding the guilty pleas were properly accepted.

However, the court allowed the sentence appeal on a joint submission, finding the sentencing judge erred in holding that a conditional sentence was unavailable for fraud involving a breach of trust, and imposed a nine-month conditional sentence.

The appellant appealed his convictions and sentences for sexually assaulting his three young granddaughters.

The Crown's case rested entirely on the evidence of the three complainants.

The appellant argued that the trial judge erred by failing to specifically instruct the jury that a finding of collusion among the complainants would diminish their credibility, and by improperly addressing Crown counsel's remarks regarding the absence of medical evidence.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the jury instructions.

The court also dismissed the sentence appeal, upholding the total sentence of 8 years' imprisonment given the egregious breach of trust, the severity of the assaults, and the appellant's prior conviction for a similar offence.

The appellant was convicted of attempting to obstruct justice.

The Crown alleged in the information that the appellant directed witnesses to make a false statement, but at trial argued that knowledge of falsity was irrelevant if coercion was used.

The trial judge convicted based on coercion without finding the statements were false or the appellant knew they were false.

The Court of Appeal held that the Crown was bound by the particulars in the information, which required proving the appellant knew the statements were false.

Since the Crown conceded it could not prove this knowledge, the conviction was quashed and an acquittal entered.