Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal on a charge of accessory after the fact to murder.

The court found that the evidence did not support leaving the charge to the jury on the basis of wilful blindness, as there was no basis for a reasonable jury to find that the respondent knew or was wilfully blind to the fact that the victim had died.

The court also held there was no air of reality to the included offence of being an accessory after the fact to attempted murder, as the evidence established the victim died and there was no live issue as to causation.

The Court of Appeal for Ontario dismissed Riley Kostuk’s appeal from his conviction for second degree murder.

Kostuk argued that his right to counsel under s. 10(b) of the Charter was violated, that the trial judge erred in admitting evidence of prior discreditable conduct, and that evidence of his schizophrenia was improperly admitted or not properly limited.

The court found no error in the trial judge’s rulings, holding that the appellant had an operating mind when consulting counsel, that the prior conduct evidence was properly admitted for motive and identity, and that the references to mental health did not prejudice the trial.

The appeal was dismissed.

The appellant, found not criminally responsible due to mental disorder, appealed the Ontario Review Board's disposition.

The Board had rejected both a conditional discharge and a community living clause, despite the hospital's recommendation for the latter for therapeutic and practical reasons.

The Court of Appeal found the Board erred in rejecting the inclusion of a community living clause, as it was deemed therapeutically beneficial and practically necessary for the appellant's progress and access to appropriate care.

The appeal was allowed to vary the disposition to include the community living provision, while upholding the Board's decision against a conditional discharge.

The appellant, Yasin Abdulle, appealed his conviction for second-degree murder and his 15-year parole ineligibility period.

The conviction appeal challenged the admission of evidence regarding prior violent incidents between rival gangs and the use of rap music lyrics during cross-examination.

The sentence appeal argued that the trial judge erred by minimizing the impact of systemic anti-Black racism on the appellant's moral culpability.

The Court of Appeal dismissed both appeals, finding no error in the admission of prior incident evidence or the use of rap lyrics for cross-examination.

While acknowledging the trial judge's error in dismissing evidence of anti-Black racism, the Court found this error did not impact the fit sentence, given the seriousness of the "near first-degree murder" offence and the need for denunciation and deterrence.

Michael Theriault appealed his conviction for common assault and his nine-month sentence, stemming from an altercation where he, an off-duty police officer, and his brother assaulted Dafonte Miller, a young Black man, after catching him stealing from their truck.

The trial judge had acquitted the brothers of aggravated assault and obstruction of justice but convicted Michael of common assault for striking Miller with a pipe when Miller was retreating.

The Court of Appeal dismissed Michael Theriault's appeal, upholding the conviction and sentence.

The Crown's cross-appeal against the acquittals was also dismissed without addressing its merits, as the Crown had indicated they would not pursue a new trial if Michael Theriault's common assault conviction was upheld.

The Crown appealed the conditional sentence of two years less a day imposed on the respondent, Joern Scholz, for fraud over $5,000.

The Court of Appeal found that the trial judge erred in principle by imposing a sentence outside the established range for major frauds and by failing to follow the proper analytical process for conditional sentences.

The court also found that the trial judge improperly considered the conduct of an OSC investigator as a mitigating factor for the convicted offence.

The appeal was allowed, the conditional sentence was set aside, and a three-year term of imprisonment was imposed.

The applicant, Gavin MacMillan, sought bail pending appeal after being convicted by a jury of sexual assault and administering a noxious substance, for which he received a nine-year sentence.

The primary ground of appeal was the retrospective application of Bill C-75, which abolished peremptory juror challenges, an issue previously addressed by the Court of Appeal in *R. v. Chouhan*.

The Crown conceded the appeal was not frivolous and that the applicant was not a flight risk.

The court granted bail, finding that despite the gravity of the offences, the strength of the appeal (bordering on certainty due to *Chouhan*) and the proposed stringent bail conditions (virtual house arrest) meant that detention was not necessary in the public interest.

The appellant appealed his sentence of 10 years' imprisonment imposed following his guilty plea to two counts of operating a motor vehicle while impaired and causing death, two counts of criminal negligence causing death, two counts of operating a motor vehicle while impaired and causing bodily harm, and two counts of criminal negligence causing bodily harm.

The collision occurred when the appellant, heavily intoxicated and driving at 187 km/hr, ran a red light and struck another vehicle, killing two passengers and seriously injuring two others.

The Court of Appeal allowed the appeal and reduced the sentence to seven years, finding the original sentence demonstrably unfit.

The court also set aside victim surcharges and varied the driving prohibition to eight years commencing at the end of imprisonment.

A dissenting opinion would have reduced the sentence to six years, placing greater weight on Gladue factors relating to intergenerational trauma.

The appellant appealed her conviction, arguing that the police officer's search of the vehicle's glove box and console violated her s. 8 Charter rights.

The Court of Appeal dismissed the appeal, finding that even if the search constituted a s. 8 violation, the evidence would not be excluded under s. 24(2).

Applying the Grant factors, the court noted the officer acted in good faith, the appellant's privacy interest in the vehicle was minimal, and the seized evidence was central to the charge.

The appellant appealed his conviction for sexual interference involving his 13-year-old stepdaughter.

He argued the trial judge erred in assessing the complainant's credibility, applied different standards of scrutiny to the evidence, and reached irreconcilable conclusions by acquitting him of sexual assault but convicting him of sexual interference.

The Court of Appeal found no error in the trial judge's approach to the evidence, noting her findings were rooted in the record and her reasonable doubt on the sexual assault count did not contradict her satisfaction that the sexual interference count was proven.

The appeal was dismissed.

The appellant appealed his conviction for possession of marijuana for the purpose of trafficking and sought leave to appeal his 10-month sentence.

He argued that the trial judge was biased, the verdict was unreasonable, and his trial counsel was incompetent for failing to call him or other witnesses to testify and for abandoning a section 8 Charter application.

The Court of Appeal dismissed the appeal, finding no reasonable apprehension of bias, that the verdict was reasonable based on the evidence, and that trial counsel's decisions fell within the range of reasonable professional assistance.

The appellant appealed his conviction, arguing his arrest was unlawful and merely a ruse to search his backpack.

He also argued the trial judge failed to provide clear reasons for accepting one officer's evidence over another's.

The Court of Appeal dismissed the appeal, finding the trial judge explicitly rejected the appellant's position and had a legitimate basis for the arrest.

The Court further held that there was likely no section 8 Charter breach regarding the backpack search, and even if there was, the evidence was properly admitted under section 24(2) applying the Grant framework.

The appellant was convicted of first-degree murder after the deceased was found in a submerged vehicle.

At trial, the Crown relied on unchallenged toxicology evidence suggesting the deceased died within 15 to 20 minutes of his last drink, supporting the theory of a planned murder.

On appeal, the appellant sought to introduce fresh toxicology evidence, conceded as correct by the Crown, showing the trial expert's time estimate was scientifically unsound.

The Court of Appeal applied the Palmer test and admitted the fresh evidence, finding it could reasonably be expected to have affected the jury's verdict.

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

The appellant appealed his sentence of three years' imprisonment and a lifetime driving prohibition for driving-related offences.

He argued the trial judge failed to give sufficient weight to his guilty plea and failed to give 3:1 credit for pre-trial custody.

The Court of Appeal held that even if there were errors in principle, the three-year sentence was fit given the appellant's horrendous record for driving-related offences.

However, the Court varied the lifetime driving prohibition to a 10-year prohibition.

The sentence appeal was otherwise dismissed.

The appellant appealed his conviction.

Fresh evidence was introduced demonstrating that the appellant was not criminally responsible by reason of a mental disorder at the time of the offence.

The Crown and amicus curiae agreed with substituting a finding of not criminally responsible.

The Court of Appeal allowed the appeal, set aside the convictions, substituted a verdict of not criminally responsible on account of mental disorder, and referred the matter to the Review Board.

The appellant operated a website containing audiovisual material and written stories depicting violence against women.

He was convicted of making, possessing, and distributing obscene material.

On appeal, the Court of Appeal found the trial judge erred in instructing the jury that adult nudity alone could amount to explicit sex for the purposes of obscenity.

The court ordered a new trial for the audiovisual counts but upheld the conviction for the written stories, which clearly depicted explicit sex and violence.

The sentence was varied to a $2,000 fine.

The appellants were convicted of second degree murder and manslaughter, respectively, following the fatal beating of a homeless man.

They appealed their convictions, and one appealed his sentence.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's refusal to grant an adjournment for a challenge for cause, upholding the constitutionality of the peremptory challenge allocation in s. 634(2) of the Criminal Code, and finding the jury instructions regarding co-accused testimony, the failure to testify, and the review of evidence to be balanced and legally correct.

The sentence of life imprisonment with 12 years parole ineligibility was also upheld.

The Crown appealed a conditional sentence imposed on the respondent.

The Court of Appeal noted that while a conditional sentence may have been inappropriate at the time it was imposed, it would not be in the interests of justice to incarcerate the respondent now.

The respondent had completed 11 months of the sentence without issue, completed half of her community service hours, and was pregnant.

The appeal was dismissed.

The young person appealed an order denying the transfer of his case to youth court.

The Court of Appeal dismissed the appeal, agreeing with the lower court that the objectives of protecting the public and rehabilitating the young person could not be reconciled if the matter were tried in youth court, given the horrendous acts alleged and the young person's personal background.

The Crown appealed the trial judge's refusal to grant a DNA databanking order under s. 487.052 of the Criminal Code.

The trial judge had refused the order solely because the offence was committed before the provisions came into force.

The respondent conceded this was an error but argued the matter should be remitted to the trial judge to allow the defence to present evidence.

The Court of Appeal found the evidentiary record was complete and the evidence supporting the order was overwhelming.

The appeal was allowed and the DNA databanking order was granted.