Criminal and Quasi-Criminal Law - OCA

The appellant was convicted of drug trafficking offences following the execution of search warrants.

He applied to reopen his trial based on fresh evidence from a related proceeding where a judge found a police officer had deliberately misled the issuing justice.

The trial judge dismissed the application, finding the misconduct was not relevant to the appellant's defence and the evidence could have been adduced with due diligence.

The Court of Appeal dismissed the appeal, holding that the trial judge's decision not to reopen was a reasonable exercise of judicial discretion and the Palmer criteria for fresh evidence were not met.

The appellant appealed his sentence of 18 years imprisonment (less 50 months presentence custody) imposed after pleading guilty to twelve firearm-related offences, including two counts of discharge of a prohibited firearm with intent to prevent arrest, possession of a firearm while prohibited, dangerous driving, and possession of explosive substances.

The appellant argued that the sentencing judge erred by overemphasizing denunciation and deterrence, failed to properly consider mitigating factors including his guilty plea, and imposed an excessive sentence.

The Court of Appeal dismissed the appeal, finding the sentencing judge's decision reasonable and the sentence appropriate given the gravity of the offences and the need for an exemplary sentence.

The appellant, Qalid Abderezak, appealed a 12-year sentence for robbery and firearms offences, arguing that the sentence was unreasonably disparate compared to a co-accused, Zakariye Yousuf, who received a 10-year sentence.

The Court of Appeal found no error in the sentencing judge’s analysis, noting the different roles and culpability of the offenders and the deferential standard of review for sentencing decisions.

The appeal was dismissed.

The appellant, convicted of four counts related to sexual luring of a child and sentenced to 3.5 years, appealed his conviction and sentence.

He argued his Asperger's Syndrome affected his testimony, but the trial judge had already considered this.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error.

The court also addressed a Kienapple conditional stay issue, correcting the trial judge's error by quashing the conviction on count 3 and entering a conditional stay, while lifting the stay on count 4 and entering a conviction, confirming the original sentence on count 4.

The appellant, convicted of importing cocaine, sought leave to appeal her sentence of six years and three months.

She argued the trial judge erred by failing to consider collateral consequences related to her children's care by the Catholic Children's Aid Society and the impact of systemic discrimination and racism.

The Court of Appeal granted leave but dismissed the appeal, finding the trial judge adequately considered family circumstances as a mitigating factor and that systemic factors, while relevant to responsibility, do not diminish the gravity of the offence.

The sentence was at the low end of the established range for such offences.

This decision addresses the appellant's desire to abandon his appeal, raising concerns about his current mental capacity.

The Court of Appeal for Ontario determined it has the discretion to reject a Notice of Abandonment if the appellant lacks capacity, likening the test to that for entering a guilty plea.

The court decided to proceed to a second stage of analysis to determine whether to accept the abandonment, setting a case management conference to explore the evidentiary record on capacity and offering to appoint counsel for the appellant for this limited purpose.

The appellant appealed her conviction from the Superior Court of Justice, arguing that the trial judge committed a palpable and overriding error by failing to make more detailed inquiries into the appellant's mental status while she was testifying.

The Court of Appeal rejected this submission, finding that the trial judge had made sufficient inquiries, the appellant had confirmed she was able to continue and had no difficulty with her memory, and defence counsel did not pursue the issue at trial.

No fresh evidence was produced to support the appellant's claim that her mental status would have interfered with her ability to testify.

The appellant appealed his convictions for firearms and drug offences, as well as his sentence of eight years' imprisonment.

He argued the trial judge erred by failing to give a W.(D.) instruction regarding defence witnesses, by finding he lacked standing to challenge a search under section 8 of the Charter, and by denying enhanced pre-trial custody credit for harsh lockdown conditions.

The Court of Appeal dismissed the appeal, finding no W.(D.) instruction was required, the appellant was merely a privileged visitor with no reasonable expectation of privacy in the searched residence, and there was no evidence of adverse effects from the lockdown conditions to warrant enhanced credit.

The appellant was convicted of assault and break and enter to commit assault arising from a home invasion.

She was sentenced to two years less a day imprisonment followed by two years of probation.

On appeal, she argued the trial judge erred by not imposing a conditional sentence.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded a conditional sentence was unfit given the seriousness of the offence, the appellant's role as a principal, and the need for denunciation and deterrence.

The appellant appealed a disposition of the Ontario Review Board, which found he posed a significant threat to public safety and denied him an absolute discharge.

The hospital and treatment team supported an absolute discharge, noting that while the appellant suffered from schizophrenia, he was not violent and could be managed under the civil mental health system.

The Court of Appeal found the Board's decision unreasonable, as it relied on speculative correlations between drug use, mental illness symptoms, and risk to the public, while ignoring the unique circumstances of the index offence and the appellant's lack of violent history.

The appeal was allowed and an absolute discharge was substituted.

The appellant appealed his conviction, arguing the motions judge erred in her s. 24(2) Charter analysis after finding an unlawful arrest.

The appellant contended that the motions judge's finding of good faith was inconsistent with her finding that the officers lacked reasonable and probable grounds to arrest.

The Court of Appeal dismissed the appeal, holding that the motions judge accepted the officers' evidence that they believed they had authority to arrest, and it was open to her to consider the high crime area in assessing police conduct under s. 24(2).

The appellant was convicted of fraud over $5,000 after his trial counsel was removed from the record by an application judge due to unpaid legal fees.

The appellant was forced to represent himself for the remainder of the trial.

On appeal, the Court of Appeal held that the application judge erred in removing counsel absent a fundamental disagreement, serious breakdown in communications, or ethical dilemma.

The removal violated the appellant's right to counsel, and actual prejudice was not required to order a new trial, though prejudice likely existed.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for break, enter and theft, breach of probation, and breach of recognizance, as well as his global sentence of 44 months.

He argued the trial judge erred in the jury charge on identification evidence, restricted cross-examination on the Sophonow report, misdirected the jury on inferences from a cell phone call, and failed to grant two-for-one credit for pre-trial custody.

The Court of Appeal found no reversible errors in the trial judge's instructions or evidentiary rulings.

The court also upheld the sentencing judge's discretionary decision to deny two-for-one credit based on the appellant's history of disobeying court orders.

The appeal from conviction and sentence was dismissed.

The appellant appealed his conviction for possession of a loaded prohibited firearm found in the trunk of his car during a traffic stop.

The motion judge had ruled the search lawful, finding the appellant consented.

The Court of Appeal found the motion judge erred, as the police officer's threat to bring in a canine unit—which he had no lawful authority to do—vitiated the appellant's consent.

The appeal was allowed, the conviction set aside, and a new trial ordered to determine the admissibility of the evidence under s. 24(2) of the Charter.

The appellant appealed his conviction for possession of a weapon dangerous to the public peace.

He argued that the trial judge's reasons were insufficient under the Sheppard standard and that she erred in interpreting the elements of the offence under section 88 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons clear and comprehensive, and her interpretation of section 88 consistent with the Supreme Court of Canada's analysis in R. v. Kerr.

The appellant was convicted of armed robbery, use of an imitation firearm, and disguise with intent.

The Crown's case relied heavily on the testimony of the appellant's former girlfriend, who initially provided a false alibi but later recanted and testified that the appellant confessed to her.

The trial judge drew an adverse inference from the appellant's failure to testify, treating it as an exception under Noble because he found the alibi was fabricated.

The Court of Appeal held that the trial judge erred in drawing this adverse inference, as the defence did not advance an alibi at trial.

The appeal was allowed and a new trial ordered.

The Crown appealed the respondent's acquittal.

The respondent fled the jurisdiction, and the court appointed an amicus curiae to represent his interests.

The Crown argued the amicus should be paid at legal aid rates by analogy to s. 684 of the Criminal Code, while the amicus sought payment from $300,000 seized from the respondent upon his arrest, pursuant to s. 462.34.

The court ordered the federal Crown to pay the amicus at a reasonable rate and recover the sum from the seized funds.

The young person appellant and an adult co-accused were charged separately with murder.

The appellant was compelled to testify at the adult's preliminary inquiry, during which the Crown extensively questioned him about his own involvement, leading to self-incriminating statements.

This compelled testimony was then used to elicit incriminating evidence from another witness, who later testified at the appellant's trial.

The Court of Appeal held that the Crown's predominant purpose at the preliminary inquiry was to build a case against the appellant, violating his section 7 Charter rights against self-incrimination.

The derivative evidence should have been excluded.

The appeal was allowed and a new trial ordered.

The appellant was convicted by a jury of importing cocaine and hashish and sentenced to seven years' imprisonment.

He appealed both his conviction and sentence.

On the conviction appeal, he argued the trial judge misapprehended the evidence, improperly turned the trial into a credibility contest, and failed to properly answer a jury question regarding reasonable doubt.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge or the recharge on reasonable doubt.

The sentence appeal was also dismissed, as the seven-year sentence for importing 2.13 kilograms of cocaine and 1 kilogram of hashish was not demonstrably unfit.

The appellant appealed convictions for sexual offences arising from allegations by his stepdaughter following a judge-and-jury trial.

The Court of Appeal held that Crown counsel repeatedly breached the duty of fairness by personalizing the prosecution, misstating the appellant's evidence, engaging in improper and sarcastic cross-examination, and reading a misleading excerpt from Supreme Court of Canada authority to the jury.

The trial judge compounded the unfairness by repeating an inaccurate version of the appellant's evidence and failing to correct the improprieties.

The cumulative prejudice deprived the appellant of a fair trial.

A new trial was ordered.