Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario allowed J.C.'s appeal in part, setting aside his designation as a dangerous offender and substituting a designation as a long-term offender, while upholding the determinate sentence and 10-year long-term supervision order (LTSO).

The court found that the trial judge erred by failing to consider intractability at the designation stage, as required by R. v. Boutilier, but found no reviewable error in the trial judge’s findings regarding the patterns of behaviour or assessment of the criminal record.

The applicant, Jessica Martin, sought a review of her bail denial after being charged with several offences, including first degree murder (later dropped), kidnapping, obstructing justice, accessory after the fact to murder, aggravated assault, and assault causing bodily harm.

The Court considered whether there was a material change in circumstances, legal error, or whether the detention was "clearly unwarranted." The Court found no material change, no legal or palpable and overriding error, and that the decision to detain was reasonable.

The application was dismissed.

The applicant sought leave to appeal his conviction and sentence for willfully promoting hatred against identifiable groups (Jews and women) and bail pending appeal.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds, including challenges to the videoconference hearing, findings on the elements of the offences, and application of aggravating factors, did not raise questions of law alone or lacked sufficient merit/significance to the administration of justice.

Consequently, the application for bail pending appeal was also dismissed.

The appellant appealed his conviction for aggravated assault by pouring boiling water on a vulnerable adult victim.

The victim had initially recanted her allegations, claiming the injuries were self-inflicted, but later reverted to her original account during cross-examination.

The trial judge convicted the appellant based on corroborating medical evidence from two treating physicians that the severe burns were inconsistent with self-infliction, combined with the victim's testimony regarding the circumstances of the assault.

The appellant raised four grounds of appeal: misapprehension of medical evidence, failure to exercise the gatekeeper function regarding expert evidence, misapplication of the burden of proof, and unreasonable verdict.

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

Appeal from a first degree murder conviction arising from the death of a victim who was strangled and subsequently subjected to post-mortem sexual interference.

The appellant challenged the admission of confessions made during a "Mr. Big" undercover operation, the validity of a one-party consent wiretap authorization, and the first degree murder conviction based on section 231(5)(b) of the Criminal Code.

The court upheld the conviction, finding that the Mr. Big statements were admissible under the Hart test, the wiretap authorization was properly issued, and the evidence supported a finding that the murder and sexual assault formed a single continuous transaction despite the post-mortem nature of some sexual acts.

The appellant was convicted of aggravated assault after stabbing a neighbour during a physical altercation on her driveway.

The fight was instigated by the neighbours over noise from a leaf blower.

The appellant claimed she acted in self-defence to protect her husband, who was involved in the melee.

The trial judge rejected the self-defence claim, finding that the victim was not applying force or engaged with the husband at the moment of the stabbing.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the law of self-defence and did not impermissibly weigh the appellant's response to a nicety.

The appellant, aged 21, engaged in a sexual relationship with a 15-year-old complainant.

He was convicted of sexual touching and sexual assault, as the age difference precluded the defence of consent under s. 150.1 of the Criminal Code.

The trial judge stayed the proceedings, finding s. 150.1 violated s. 7 of the Charter.

The summary conviction appeal court set aside the stay.

On appeal, the Court of Appeal held that s. 150.1 is not overbroad and does not violate s. 7 of the Charter, as its purpose is to protect children from sexual contact with adults due to inherent power imbalances.

The appeal was dismissed.

The Crown appealed an Ontario Review Board disposition that granted the respondent an absolute discharge.

The Crown argued the Board failed to properly assess the risk of psychological harm to the public, misapprehended evidence, and exceeded its jurisdiction.

The Court of Appeal dismissed the appeal, finding the Board's decision that the respondent was not a significant threat to the public was reasonable and supported by the record.

The appellant appealed his convictions and sentence.

Based on the joint position of the parties, the Court of Appeal set aside the conviction on count one and ordered a new trial.

The Crown conceded that the 18-month custodial sentence for the remaining convictions was unfit.

The Court substituted an 18-month conditional sentence, noting the appellant's employment, support for his mother, and compliance with bail conditions.

The appellant abandoned his appeal before the Court of Appeal for Ontario.

The appellant appealed a conviction on the basis of the trial judge's response to a jury request for transcripts of three main witnesses.

The trial judge informed the jury that the request could not be met and they had to be specific, effectively foreclosing the option of refreshing their memory on all the evidence.

The Court of Appeal held this was a reversible error, set aside the conviction, and ordered a new trial.

The Crown appealed an eleven-month conditional sentence and one-year probation order imposed on the respondent following guilty pleas to robbery, break and enter, uttering a death threat, and theft under.

The offences included a home invasion committed while the respondent was on release and probation orders.

The Court of Appeal found the sentence demonstrably unfit, allowed the appeal, and substituted a further period of imprisonment of 8 months, taking into account pre-trial custody and time served under the conditional sentence.

The Crown appealed an order transferring a 17-year-old charged with second degree murder from ordinary court to youth court under the Young Offenders Act.

The appeal turned on whether the respondent had shown likely rehabilitation within the seven-year dispositional period, given psychiatric evidence of schizophrenia and possible conduct disorder.

The court held that the youth court judge misconstrued and misapplied the psychiatric evidence by making a definitive finding excluding conduct disorder despite significant evidentiary gaps.

Because the respondent failed to establish likely rehabilitation within the statutory period, the transfer order was set aside and the matter was directed to remain in ordinary court.

A criminal lawyer appealed a contempt conviction arising from his failure to appear with his client at a peremptory disposition hearing.

The Court of Appeal held that counsel non-appearance is not per se criminal contempt and that the fault element requires at least indifference to obligations to the court and client.

The trial judge erred by cutting off evidence about arrangements made for an associate to attend and by relying on prior non-appearances by the lawyer and others in his firm without proper notice.

The conviction was quashed and an acquittal entered because, on the uncontested affidavit record, the conduct did not amount to criminal contempt.

The appellant appealed convictions for break and enter and possession of stolen property, arguing he was denied full answer and defence because he could not adduce medical evidence concerning a hypoglycaemic condition said to affect the voluntariness of an inculpatory statement.

He also argued that the condition impaired his ability to defend himself at trial and alleged trial judge bias.

The court held that neither the trial record nor the fresh evidence supported any claim that the appellant lacked an operating mind, could not participate meaningfully at trial, or that the statements were involuntary.

The findings of fact made on the voir dire were fully supported by the evidence, and the allegation of bias based on a single remark was without merit.

The appeal was dismissed.

The Crown sought leave to appeal from a summary conviction appeal decision upholding a trial judge’s refusal to permit viva voce evidence in response to the accused’s Charter application to exclude breath evidence.

The issue was whether rule 30.05(3) of the Rules of the Ontario Court of Justice in Criminal Proceedings required notice from the Crown where it intended to rely on such evidence.

The court held that the rule’s clear wording required compliance and that routine Crown disclosure did not eliminate the need to give notice of the basis for opposing the Charter application.

Although the trial judge had discretion under rule 2 to waive compliance, there was no error in refusing to do so in the circumstances.

Leave to appeal was granted, but the appeal was dismissed.

The appellant challenged the constitutionality of the tertiary bail ground in s. 515(10)(c) of the Criminal Code after being denied bail on the basis that detention was necessary to maintain confidence in the administration of justice.

The Court of Appeal held that s. 11(e) of the Charter does not freeze constitutionally valid bail grounds to attendance in court and public safety, and that Parliament may enact additional grounds if they satisfy the constitutional standard of just cause.

Applying the Pearson and Morales framework, the court concluded that the provision limits detention to a narrow set of circumstances and serves the proper functioning of the bail system.

The court further held that the phrase concerning confidence in the administration of justice, especially when read with the enumerated statutory factors, is neither vague nor overbroad.

The appeal was dismissed.

The appellant appealed convictions for criminal negligence in the operation of a motor vehicle and assault with a weapon arising from a confrontation between police and occupiers of a provincial park claimed under an aboriginal treaty right.

The Court of Appeal rejected the argument that the trial judge misapprehended the evidence concerning intent and held the reasons must be read as a whole under the governing appellate framework.

The court further held that the defence of property under s. 41(1) of the Criminal Code was unavailable because the occupiers were not in peaceable possession and the force used by driving at police officers was neither necessary nor proportionate.

The defence of justification under ss. 27 and 30 also failed because the trial judge did not accept that the appellant acted to rescue the arrested band member.

Conviction and sentence appeals were dismissed.

The appellant appealed a conviction for keeping a common bawdy house arising from the operation of a commercial house of domination offering sadomasochistic services.

The court held that the trial judge reasonably found the erotica sessions were primarily sexual in nature and constituted prostitution because they involved lewd acts for payment for the sexual gratification of clients on a frequent and habitual basis.

The court upheld the admission of a videotape corroborating the commercial services, agreed that most of the proposed expert evidence was irrelevant or insufficiently reliable under the governing expert evidence framework, and found that the search-related Charter breaches did not justify a stay.

The appeal was dismissed.

The appellant challenged both conviction and sentence following a jury trial, arguing among other things that the trial judge's charge improperly referred to the accused's criminal record and that the response to a jury question was inadequate.

The court held that the impugned reference was evidently a mistaken attribution intended for another witness and, in any event, caused no prejudice in light of the context and overwhelming evidence.

The court further found no basis to conclude the jury was confused about the causal link between the assaults and bodily harm, and held the trial judge's answer was complete.

The conviction appeal was dismissed; leave to appeal sentence was granted, but the sentence appeal was also dismissed.