Criminal and Quasi-Criminal Law - OCA

This decision concerns a non-publication order imposed under section 517 of the Criminal Code at a bail hearing.

The Court of Appeal for Ontario issued reasons addressing the application of the publication ban, which restricts the publication, broadcast, or transmission of evidence, information, representations, and reasons given at the bail hearing.

The decision itself contains information covered by the non-publication order and will only be made available on the Court of Appeal's website once the order ceases to be in effect.

The Crown appealed a lower court's decision to stay charges against the respondent, Elijah Jacques-Taylor, under section 11(b) of the Charter due to unreasonable delay.

The application judge found a net delay exceeding the 18-month Jordan ceiling, after deducting defence delay and a period for COVID-19 backlog.

The Crown argued errors in applying the contextual approach to initial date setting, failing to deduct delay from a co-accused's unavailability, and implying the Crown should have severed the respondent.

The Court of Appeal dismissed the appeal, affirming the application judge's findings that the contextual approach was correctly applied, delay from a co-accused is not automatically attributed to all, and the Crown had tools to address delay without necessarily severing.

The Crown sought leave to appeal to the Court of Appeal for Ontario from a judgment of the Ontario Court of Justice concerning findings on due diligence and penalty reduction in regulatory offence charges under the Occupational Health and Safety Act.

The motion for leave was dismissed as the proposed grounds of appeal did not meet the high bar under s. 131 of the Provincial Offences Act.

The court found that the alleged errors involved the misapplication of well-established legal principles rather than issues requiring the Court of Appeal's guidance on statutory interpretation or general legal principles.

The appellant, M.M., appealed a suspended sentence and three years' probation for criminal harassment, arguing the trial judge erred by considering the "gendered context" as an aggravating factor.

The Court of Appeal found no error in principle, affirming that it was open to the trial judge to consider the context of criminal harassment often occurring when a woman rejects a man's advances.

The court also upheld the trial judge's decision that a conditional discharge was contrary to the public interest and dismissed the fresh evidence application.

The appellant was convicted of sexual exploitation and uttering death threats following a judge-alone trial.

He appealed, arguing that the trial judge erred by relying on an ungrounded "common-sense" assumption to reject his evidence and by reversing the burden of proof.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility assessments were plausible and grounded in the evidence, and that the burden of proof was not reversed.

The court emphasized the high deference given to trial judges' credibility findings and clarified the application of the rule against ungrounded common-sense assumptions.

The appellant, Devon Dinall, appealed his convictions for trafficking cocaine, conspiracy to traffic cocaine, and possession of proceeds of crime.

His defence at trial was that he was involved in a marijuana trafficking conspiracy, not cocaine.

The primary ground of appeal argued that the trial judge erred in jury instructions on conspiracy and the co-conspirator's exception to the hearsay rule, specifically by failing to instruct on the possibility of multiple overlapping conspiracies and misrepresenting his admission.

The Court of Appeal dismissed the appeal, finding that the jury charge, viewed functionally and as a whole, clearly conveyed that conviction required proof of participation in a cocaine conspiracy, despite one misstatement.

The court also found no error in the trial judge's instruction regarding expert evidence on drug slang.

The appellant, Awale Hussein, appealed his conviction for second-degree murder and sought leave to appeal the parole ineligibility component of his sentence.

The conviction appeal was based on alleged errors in dismissing a Corbett application (allowing cross-examination on his criminal record) and in the jury charge regarding police investigation inadequacies.

The sentence appeal argued errors in disregarding juror recommendations for parole ineligibility and treating absence of motive as an aggravating factor.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no errors in principle or unreasonable exercises of discretion by the trial judge.

The appellant, convicted of second-degree murder, appealed his conviction, alleging reversible misdirection in the jury instruction on after-the-fact conduct.

The appellant had dismembered and disposed of the victim's body after her death, which he claimed was due to an overdose, fearing police scrutiny.

The Court of Appeal found that the after-the-fact conduct evidence was relevant and admissible to infer unlawful causation of death and mens rea for murder.

The trial judge's instructions on drawing inferences from circumstantial evidence, including after-the-fact conduct, were deemed adequate.

The Court also found no reversible error in the absence of a specific "bad character" caution, given the direct connection of the conduct to the charge.

The appeal was dismissed.

The appellant appealed his conviction and sentence related to his involvement in two marijuana grow operations.

He argued there was insufficient evidence of his participation and that he was treated unfairly at trial.

The Court of Appeal dismissed the appeal, finding ample circumstantial evidence that he was a significant participant, including his presence at the locations, delivery of plants, and possession of grow-op paraphernalia.

The court also found the trial was fair and the sentence was within the appropriate range.

The appellant appealed convictions arising from historical sexual offences against a teenage complainant who was a close family friend.

He argued that the mixed verdicts were inconsistent and that the jury charge was deficient on count-by-count reasoning, witness credibility, delay in disclosure, corroboration, and limiting use of bad character evidence.

The court held that the acquittals and conviction were rationally reconcilable on the evidence and that the jury instructions, read functionally and as a whole, adequately conveyed the governing principles.

Although a limiting instruction on alleged mistreatment of children would have been preferable, its absence caused no reversible error.

The appeal was dismissed.

The appellant appealed his conviction for break and enter, arguing the trial judge erred in relying on the doctrine of recent possession without rejecting the complainant's vague description of the intruders.

The Court of Appeal dismissed the conviction appeal, finding the trial judge gave no weight to the vague descriptions and was entitled to rely on recent possession.

The Crown appealed the 12-month sentence, arguing it was outside the range for home invasions and failed to consider psychological harm.

The Court of Appeal dismissed the sentence appeal, finding no error in the trial judge's approach given the offender's circumstances and the lack of submissions on psychological harm at trial.

The appellant appealed a committal order for extradition, arguing the extradition judge erred in appreciating discrepancies in the Record of the Case (ROC).

The Court of Appeal dismissed the appeal, finding the discrepancies were minor, corrected in a supplementary ROC, and did not taint the remaining evidence.

Furthermore, sufficient independent evidence existed to justify the committal order on all charges.

The Crown appealed the accused's acquittal on an arson charge and a costs order made against the Crown for late disclosure of an expert report.

During the trial, the Crown's primary fire investigator became seriously ill and could not complete his cross-examination.

The trial judge excluded his evidence in its entirety, as well as the evidence of a second expert whose report was disclosed late.

The Court of Appeal allowed the appeal, finding the trial judge erred by prematurely excluding the evidence before the end of the trial and failing to consider affording the incomplete evidence less weight.

The Court also vacated the costs order, finding the Crown's late disclosure was not flagrant or unjustified.

A new trial was ordered.

The appellant appealed his conviction and sentence for constructive possession of a weapon and marijuana.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence to support the trial judge's inference of constructive possession.

However, the Court granted leave to appeal the sentence, holding that the trial judge erred in concluding he could not reduce a mandatory minimum sentence to account for pre-trial custody.

The sentence was reduced to time served.

The appellant appealed his sentence and dangerous offender designation.

In light of the Supreme Court of Canada's decision in R. v. Johnson, the Crown conceded the appeal.

The Court of Appeal set aside the dangerous offender finding and indeterminate sentence, and remitted the matter for a new sentence hearing pursuant to section 759(3)(iii) of the Criminal Code.

The appellant appealed his convictions for driving over eighty, dangerous driving, and impaired driving.

He argued that the police violated his s. 8 Charter rights by placing Centre of Forensic Sciences seals on vials of his blood, which had been drawn for medical purposes, prior to obtaining a search warrant.

He also argued the trial judge erred in instructing the jury on the issue of bolus drinking.

The Court of Appeal dismissed the appeal, finding that the brief sealing of the vials did not interfere with the appellant's spatial, physical, or informational privacy interests and thus did not constitute an unreasonable seizure.

The court also found the jury charge on the burden of proof regarding bolus drinking was sufficient.

The appellant was convicted of kidnapping and sexual assault following a second jury trial.

The Crown's case relied entirely on the eyewitness identification of the two teenage complainants.

The appellant appealed, arguing the verdict was unreasonable.

The Court of Appeal allowed the appeal and entered acquittals, finding significant frailties in the identification evidence, including a mishandled photo lineup, discrepancies in descriptions, and potential contamination of testimony.

Furthermore, the timeline of events described by the complainants was irreconcilable, there was no forensic evidence linking the appellant to the crimes, and the appellant presented a corroborated alibi.

The Court concluded that no properly instructed jury, acting judicially, could have reasonably convicted the appellant on the totality of the evidence.

The appellant pleaded guilty to robbery and other offences and was sentenced to 30 months' imprisonment.

The Crown successfully applied for an order under s. 487.052 of the Criminal Code authorizing the taking of a bodily sample for the national DNA data bank.

The appellant appealed, arguing that the standard of 'the best interests of the administration of justice' in s. 487.052 is unconstitutionally vague and overbroad unless interpreted to require reasonable and probable grounds to believe the offender will commit a future offence.

The Court of Appeal dismissed the appeal, holding that the search warrant standard of reasonable and probable grounds is not required for DNA data bank orders, as the context, purposes, and privacy expectations differ significantly.

The court found the trial judge did not err in balancing the appellant's privacy interests against his criminal record and the circumstances of the offence.

The appellant appealed convictions arising from a fatal motor vehicle accident, arguing that as a self-represented accused requiring an interpreter he did not receive a fair trial.

The court held that the trial judge had a duty to provide meaningful procedural guidance and to inquire into an apparent Charter issue concerning hospital blood samples and medical records obtained without a Criminal Code demand or properly supported warrant.

Given the possible infringement of s. 8 and the need to consider exclusion under s. 24(2), together with broader failures to assist the accused and deficiencies in the treatment of the evidence, the fairness of the trial was compromised.

The convictions on the impaired driving charges were set aside and a new trial was ordered.

The appellant, an armoured car service employee, was convicted of theft from an automated banking machine.

The trial judge relied on the finding that the appellant had been issued both combinations to the machine.

On appeal, the appellant argued that the trial judge misapprehended the evidence, as the Crown had conceded at trial that the exhibit did not prove the appellant received both combinations.

The Court of Appeal agreed, allowed the appeal, set aside the conviction and restitution orders, and ordered a new trial.