Criminal and Quasi-Criminal Law - OCA

The appellant appealed his conviction for sexual assault contrary to section 271 of the Criminal Code and his sentence.

The appellant was charged in September 2019 with sexual assault and administering a noxious substance.

The latter charge was withdrawn.

Following a hung jury in June 2022, the appellant was tried before a judge alone, who found that he sexually assaulted the complainant twice.

The appellant raised three grounds of appeal: (1) the trial judge erred in finding no breach of section 8 of the Charter regarding an overbroad search of his cell phone; (2) the trial judge erred in finding no breach of section 7 of the Charter based on non-disclosure of the information to obtain the search warrant and minimized the materiality of the hotel video in the conviction; and (3) the trial judge erred in failing to grant sufficient sentencing credit for harsh conditions in pre-sentence custody.

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

The appellant appealed his conviction and sentence.

The conviction appeal argued the trial judge erred in assessing the credibility of the sole defense witness.

The sentence appeal sought a conditional sentence instead of the imposed custodial term.

The Court of Appeal found no basis to interfere with the trial judge's credibility assessment, noting the deference owed.

Regarding the sentence, the court upheld the custodial term, emphasizing the serious nature of the offence, which involved the appellant pointing a gun at his son and wife and threatening to kill them.

Leave to appeal sentence was granted, but both the conviction and sentence appeals were dismissed.

The applicant, Terry Lynn Bardwell, sought bail pending appeal of her conviction and sentence for drug trafficking and carrying a concealed weapon.

She had previously pleaded guilty and received a conditional sentence, which was later terminated due to breaches, leading to her incarceration.

The court applied the test for bail pending appeal under s. 679(3) of the Criminal Code, finding that while the appeal was not frivolous, the applicant failed to satisfy the court that she would surrender into custody or that her detention was not necessary in the public interest, given her history of breaching the conditional sentence terms while living with her proposed surety.

The application for release pending appeal was dismissed.

The appellant, convicted of serious drug and firearm offences and sentenced to 20 years, sought bail pending appeal.

The Crown conceded the appeal was not frivolous but argued against release due to flight risk and public interest concerns.

The court found the appellant was not a flight risk given his strong release plan and compliance history, and that detention was not necessary in the public interest, balancing enforceability and reviewability interests.

The application for bail pending appeal was granted.

The appellant, Gary Austin, was convicted of fraud and theft based on circumstantial evidence, where he received over $165,000 from fraudulent cheques drafted by a general manager of a company.

Austin appealed, arguing the trial judge misapplied the principles from R. v. Villaroman regarding circumstantial evidence and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding that the trial judge, when read as a whole, correctly applied the Villaroman standard by concluding that guilt was the only reasonable inference.

The court also found the reasons sufficient for appellate review, noting that speculative inferences of innocence, contrary to human experience, do not constitute reasonable doubt.

The appellant was convicted of possessing fentanyl for the purpose of trafficking.

The police arrested him based on a mistaken identity, relying partly on observations from a warrantless covert hallway camera.

The Crown conceded breaches of the appellant's Charter rights (ss. 8 and 9) due to the unlawful camera installation and subsequent arrest and search, as well as a late Report to Justice.

The trial judge admitted the fentanyl evidence under s. 24(2) of the Charter, finding that the police acted in good faith based on their understanding of the law at the time.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the police's mistaken belief as to the appellant's identity did not, in itself, render the arrest unlawful, and that the s. 24(2) analysis for admitting the evidence was sound, particularly regarding police good faith.

The appellant sought leave to appeal from the dismissal of his summary conviction appeal for driving with a blood alcohol concentration over the legal limit.

The Court of Appeal applied the two-factor test for granting leave in summary conviction matters, which requires a question of law alone, considering the significance of legal issues to criminal justice administration and the merits of proposed grounds.

The court found the appellant did not meet this test, noting the detailed reasons from the Summary Conviction Appeal court and the introduction of new grounds on appeal.

Leave to appeal was denied.

The appellant appealed his conviction for first degree murder entered by a jury following a trial before Justice Bruce G. Thomas.

The appeal raised three grounds: (1) an error in jury selection involving the substitution of static triers on the second day of jury selection without statutory authority; (2) the trial judge's error in leaving section 231(6) of the Criminal Code (constructive first degree murder based on criminal harassment) as a basis for conviction when the evidence was insufficient; and (3) inadequate jury instructions on the elements of section 231(6).

The Court of Appeal dismissed the appeal, finding that while errors occurred, they caused no substantial wrong or miscarriage of justice given the overwhelming evidence supporting a conviction for planned and deliberate first degree murder.

The appellant appealed his convictions for luring, sexual exploitation, and making, possessing and accessing child pornography involving two complainants, as well as his 20-month custodial sentence.

The appeal was allowed on the basis that the application judge erred in dismissing the appellant's Charter s. 11(b) application regarding unreasonable delay.

The Court of Appeal found that the delay of approximately 43 months from charge to trial exceeded both the Jordan presumptive ceiling of 30 months and the Morin guideline of 14-18 months.

The court identified errors in the application judge's analysis, including: (1) incorrectly characterizing the adjournment of the exit judicial pre-trial as a discrete exceptional event; (2) inflating the neutral intake period for Crown disclosure to five months when only 2.5 months was appropriate; (3) treating institutional delay as neutral rather than attributable to the Crown; and (4) failing to consider inferred prejudice from the length of delay.

The court concluded that transitional exceptional circumstances did not justify the delay, and the proceedings were stayed.

The appellant sought leave to appeal from a summary conviction appeal court decision regarding sentences imposed following convictions in two cases.

The central issue concerned whether a sentencing judge may impose a small fine as part of a sentence for the purpose of reducing the mandatory victim fine surcharge.

The summary conviction appeal judge had corrected an illegal sentence by removing a fine that violated s. 731 of the Criminal Code, which prohibits combining probation with both custody and a fine.

Leave to appeal was dismissed on two grounds: the issue did not arise squarely on the facts, and a pending Supreme Court of Canada decision in R. v. Tinker regarding the constitutional validity of the victim fine surcharge would likely address the applicant's concerns.

The Crown appealed the sentence imposed on the respondent.

The appeal was granted on consent.

The court imposed a fine in lieu of forfeiture in the amount of $321,945.79 and increased the restitution order to the same amount.

The court further ordered that if the fine is not paid within ten years of the respondent's release from serving all current sentences, the respondent will be subject to a term of imprisonment of three years.

The appellant was convicted of second degree murder after fatally stabbing his friend during a physical altercation that began as a fist fight and escalated when the deceased produced a knife.

The appellant admitted to causing the death but claimed self-defence.

He was sentenced to life imprisonment with parole ineligibility of 12 years.

On appeal, the appellant challenged the admission of various evidence, the jury charge on self-defence and provocation, and the sentencing decision.

The Court of Appeal upheld the conviction and sentence, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions, though it identified an error in sentencing that had no impact on the outcome.

The appellant was convicted of sexual interference involving a child complainant.

At trial, the complainant's prior consistent statements were introduced to rehabilitate her credibility after cross-examination on inconsistencies.

The trial judge did not give a limiting instruction warning the jury not to use the prior consistent statements for their truth.

The Court of Appeal held that the omission of a limiting instruction was an error of law, as there was a real risk the jury would use the statements for an impermissible purpose to bolster the complainant's credibility.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for second-degree murder, arguing that his videotaped confession was involuntary and obtained in breach of his s. 10(b) Charter rights, and that the Crown's failure to disclose police background checks of prospective jurors caused a miscarriage of justice.

The Court of Appeal dismissed the appeal, finding that the trial judge made no errors in admitting the confession, as the police reasonably believed the appellant had spoken to counsel and the statements were voluntary.

Furthermore, applying the Yumnu test, the Court held that although the Crown improperly failed to disclose the jury vetting results, there was no reasonable possibility that the jury would have been differently constituted.

The appellant pleaded guilty to possession of marijuana for the purpose of trafficking and was sentenced to 90 days' imprisonment.

He appealed the sentence, arguing the sentencing judge erred by refusing to allow the sentence to be served intermittently.

The Court of Appeal found the sentencing judge erred in principle by characterizing the appellant's pre-sentence efforts to secure employment and start a business as a ruse to manipulate the court.

The appeal was allowed, and the appellant was permitted to serve the remainder of his sentence on an intermittent basis.

The appellant was convicted as a party to robbery and aggravated assault, but acquitted of assault with a weapon, after luring two victims to an apartment stairwell where they were attacked and robbed by four armed men.

On appeal, the appellant argued the verdicts were inconsistent.

The Court of Appeal dismissed the appeal, finding it was open to the jury to conclude the appellant knew of the armed robbery and likely injury, but was not satisfied he knew the plan involved the actual or threatened use of weapons.

The appellant appealed his sentence for fraud, arguing the sentencing judge failed to give appropriate credit for 31 months spent on bail under pre-sentence house arrest.

The Court of Appeal agreed, applying R. v. Downes to grant an 8-month credit, reducing the sentence for the New Brunswick offences to 9 months.

However, the court upheld the rejection of a conditional sentence, emphasizing the need for general deterrence in fraud cases.

The total sentence was reduced from 20 months to 12 months incarceration.

The appellant appealed his conviction, challenging the trial judge's finding that his statement was voluntary and arguing that police conduct regarding his status as a confidential informant constituted an abuse of process.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were supported by the evidence and that the alleged police misconduct post-dated the statement and did not affect trial fairness.

The court also declined to make a non-publication order, noting the appellant's status had been public record for years.

The appellant police services board appealed a Divisional Court decision finding that its officers unlawfully entered the respondent's home and unlawfully arrested him.

The officers entered the respondent's apartment without a warrant or consent to arrest him for failing to remain at the scene of an accident.

The Court of Appeal held that the officers were not protected from civil liability for trespass and false arrest by section 25 of the Criminal Code or the common law, as they lacked legal authorization to enter the dwelling following the Supreme Court's decision in Feeney.

The appeal was dismissed.

The appellant was convicted of sexual assault against an intellectually disabled complainant.

At trial, the Crown did not argue that the complainant lacked the capacity to consent, but the trial judge instructed the jury on capacity under s. 273.1(2)(b) of the Criminal Code.

The Court of Appeal held that while expert evidence is not strictly required to assess capacity, the trial judge erred by leaving the issue with the jury when it was not raised by the Crown, prejudicing the defence.

The conviction was set aside and a new trial ordered.