Criminal and Quasi-Criminal Law - OCA

The self-represented appellant appealed a verdict of not criminally responsible (NCR) for assault and mischief charges.

The Crown conceded that the appellant was not advised of his right to request a trial in French pursuant to s. 530(3) of the Criminal Code at his first appearance.

The Court of Appeal found that the appellant had expressed a choice for a French trial and never waived it in a free and informed manner.

The Crown failed to prove that the breach of language rights did not cause prejudice.

The appeal was allowed, the NCR verdict was quashed, and a new trial in French was ordered.

The appellant appealed his conviction for sexual assault.

The conviction rested entirely on the evidence of the complainant, who had admitted to fabricating a detailed story to the police about a doctor's visit and pregnancy test.

The Court of Appeal found that the complainant's evidence lacked credibility and that the trial judge's instructions to the jury failed to adequately highlight the significance of her fabricated evidence.

The Court concluded that a properly instructed jury, acting judicially, could not have rendered a guilty verdict based exclusively on this evidence.

The appeal was allowed, the conviction quashed, and an acquittal entered.

The appellant appealed his conviction, arguing that his rights under ss. 9 and 10 of the Charter were violated during a police encounter in a parking lot.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that no detention occurred until the formal arrest, as the initial interaction was preliminary and exploratory.

The court also upheld the finding that there were reasonable grounds for the arrest, making the subsequent search lawful as an incident to arrest.

The appellant was convicted of multiple counts of historical physical and sexual abuse against his step-daughter.

On appeal, he argued the trial judge failed to properly assess the reliability of the complainant's testimony and improperly shifted the burden of proof regarding the absence of corroborating police and school records.

The Court of Appeal (majority) allowed the appeal and ordered a new trial, finding the trial judge erred by focusing on the complainant's sincerity rather than the reliability of her memories of distant events, and by failing to consider whether the absence of mandatory child abuse reports raised a reasonable doubt.

The appellant appealed his convictions for discharging a firearm, threatening death, and drug offences.

He argued the trial judge failed to address frailties in the complainant's evidence and erred in admitting statements made to police without a caution.

The Court of Appeal dismissed the appeal regarding the complainant's evidence, finding the trial judge was alive to the issues.

However, the Court allowed the appeal regarding the threatening death convictions, finding the statements to police were not voluntary because no caution was given and the second officer did not testify.

A new trial was ordered for the threatening death charges.

The appellant appealed his conviction, arguing the trial judge improperly used his failure to testify to bolster the Crown's case, contrary to R. v. Noble.

The Court of Appeal found that the trial judge did not use the failure to testify as evidence to strengthen the case, but merely noted there was no other explanation for an otherwise overwhelming case.

The appeal from conviction was dismissed, and the sentence appeal was abandoned.

The appellant appealed an order of committal for extradition.

The Court of Appeal dismissed the appeal, finding that the anticipated evidence of an alleged co-conspirator was directly admissible against the appellant to prove both the conspiracy and the substantive offence, without engaging the co-conspirator exception to the hearsay rule.

The court also upheld the extradition judge's finding that the appellant's identification was established through a combination of circumstances.

The appellant appealed his conviction for impaired driving (care or control).

The trial judge found that the appellant, who was the sole occupant of the vehicle and had control of the keys, repeatedly asked a passerby for a rope to pull his car back onto the road.

The Court of Appeal held there was adequate evidence to support the finding that the appellant created a risk of putting the car in motion while impaired, thereby creating a danger to the public.

The appeal was dismissed.

The appellant was convicted of perjury for swearing under oath that he was licensed to practice law in the State of New York.

At trial, the Crown relied on a business record from the New York State Unified Court System showing no record of the appellant.

On appeal, the appellant argued that the evidence only established he was not registered to practice in state courts, not federal courts in New York.

The Court of Appeal agreed that the charge as framed in the indictment was not established by the evidence and declined the Crown's request to amend the indictment.

The appeal was allowed and an acquittal entered.

The appellant appealed his sentence after the trial judge rejected a joint submission of two years plus three years' probation, instead imposing a sentence of four and a half years.

The trial judge found the joint submission fell well below the minimum appropriate sentence, noting aggravating factors including domestic assault with a knife, forced entry, being on probation for offences against the same victim, and a record of over fifty convictions.

The Court of Appeal agreed the joint submission was too low but held the trial judge should have imposed a sentence at the bottom of the appropriate range.

The Court varied the sentence on the break and enter count to two and a half years, resulting in a total effective global sentence of four years.

The appellant appealed his conviction, arguing the trial judge erred in assessing credibility.

The Court of Appeal found that the trial judge improperly treated the trial as a credibility contest and engaged in improper propensity reasoning based on the appellant's criminal record, contrary to the requirements of R. v. W.D. The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed his sentence of 15 months for an armed robbery committed at knife point.

The trial judge had imposed a sentence higher than the Crown's submission and granted only 1-for-1 credit for pre-sentence custody without seeking submissions from counsel.

The Court of Appeal upheld the 15-month sentence but found the trial judge erred in denying 2-for-1 credit without submissions and by improperly considering the appellant's immigration status.

The appeal was allowed to the extent of increasing the pre-sentence custody credit to a 2-for-1 basis.

The appellant appealed his sentence for drug and gun offences.

The Court of Appeal found that the sentencing judge failed to give adequate consideration to the appellant's age and status as a first offender.

The court upheld the 12-month sentence for the gun offence but converted the sentence on the hashish charge to a concurrent sentence, taking into account pre-trial custody.

The appellant sought to appeal a pre-trial motion ruling regarding the application of historical corroboration requirements to offences alleged to have occurred in the 1970s.

The Court of Appeal quashed the appeal, holding that the order was an interlocutory order made in an indictable proceeding and therefore not appealable until the conclusion of the trial.

The appellant appealed his conviction and sentence.

The Court of Appeal found no error in the sentencing judge's refusal to accept counsel's suggested sentencing range, noting the appellant's horrendous criminal record and the fact that a substantial part of the property was never recovered.

The appeal was dismissed.

The appellant was convicted of first-degree murder in the death of his wife.

At trial, the Crown introduced expert evidence from an FBI agent who testified that the crime scene had been 'staged' to look like a break-in, and offered opinions on the killer's motive and prior relationship with the victim.

On appeal, the Court of Appeal held that while expert evidence of crime scene reconstruction (the 'what') is admissible, the expert's opinions regarding the killer's motive and relationship to the victim constituted impermissible criminal profiling (the 'why' and 'who').

The Court found that the improper admission of this profiling evidence was highly prejudicial and could not be saved by the curative proviso.

The appeal was allowed and a new trial ordered.

The appellant appealed from conviction and sentence.

The Court of Appeal found the sentence to be relatively heavy but not outside the acceptable range, and held that the trial judge did not err in principle in imposing a custodial term.

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

The Crown appealed a conditional sentence of two years less a day imposed on the respondent following a two-day armed standoff with police.

The respondent pleaded guilty to possessing a weapon for a purpose dangerous to the public peace and possessing a firearm while prohibited.

The Court of Appeal found that while the sentencing judge erred and a custodial sentence was initially warranted, the respondent's successful compliance with the conditional sentence and significant rehabilitative progress over the past five and a half months meant that a custodial sentence was no longer in the interests of justice.

The appeal was dismissed.

The applicants, charged with the second-degree murder of their infant son, sought a review of a detention order under s. 680 of the Criminal Code.

The motion judge had denied bail on the secondary ground, citing concerns that the applicants might gain access to their surviving child and that their proposed sureties would not enforce a no-contact order.

The Court of Appeal agreed with the motion judge's concerns but concluded that detention was not the only way to protect the surviving child, who was in the custody of the Children's Aid Society.

The Court found that a strict no-contact condition, along with undertakings from family members, would adequately protect the child.

The Court held that detention was not necessary on the secondary ground and directed further submissions on release terms.

The appellant appealed his convictions for possessing and transferring firearms after selling starter pistols to an undercover officer.

The appellant argued the pistols were deemed not to be firearms under s. 84(3)(b) of the Criminal Code because they were designed exclusively for firing blank cartridges.

The Court of Appeal dismissed the appeal, finding that even if the pistols were designed exclusively for blanks, the appellant knew the officer intended to convert them to fire live ammunition, thus failing the second conjunctive requirement of the exemption.