Criminal and Quasi-Criminal Law - OCA

The Crown applied under s. 683(5) of the Criminal Code to suspend two conditional sentence orders (CSOs) imposed on the respondents, who were convicted of failing to provide necessaries of life.

The Crown argued that serving the CSOs before the appeal hearing would prejudice its sentence appeal, which sought penitentiary sentences.

The respondents opposed, arguing the Crown had not shown merit and that suspension was not in the interests of justice.

The court dismissed the Crown's application, finding that the "interests of justice" did not favour suspending the CSOs, noting that re-incarceration after a sentence is served is not inevitable and that the impact of served house arrest conditions could be considered on appeal.

The appellant was convicted of unlawfully producing marijuana and possession for the purpose of trafficking after being found at a marijuana grow-op.

He told police he believed his boss had a licence to produce marijuana at that location.

The trial judge convicted him as an aider and abettor, finding the defence had an onus to establish the honest belief defence and could only do so if the appellant had seen a licence.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in placing an onus on the appellant and that the Crown was required to prove beyond a reasonable doubt that the appellant knew his boss did not have a licence.

The Court of Appeal issued supplementary reasons to allocate a previously imposed total sentence of six years among the appellant's various convictions.

The court allocated three years for trafficking in Oxycodone, five years concurrent for trafficking in Fentanyl, and one year consecutive for forgery charges, resulting in a net sentence of seven and a half months on the forgery charges after pre-sentence custody credit.

The appellant was arrested for armed robbery.

Incident to his arrest, police conducted a pat-down search and seized his unlocked cellphone, briefly examining its contents and finding incriminating photos and a text message.

At the police station, the appellant was left alone for five hours before being interviewed, during which time he confessed.

The trial judge admitted the cellphone evidence, finding the search was a lawful search incident to arrest, and admitted the confession under s. 24(2) of the Charter despite an inadvertent breach of the appellant's right to counsel.

The Court of Appeal upheld the convictions, declining to carve out a cellphone exception to the common law doctrine of search incident to arrest.

The appellant pleaded guilty to offences related to a large-scale marijuana grow operation and was sentenced to 15 months' imprisonment.

On appeal, he argued the trial judge demonstrated a reasonable apprehension of bias through comments about ethnicity and erred by not imposing a conditional sentence.

The Court of Appeal condemned the trial judge's stereotypical comments about ethnicity but upheld the custodial sentence, noting conditional sentences are rarely appropriate for large-scale commercial grow operations.

However, the Court allowed the appeal to correct a mathematical error the trial judge made when calculating the sentence reduction for the guilty plea, reducing the sentence to 10 months' imprisonment.

The appellant was convicted of drug offences after being found with cocaine and cash.

During deliberations, the jury asked a question about whether they could draw an adverse inference from the absence of witnesses to corroborate the appellant's explanation for the cash.

Before the trial judge answered the question, the jury indicated they had reached a verdict, which the judge accepted without answering the question.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by failing to instruct the jury that they should attach no evidentiary significance to the appellant's failure to call witnesses, as the question reflected a potential misapprehension of the burden of proof.

The appellant appealed his sentence of 18 months' incarceration for domestic assault and a concurrent three months for breaching probation.

He argued the sentencing judge erred by rejecting a joint submission and failing to consider the 'jump' principle.

The Court of Appeal found it was not a joint submission case but agreed the sentencing judge erred by significantly exceeding the Crown's proposed sentence without giving counsel an opportunity to make submissions, and by failing to allow the appellant to speak before sentencing.

The Court varied the sentence to 12 months' imprisonment for the assault and three months concurrent for the breach, followed by three years' probation.

The appellant appealed his convictions and sentences arising from two home invasions involving the collection of drug debts, during which one victim was beaten and another was shot.

He argued the trial judge erred in relying on unsavoury witnesses and flawed eyewitness identification, and lacked authority to convict him of aggravated assault on an unparticularized attempted murder charge.

He also appealed his sentence, arguing the trial judge failed to consider his Aboriginal status under Gladue.

The Court of Appeal dismissed the conviction appeal, amending the indictment to include the means of the assault to uphold the aggravated assault conviction.

The sentence appeal was also dismissed, as the sentence remained fit despite the trial judge's failure to expressly apply s. 718.2(e).

The appellant was convicted of four counts of sexual assault and four counts of administering a stupefying substance, receiving a global sentence equivalent to 10 years imprisonment.

He appealed the sentence, arguing the trial judge erred in finding a breach of trust and that the sentence was outside the appropriate range.

The Court of Appeal dismissed the appeal, finding it unnecessary to decide the breach of trust issue because the sentence was entirely fit given the significant aggravating features, including the 15-year span, multiple victims, and significant planning.

The appellant was convicted of sexual touching and invitation to sexual touching of a child.

His summary conviction appeal was dismissed.

On further appeal, the Court of Appeal found that the trial judge erred by relying solely on the 'unnaturally close' relationship between the appellant and the child to reject the appellant's evidence and find guilt beyond a reasonable doubt.

The Court held the verdicts were unreasonable, allowed the appeal, and substituted verdicts of not guilty.

The appellant pleaded guilty to production of marijuana and was sentenced to 18 months' imprisonment.

On appeal, he argued the trial judge erred by giving minimal credit for his guilty plea and imposing a sentence that was a marked departure from similar cases.

The Court of Appeal agreed, noting the appellant maintained the drugs were for personal use, the operation lacked commercial indicia, and his prior drug record was limited to possession.

The court also found the trial judge erred in treating the guilty plea as an 11th-hour plea.

The appeal was allowed and the sentence varied to 12 months' imprisonment.

The appellant pleaded guilty to second degree murder and was sentenced to life imprisonment.

He appealed his conviction, arguing that the proceedings were invalid because he did not expressly re-elect to be tried by a judge alone under s. 473 of the Criminal Code, that his Charter rights were violated by the lack of a clear waiver of a jury trial, and that he received ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding that his consent to a judge alone trial was implicit in his guilty plea, that he waived his right to a trial by pleading guilty, and that there was no evidence to support the claim of ineffective assistance of counsel.

The appellant was convicted of first degree murder after causing the victim's death through severe internal injuries inflicted during a sexual assault.

On appeal, he argued the trial judge erred in admitting a statement made to police at the scene, in instructing the jury on the defence of accident, in failing to limit the use of post-offence conduct, and in instructing on sexual arousal and mens rea.

The Court of Appeal dismissed the appeal, finding the statement was voluntary as the appellant was not detained or a suspect.

While the trial judge erred in failing to instruct the jury that post-offence conduct could not be used to determine the level of culpability between murder and manslaughter, the court applied the curative proviso as the error caused no substantial wrong.

The appellant appealed a decision of the Summary Conviction Appeal Judge ordering a new trial.

The Court of Appeal found that the original trial judge misapprehended the evidence regarding the appellant's level of impairment when he was found sitting behind the wheel with the keys in the ignition.

The trial judge's error was sufficiently serious to require a new trial.

The appeal was dismissed.

The appellant was convicted of obstructing justice and using a forged document after presenting a fake letter at his trial for possessing stolen dealer plates.

On appeal, he argued the trial judge applied an improper burden of proof by asking if his evidence 'could reasonably be true' rather than applying the W.(D.) reasonable doubt standard.

The Court of Appeal found that while the trial judge erred in using the 'might reasonably be true' language at the second stage of the W.(D.) analysis, the error was not reversible because the trial judge completely rejected the appellant's testimony and found the Crown's case overwhelming.

The appeal was dismissed.

The Crown appealed the respondent's acquittals on charges of aggravated assault and assault with a weapon.

The Court of Appeal found that the trial judge erred by concluding she was prohibited from comparing the respondent's evidence to the complainant's evidence, misconstruing the W. (D.) framework.

The trial judge also erred by making a blanket statement that it is dangerous to draw conclusions from demeanour, thereby overstating the cautions relating to demeanour evidence.

The appeal was allowed, the acquittals were set aside, and a new trial was ordered.

The appellant appealed a total sentence of two years and three months.

She argued the sentence was ambiguous and improperly disparate compared to her co-accused.

The Court of Appeal dismissed the appeal, finding no ambiguity and noting that the disparity was justified because the appellant was convicted of additional serious offences, including breaching court orders while on bail.

The appellant appealed his sentence of 5.5 months' imprisonment for assault causing bodily harm and failing to comply with an undertaking.

The appellant and a co-accused assaulted the victim after suspecting him of stealing money, kicking and punching him while he was on the ground.

The Court of Appeal dismissed the appeal, finding no error in principle in the sentencing judge's failure to explicitly consider a conditional sentence, as it had not been requested by defence counsel and was inappropriate given the appellant's breaches of release conditions.

The court also held the sentence was not manifestly unfit.

The young person pleaded guilty to assault simpliciter after intervening in a confrontation between his friend and a homeowner.

The trial judge imposed a disposition of 45 days secure custody and 15 months' probation.

On appeal, the Court of Appeal found that the trial judge erred by failing to explore alternative dispositions short of custody for a first-time young offender.

The appeal was allowed, and the disposition was varied to time served, with the probation order remaining in place.

The appellants appealed their convictions and sentences for sexual offences.

The Court of Appeal dismissed the conviction appeals, finding no error in the trial judge's approach to corroborative evidence, position of trust, or reasonable doubt.

However, the Court granted leave to appeal the sentences, finding that the trial judge failed to give sufficient credit for pre-trial custody given the unique circumstances, including delays from an abandoned dangerous offender application.

The sentences were varied to time served.