Criminal and Quasi-Criminal Law - OCA

The Crown appealed the acquittal of the respondent on a sexual assault charge.

The trial judge had found that the young woman was not proven to be unconscious or incapable of consent due to drug impairment.

The Court of Appeal found that the trial judge erred in making a factual finding unsupported by evidence and in failing to consider all evidence regarding the victim's capacity to consent.

The appeal was allowed, the acquittal set aside, and a new trial ordered, as the trial judge had not made findings on the respondent's mens rea.

The appellant was convicted of historical sexual offences involving his daughter.

The appeal challenged the trial judge's credibility findings, arguing different levels of scrutiny, misapplication of *R. v. W.(D.)*, and misapprehensions of evidence.

The Court of Appeal dismissed the appeal, affirming the trial judge's entitlement to accept the complainant's evidence and reject the appellant's, and finding no significant errors in the application of legal principles or assessment of evidence.

The appellant appealed both conviction and sentence following a trial before a judge of the Superior Court of Justice sitting without a jury.

The appellant was convicted of sexual interference and sentenced to 10 months imprisonment.

The offence was alleged to have occurred in a hotel room in Ottawa.

On appeal from conviction, the appellant advanced three grounds: misapplication of the rule in Browne v. Dunn and failure to analyze the complainant's motive to fabricate; uneven scrutiny of evidence between the appellant and complainant; and failure to properly apply the W.(D.) principles.

The Court of Appeal dismissed all grounds of appeal from conviction, finding the trial judge's findings of fact were open on the evidence and not contaminated by misapprehensions or uneven scrutiny.

On sentence, the appellant conceded the sentence fell within the appropriate range.

The Court of Appeal dismissed the appeal from sentence but set aside the victim surcharge.

The appellant appealed his conviction for drug possession.

The Crown's case relied on circumstantial evidence, specifically cheques in the appellant's name found in the bedroom where the drugs were located.

The Court of Appeal held that no reasonable jury could conclude the appellant was in possession of the drugs based on the entirety of the evidence, as the absence of evidence left open other plausible theories inconsistent with guilt.

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

The appellant appealed his convictions for aggravated assault and assault with a weapon, as well as his 18-month sentence.

He argued the trial judge misapprehended evidence and applied an unequal standard of scrutiny to his testimony.

He also argued the sentence failed to account for his unblemished character and charitable works.

The Court of Appeal dismissed the conviction appeal, finding the record did not support the appellant's claims.

Leave to appeal the sentence was granted, but the appeal was dismissed as the sentence was within range and the trial judge had properly considered the mitigating factors.

The appellant appealed his conviction for trafficking in cocaine in association with a criminal organization.

The trial judge found that the appellant, a full patch member of the Hells Angels, acted as a middleman to facilitate drug transactions between a police agent and a supplier.

The Court of Appeal held that the trial judge reasonably inferred that membership in the organization assisted in the commission of the offence, satisfying the 'in association with' requirement.

The appeal from conviction was dismissed.

The appellant, an ordained minister, appealed his conviction for sexual assault and his four-year sentence.

He argued the trial judge failed to adequately correct the Crown's misstatement that a relationship of trust alone vitiates consent under s. 273.1(2)(c) of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions as a whole correctly required proof of an abuse of the position of trust.

The sentence appeal was also dismissed; although the trial judge misapprehended some evidence, the four-year sentence remained fit given the serious breach of trust against a vulnerable complainant.

The appellant appealed a 2007 disposition of the Ontario Review Board.

However, a subsequent 2008 disposition was made which the appellant did not appeal, and his concerns regarding the panel's composition were addressed at both hearings.

The Court of Appeal quashed the appeal as moot.

The Crown appealed the acquittals of three accused charged with driving while disqualified.

The accused had signed standard pre-printed prohibition orders that failed to set out the full penal consequences of driving while disqualified, as required by s. 260(1)(c) of the Criminal Code.

The Crown argued that the presumption of regularity should apply to cure the defective forms.

The Court of Appeal dismissed the appeals, holding that the presumption of regularity did not apply because the written forms were explicitly deficient and there was no reason to presume the court clerk went beyond the written terms when explaining the orders.

The appellant pleaded guilty to two counts of importing cocaine, the second of which was committed while on judicial interim release for the first.

He was sentenced to a total of 70 months' imprisonment based on a joint submission.

On appeal, he argued the sentence did not sufficiently reflect his cooperation with authorities and was based on an incorrect sentencing range.

The Court of Appeal dismissed the appeal, finding no basis to interfere with a sentence imposed following a joint submission, especially given the aggravating factor of committing the second offence while on release.

The appellant was convicted by a jury of selling imported liquor, smuggling spirits, possession of property obtained by crime, and trafficking in cocaine following an undercover investigation.

He appealed his convictions and sentence, arguing the trial judge erred by discharging a juror for internal strife, giving a Browne v. Dunn instruction, excluding him from an in camera stay proceeding, failing to properly instruct on reasonable doubt, and failing to leave an 'agent for the purchaser' defence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly exercised her discretion under s. 644 of the Criminal Code to discharge the juror and made no reversible errors in her instructions or procedural rulings.

The sentence appeal was also dismissed, as the 12-month custodial sentence was fit for the offences.

The appellant pleaded guilty to making and distributing child pornography after creating a sexually explicit collage of his 15-year-old former girlfriend and sharing it online.

He was sentenced to two years in a penitentiary.

On appeal, he sought to withdraw his guilty plea, arguing it was involuntary and that his trial counsel provided ineffective assistance.

The Court of Appeal dismissed the conviction appeal, finding the plea was valid and no miscarriage of justice occurred.

However, the sentence appeal was allowed, with the court finding the two-year term excessive for a youthful first-time offender whose actions were an immature response to a breakup.

The sentence was reduced to time served of eight months.

The appellant appealed from his conviction and sentence for a serious domestic assault.

The Court of Appeal found no error in principle and no basis to reduce the period of probation, concluding that the sentence was entirely fit.

The appeal was dismissed.

The appellant was convicted of multiple offences, including possession of stolen property and break and enter, based solely on his thumbprint found on a pop can inside a stolen vehicle two weeks after its theft.

The trial judge relied on the doctrine of recent possession to convict.

On appeal, the Court of Appeal held that the prerequisites for the doctrine were not met, as there was no evidence the appellant possessed the stolen goods or when the pop can was placed in the vehicle.

The convictions for the property offences were quashed and acquittals substituted.

The sentence for a breach of undertaking conviction was reduced to time served.

The Crown appealed the accused's acquittal on a charge of attempted murder and the sentence imposed for a manslaughter conviction arising from a barroom shooting.

The Court of Appeal allowed the acquittal appeal, finding the trial judge erred by leaving self-defence under s. 34(2) of the Criminal Code to the jury when there was no air of reality to the claim that the intervening bystanders were committing an unlawful assault.

The trial judge also erred by failing to instruct the jury on s. 27, which permits bystanders to use force to prevent an offence.

A new trial was ordered for the attempted murder charge.

The sentence appeals by both the Crown and the accused were dismissed.

The appellant sought leave to appeal his conviction, arguing the trial judge erred in considering matters relevant to his credibility that did not directly relate to the amount of alcohol consumed.

The Court of Appeal refused leave, holding that evidence may be relevant to credibility even if it does not directly and expressly relate to alcohol consumption.

The appellant appealed a conviction entered by a summary conviction appeal court judge.

The appellant conceded that the appeal must be dismissed unless the court was prepared to overrule its previous decision in R. v. Hatfield.

The Court of Appeal found no basis to depart from the precedent and dismissed the appeal.

The appellant appealed the sentence imposed for robbery and breach of probation after the sentencing judge rejected a joint submission.

The joint submission proposed a 12-month sentence, less 2-for-1 credit for pre-trial custody, plus three years of probation.

The sentencing judge instead imposed one year in addition to pre-trial custody and two years of probation.

The Court of Appeal held that the sentencing judge erred in applying the governing principles, as the joint submission was not unreasonable and would not bring the administration of justice into disrepute.

The appeal was allowed, and the sentence was varied to accord with the joint submission.

The appellant was convicted of first degree murder based entirely on circumstantial evidence, including hair comparison, DNA, identification, and after-the-fact conduct.

On appeal, the appellant argued the trial judge erred in admitting prejudicial hair comparison evidence and in instructing the jury on identification and after-the-fact conduct.

The Court of Appeal allowed the appeal, finding the trial judge erred in admitting type 2 hair comparison evidence without confirming DNA, failing to properly instruct the jury on the limitations of the hair evidence, improperly leaving worthless identification evidence to the jury, and erroneously instructing the jury that they could infer guilt from a concocted alibi and ambiguous after-the-fact conduct.

A new trial was ordered.

The Crown appealed the conditional sentence imposed on the respondent, arguing for a term of incarceration.

The Court of Appeal expressed some concern about whether the sentencing judge adequately considered the seriousness of the offences and community protection.

However, the Court declined to substitute incarceration, noting the respondent's significant rehabilitation over three years, his compliance with strict conditions for seven months, his completion of community service, and his entry into a treatment program.

The appeal was dismissed.