Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario dismissed both the conviction and sentence appeals of R.V.A., who was found guilty of repeatedly sexually abusing his daughter between the ages of 12 and 16.

The court addressed the trial judge’s reliance on an adoptive admission, the treatment of the stepmother’s evidence, and the rejection of the appellant’s testimony.

The sentence appeal was also dismissed, with the court finding the nine-year sentence fit despite a possible error regarding aggravating factors.

The appellant, Justin Aghayere Omoragbon, sought leave to appeal his 26-month sentence for breaking and entering a dwelling-house.

He argued that the sentencing judge erred by not accepting the 18-month sentence proposed by the Crown and later adopted by the defence.

The Court of Appeal found that there was no joint submission on sentence, no violation of the principles in R. v. Nahanee or R. v. Anthony-Cook, and that the sentencing judge properly considered the mitigating factors and the appellant’s circumstances.

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

The appellant, Preston Woods, appealed his 7-year sentence for drug offences on the basis that the sentencing judge erred by refusing to adjourn the sentencing hearing to allow him to obtain records of time spent in lockdown during pre-sentence custody.

The Court of Appeal found that the sentencing judge erred in principle by not allowing the adjournment, which prevented consideration of a possible sentence reduction (Duncan credit) for harsh pre-sentence conditions.

The Court allowed the appeal, admitted the lockdown records as fresh evidence, and substituted a sentence of 6 years and 9 months.

The appellant, Zachary Wittke, sought a fresh psychiatric assessment under section 672.11 of the Criminal Code, arguing that it would demonstrate psychiatric disorders relevant to his mens rea for murder.

The Court of Appeal dismissed the motion, finding that a prior assessment at trial already addressed these issues and that no new evidence justified a further assessment.

The court held that strategic decisions at trial and the absence of new or flawed evidence did not warrant a new assessment at the appeal stage.

The appellant, Ahmed Ali Debouk, appealed his convictions for extortion, uttering death threats, criminal harassment, and breaching a non-communication condition, arguing his guilty pleas were involuntary due to pre-trial detention pressures and that his Charter rights were violated by non-disclosure of a voice mail recording.

The Court of Appeal found no merit in either ground, holding that the pleas were voluntary, unequivocal, and informed, and that there was no evidence of non-disclosure or prejudice.

The appeal was dismissed.

The appellant, Kyle Watson, appealed his sentence for robbery and failure to comply with a release order.

The Court of Appeal for Ontario granted leave to appeal but ultimately dismissed the appeal, finding no error in the sentencing judge’s application of the principles of restraint and consideration of the harsh conditions of pre-sentence custody.

The sentencing judge had taken into account the appellant’s Indigenous identity, personal history, and the conditions of pre-sentence custody, and provided appropriate credit for time served.

The sentence imposed was found to be within a reasonable range given the circumstances.

The Court of Appeal for Ontario dismissed both the conviction and sentence appeals of James Keena, who was convicted of sexual interference and sexual assault involving a complainant aged 14-15.

The court found that the trial judge correctly applied the law regarding the accused’s failure to take all reasonable steps to ascertain the complainant’s age and was justified in finding recklessness.

The sentence of five years’ imprisonment was found to be within the appropriate range, considering aggravating and mitigating factors.

The court rejected the argument that the complainant’s participation was a mitigating factor.

John William Fisher sought leave to appeal his sentence for aggravated assault, possession of a weapon for a dangerous purpose, and carrying a concealed weapon without authorization.

The appellant argued the sentencing judge failed to consider the impact on his family and erred in finding the attack unprovoked.

The Court of Appeal found the sentencing judge was aware of collateral impacts and that the finding of an unprovoked attack was supported by surveillance video evidence.

The court reiterated that its role is not to reweigh aggravating and mitigating factors.

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

The appellant, Joshua Gauthier, appealed his conviction for aggravated assault and his conditional sentence arising from an incident during a recreational soccer game where he struck another player, causing a fractured orbital bone and laceration.

The appeal challenged the trial judge's findings regarding mens rea, the rejection of reflex action and self-defence, and the characterization of the injury as "wounding." The Court of Appeal dismissed the appeal, affirming the trial judge's conclusions that the appellant's actions were intentional retaliation, not a reflex, and that self-defence had no air of reality.

The court also confirmed that the injuries met the definition of "wounding" under the Criminal Code.

The sentence appeal was also dismissed, as the conditional sentence was deemed fair given the goal of general deterrence.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking, arguing the trial judge erred in finding reasonable and probable grounds for his arrest and failing to exclude evidence under s. 24(2) of the Charter.

The appellant contended the trial judge misapprehended evidence by reconciling the arresting officer's identification with defence witnesses who testified that a re-enactment showed it was impossible to identify the driver.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the totality of the circumstances, including informant information and the officer's recognition of the appellant's distinctive hairstyle, which had been altered before the defence simulations.

The trial judge failed to call on the Crown for closing submissions before acquitting the respondent on two charges and convicting on a third.

The Crown appealed.

The Court of Appeal held that the failure to give the Crown an opportunity to be heard was a fundamental procedural error amounting to an error in law.

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

The appellant appealed a disposition of the Ontario Review Board, seeking an absolute discharge.

Amicus curiae and the hospital argued the Board erred by imposing a 24-hour supervision requirement without canvassing the parties, and by denying overnight visits.

The Court of Appeal agreed the Board should have canvassed the parties regarding the supervision requirement, which was overly restrictive.

The Court allowed the appeal in part, amending the disposition to remove the '24 hours a day' supervision requirement, but upheld the Board's decision to deny overnight passes.

The appellant appealed her conviction and sentence for possession of crack cocaine for the purpose of trafficking.

The Court of Appeal dismissed the conviction appeal, finding that although the trial judge erred in admitting the record of arrest, the error was harmless given the overwhelming evidence of possession.

However, the sentence appeal was allowed because the trial judge erred in finding multiple bail breaches and imposed a sentence inconsistent with her reasons.

The sentence was reduced to 8.5 months, reflecting a 12-month sentence less 3.5 months of pre-trial custody credit.

The young person appealed his conviction for dangerous operation of a motor vehicle causing death.

The appellant argued that the legal chain of causation was broken by a mechanic who had improperly certified the vehicle's defective brakes as safe a month prior to the collision.

The Court of Appeal dismissed the appeal, holding that the appellant's dangerous driving was a contributing cause of the cyclist's death outside the de minimis range, and that the mechanic's certification did not sever the causal connection.

The court also found the trial judge's reasons on causation were adequate.

The appellant appealed his conviction and sentence for sexual assault against a young family member.

He argued the trial judge erred by allowing improper cross-examination and improperly attributing a motive to lie when assessing his credibility.

The Court of Appeal dismissed the conviction appeal, finding the trial judge had valid, independent grounds for rejecting the appellant's evidence.

The sentence appeal was also dismissed; although the trial judge improperly characterized certain factors as aggravating, the sentence of two years less a day remained fit given the serious nature of the offence.

The appellants appealed the dismissal of their applications for certiorari to quash their committals for trial on charges of making false and fraudulent claims for GST refunds.

The preliminary inquiry judge found evidence supporting a reasonable inference that the appellants were not involved in commercial activity and generated paperwork solely to defraud the government of GST refunds.

The appellants argued that under a literal interpretation of the Excise Tax Act, they were entitled to claim GST credits even if the transactions were constructed solely to obtain public money.

The Court of Appeal rejected this argument, finding no jurisdictional error by the preliminary inquiry judge, and dismissed the appeals.

The appellant appealed his sentence, arguing it was inconsistent with the parity principle compared to his co-accused.

The Court of Appeal dismissed the appeal, finding the trial judge had a basis to conclude the appellant's culpability was greater, as his identification was found in a bag containing weapons, drugs, and cash.

The 74-year-old appellant appealed an order suspending his conditional sentence and directing him to serve 21 days in custody for breaching an alcohol prohibition.

The appellant filed fresh evidence showing his health had significantly deteriorated, including a bladder cancer diagnosis.

Given his age, time already served, and worsening medical condition, the Court of Appeal allowed the appeal and varied the order to time served.

The appellant was convicted of assault and received a conditional discharge.

Her summary conviction appeal was dismissed.

She appealed to the Court of Appeal, arguing that the trial judge failed to provide adequate reasons for rejecting her testimony and accepting the complainant's version of events.

The Court of Appeal dismissed the appeal, finding that while the trial judge's reasons were brief, they demonstrated a firm grasp of the evidence, correctly applied the burden of proof and the W.(D.) test, and met the functional requirement for adequate reasons.

The accused was stopped for erratic driving and admitted to consuming alcohol.

The police officer demanded a breath sample for an approved screening device, which the accused unequivocally refused.

The summary conviction appeal judge acquitted the accused, holding that a valid demand under s. 254(2) of the Criminal Code requires the device to be immediately ready and the officer to explain the consequences of refusal.

The Court of Appeal allowed the Crown's appeal and restored the conviction, finding that s. 254(2) does not mandate these prerequisites, particularly when the accused outright refuses to provide a sample.