Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario dismissed Jitesh Bhogal’s appeal from his conviction for first degree murder.

The appellant argued that the trial judge erred by not instructing the jury on the defence of extreme intoxication akin to automatism in relation to the alleged sexual assault, and by mischaracterizing expert evidence on the cause of death.

The Court found that there was no air of reality to the extreme intoxication defence on the evidence, and that any misstatements of the expert evidence did not cause substantial prejudice.

The conviction was upheld.

The appellant was convicted of conspiracy to traffic two kilograms of methamphetamine and sentenced to seven years' imprisonment.

The conviction was based on intercepted communications obtained via a wiretap authorization.

On appeal, the appellant argued the trial judge erred in dismissing his Garofoli application, refusing leave to cross-examine the affiants, and failing to excise importation references from the affidavit.

The Court of Appeal dismissed the conviction appeal, finding the police had reached an investigative impasse and established investigative necessity for the wiretap.

The sentence appeal was also dismissed, as the seven-year term was not demonstrably unfit given the appellant's record and the need for deterrence.

The appellant appealed a 42-month sentence imposed for a series of serious offences committed over a two-hour period while intoxicated, which included an altercation with a taxi driver and dangerous driving.

The appellant argued the sentencing judge erred by imposing five consecutive sentences and that the total sentence was too harsh.

The Court of Appeal dismissed the appeal, finding no error in the imposition of consecutive sentences for offences implicating separate legal interests, and concluding the sentence was not unduly harsh given the appellant's lengthy criminal record and the seriousness of the offences, noting the sentencing judge properly considered Gladue factors.

The appellant, a youthful first offender, appealed his sentence.

The Court of Appeal found the sentence excessive and held that the trial judge erred by relying on unsworn, uncontested statements from the appellant's father regarding the appellant's need for drug treatment.

The appeal was allowed, and a sentence in the terms of the joint submission was substituted.

The appellant appealed his robbery conviction, arguing the verdict was unreasonable due to the trial judge's treatment of identification evidence.

The trial judge had rejected the complainant's in-dock identification but convicted based on circumstantial similarities.

The Court of Appeal found significant discrepancies between the complainant's description and the appellant, particularly regarding height and clothing, as well as contextual issues of time and place.

The Court concluded the trial judge's evaluation of the evidence was flawed, rendering the verdict unreasonable.

The appeal was allowed and an acquittal entered.

The appellant was convicted of infanticide in 1999 based on the expert pathology evidence of Dr. Charles Smith, who opined that her four-month-old son was smothered.

Following the Goudge Inquiry, fresh expert evidence conclusively refuted Dr. Smith's findings, demonstrating that the child likely died of accidental asphyxia in an unsafe sleeping environment.

The Crown conceded that the fresh evidence should be admitted and the conviction quashed.

The Court of Appeal admitted the fresh evidence, set aside the conviction, and entered an acquittal, noting the profound miscarriage of justice.

The appellant communicated in an internet chat room with an undercover police officer posing as a 13-year-old girl.

Believing he was communicating with a child, the appellant transmitted a video of himself masturbating.

He was convicted of communicating for the purpose of facilitating the exposure of his genitals to a child under s. 172.1(1)(c) of the Criminal Code.

On appeal, he argued that the offence was impossible to complete because the officer was not actually a child, and that the exposure offence required the parties to be in the same physical location.

The Court of Appeal dismissed the appeal, holding that the accused's belief about the victim's age was sufficient for the inchoate offence, and that the exposure offence applies to images sent over the internet.

The appellants were convicted of kidnapping and extortion after a retrial where they were self-represented.

They appealed their convictions on several grounds, primarily arguing that the trial judge erred in refusing their request for an adjournment to retain counsel.

The majority of the Court of Appeal dismissed the appeal, finding that the trial judge properly balanced the appellants' right to counsel against the need to control the trial process, given the history of delays and the appellants' lack of diligence.

The court also found that the trial judge provided adequate assistance to the self-represented appellants and made no reversible errors regarding evidentiary rulings or sentencing.

A dissenting judge would have allowed the appeal and ordered a new trial on the basis that the refusal to grant an adjournment created an appearance of unfairness.

The accused appealed his assault conviction to the summary conviction appeal court, which dismissed the appeal with brief, conclusory reasons.

The accused appealed to the Court of Appeal, arguing the appeal judge's reasons were inadequate.

The Court of Appeal held that the failure to give adequate reasons constituted an error of law that deprived the accused of meaningful appellate review.

Upon reviewing the trial record, the Court found the trial judge misapprehended evidence and subjected the accused's testimony to stricter scrutiny than the complainant's.

The appeal was allowed and a new trial ordered.

The appellant pleaded guilty to assault and multiple breaches of recognizance arising from a deteriorating relationship with his wife.

Almost a year later, he applied for an extension of time to appeal his convictions, which was dismissed by the summary conviction appeal court.

On further appeal, the Court of Appeal upheld the dismissal, finding the appellant failed to demonstrate a bona fide intention to appeal within the time limit, did not adequately explain the lengthy delay, and failed to show any merit to the proposed appeal or that an injustice had occurred.

The young person appealed his conviction and sentence for an offence related to a stolen van.

He argued that his acquittal for theft was inconsistent with his conviction for possession.

The Court of Appeal dismissed the conviction appeal, finding the trial judge erred in law by failing to consider joint enterprise for the theft, rather than making inconsistent findings of fact.

The sentence appeal was also dismissed, as the young person committed the offence while on probation, had a prior record, and committed a further offence while awaiting sentence, justifying secure custody.

The Crown appealed a trial judge's ruling excluding similar fact evidence and the resulting severance ruling.

The trial judge had applied the test for similar fact evidence, requiring a high degree of similarity because identity was in issue.

The Court of Appeal found no error of law or jurisdiction in the trial judge's exercise of discretion to weigh the probative value against the prejudicial effect.

The appeal was dismissed.

The appellant appealed his conviction for attempted possession for the purpose of trafficking.

The Court of Appeal found the verdict unreasonable because the trial judge's reasons indicated the appellant only acted to aid the co-accused after the co-accused had already abandoned the attempt to take possession of the drugs.

The appeal was allowed and an acquittal entered.

The appellants appealed their convictions for conspiracy to import drugs, importing, and attempted possession for the purpose of trafficking.

The Court of Appeal dismissed the appeals against the conspiracy and importation convictions, finding sufficient evidence to support the trial judge's conclusions and rejecting arguments regarding the misuse of disclosure and directed verdicts.

However, the Court applied the Kienapple rule to stay the convictions for attempted possession for the purpose of trafficking, as a single act underlay the multiple charges.

The appellant appealed his conviction, arguing the verdict was unreasonable due to discrepancies in the victim's description, specifically the failure to notice a cleft chin.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence implicated the appellant and the victim's description was similar to the appellant's appearance.

The court concluded that the failure to notice a cleft chin was not an exculpatory dissimilarity and the verdict was not unreasonable.

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 Crown appealed a youth court acquittal on a charge of trafficking in a substance represented or held out to be cocaine.

The trial judge erred in holding that the Crown was required to prove that the substance was not in fact cocaine.

Applying the authorities on held-out substances, the court held that the actus reus is the sale of something represented to be a controlled substance, and that the actual identity of the substance is immaterial.

The evidence amply supported that the respondent held out the substance as cocaine.

The acquittal was set aside, a finding of guilt was entered, and a one-year probation disposition was imposed.

The appellant appealed convictions for aggravated assault, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace.

He argued that the trial judge misapprehended the evidence and improperly imposed a duty on him to stop his co-accused.

The court held there was ample evidence supporting the convictions and interpreted the trial reasons as finding a joint venture and the requisite intent when the co-accused armed himself.

The appeal was dismissed.

The appellant appealed from a summary conviction appeal court decision dismissing his conviction appeal and partially allowing his sentence appeal.

Before the Court of Appeal, he argued that the trial judge unduly intervened and that the record, read as a whole, showed the trial judge was not satisfied of guilt beyond a reasonable doubt.

The court held that most interventions were innocuous and aimed at clarifying ambiguities, and that no legal error arose from the rejection of that ground.

The court also found the record demonstrated the trial judge rejected the primary defence and was satisfied the appellant had the requisite mens rea.

The conviction appeal was dismissed and leave to appeal sentence was refused.

The appellant appealed his murder conviction and sentence, relying on fresh recantation evidence from a key civilian witness and an inmate informant, as well as new DNA testing undermining aspects of the Crown's theory.

The court rejected the civilian witness recantation as incredible, but admitted the inmate recantation and the DNA evidence under the Palmer framework.

Although the fresh evidence significantly weakened the Crown case and impaired important inculpatory evidence, the court held it was not so conclusive as to justify an acquittal and the verdict was not shown to be unreasonable under the governing standard.

The conviction was set aside and a new trial ordered on second degree murder.

Leave to appeal the counselling sentence was granted and that sentence was reduced to time served.