Criminal and Quasi-Criminal Law - OCA

The applicant, Terry Lynn Bardwell, sought bail pending appeal of her conviction and sentence for drug trafficking and carrying a concealed weapon.

She had previously pleaded guilty and received a conditional sentence, which was later terminated due to breaches, leading to her incarceration.

The court applied the test for bail pending appeal under s. 679(3) of the Criminal Code, finding that while the appeal was not frivolous, the applicant failed to satisfy the court that she would surrender into custody or that her detention was not necessary in the public interest, given her history of breaching the conditional sentence terms while living with her proposed surety.

The application for release pending appeal was dismissed.

The appellant appealed convictions for five sexual offences, including sexual assault, human trafficking, and related material benefit and advertising charges.

The appeal raised four grounds concerning the trial judge's treatment of evidence: a misapprehension of a text message, exclusion of WhatsApp messages, refusal to permit cross-examination on prior "sexual punishment," and improper reliance on two text messages.

The Court of Appeal dismissed all grounds, finding that the trial judge's mistake regarding the text message was not essential to the reasoning, the WhatsApp messages were properly excluded under s. 276 of the Criminal Code and Canada Evidence Act due to authenticity concerns and prejudice, the refusal to permit cross-examination on prior sexual punishment was correct as it related to impermissible "twin myth" reasoning, and the reliance on the two text messages was proper.

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

The appellant, William Green, appealed a 7-year sentence for manslaughter.

The Court of Appeal found the sentencing judge erred in principle by not adequately considering the appellant's non-contribution to significant pre-trial delays and by failing to apply the remedial purpose of s. 718.2(e) of the Criminal Code regarding his Indigenous background.

The appeal was allowed, and the sentence was reduced by a total of 12 months, resulting in a net sentence of 65 months.

The appellant was convicted of several counts related to a home invasion and sentenced to 10 years in custody.

On appeal, he argued the trial judge erred in rejecting his alibi and in accepting the evidence of an unsavoury witness to establish identity.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's factual findings or consideration of confirmatory evidence, including fingerprints and the timing of the arrest.

The sentence appeal was also dismissed, as the 10-year sentence reflected the seriousness of the offence and the appellant's criminal record.

The appellant, a 23-year-old first-time offender, appealed his sentence of 5 years' imprisonment for sexually assaulting two acquaintances on successive dates.

The offences involved planning, violence, threats, and attempted rape.

The Court of Appeal dismissed the appeal, finding that the serious nature of the offences required a penitentiary sentence and that the 5-year sentence was lenient, reflecting the appellant's youth and lack of a prior record.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding it was reasonable for the Board to accept the treating physician's opinion evidence that substance abuse would lead to a deterioration of the appellant's mental stability and a return to conduct similar to the index offences.

The appellant appealed his manslaughter conviction, arguing the proceedings should have been stayed as an abuse of process due to the misconduct of a forensic pathologist and the Office of the Chief Coroner for Ontario.

The appellant had previously been convicted of murder based on the pathologist's flawed pediatric forensic pathology evidence, a conviction later overturned by the Supreme Court of Canada.

The Court of Appeal held that while the state actors' misconduct was egregious and fell within the residual category of abuse of process, a stay of proceedings was not warranted.

Balancing the interests, the court found that a trial on the merits was appropriate given the serious nature of the allegations of chronic physical child abuse and the fact that the systemic issues had since been addressed.

The appellant appealed his conviction and sentence for offences including uttering threats.

The Court of Appeal found that the trial judge correctly instructed himself on credibility and did not misapprehend the evidence.

The trial judge's rejection of the appellant's denial as self-serving was upheld.

Regarding the sentence, the global sentence was at the low end of the range due to mitigating factors, and the court found no error in the trial judge's refusal to impose a conditional sentence or his decision to impose a concurrent sentence for uttering threats.

The conviction and sentence appeals were dismissed.

The appellant appealed his sentence, arguing the trial judge erred in rejecting a joint submission.

The Court of Appeal dismissed the appeal, finding no error in principle.

The trial judge properly concluded the proposed sentence was contrary to the administration of justice, as the appellant committed the current offence against the same victim while serving an intermittent sentence for a previous offence against them, making specific deterrence an overwhelming consideration.

The self-represented appellant appealed a decision regarding the conduct of a preliminary hearing.

The Court of Appeal dismissed the appeal, affirming the reasons of the lower court judge.

The Court noted that the preliminary hearing judge was required to limit evidence to protect information covered by a prior order, and the manner in which this duty was performed fell within her jurisdiction and discretion.

The Crown appealed the acquittal of a police officer charged with assault, attempt to obstruct justice, and perjury arising from his arrest of a demonstrator.

The Crown argued the trial judge erred in permitting the defence to challenge potential jurors for cause based on their affiliation with the protest group, and that the challenge procedure was flawed.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in allowing the challenge for cause and that any procedural irregularities in the jury selection process caused no prejudice to the Crown.

The appellant was convicted of first degree murder and arson after his wife died in a deliberately set house fire.

The appellant appealed, arguing the trial judge misdirected the jury on after-the-fact conduct regarding his fabricated statements to an insurance adjuster, and on the burden of proof concerning his defence that the deceased committed suicide.

The Court of Appeal dismissed the appeal, finding that the circumstances of the fabricated statements could constitute independent evidence of concoction, and that the jury was properly instructed on the burden of proof and reasonable doubt.

The Crown appealed the 30-month sentence (reduced to one day after pre-trial custody credit) imposed on the respondent for manslaughter.

The respondent had strangled the victim after discovering her in his home attempting a robbery and being attacked by her.

The Crown argued the sentence was unfit and outside the established range for manslaughter involving strangulation and disposal of a body.

The Court of Appeal dismissed the appeal, finding the sentence was within the acceptable range given the unique circumstances, including the victim's unprovoked attacks, the respondent's lack of prior record, and the harsh conditions of his pre-trial custody.

The appellant appealed a sentence imposed by the Ontario Court of Justice and upheld by the Superior Court of Justice.

The Court of Appeal found no error in the imposition of consecutive sentences at or near the maximum for the serious offences committed.

Although fresh evidence presented an encouraging picture for the appellant's future, it did not warrant a reduction in the sentence.

The appeal was dismissed.

The appellant was convicted of second degree murder after shooting the deceased during a confrontation.

The appellant claimed the gun discharged accidentally while he was using it to ward off the deceased in self-defence.

On appeal, the appellant argued the trial judge erred in instructing the jury on the relationship between self-defence and accident.

The Court of Appeal found that while the trial judge made errors that would have affected a manslaughter verdict, the jury's conviction for murder meant they must have found the appellant had the requisite intent to kill, rejecting the accidental discharge defence.

Applying the curative proviso, the court concluded the errors did not result in a substantial wrong or miscarriage of justice and dismissed the appeal.

The respondent was convicted at trial of prowling at night after being found hiding in a residential backyard.

The summary conviction appeal judge quashed the conviction, holding that the Crown must prove the respondent intended to commit a specific evil act.

The Court of Appeal allowed the Crown's appeal and restored the conviction, clarifying that section 177 of the Criminal Code only requires proof of intentional prowling (stealthy traversing) without lawful excuse, and does not require proof of an underlying intent to commit a further specific offence.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board's decision to deny an absolute discharge was unreasonable, reversed the burden of proof, and breached procedural fairness by rejecting a joint submission without express notice.

The hospital's doctor had recommended an absolute discharge, which was supported by both the appellant and the Crown.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's lack of a track record of remission and programming for substance abuse.

The Court also found no reversal of the burden of proof and held that the Board's questioning provided sufficient notice of its concerns regarding the joint submission.

The appellant appealed his conviction for murder and his sentence, which included a 14-year period of parole ineligibility.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's instructions on aiding and abetting, recent possession, or other evidentiary issues.

However, the sentence appeal was allowed.

The Court found the trial judge erred in principle by placing undue emphasis on the appellant's minor criminal record when setting the parole ineligibility period.

The period of parole ineligibility was reduced from 14 years to 12 years.

The appellant appealed his sentence, arguing the trial judge failed to properly credit pre-trial custody and consider his guilty plea and status as an Aboriginal offender.

The Court of Appeal dismissed the appeal, finding that the trial judge properly concluded the pre-trial custody did not relate to the charge and was aware of the mitigating factors.

Given the seriousness of the offence, the sentence was not unfit.

The appellant appealed a finding that he breached his conditional sentence, arguing the sentence had already expired.

The dispute centered on the interpretation of s. 742.6 of the Criminal Code and whether the appellant should be credited for time spent in custody before bail determinations on previous breaches.

The Court of Appeal held that a conditional sentence starts running again immediately upon the offender being detained in custody, regardless of whether a formal show cause hearing has occurred.

The appeal was allowed and the breach finding was set aside.