Criminal and Quasi-Criminal Law - OCA

The appellant appealed his conviction for first-degree murder in the strangulation death of his intimate partner.

The Court of Appeal found that the trial judge erred in leaving planned and deliberate murder with the jury, as there was no air of reality to the element of deliberation.

While there was an air of reality to constructive first-degree murder based on unlawful confinement, the Court found that the appellant received ineffective assistance of counsel.

Trial counsel's decision to call a forensic psychiatrist, whose evidence introduced highly prejudicial statements by the appellant about his intent to kill, fell below the standard of reasonableness and resulted in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The applicant, convicted of fraud and sentenced to 5.5 years in prison with significant restitution and fines, applied for the appointment of counsel for his appeal under s. 684 of the Criminal Code after being denied Legal Aid.

The Court of Appeal dismissed the application, finding that the proposed grounds of appeal primarily contested factual findings and lacked merit.

Furthermore, the applicant failed to adequately explain the whereabouts of the defrauded funds or prove his lack of financial means, and the court concluded he was capable of advancing his own arguments given his business experience and the materials prepared by his trial counsel.

The appellant appealed his conviction, arguing the trial judge erred in rejecting his evidence.

The Court of Appeal found that the trial judge's third reason for disbelieving the appellant—that he perjured himself at a PSA hearing—was unsupported by the trial record.

Because this error greatly affected the credibility assessment, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

The appellant, a federal inmate convicted of drug offences committed before the Abolition of Early Parole Act (AEPA) came into force but sentenced after, appealed the dismissal of his habeas corpus application.

He argued that the AEPA's abolition of accelerated parole review (APR) violated his s. 11(i) Charter right to the benefit of the lesser punishment.

Relying on the companion case of Canada (Attorney General) v. Lewis, the Court of Appeal held that the abolition of APR appreciably increased the appellant's incarceration time, constituting a variation in punishment that violated s. 11(i) and was not saved by s. 1.

The appeal was allowed, and the appellant was declared entitled to the APR regime.

The Crown appealed the respondents' acquittals on drug and firearms charges.

The trial judge had excluded evidence found during a search of the respondents' home, ruling that the Information to Obtain (ITO) lacked objectively reasonable grounds and excluding the evidence under s. 24(2) of the Charter.

The Court of Appeal allowed the appeal, finding that the trial judge erred in weighing the first Grant factor.

Given the trial judge's finding of good faith by the police, the lack of objective grounds alone did not justify excluding the evidence.

The acquittals were set aside and a new trial was ordered.

The appellant appealed his conviction and sentence for importing and trafficking almost 112 kilograms of cocaine.

He argued the trial judge misapprehended evidence in finding reasonable and probable grounds for the search.

The Court of Appeal found no material misapprehensions of evidence and upheld the conviction.

The sentence appeal was also dismissed, as the sentence was within the proper range given the unprecedented quantity of drugs and the appellant's prior record for the same offence.

The appellant was convicted of robbery of a convenience store as a party to the offence.

On appeal, he argued the trial judge misapprehended evidence and wrongly used his utterances to police to draw an inference of guilt.

The Court of Appeal dismissed the appeal, finding no misapprehension of essential evidence and concluding the circumstantial evidence of guilt was overwhelming.

The 16-year-old applicant was charged with second degree murder and attempted murder.

He was initially ordered detained solely on the tertiary ground under s. 515(10)(c) of the Criminal Code.

The applicant sought a review of the detention order.

The Court of Appeal found that the application judge erred by failing to consider releasing the youth to a responsible person under s. 31 of the Youth Criminal Justice Act.

Additionally, fresh evidence from the preliminary inquiry showed the Crown's case was less compelling than originally presented.

The Court granted the application and ordered the youth released into the care of his grandparents under strict conditions, including house arrest.

The Crown sought leave to appeal a decision of the Summary Conviction Appeal Court, which had affirmed the accused's acquittal at trial.

The Court of Appeal found that the lower court properly identified the applicable legal principles and that the case turned entirely on its specific facts.

Concluding that the matter raised no broader legal controversy, the Court of Appeal refused leave to appeal.

The appellant was convicted of first degree murder.

On appeal, he sought to introduce fresh evidence explaining that intercepted communications relied upon by the Crown actually referred to a prior shooting, an explanation he deliberately withheld at trial for tactical reasons.

The Court of Appeal refused to admit the fresh evidence, finding it not sufficiently compelling to overcome the finality principle.

The Court also dismissed grounds of appeal relating to excluded exculpatory statements and jury instructions on hearsay and party liability.

However, the Court found the trial judge erred by failing to relate the evidence to the issue of planning and deliberation.

The appeal was dismissed, but the first degree murder conviction was set aside and a conviction for second degree murder was substituted.

The appellant appealed his sentence for manslaughter.

The Court of Appeal found that the trial judge erred in principle in two respects: first, by holding that the plea to manslaughter fully accounted for the mitigating effect of the appellant's intoxication; and second, by failing to give adequate weight to the appellant's aboriginal status under s. 718.2(e) of the Criminal Code.

The Court noted the appellant was only a party to the offence, did not administer the fatal blows, and had a restorative plan in place.

The appeal was allowed, and the sentence was reduced to 15 months' imprisonment (an effective sentence of five years considering pre-sentence custody) followed by 12 months' probation.

The appellant was convicted of two counts of arson.

He was arrested and held in police custody for 16 hours before being interviewed and giving a statement.

The Crown failed to account for this 16-hour period or explain why the appellant was not brought before a justice of the peace.

The trial judge admitted the statement, finding that the appellant's consultation with counsel cured any concerns about the delay.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge misdirected himself on the burden of proof for voluntariness.

Proof of access to counsel is not a proxy for proof of voluntariness, and the Crown was required to account for the lengthy period of custody.

The Crown appealed sentence, arguing that a conditional sentence was unfit given the seriousness of the offence and the need for denunciation.

The court held that a community-based sentence should not originally have been imposed, but declined to incarcerate the respondent because of the passage of time, hardship, remorse, rehabilitation, employment, family support, and ongoing community service.

Leave to appeal sentence was granted and the conditional sentence was increased to two years less one day, with the curfew extended for the full duration of the sentence.

The probation order was left undisturbed.

The appellant appealed his conviction for aggravated assault and his sentence of two years less one day.

He argued the trial judge failed to adequately consider evidence supporting his claim that he was an innocent bystander and erred in relying on the identification evidence of a specific witness.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's assessment of the evidence was reasonable and supported by the record.

The sentence appeal was also dismissed, as the unprovoked, racially motivated, and gang-related machete attack warranted the sentence imposed.

The appellant appealed a narcotics importation conviction entered after a guilty plea following an unsuccessful voir dire seeking exclusion of cocaine found during a border strip search.

The court upheld the trial judge’s finding that customs officers had reasonable grounds to suspect contraband under s. 98 of the Customs Act, although the threshold was met only minimally.

While breaches of ss. 10(b) and 8 of the Charter were found because the search proceeded before the appellant had a reasonable opportunity to consult counsel, the evidence was properly treated as non-conscriptive and, in any event, discoverable.

Applying the s. 24(2) analysis, the court deferred to the trial judge’s conclusion that exclusion would do greater harm to the repute of the administration of justice than admission.

The appellant challenged a summary conviction appeal court decision that had interfered with a trial acquittal on the first count in an animal welfare prosecution.

The Court of Appeal held that there was evidence on which the trial judge could reasonably make the necessary findings and that the summary conviction appeal court judge erred in law by treating the verdict as perverse.

On the cross-appeal, the prosecuting society argued that the respondent should have been convicted on a second count for failing to authorize veterinary treatment, but the court held the evidence could not support a finding of wilful neglect or failure to provide suitable and adequate care.

Leave was granted on both matters, the appeal was allowed, the cross-appeal was dismissed, and no costs were ordered.

Sentence appeal by an aboriginal offender who pleaded guilty to aggravated sexual assault and aggravated assault committed several hours apart against different victims while in a continuous state of extreme intoxication.

The court held the sentencing judge failed to give sufficient weight to s. 718.2(e) of the Criminal Code and to the systemic and background factors bearing on the offender's circumstances.

The court also found error in failing to consider the nexus between the offences and the resulting totality of consecutive sentences.

Leave to appeal sentence was granted, the appeal was allowed, and the assault sentence was made concurrent.

The appellant challenged his conviction for indecent assault and a sentence of two years less one day arising from prolonged historic sexual abuse of his stepdaughter.

The principal issue on conviction concerned refusal of third-party therapeutic records under the post-Bill C-46 production regime in the Criminal Code.

Applying the Supreme Court's decision in Mills, the court held the request was supported only by speculative assertions and lacked a case-specific evidentiary foundation for likely relevance.

The court also rejected an attack on the trial judge's credibility assessment based on the complainant's differential memory of incidents, and dismissed the sentence appeal after granting leave.

The Crown appealed an order directing that a young person charged with first degree murder be tried in youth court.

Applying the transfer framework under s. 16 of the Young Offenders Act, the court held that the inquiry required an assessment of whether public protection and rehabilitation could likely be reconciled within the youth court disposition regime.

Despite the gravity of the alleged planned and deliberate murder and the respondent's age, the evidence supported findings that the respondent did not suffer from a conduct disorder, had shown positive institutional adjustment, and had realistic rehabilitative prospects within the available 10-year secure disposition.

The appeal was dismissed and the youth court order was confirmed.

The appellant challenged the constitutionality of s. 810.1 of the Criminal Code, arguing that the child-protection recognizance regime created a status offence, was overbroad, and was impermissibly vague, and further challenged the availability of arrest and detention procedures in such proceedings.

The Court of Appeal held that s. 810.1 is preventive, not punitive, and is directed at assessing present risk of future harm to children rather than punishing status.

The court found the regime sufficiently tailored and procedurally safeguarded, upheld the reading down of 'shall' to 'may' in s. 810.1(2), and confirmed that ss. 507(4) and 515 apply to s. 810.1 proceedings.

The appeal was dismissed.