Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario considered whether a search warrant was validly issued in a drug trafficking case.

The appellant argued that the Information to Obtain (ITO) was misleading and incomplete, and that the reviewing judge improperly relied on evidence not before the issuing judge.

The Court found a breach of section 8 of the Charter but held that the evidence should not be excluded under section 24(2), as the breach was not serious, the police acted in good faith, and the evidence was critical to the Crown's case.

The appeal was dismissed.

The appellant appealed his conviction for attempted murder and sought leave to appeal his life sentence.

The appeal primarily concerned the trial judge's decision to revisit an earlier ruling on similar act evidence (related to triple murders) for cross-examination, despite initially excluding it due to prejudicial effect.

The Court of Appeal found the trial judge erred in revisiting the ruling without a material change in circumstances and without re-engaging in the probative value/prejudicial effect analysis.

However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding no substantial wrong or miscarriage of justice as the appellant ultimately did not testify, and the potential prejudice from the similar act evidence therefore disappeared.

The sentence appeal was also dismissed, as the life sentence was not demonstrably unfit, despite minor errors in identifying aggravating factors.

The appellant appealed convictions for assault and sexual assault, arguing the trial judge misapprehended documentary evidence (Uber records, Google timeline, text messages) and failed to provide adequate reasons.

The Court of Appeal found that the Uber and Google documents were inconsequential and did not constitute a misapprehension of evidence.

While the text messages did contradict the complainant's testimony regarding the exact time of the assault, the court found this error immaterial to the overall credibility of her narrative, especially given the strong credibility findings made by the trial judge.

The appeals from conviction and sentence were dismissed.

The appellant appealed his sentence, arguing the sentencing judge erred in the treatment of pre-sentence custody.

The Crown conceded the appeal based on a companion case.

The Court of Appeal accepted the concession and varied the sentence from 46 months to 36 months imprisonment by increasing the pre-sentence custody credit from 20 months to 30 months.

The Crown appealed a sentence on the sole issue whether enhanced credit under s. 719(3.1) of the Criminal Code could be granted for pre-sentence custody based on loss of remission and parole eligibility.

The court held that the discretion to grant credit up to 1.5:1 is not confined to exceptional or unusual circumstances and may include parole and remission consequences where the record supports their relevance to the particular offender.

Applying modern statutory interpretation and the sentencing principles of proportionality and parity, the court concluded that a narrower reading would produce unjust disparities between similarly situated offenders.

The sentence appeal was dismissed.

The Crown appealed a stay of proceedings entered after a finding of guilt for child luring, where the trial judge held the accused had been entrapped by an undercover officer posing as a 13-year-old girl on MSN Messenger.

The Court of Appeal held that the trial judge erred by failing to determine whether the officer's initial contact actually provided an opportunity to commit the offence.

The initial request to be added as a friend, the neutral photograph, and innocuous conversation were investigative steps only, not an inducement or opportunity to commit child luring.

The accused initiated and led the sexually explicit communications after learning the purported age of the child.

The stay was set aside, a conviction was substituted, and the matter was remitted for sentencing.

The appellant pleaded guilty to fraud over $5000 for his role in a massive investment scheme.

At sentencing, while unrepresented, he disputed many facts but the trial judge refused to strike the plea and sentenced him to 8 years' imprisonment and ordered $35.6 million in restitution.

On appeal, the Court of Appeal upheld the conviction, finding the guilty plea was voluntary, unequivocal, and informed, and that the undisputed facts satisfied the elements of fraud.

However, the Court allowed the sentence appeal in part, reducing the restitution order to $20 million to better reflect the appellant's degree of criminal responsibility and the funds he retained control over.

The appellant appealed his conviction, arguing the trial judge erred in admitting a videotaped statement of a witness who claimed memory loss at trial, and that the trial judge created a reasonable apprehension of bias by prejudging the witness's veracity.

The Court of Appeal dismissed the appeal, finding the statement had sufficient indicia of reliability, including being given under oath and corroborated by other evidence.

The court also found no reasonable apprehension of bias, as the trial judge's comments related to the witness's reluctance to testify, not his truthfulness.

The appellant appealed his convictions for sexual exploitation of a young person.

He argued that the guilty verdicts were inconsistent with his acquittals for other sexual offences, that the Crown improperly invited the jury to compare e-mail wording without expert evidence, and that the trial judge erred by failing to give a Vetrovec warning regarding the complainant.

The Court of Appeal dismissed the appeal, finding that the jury was entitled to rely on the e-mail evidence, that direct evidence of authorship distinguished the case from those requiring expert evidence, and that inconsistencies in the complainant's evidence did not warrant a Vetrovec warning.

The appellant sought leave to appeal his 30-month sentence for criminal negligence causing death by street racing.

He argued that the sentence should be reduced below the penitentiary range to preserve his right to appeal a deportation order under immigration legislation.

The Court of Appeal dismissed the appeal, holding that while deportation consequences may be considered, they cannot take a sentence out of the appropriate range, which for this offence required a penitentiary term as established in a co-accused's case.

The appellant appealed his conviction for robbery and his sentence of 10 years' imprisonment.

On the conviction appeal, he argued the trial judge erred in a Corbett application by admitting his 28-year-old manslaughter conviction after finding defence counsel attacked the arresting officer's character.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's application of the Corbett test.

On the sentence appeal, the Crown conceded the 10-year sentence was outside the appropriate range.

The Court allowed the sentence appeal and reduced the sentence to 5 years' imprisonment.

The appellant appealed his conviction for first degree murder, arguing the verdict was unreasonable, the trial judge misdirected the jury on liability under s. 231(5)(e) of the Criminal Code, and the trial judge failed to relate evidence to critical issues.

The Court of Appeal found that there was sufficient evidence to support a finding of planning and deliberation or forcible confinement.

The court also held that the jury instructions adequately conveyed the requirement that the appellant be an active participant in the killing to be convicted under s. 231(5)(e).

The appeal was dismissed.

The Crown appealed acquittals on charges of possession and distribution of child pornography arising from videotaped sexual activity between the respondent and a 14-year-old complainant.

The Court of Appeal held that the trial judge failed to make a necessary factual finding on whether the respondent threatened to show the tapes to the complainant's family and friends, an issue central to whether the Sharpe private-use exception remained available.

If such threats were made, the material would not be intended solely for private use.

The court rejected a categorical rule that loss of exclusive physical possession automatically defeats the exception, holding the question is fact-specific.

A new trial was ordered on the possession and distribution counts only.

In the context of a Reference regarding his 1959 murder conviction, the applicant sought production of third-party nursing school and psychiatric records of a key Crown witness.

The applicant tendered fresh evidence from two individuals who claimed the witness admitted to lying at trial and sought psychiatric hospitalization to avoid testifying at a 1966 Supreme Court rehearing.

The Court of Appeal applied the O'Connor test and ordered production of the nursing school records, finding they provided independent confirmation of the fresh evidence with minimal prejudice to the witness's privacy.

However, the court refused to order production of the psychiatric records, concluding that the witness's high expectation of privacy outweighed the limited probative value of the one-page discharge form.

The Crown appealed the sentence imposed on the respondent.

Due to recent developments, the appeal became moot.

The Crown abandoned the appeal, and it was dismissed as abandoned.

The appellant appealed his conviction for drug-related offences, arguing the trial judge misapprehended evidence, reversed the burden of proof, and reached an unreasonable verdict.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions regarding the appellant's occupancy of the bedroom and control over the drugs were well-supported by the evidence, including drug paraphernalia in plain view and the appellant's personal identification found in the bedroom.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in instructing the jury on self-defence, failing to charge on s. 37 of the Criminal Code, and improperly instructing on the burden of proof under the W(D) framework.

The Court of Appeal dismissed the appeal, finding the trial judge sufficiently linked prior assaults to the appellant's apprehension of harm, correctly omitted s. 37 as it would not have assisted the defence, and properly conveyed the burden of proof when the charge was read as a whole.

The appellant was convicted of operating a vehicle with a blood alcohol concentration over 80 milligrams.

At trial, a toxicologist testified that based on the appellant's reported consumption, an average person would have registered below the legal limit, but a slow eliminator could register over the limit.

The trial judge convicted the appellant, and the summary conviction appeal judge dismissed the appeal.

On further appeal, the Court of Appeal held that expert evidence relying on population averages, without establishing the appellant's actual elimination rate, is impermissible speculation and does not constitute evidence tending to show the appellant's blood alcohol was below the legal limit.

The appeal was dismissed.

The appellant appealed his conviction for sexually assaulting his eight-year-old niece.

He argued that the trial judge's reasons were inadequate and that the trial judge erred by allowing the Crown to split its case by recalling him for further cross-examination on a prior statement.

The Court of Appeal dismissed the appeal, finding that the reasons were adequate under the Sheppard functional analysis and that the procedural irregularity of recalling the appellant caused no prejudice in a judge-alone trial.

The appellant was convicted of discharging a firearm with intent to endanger the life of a police officer and related offences after firing a handgun while fleeing from an attempted stop.

He appealed his convictions on several grounds relating to jury instructions, including the elements of the offence, reasonable doubt, and jury exhortation, all of which were dismissed.

He also appealed his sentence, arguing the trial judge erred by allowing the police officer to make an improper victim impact statement at the sentencing hearing and by imposing an unduly harsh sentence.

The Court of Appeal allowed the sentence appeal, finding the victim impact statement procedurally and substantively improper, and reduced the sentence to better reflect the principle of rehabilitation.