Criminal and Quasi-Criminal Law - OCA

The appellant, a former grade seven teacher, appealed his convictions and sentence for committing indecent acts and sexual invitation involving a 12-year-old student.

The appellant argued the trial judge erred in assessing the complainant's credibility, failing to address a motive to fabricate, and misapplying the burden of proof.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility findings or assessment of the evidence.

The sentence appeal was also dismissed, as the two years less a day sentence was fit and the trial judge properly considered the appellant's mental health.

The appellant sought leave to appeal his sentence for robbery with an imitation firearm, arguing he should receive enhanced credit for his 15 months of pre-trial custody.

Following the Supreme Court of Canada's decision in R. v. Summers, the Court of Appeal granted leave and allowed the appeal, awarding enhanced credit on a 1.5 to 1 basis, reducing the remaining sentence.

The Crown appealed a conditional sentence imposed on the respondent for impaired driving causing bodily harm.

The respondent conceded the sentence was illegal, as the offence is a 'serious personal injury offence' under s. 752 of the Criminal Code, precluding a conditional sentence.

The Court of Appeal allowed the appeal and substituted an 18-month custodial sentence.

The Court granted one-for-one credit for the five months and ten days the respondent had already served under house arrest, resulting in a net sentence of 12 months.

The appellant was convicted of making, possessing, and distributing obscene material through his websites, which featured simulated explicit sex with violence.

He appealed his convictions and sentence, arguing errors in the admission of meta-tags, hyperlinks, written stories, and expert testimony, as well as deficiencies in the jury charge and a failure to grant a stay for delay under s. 11(b) of the Charter.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's evidentiary rulings or jury instructions, and upholding the $28,000 fine as a fit sentence.

The appellants were convicted of first degree murder after the Crown alleged the wife hired her co-accused to kill her husband.

On appeal, the wife argued the trial judge erred by permitting the Crown to cross-examine its own witness at large after declaring her adverse under s. 9(1) of the Canada Evidence Act, without instructing the jury that the witness's lack of credibility could not be used to infer the accused were not credible or guilty.

The co-accused argued the trial judge erred in refusing to sever his trial, exposing him to highly prejudicial hearsay evidence admissible only against the wife.

The Court of Appeal allowed both appeals, finding the lack of a limiting instruction regarding the adverse witness amounted to misdirection, and the refusal to sever the trial resulted in an injustice.

Separate new trials were ordered.

The appellant appealed his committal for extradition and sought judicial review of the Minister's decision to surrender him to the United States on charges of conspiracy to traffic cocaine.

The appellant argued there was insufficient evidence to show he was a member of the conspiracy before the drug shipment was seized.

The Court of Appeal dismissed the appeal and the application for judicial review, finding that wiretap communications immediately following the loss of the shipment provided sufficient evidence from which a reasonable inference of his prior involvement could be drawn.

The appellant appealed his one-year custodial sentence for fraud.

The Court of Appeal found that the trial judge erred by considering the appellant's lack of remorse as an aggravating factor.

However, the court upheld the sentence as fit, noting that the appellant abused the trust of vulnerable fellow church members, causing an elderly couple to lose their home and life savings.

Despite the appellant being a first offender and initially a victim of a fraudulent scheme himself, the principles of denunciation and deterrence warranted the custodial sentence.

The appeal was dismissed.

The appellant appealed his conviction for first degree murder.

He raised several grounds of appeal, including the trial judge's instructions on unlawful confinement, attempted sexual assault, drunkenness, the adequacy of a Vetrovec warning, the use of prior consistent statements, and post-offence conduct.

The Court of Appeal dismissed all grounds, finding the evidence of identity overwhelming and the trial judge's instructions sufficient.

The appeal was dismissed.

The Crown appealed a 12-month conditional sentence imposed on a young first offender who suffered from a mental illness.

Although the law now requires a custodial sentence for the offence in question, the Court of Appeal declined to interfere because the respondent had successfully served the conditional sentence and addressed his mental health issues through prescribed medication.

The appeal was dismissed.

The appellant appealed his sentence, arguing that the trial judge erred by rejecting a joint submission on sentence without explicitly giving counsel an opportunity to address it.

The Court of Appeal found that counsel had an opportunity during a break in proceedings.

The Court upheld the trial judge's decision, agreeing that the joint submission was grossly inadequate and that this was one of the rare cases where it was necessary to depart from it.

The appeal was dismissed.

The appellant was convicted of returning to Canada without the written consent of the Minister after being deported, contrary to s. 55(1) of the Immigration Act.

The trial judge placed an evidentiary burden on the appellant to adduce some evidence of permission to return.

On appeal, the Court of Appeal held that the lack of written consent is an element of the offence, and the burden of proof lies entirely on the Crown.

The common law rule placing the burden on the accused for certain exceptions did not apply.

As the Crown failed to adduce sufficient evidence to prove lack of consent beyond a reasonable doubt, the appeal was allowed and an acquittal entered.

The appellant appealed his conviction for sexual assault and his sentence of three years' imprisonment.

He argued that his right to be tried within a reasonable time under s. 11(b) of the Charter was violated due to institutional delay following a mistrial.

He also challenged the admission of his prior guilty plea for assaulting the complainant's mother and the admission of the complainant's videotaped statement under s. 715.1 of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding no unreasonable delay and no error in the evidentiary rulings.

The sentence appeal was also dismissed, as the three-year penitentiary sentence was fit given the repeated sexual assaults on a child in a position of trust.

The appellant was convicted of offences relating to a home invasion.

While in custody, he had an incriminating conversation with a co-accused in a police cell, which was overheard by police.

The appellant appealed, arguing his s. 10(b) Charter right to counsel was infringed because police delayed his access to a lawyer.

The Court of Appeal found a s. 10(b) breach due to the unjustified delay, though it held the police did not actively elicit the conversation.

Applying s. 24(2), the Court excluded the conversation, finding the breach was serious and its admission would bring the administration of justice into disrepute.

The convictions related to the home invasion were set aside and a new trial ordered.

The appellant appealed his conviction for child pornography.

The Court of Appeal found that the trial judge erred by relying on improper propensity reasoning related to the appellant's sexual orientation to infer knowledge.

The trial judge also erred in drawing inferences of consciousness of guilt from advice given to a witness and the location of a computer, without sufficient evidentiary basis linking them to the child pornography charge.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant was convicted of sexual assault.

At trial, the Crown introduced evidence of the appellant's propensity for violence while intoxicated.

The trial judge did not provide a specific limiting instruction to the jury regarding this evidence.

Additionally, the trial judge permitted both counsel to comment on the evidence to the jury after the jury charge was completed.

The Court of Appeal held that the propensity evidence was inadmissible and highly prejudicial, and the failure to provide a limiting instruction was a reversible error.

The post-charge comments by counsel were also found to be improper.

The conviction was set aside and a new trial ordered.

The applicant, who was self-represented, applied for bail pending his appeal from convictions for attempting to obstruct justice.

He had been sentenced to ten months' imprisonment.

The Crown conceded the appeal was not frivolous but opposed release on public interest grounds, citing the applicant's criminal record, which included breaches of court orders and forcible confinement.

The court denied the application, finding it was not in the public interest to release the applicant due to the risk that he would commit further offences, including offences against the administration of justice.

The appellant appealed his convictions for sexual assault and touching for a sexual purpose against the nine-year-old son of his former girlfriend.

The appellant argued that the trial judge applied an unfairly rigorous standard of scrutiny to his evidence compared to the Crown witnesses.

The Court of Appeal reviewed the record and found ample reason to disbelieve the appellant, noting multiple inconsistencies, exaggerations, and fabrications in his testimony.

The appeal from conviction was dismissed.

The Crown appealed the directed verdicts of acquittal of the respondents on charges of keeping and being inmates of a common bawdy-house.

The trial judge had acquitted the respondents based on Supreme Court of Canada decisions regarding acts of indecency.

The Court of Appeal held that the trial judge erred in law, as there was evidence that the respondents offered to perform acts of masturbation for payment, which a trier of fact could find constituted acts of prostitution.

The Court also found sufficient evidence of frequent or habitual use to pass the directed verdict stage.

The appeals were allowed, the acquittals set aside, and new trials ordered.

The appellant was convicted of conspiracy to traffic in heroin and trafficking in heroin.

At trial, the judge directed a verdict of acquittal on possession charges but allowed the jury to consider evidence relating to those charges when deliberating on the remaining counts.

On appeal, the appellant argued this violated the Supreme Court's ruling in Grdic.

The Court of Appeal dismissed the appeal, holding that Grdic does not apply to overlapping evidence in a single proceeding with multiple counts, as established in Arp.

The court also dismissed grounds of appeal relating to the 'in furtherance' jury instruction and the trial judge's reference to money found in a stuffed bear.

The Crown appealed a summary conviction appeal decision that ordered a new trial and the production of joint counselling records in a sexual assault case.

The summary conviction appeal judge held that the Criminal Code's third-party records provisions did not apply to counselling sessions attended by both the accused and the complainant.

The Court of Appeal held that the provisions do apply, as the complainant retains a reasonable expectation of privacy in therapeutic records despite the accused's presence.

However, the Court of Appeal upheld the order for a new trial on the alternative ground that the trial judge misapprehended critical evidence regarding the complainant's statements during the alleged assault.