Criminal and Quasi-Criminal Law - OCA

The Crown appealed the conditional sentence imposed on R.S. for violent sexual assault and choking, arguing it was demonstrably unfit and below the appropriate penitentiary range.

The majority of the Court of Appeal agreed the sentence was demonstrably unfit, finding a 3-year penitentiary term would have been proportionate.

However, the appeal was dismissed to avoid reincarceration and to preserve the probation order, as R.S. had completed the conditional sentence.

A concurring judge found the original sentence fit, emphasizing the significant mitigating impact of Gladue principles on the offender's moral culpability and the deference owed to trial judges in sentencing.

The appellant sought leave to appeal the termination of his conditional sentence order, which directed him to serve the remaining eight and a half months in custody due to a second breach.

The appellant argued the sentencing judge overemphasized the presumption of termination and failed to consider proportionality and restraint.

The Court of Appeal found no error, affirming that the sentencing judge properly considered all circumstances, including the deliberate nature of the breach and the appellant's repeated non-compliance.

The Court concluded that the resulting sentence was not disproportionate or in violation of the jump principle, considering the original "crime spree" offences and the global sentence served.

Leave to appeal was granted, but the appeal was dismissed.

The appellant, J.W., appealed his conviction for sexual offences, arguing that the trial judge erred in admitting evidence of his discreditable conduct (public nudity) that occurred several years after the charged offences.

The Court of Appeal found that the trial judge incorrectly admitted this evidence, as its probative value did not outweigh its prejudicial effect.

The court emphasized that the similarities between the discreditable conduct and the charged offences were generic and lacked a sufficient nexus, and that the trial judge did not adequately assess the moral and reasoning prejudice, even in a judge-alone trial.

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

The appellant, a photographer, appealed his conviction for multiple counts of invitation to sexual touching and sexually touching two fourteen-year-old clients.

The appeal grounds were that the trial judge misapprehended the defence's position regarding the complainants' alleged motive to fabricate and collusion.

The defence suggested a motive to fabricate arose from the complainants' involvement in an organization assisting sexual abuse victims, and that there was unconscious collusion.

The Court of Appeal dismissed the appeal, finding that the trial judge had properly confronted and rejected the defence's arguments regarding motive to fabricate and collusion, and that her findings were reasonable.

The appellant challenged the constitutionality of the 'step six' procedure for challenging search warrants based on confidential informant information, arguing it infringed the right to full answer and defence under s. 7 of the Charter.

The appellant also argued the search warrant was invalid as the information to obtain (ITO) was not credible, compelling, and corroborated.

The Court of Appeal dismissed the appeal, holding that the 'step six' procedure appropriately balances the accused's Charter rights with the need to protect confidential informants, and that the warrant was properly issued based on sufficiently credible, compelling, and corroborated information.

The Attorney General of Canada, on behalf of the United States, appealed a discharge order in an extradition proceeding against the respondent for fraud-related charges.

The extradition judge had discharged the respondent, finding insufficient evidence in the Record of the Case (ROC) to establish his complicity.

The Court of Appeal found that the extradition judge erred by misreading the ROC and by failing to give proper effect to the presumptive reliability of the certified evidence, treating bald assertions as having no evidentiary value without considering the context of the accomplice's deep involvement in the scheme.

The Court concluded that, read as a whole, the ROC provided a sufficient basis for committal.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated July 16, 2018.

The appellant challenged the Board's finding of a direct connection between his substance abuse and his psychotic state at the time of the index offences, as well as the Board's conclusion that a significant threat to public safety remained.

The Court of Appeal upheld the Board's decision, finding it was reasonable for the Board to rely on the treating psychiatrist's opinion and to impose a conditional discharge given the appellant's progress balanced against ongoing risks.

The appellant was convicted of first degree murder in the death of his wife, Adrienne Roberts, who was found murdered in the basement of their home.

He appealed on three grounds: (1) that the application judge erred in dismissing his O'Connor application for production of criminal investigation files relating to two other similar crimes; (2) that the trial judge erred in dismissing his alternate suspect defence application; and (3) that the first degree murder verdict was unreasonable and should be substituted with second degree murder.

The Court of Appeal upheld the conviction, finding no error in the application judge's O'Connor ruling, no air of reality to the alternate suspect defence, and that the jury's verdict of first degree murder was reasonable based on the totality of the circumstantial evidence.

The appellant was convicted of two offences: wilfully killing a dog without lawful excuse, and wilfully causing unnecessary pain and suffering to a dog by strangulation and suffocation with tape and a chain.

The dog was found dead in the appellant's yard, tethered to a tree with a choke chain and electrical tape wrapped around its muzzle.

The trial judge found that the dog died by strangulation on the choke chain and that the tape was a contributing cause.

The trial judge convicted the appellant based on findings that the appellant knew the dog would struggle and suffer, and was reckless as to whether the dog would die.

The Court of Appeal allowed the appeal in part, setting aside the conviction for wilfully killing the dog while upholding the conviction for wilfully causing unnecessary pain and suffering.

The appellant sought leave to appeal his sentence on the basis that the trial judge failed to give credit for restrictive bail terms as required by R. v. Downes.

The trial judge had misapprehended the duration of the bail period, referring to 42 days of pre-bail custody rather than the actual 18 months the appellant spent on restrictive bail conditions.

The Court of Appeal found that had the trial judge understood the true duration and restrictive nature of the bail conditions, he would have granted the five months' credit requested by defence counsel.

Leave to appeal was granted and the sentence was reduced by five months.

The Crown appealed the acquittal of a former senior advisor to the Prime Minister on a charge of influence peddling contrary to section 121(1)(d) of the Criminal Code.

The respondent had negotiated a contract providing commissions to his girlfriend on sales of water treatment systems to First Nations communities, with the understanding that he would use his government contacts to promote the company.

The trial judge acquitted the respondent, finding that there was no "matter of business relating to the government" because First Nations communities had autonomy in purchasing decisions and INAC was not involved in approving such purchases.

The Court of Appeal was divided: the majority allowed the appeal and entered a conviction, interpreting "any matter of business relating to the government" broadly to include the respondent's exercise of influence on government officials regarding the sale of products to First Nations.

The dissent would have dismissed the appeal, finding no error of law in the trial judge's interpretation and reasoning.

The appellant appealed his conviction, arguing the trial judge erred by failing to address why accepted Crown witness evidence failed to raise a reasonable doubt.

The Court of Appeal dismissed the appeal, finding that the facts found by the trial judge created an overwhelming inference of guilt that was not displaced by the matters relied on by the appellant.

The appellant was convicted of importing cocaine after a sniffer-dog alerted on her at an international airport and a subsequent search revealed four kilograms of cocaine in her luggage.

She appealed her conviction and sentence, arguing that the dog sniff and a subsequent strip search violated her Charter rights, and that the trial judge made evidentiary and jury charge errors.

The Court of Appeal dismissed the appeal, finding that a dog sniff during a routine border crossing does not violate section 8 of the Charter, the appellant was not detained at the time of the alert, and the sentence imposed was fit.

The Crown sought leave to appeal a five-year penitentiary sentence imposed after the respondent pleaded guilty to multiple sexual offences against his daughter.

The court considered whether the sentencing judge misapprehended the applicable range for repeated parental sexual abuse and whether the sentence was manifestly unfit in light of prior authorities and the respondent's dated prior sexual offence record.

The court held that the sentencing judge did not treat the earlier authority as binding in a way that precluded a higher sentence and remained alive to both aggravating and mitigating circumstances.

Although the sentence was at the bottom of the applicable range, it was not manifestly unfit.

Leave to appeal was granted, but the appeal was dismissed.

The appellant appealed a sentence of indeterminate detention following a dangerous offender designation.

He argued the trial judge erred in concluding there was no reasonable possibility of eventually controlling his risk in the community.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusion was firmly grounded in the evidence, noting the appellant committed the predicate offence while on conditional release.

The appellant appealed a 5-year sentence for a drug offence.

The trial judge found the appellant was a trusted courier and not part of a criminal organization.

The co-accused, an active drug trafficker with a criminal record, received a 4-year sentence.

The Court of Appeal held that the 5-year sentence offended the parity principle, noting the appellant was a youthful first offender.

The appeal was allowed and the sentence was reduced to 42 months.

The appellant appealed his convictions for firearm-related offences, arguing the trial judge erred in admitting evidence obtained during an illegal search of his apartment.

The police had executed a search warrant without reasonable and probable grounds.

The trial judge excluded drug-related evidence but admitted the firearms evidence under s. 24(2) of the Charter, applying the Grant framework.

The Court of Appeal upheld the trial judge's decision, finding no error in the conclusion that the police did not act in bad faith and that there is a heightened public interest in the prosecution of firearms offences.

The appellant was convicted of importing cocaine after arriving at Pearson International Airport with cocaine dissolved in wine bottles.

On appeal, she argued the trial judge erred in instructing the jury on the knowledge requirement and in admitting opinion evidence from a border services inspector regarding her ticket purchase.

The Court of Appeal dismissed the first ground but allowed the appeal on the second ground, finding the inspector's testimony about cash payments and short-notice bookings was inadmissible, highly prejudicial opinion evidence.

The court declined to apply the curative proviso and ordered a new trial.

The appellant, a first-time offender addicted to cocaine, pleaded guilty to trafficking after selling $40 of crack cocaine to an undercover officer.

He successfully completed a drug rehabilitation program, leading the Crown and defence to jointly submit an eight-month conditional sentence.

The sentencing judge rejected the joint submission and imposed a six-month jail term, mistakenly finding the appellant was a 'middleman.' On appeal, the Crown conceded the error.

The Court of Appeal allowed the appeal, holding that the sentencing judge misapprehended the evidence and failed to apply the high threshold for departing from a joint submission.

The sentence was varied to an eight-month conditional sentence.

The appellant appealed his conviction and 18-month sentence for possession for the purpose of trafficking.

He argued the trial judge erred in refusing to declare a mistrial based on an alleged breach of his section 14 Charter right to an interpreter, and that the trial judge overemphasized general deterrence in sentencing.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably gave no weight to a hearsay affidavit regarding the interpreter issue, and that the sentence was within the appropriate range with no error in principle.