Criminal and Quasi-Criminal Law - OCA

The appellant was convicted by a jury of sexual assault arising from an incident where initially consensual sexual intercourse escalated to unprotected intercourse without the complainant's consent.

On appeal, the appellant raised three grounds: errors in the W.(D.) jury instructions, improper Crown closing submissions, and that a pre-trial s. 276/278.92 ruling led to trial irregularities amounting to a miscarriage of justice.

The Court of Appeal found no merit in any ground.

The jury instructions properly conveyed each pathway to acquittal, the Crown's closing did not cross the line into oath-helping or rhetorical excess, and the pre-trial ruling did not create any irregularity or unfairness warranting appellate intervention.

The appellant, Vernon Terwilligar, appealed his convictions for child luring and making child pornography, and sought leave to appeal a sentence order under section 161 of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge’s rejection of the appellant’s evidence and upholding the search warrant’s breadth.

The court also upheld the section 161 order, holding that such orders are available even where the “child” is an undercover officer, as the protective purpose of the provision is best served by a purposive interpretation.

The Toronto Star and journalist Morgan Bocknek appealed a Superior Court decision refusing to quash a subpoena for journalistic notes related to an interview with a sexual assault complainant.

The subpoena was sought by the accused, Bruce Timothy Cavey, under s. 278.3 of the Criminal Code for potential prior inconsistent statements.

The Court of Appeal dismissed the appeal, affirming the application judge's discretionary decision not to grant certiorari, finding that the trial judge was the appropriate forum to address issues of journalistic privilege and relevance within the s. 278 application process.

This is an appeal from a conviction for arson, which arose from a guilty plea.

The appellant did not understand the implications of the guilty plea on her immigration status, rendering the plea uninformed.

The parties reached a joint position to set aside the arson conviction and substitute it with a conviction for mischief under $5,000.

The court accepted this proposal, considering the appellant's circumstances, including mental health challenges, and found it would achieve the parties' original intent.

The appeal was dismissed, the arson conviction set aside, and the new conviction for mischief under $5,000 was substituted, with the DNA order also set aside.

The appellant, J.R., appealed convictions for sexual offences against his two young daughters.

The Crown conceded that the trial judge erred by failing to instruct the jury against cross-count reasoning and propensity reasoning, and by instructing them that cross-count reasoning was permissible.

The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial, finding these errors required the convictions to be set aside.

The appellant was convicted of multiple offences, including sexual and physical abuse against his step-daughter.

On appeal, he argued that the language interpretation services at trial were substandard, infringing his s. 14 Charter rights, and that the trial judge erred in weighing evidence and assessing credibility.

He also challenged a conviction for invitation to sexual touching.

The Court of Appeal granted leave to admit fresh evidence but found no s. 14 Charter breach, concluding that minor interpretation differences did not impede the appellant's ability to understand or be understood.

The court dismissed most grounds of appeal, upholding the trial judge's credibility assessments.

However, the conviction for invitation to sexual touching was quashed and an acquittal entered, as there was no factual basis or evidence of an invitation.

The appellant, Peter Ukwuaba, appealed his convictions for importing heroin and conspiracy to import heroin, and sought leave to appeal his concurrent 11-year sentence.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's inferences of complicity in importation and conspiracy were reasonable based on circumstantial evidence.

However, the court granted leave to appeal the sentence, reducing it from 11 years to 9 years concurrent, citing fresh evidence of the appellant's debilitating stroke post-sentencing, which significantly worsened his incarceration conditions and reduced the need for specific deterrence and incapacitation.

The appellant was convicted of possession of crack cocaine and fentanyl for the purpose of trafficking following two field strip searches conducted by police in a motel room.

The appellant appealed on the ground that the strip searches violated his Charter rights under section 8.

The Court of Appeal found that both strip searches violated the appellant's section 8 rights because they were conducted in the field rather than at a police station, and the Crown failed to establish exigent circumstances justifying the field searches.

However, the Court of Appeal did not exclude the evidence under section 24(2) of the Charter, finding that admission of the evidence would not bring the administration of justice into disrepute.

The appeal was dismissed.

The appellant was convicted of sexual assault of his neighbor and sentenced to two years less a day imprisonment followed by three years' probation.

On appeal, the appellant challenged the conviction on multiple grounds, including that the trial judge erred in finding no air of reality to a mistaken belief in consent defense, that the trial judge placed undue emphasis on the complainant's demeanor and mental health history, that the verdict was unreasonable, and that the trial judge improperly used prior consistent statements.

The appellant also sought leave to appeal the sentence.

The Court of Appeal dismissed all grounds of appeal, finding the trial judge's credibility findings were reasonable, the defense arguments were properly addressed, and the sentence was fit.

An appeal from a disposition of the Ontario Review Board dated May 24, 2017.

The appellant, found not criminally responsible on account of mental disorder for robbery in 2010, challenged the Board's decision to impose a detention disposition rather than a conditional discharge.

The appellant argued that a conditional discharge with treatment conditions could manage his risk as effectively as detention.

The Court of Appeal upheld the Board's disposition, finding that the Board correctly applied the legal test and that its conclusion was reasonable given the appellant's recent deterioration, non-compliance with conditions, medication non-adherence, and the limitations of the Mental Health Act in managing his risk.

The appellant appealed his conviction and sentence for murder.

On the conviction appeal, he argued the trial judge erred in the jury charge by denigrating the defence and failing to properly caution the jury regarding inferences about his age.

The Court of Appeal dismissed the conviction appeal, finding the charge fair when read as a whole.

On the sentence appeal, the appellant argued the trial judge's ruling that he was at least 16 and a half years old was unreasonable.

The Court of Appeal dismissed the sentence appeal, holding that the trial judge properly assessed the evidence holistically, including the appellant's appearance, criminal record, and peer group, and reasonably concluded he was over 16.

The appellant appealed his conviction for second degree murder and his 15-year period of parole ineligibility.

He argued that the trial judge erred in admitting a portion of his uncautioned statement to the police, erred in his Corbett ruling regarding the admissibility of his criminal record, and imposed an excessive period of parole ineligibility.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion on the voluntariness of the statement was reasonable, the Corbett ruling was well-reasoned, and the 15-year parole ineligibility period was within a reasonable range.

The appellant appealed his sentence, seeking corrections to clerical errors on the warrant of committal and adjustments to his pre-sentence custody credit.

The Crown conceded errors in the recorded sentence and the calculation of 2012 pre-sentence custody.

The Court of Appeal corrected these errors and applied the Summers framework to grant 1.5:1 credit for the appellant's pre-sentence custody, noting that the 1:1 limit under s. 719(3.1) did not apply because the Crown had not proceeded with a bail revocation application under s. 524(8).

The appeal was allowed and the warrant of committal amended.

The appellant, a francophone, was charged alongside anglophone co-accused.

A bilingual preliminary inquiry was held.

The Crown assigned unilingual anglophone prosecutors, provided English-only disclosure and notices, and the court refused to provide a bilingual court reporter or issue interlocutory judgments in French.

The certiorari judge found language rights violations but denied a remedy.

The Court of Appeal allowed the appeal, finding systemic failure by the Crown and the preliminary inquiry judge to respect the equality of official languages.

The committal for trial was quashed and costs were awarded to the appellant.

The appellant appealed his convictions for drug and weapons offences and his sentence of ten years and nine months.

He argued the trial judge erred in dismissing his application to cross-examine the police officer who prepared the Information to Obtain (ITO) the search warrant, alleging the officer deliberately omitted information to mislead the issuing justice.

The Court of Appeal found no error in the trial judge's conclusion that there was no air of reality to the allegation of mala fides.

The sentence appeal was also dismissed, as the trial judge had properly considered the appellant's cooperation in expediting the proceeding.

The appellant appealed her convictions on three charges of fraud, seeking to withdraw her guilty pleas.

She argued that she had a potential defence of duress.

The Court of Appeal dismissed the appeal, finding that the transcripts of the guilty pleas offered no support for withdrawal and that her alleged duress did not meet the requirements of section 17 of the Criminal Code.

The appellant appealed a two-and-a-half-year sentence for fraud, arguing the trial judge failed to consider the specific immigration consequences of a sentence of two years or more.

The Court of Appeal dismissed the appeal, finding the sentence was fit given the appellant's serious criminal record for similar offences, and noting the trial judge was aware of the pending deportation order.

The appellants appealed their convictions, arguing that the trial judge failed to properly apply the third component of the reasonable doubt analysis outlined in R. v. W.D. The Court of Appeal dismissed the appeal, finding that the trial judge correctly articulated the burden of proof, reviewed the evidence, and made findings of fact that were open to him, rendering the verdicts reasonable.

The Crown appealed the trial judge's decision to dismiss a dangerous offender application and instead designate the respondent as a long-term offender.

The trial judge had found that the statutory criteria for a dangerous offender were met but concluded the Crown had to prove beyond a reasonable doubt that there was no reasonable possibility of eventual control of the risk the respondent presented in the community.

The Court of Appeal held that the trial judge erred in imposing this burden of proof on the Crown.

The issue of whether the public threat can be reduced to an acceptable level through long-term offender provisions does not require either party to satisfy a burden of proof, but is a matter of judicial discretion based on the whole of the evidence.

The appeal was allowed and a new dangerous offender hearing was ordered because the trial judge failed to make necessary findings of fact.

The appellant appealed convictions for criminal harassment and harassing telephone calls, which relied entirely on the admission of an unsworn video statement.

The Court of Appeal found that the trial judge erred in assessing the statement's reliability by failing to consider evidence that the declarant felt pressured, compounded by the absence of an oath.

Concluding there were insufficient guarantees of reliability to admit the hearsay evidence, the Court set aside the convictions and entered acquittals on those counts, while leaving a breach of probation conviction intact.