Criminal and Quasi-Criminal Law - OCA

The Crown appealed an acquittal for sexual assault, arguing the trial judge erred in requiring proof that the offence occurred within a specific one-hour window after the accused raised an alibi defence.

The accused cross-appealed his conviction for assault, arguing the verdict was unreasonable.

The Court of Appeal allowed the Crown's appeal, holding that the exact time of the offence was not an essential element and the alibi did not freeze the Crown's case to the time estimated by the complainant in cross-examination.

A conviction for sexual assault was substituted.

The accused's cross-appeal was dismissed, as the trial judge's treatment of the defence evidence was not inconsistent.

This is an appeal from a conviction for sexual assault and a Crown appeal from sentence.

The appellant challenged the conviction based on alleged errors in the trial judge’s reasoning, including the *Browne v. Dunn* rule and misapprehension of evidence.

The Court of Appeal found no error in the trial judge's credibility findings.

The Crown appealed the two-year less a day conditional sentence, arguing it was unfit.

The Court declined to interfere with the sentence, finding it was an exceptional case justified by the offender's remorse, commitment to rehabilitation, insight, and the severe family consequences of incarceration.

Both the conviction appeal and the sentence appeal were dismissed.

The appellants, Dellen Millard and Mark Smich, appealed their convictions for the first-degree murder of Laura Babcock.

The Crown's theory was that Millard killed Babcock due to a love triangle, and Smich assisted him, including by incinerating her body.

The Court of Appeal dismissed all conviction appeals, finding no reversible errors in the trial judge's jury instructions regarding reasonable doubt, party liability, after-the-fact conduct, or the use of rap lyrics as adopted admissions.

However, applying the Supreme Court's decision in Bissonnette, the court allowed the sentence appeals solely to quash the consecutive parole ineligibility periods imposed under s. 745.51 of the Criminal Code.

The appellant, Davoud Tohidy, sought to lay an information against Premier Doug Ford alleging Criminal Code offences related to the provincial government's COVID-19 pandemic response.

After a justice of the peace refused to receive the information and the Superior Court summarily dismissed his application for mandamus and other relief, Mr. Tohidy appealed to the Court of Appeal.

The Registrar referred the appeal for summary dismissal under s. 685(1) of the Criminal Code and r. 17 of the Criminal Appeal Rules.

The Court of Appeal agreed with the reviewing judge's reasons, finding the appeal meritless, frivolous, and vexatious, and dismissed it without a full hearing.

The appellant, who was previously found not criminally responsible for assault causing bodily harm, appealed a decision of the Ontario Review Board maintaining his conditional discharge.

He argued that the Board's finding that he continued to pose a significant risk to the public was unreasonable and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding that the Board reasonably relied on expert psychiatric testimony indicating that the appellant's impending transition to a less structured living environment would increase his risk to public safety.

The appellant pleaded guilty to criminal harassment involving the surreptitious downloading of the victim's cell phone data and threats to distribute intimate photographs, which he subsequently carried out by sending explicit images to the victim's son.

The trial judge rejected a joint sentence submission of 9-12 months and imposed three years imprisonment.

The appellant appealed the sentence.

The Court of Appeal upheld the sentence, finding the trial judge properly followed the procedure for rejecting a joint submission as established in R. v. Anthony-Cook and that the three-year sentence was justified given the appellant's extensive criminal record, pattern of violence and harassment, and lack of response to prior interventions.

The appellant appealed his conviction for possession of crack cocaine for the purpose of trafficking.

The sole issue on appeal was whether his trial counsel provided ineffective assistance.

The appellant argued that his counsel was in a conflict of interest by representing both him and a potential third party suspect, the owner of the vehicle in which the drugs were found.

The counsel failed to advance a third party suspect defence and did not disclose the conflict to the appellant.

The Court of Appeal found that an actual conflict of interest existed, that the counsel's representation was materially and adversely affected by the conflict, and that a miscarriage of justice occurred.

The conviction was set aside and a new trial was ordered.

The Crown appealed the respondent's acquittal on drug trafficking and related charges.

The trial judge had excluded evidence (heroin and cash) under s. 24(2) of the Charter after finding a s. 8 violation regarding a wiretap authorization targeting the respondent's cell phone during a murder investigation involving his son.

The Court of Appeal allowed the appeal, finding the trial judge erred by taking a piecemeal approach to the evidence in the Information to Obtain (ITO) rather than a contextual one, and by impermissibly substituting his own view for that of the issuing justice.

The acquittals were set aside and a new trial ordered.

The appellant appealed his conviction for robbery, arguing that the trial judge's reasons were insufficient because they failed to adequately address inconsistencies in the complainant's evidence regarding the amount of money taken during a drug transaction.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons sufficiently explained the basis for the conviction and why the complainant was deemed reliable despite some confusion over the exact denominations and amounts.

The trial judge's decision to convict on the lesser included offence of assault causing bodily harm rather than aggravated assault was also adequately explained by the inability to distinguish injuries caused by the assault from those caused by a subsequent fall.

The appellant appealed her convictions for possession of fentanyl for the purpose of trafficking and failing to comply with a recognizance.

She argued the trial judge erred by relying on hearsay from an informant and admitting a statement without a voir dire.

The Court of Appeal agreed the trial judge erred in both instances but applied the curative proviso, finding the remaining circumstantial evidence of guilt was overwhelming and the errors were harmless.

The appeal was dismissed.

The appellant appealed convictions for sexual interference arising from historical abuse allegations involving child complainants within a family setting.

The appeal alleged material misapprehension of evidence concerning opportunity, bedroom access, and the timing of a disclosure, as well as uneven scrutiny of defence evidence.

The court applied the governing appellate standard for misapprehension of evidence and held that the identified errors were not substantive and played no essential role in the verdict.

It further held that the trial judge was entitled to treat inconsistencies in the complainants’ evidence as peripheral while finding that the defence evidence on opportunity was contrived.

The appeal was dismissed.

The appellant was convicted of second degree murder and sentenced to life imprisonment with 15 years of parole ineligibility after shooting the victim outside a bar.

He appealed the conviction, arguing the trial judge misdirected the jury on self-defence, failed to leave the defence of provocation, and misstated witness evidence.

He also appealed the sentence.

The Court of Appeal dismissed the appeal, finding the trial judge properly tailored the self-defence instruction to the key factual issue of whether the victim drew a gun first, correctly concluded there was no air of reality to provocation, and made no material errors regarding witness testimony.

The sentence was upheld as fit given the aggravating factors, including the use of an illegal handgun in a public place.

The appellant appealed his convictions for possession of marihuana and possession for the purpose of trafficking, arguing his s. 8 Charter rights were violated.

During a traffic stop, an officer asked the appellant for consent to search his vehicle, prompting the appellant to voluntarily produce a bag of marihuana before the officer could explain the consent process.

The Court of Appeal upheld the trial judge's finding that the officer's request did not constitute a search, and the appellant's production of the drugs was voluntary.

The appeal was dismissed.

The appellant, an adjudicator with the Immigration and Refugee Board, was convicted of breach of trust for offering a positive decision to a refugee claimant in exchange for a sexual relationship.

He was sentenced to 18 months' imprisonment.

On appeal, he argued the trial judge misapprehended the evidence, the verdict was unreasonable, and the sentence should have been a conditional sentence due to his bipolar disorder.

The Court of Appeal dismissed the conviction appeal, finding the verdict reasonable and supported by the evidence.

The majority also dismissed the sentence appeal, holding that the trial judge properly weighed the appellant's mental illness against the need for denunciation and deterrence for a serious breach of trust.

Laskin J.A. dissented on sentence, finding a conditional sentence appropriate.

The appellant was convicted of sexual offences and sentenced to ten years' imprisonment.

He died while on bail pending appeal.

His widow brought a motion to continue the appeal, arguing that the ground of appeal relating to expert evidence on recovered memory was of broad public importance.

The Court of Appeal dismissed the motion, finding no special circumstances to justify expending limited judicial resources on a moot appeal, as the issue of recovered memory is not evasive of appellate review and a successful appeal would only result in a new trial, which is impossible.

The appellant appealed his summary conviction, arguing the trial judge erred by accepting identification evidence without explaining why he rejected the defence submission that the identification was tainted by a risk of collusion.

The Court of Appeal dismissed the appeal, finding the trial judge made no error, the collusion argument lacked an evidentiary air of reality, and the succinct reasons were sufficient in the circumstances.

The appellant appealed a disposition of the Ontario Review Board that found him dangerous and issued a detention order.

The Court of Appeal dismissed the appeal, finding that the Board correctly applied the legal framework from Pinet v. St. Thomas Psychiatric Hospital and that its factual findings regarding dangerousness and the necessity of a detention order were fully supported by the evidence.

The appellant, unrepresented at his summary conviction appeal, attempted to argue that the trial judge improperly handled numerous witness subpoenas he had served.

The summary conviction appeal judge repeatedly interrupted and declined to hear submissions on this issue.

The Court of Appeal held that the summary conviction appeal judge erred by refusing to hear the appellant's submissions regarding the trial subpoenas, as this went to the fairness of the trial.

The conviction appeal was allowed and a new hearing was ordered.

The appellant pled guilty to criminal harassment, five counts of breach of probation, and breach of recognizance arising from attempts to reconcile with his estranged wife.

He was sentenced to 18 months' imprisonment and three years' probation, in addition to 160 days' credit for pre-sentence custody.

He appealed the sentence, arguing it was excessive.

The majority of the Court of Appeal allowed the appeal, finding the sentence excessive given the absence of violence, the appellant's lack of prior criminal record before the family breakdown, and his psychological issues.

The sentence was reduced to time served (effective 12 months), with the probation order remaining unchanged.

The dissenting judge would have dismissed the appeal, emphasizing the need for specific deterrence and deference to the sentencing judge.

The young person appealed a finding of guilt for sexual assault against a classmate.

The appellant argued that the trial judge failed to properly apply the burden of proof regarding credibility, improperly handled inconsistencies in the testimonies of the child witnesses, and misapprehended evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the criminal burden of proof when assessing credibility and reasonably addressed the minor inconsistencies in the children's testimonies.

The court emphasized that children may not recall precise details, but this does not mean they misconceived the core events.