Criminal and Quasi-Criminal Law - OCA

The applicant, convicted of four counts of sexual interference against young step-grandchildren and sentenced to 6 years 3 months, sought bail pending appeal.

The Court of Appeal assessed the three conditions for release under s. 679(3) of the Criminal Code: whether the appeal was frivolous, the likelihood of surrender, and public interest.

While the appeal grounds regarding jury instructions on accused's bias and complainant collusion were deemed "not frivolous," they were considered weak.

Despite the applicant's prior compliance with release conditions, the court found that given the serious nature of the sexual offences and the weak appeal grounds, releasing the applicant would undermine public confidence in the administration of justice.

The application for bail pending appeal was dismissed.

The applicants, Darko and Daniel Stojanovski, sought bail pending appeal after being convicted of attempted murder and discharging a firearm, and sentenced to 18 years' imprisonment.

The Crown opposed the application.

The court found the appeals were not frivolous but dismissed the applications, concluding that detention was necessary in the public interest due to the serious nature of the offences, the unacceptably weak release plan, and the weak grounds of appeal, which outweighed the applicants' arguments regarding COVID-19 risks in detention.

The appellant sought leave to appeal from a summary conviction appeal court decision regarding sentences imposed following convictions in two cases.

The central issue concerned whether a sentencing judge may impose a small fine as part of a sentence for the purpose of reducing the mandatory victim fine surcharge.

The summary conviction appeal judge had corrected an illegal sentence by removing a fine that violated s. 731 of the Criminal Code, which prohibits combining probation with both custody and a fine.

Leave to appeal was dismissed on two grounds: the issue did not arise squarely on the facts, and a pending Supreme Court of Canada decision in R. v. Tinker regarding the constitutional validity of the victim fine surcharge would likely address the applicant's concerns.

A motion for directions brought by counsel in an appeal alleging ineffective assistance of counsel.

The applicant sought access to transcripts of cross-examinations on affidavits to assess potential intervener status and to clear his professional reputation.

The Court of Appeal dismissed the motion, finding no merit to the intervener application and no basis to provide transcripts to a non-party to support a collateral issue unrelated to the core appeal.

The appellant sought bail pending appeal following his fourth conviction for sexual assault, for which he received a four-year sentence.

The Crown opposed the application on the grounds that detention was necessary in the public interest and that the grounds of appeal were frivolous.

The Court of Appeal dismissed the application, finding that the appellant failed to meet his burden of establishing that detention was not necessary in the public interest under section 679(3) of the Criminal Code.

The court found the grounds of appeal to be very weak, the offence to be serious, and evidence of above-average risk to reoffend in a sexual manner.

The appellant sought bail pending appeal following conviction on four counts: sexual assault, sexual interference, incest, and assault against his biological daughter when she was 13-14 years old.

He was sentenced to eight years in penitentiary.

The Crown opposed bail on public interest grounds, arguing that the seriousness of the offence and length of sentence warranted detention.

The Court of Appeal granted bail, finding that the grounds of appeal were sufficiently strong to meet the threshold under s. 679(3) of the Criminal Code, particularly given the incomplete reasons for conviction and the appellant's lengthy history of bail compliance without incident.

The appellant was convicted of aggravated assault, possession of a weapon for a dangerous purpose, and assault following a brawl in a restaurant where he brandished a knife and a patron was stabbed.

The appellant testified he brandished the knife in self-defence and the stabbing was accidental.

The trial judge refused to leave self-defence to the jury, finding it incompatible with accident, and directed the jury that the first two elements of the weapons charge were proven.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge usurped the jury's fact-finding function, erred in finding self-defence and accident incompatible, and improperly directed a verdict on essential elements.

The appellants were convicted of first degree murder and accessory after the fact to murder.

At trial, the Crown called the common-law spouses of two of the appellants as witnesses and introduced out-of-court statements made by one of the spouses shortly after the shooting.

The appellants appealed, arguing the spousal incompetency rule should be extended to common-law spouses under s. 15(1) of the Charter, and that the out-of-court statements were inadmissible hearsay.

The Court of Appeal held that while failing to extend the spousal incompetency rule to common-law spouses violates s. 15(1) of the Charter, the limitation is justified under s. 1.

The court also upheld the admission of the out-of-court statements under the spontaneous declaration exception to the hearsay rule.

The appeals were dismissed.

The appellant, a young person convicted of manslaughter, challenged the constitutionality of s. 684(1) of the Criminal Code after being denied legal aid and state-funded counsel for his appeal.

The Court of Appeal held that s. 684 is an ameliorative, case-specific mechanism that does not infringe the equality guarantee in s. 15 and does not violate ss. 7, 10(b), or 11(d) of the Charter.

The court held that where liberty interests are engaged, state-funded appeal counsel may be constitutionally required only when necessary to make the right of appeal meaningful and effective.

Requiring an indigent appellant to demonstrate an arguable appeal for appointment of counsel to present the appeal is not unfair.

The appellant appealed his conviction for possession of a loaded prohibited weapon, arguing that cross-examination on a draft affidavit was improper, the trial judge misapplied the W.D. test, and the trial judge failed to address the mens rea for the firearm offence.

The Court of Appeal dismissed the appeal, finding the cross-examination was fair, the trial judge properly assessed credibility and reasonable doubt, and there was a sufficient evidentiary basis to infer the appellant knew the firearm was loaded.

The Crown appealed the sentence imposed on the respondent by the Ontario Court of Justice.

The Court of Appeal found that the sentence was not demonstrably unfit and dismissed the appeal.

The appellant was convicted of fraud over $5,000 after his trial counsel was removed from the record by an application judge due to unpaid legal fees.

The appellant was forced to represent himself for the remainder of the trial.

On appeal, the Court of Appeal held that the application judge erred in removing counsel absent a fundamental disagreement, serious breakdown in communications, or ethical dilemma.

The removal violated the appellant's right to counsel, and actual prejudice was not required to order a new trial, though prejudice likely existed.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for second degree murder, arguing the trial judge erred by removing the possibility of an acquittal from the jury's consideration and directing them that they must, at a minimum, convict him of manslaughter.

The Court of Appeal allowed the appeal, relying on Supreme Court of Canada jurisprudence establishing that a trial judge cannot direct a jury to convict absent a formal admission of all essential elements of an offence.

Since the appellant's formal admissions did not cover all essential elements of manslaughter, he was deprived of his right to a jury trial.

The conviction was quashed and a new trial ordered.

The appellant appealed his convictions for assault and assault carrying a weapon, arguing that the verdicts were inconsistent with his acquittals on related extortion charges and that the trial judge misapprehended a defence witness's evidence.

The Court of Appeal dismissed the appeal, finding that the verdicts were not violently at odds because there was confirmatory evidence of the assault, while the extortion charges lacked sufficient proof.

The court also found no error in the trial judge's treatment of the defence witness's evidence.

The appellant was convicted of dangerous driving causing bodily harm and failing to stop at the scene of an accident after deliberately driving his car into a pedestrian who had previously assaulted him.

He appealed his convictions, arguing the trial judge erred in instructing the jury on his mental state and automatism defence.

He also appealed his sentence of two years less a day and a five-year driving prohibition, arguing the trial judge improperly considered his intentional conduct as an aggravating factor.

The Court of Appeal dismissed the conviction appeal and upheld the custodial sentence, finding that a sentencing judge may consider intentional conduct as an aggravating factor even for an offence based on objective fault.

However, the court reduced the driving prohibition from five years to one year.

The appellant appealed his convictions and sentence for offences including criminal harassment and breach of probation.

He argued that the trial judge erred by limiting the duration of his trial and in her findings of fact.

The Court of Appeal dismissed the majority of the conviction appeal, finding the trial judge accommodated the self-represented appellant and made reasonable inferences from the evidence.

However, the court quashed the conviction for breach of probation, noting that under s. 732.2(1)(b) of the Criminal Code, probation does not commence until a person is released from prison, and the appellant was incarcerated when the calls were made.

The sentence appeal was dismissed, with the court upholding the global sentence of 28 months.

The appellant appealed his conviction for perjury, which related to his testimony about his prior criminal record.

The trial proceeded on a shared misapprehension by counsel and the trial judge that the appellant had five prior convictions, when he actually had at most four, and possibly only three.

The Court of Appeal held that this error was crucial, particularly given that the jury acquitted the appellant of one closely connected charge while convicting him of another.

Finding the verdict unsafe, the Court allowed the appeal and ordered a new trial.

The Crown appealed a stay of proceedings granted by the trial judge due to unreasonable delay.

The Court of Appeal dismissed the appeal, finding that the Crown failed to justify the delay of over four and a half years from the laying of the initial charges, and that the trial judge's findings regarding the prejudice suffered by the respondent were fully supported by the record.

The 68-year-old appellant pleaded guilty to possession of cocaine for the purpose of trafficking.

The sentencing judge rejected a joint submission for a conditional sentence of two years less a day, citing a lack of community resources to supervise the sentence, and imposed 18 months' imprisonment.

On appeal, the Court of Appeal found the sentencing judge erred by relying on his own knowledge of community resources without a record and by expecting surveillance officers to enforce the sentence.

The appeal was allowed and a 14-month conditional sentence was imposed.

The appellant sought leave to appeal sentence following a conviction for aggravated assault causing catastrophic and permanent brain injury to the victim.

The Court of Appeal held that the sentencing judge did not err by placing significant weight on the brutal nature of the attack, the callous abandonment of the victim without medical assistance, and the devastating consequences of the assault.

The court found that the sentencing judge also properly considered mitigating background factors, remorse, prospects of rehabilitation, and pre-trial custody.

A 9-year penitentiary sentence was held to be within the appropriate range and the sentence appeal was dismissed.