Criminal and Quasi-Criminal Law - OCA

The appellant appealed his convictions for human trafficking and related offences, as well as his designation as a dangerous offender.

At trial, the complainant recanted her allegations, but the trial judge admitted her prior videotaped statements to police for their truth and relied on them to convict.

The Court of Appeal dismissed the conviction appeal, finding no circular reasoning, no improper reliance on demeanour evidence, and no error in the application of the W.(D.) framework to the rejected exculpatory testimony.

The Court also dismissed the sentence appeal, holding that the sentencing judge reasonably concluded the appellant's violent conduct was intractable despite psychiatric evidence suggesting his risk could potentially be managed in the community under strict contingencies.

The Court of Appeal for Ontario dismissed Baba Ouedraogo’s appeal from sentence, except to vacate the sentencing judge’s recommendation for phallometric testing.

The appellant challenged the imposition of a second Long Term Supervision Order (LTSO), the finding of substantial risk of reoffence, the imposition of lifetime prohibition orders, and the recommendation for phallometric testing.

The court found no error in the sentencing judge’s approach to issue estoppel, risk assessment, or the imposition of prohibition orders, but held that a recommendation for phallometric testing was not legally available without the offender’s consent.

The appellant, Mustafa Ahmed, was convicted of second degree murder following a judge-alone trial.

The case involved a fatal shooting during a bar altercation, captured on CCTV.

The trial judge rejected Ahmed’s claims of self-defence and provocation, finding his testimony not credible or reliable.

On appeal, Ahmed argued that the trial judge made palpable and overriding errors in assessing the CCTV evidence and misapplied the law regarding his subjective beliefs.

The Court of Appeal found no such errors and dismissed the appeal.

The appellant, convicted of two counts of sexual assault, one count of sexual touching, and one count of showing pornographic materials to a minor, appealed on the ground that the trial judge erred in finding him guilty of an incident that allegedly occurred at the complainant's grandmother's house, claiming it was outside the scope of the charges.

The Court of Appeal dismissed the appeal, finding that the incident fell within the broad scope of the indictment, which specified a time period and town rather than precise locations.

The court reiterated that the Crown is not bound to prove its specific theory of the case if the conviction falls within the indictment's scope and the defence had a full and fair opportunity to defend, which was found to be the case here given the extensive cross-examination and closing submissions by trial counsel regarding the incident.

The appellant was convicted of sexually assaulting the complainant.

The appeal challenged the trial judge's assessment of credibility and reliability, alleging misapprehension of evidence, uneven scrutiny of Crown and defence evidence, and erroneous reliance on the complainant's apparent lack of animus.

The Court of Appeal found that the trial judge materially misapprehended evidence regarding the appellant's memory and exculpatory text messages, applied an uneven standard of scrutiny to the evidence, and improperly used the complainant's apparent lack of animus to bolster her credibility.

These errors, in their cumulative effect, detrimentally impacted the reasoning process and rendered the conviction unsafe.

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

The appellant, O’Dean McFarlane, appealed a disposition of the Ontario Review Board (ORB) that transferred him from St. Joseph’s Healthcare Hamilton to a higher security forensic facility at Waypoint Centre for Mental Health Care.

The appeal was based on two grounds: the Board's refusal to grant an adjournment of an early review hearing, which the appellant argued denied him a fair hearing, and the Board's alleged failure to discharge its inquisitorial duty to investigate concerns of unconscious racial bias influencing hospital staff's perception of him.

The Court of Appeal dismissed the appeal, finding no error in the Board's discretionary decision regarding the adjournment, as the issues were intertwined and no prejudice was demonstrated.

The court also held that the Board's inquisitorial duty was not triggered regarding racial bias, as there was no realistic possibility that further inquiry would have altered the decision, which was firmly rooted in objective evidence of the appellant's conduct.

The applicant, J.J., sought a second bail pending appeal after his initial bail was revoked due to new charges, including firearms and drug offences, and breaches of his recognizance.

The court considered the public interest criterion under s. 679(3)(c) of the Criminal Code, focusing on public safety.

Despite a strict proposed bail plan involving new sureties and GPS monitoring, the court found a substantial likelihood that the applicant would re-offend, given his history of non-compliance and the nature of the new charges.

The court also considered the merits of the appeal and the COVID-19 pandemic but found these factors did not outweigh the public safety risk.

The application for bail pending appeal was dismissed.

An appeal from two dispositions of the Ontario Review Board concerning a person found not criminally responsible on account of mental disorder.

The appellant challenged the Board's May 23, 2017 conditional discharge order and its August 11, 2017 detention order, arguing both were unreasonable and that the August 11 order resulted from procedural unfairness and reasonable apprehension of bias.

The Court of Appeal dismissed the appeal from the May 23 order as moot and upheld the August 11 detention order, finding it was reasonable based on the appellant's relapse into drug use, violent behavior, and non-compliance with medication and reporting requirements.

The appellant appealed a $56,000 restitution order imposed following a joint submission for his minor role in a fraud.

The Court of Appeal found that the trial judge gave insufficient weight to the appellant's future ability to pay, noting he was an immigrant student with limited employment prospects who received little personal benefit from the fraud.

The appeal was allowed and the restitution order was set aside.

The appellant was convicted of second degree murder based on strong DNA evidence linking his blood to the crime scene.

On appeal, he argued the trial judge erred in his jury instructions regarding the use of the appellant's pre-trial statements, specifically by failing to give an O'Connor instruction and by incorrectly stating that prior inconsistent exculpatory statements were not evidence unless adopted at trial.

The Court of Appeal found no error in omitting the O'Connor instruction given the independent evidence of concoction.

While the court agreed the trial judge erred in his instruction on prior inconsistent statements, it applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding the error caused no substantial wrong or miscarriage of justice given the overwhelming DNA evidence.

The appeal was dismissed.

The appellant was convicted of careless storage of a firearm and ammunition after police, assisting sheriff's officers with an eviction, opened gun cases found in the apartment without a warrant.

The summary conviction appeal court upheld the convictions.

On appeal, the Court of Appeal found that the appellant retained a reasonable expectation of privacy in his home and belongings despite the eviction order.

The court held that the police breached s. 8 of the Charter by opening the gun cases without a warrant or exigent circumstances.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter, allowed the appeal, and entered acquittals.

The appellant appealed his sentence, arguing the trial judge failed to expressly address the application of the Gladue principles.

The Court of Appeal agreed that the trial judge should have addressed them, citing R. v. Kakekagamick.

However, because the custodial portion of the sentence had already been served and the appellant was doing well with a proposed parole plan, the court declined to interfere and dismissed the appeal.

The appellant appealed his conviction for aggravated assault following an incident outside a bar where the complainant suffered a fractured cheekbone.

The appellant argued the trial judge erred in assessing the complainant's credibility and reversed the burden of proof by drawing an adverse inference from the appellant's failure to locate an alternate suspect.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.D. framework and used common sense in assessing credibility without shifting the evidentiary burden.

The appellant was convicted of attempted murder and break and enter after attacking his former partner and her new partner.

He was designated a dangerous offender and sentenced to an indeterminate penitentiary term.

On appeal, he argued the sentencing judge erred by relying on statements he made during a pre-trial fitness assessment, claiming they were protected under s. 672.21 of the Criminal Code.

The Court of Appeal dismissed the appeal, applying R. v. Jones to hold that such statements are admissible at the sentencing stage to accurately evaluate the danger posed by the offender.

The Court also found the appellant had consented to the admission of the psychiatric evidence.

The appellant pleaded guilty to multiple offences, including a violent home invasion and robbery, and was sentenced to a further six years in custody after receiving credit for pre-trial custody and a four-year discount for acting as a police informant.

On appeal, the appellant argued the sentence violated the 'jump' principle and that the informer discount was insufficient.

The Court of Appeal dismissed the appeal, finding the sentence appropriate given the significant violence involved and holding that there is no fixed tariff for informer discounts.

The court also declined to order state-funded counsel under s. 684(1) of the Criminal Code.

The appellant appealed his conviction, arguing that the trial judge's charge to the jury on reasonable doubt was deficient because it failed to link the W.D. charge to the issue of credibility.

The Court of Appeal dismissed the appeal, finding that while the specific instruction on resolving conflicting evidence was not a model of clarity, the jury charge read as a whole left no misapprehension about the correct standard of proof.

The appellant appealed his convictions for possession of a firearm, assault with intent to resist arrest, and failing to comply with a recognizance.

He argued that the verdicts were inconsistent because he was acquitted of a related cocaine possession charge, that the trial judge failed to give a proper W.(D.) instruction on reasonable doubt, and that evidence should have been excluded due to an unlawful detention.

The Court of Appeal dismissed the appeal, finding the verdicts were not inconsistent, the jury was properly instructed on the burden of proof, and the police had reasonable grounds to pursue and detain the appellant when he fled.

The appellant pleaded guilty to impersonation, fraud over $5,000, and failure to comply with a recognizance, and was sentenced to fourteen months' imprisonment and eighteen months' probation.

He appealed the sentence, arguing it was demonstrably unfit and seeking a reduction based on fresh evidence of a serious medical condition.

The Court of Appeal dismissed the appeal, finding the sentence fit given the appellant's criminal record and the commission of the second offence while on bail.

The court also declined to reduce the sentence based on the fresh evidence, noting the institution's obligation to provide adequate medical treatment and the upcoming parole hearing.

The appellant appealed his conviction and sentence.

The Court of Appeal found several errors in the trial judge's charge to the jury, including the failure to give a limiting instruction on the complainant's prior consistent statements, using an outdated version of the Lifchus charge on reasonable doubt, and improperly limiting the defence's alternative perpetrator theory.

The appeal was allowed and a new trial ordered, with a note that the appellant had already served his sentence.

The appellant was convicted of aggravated assault, assault with a weapon, weapons dangerous, and common assault following a bar room brawl where a victim was stabbed.

On appeal, the appellant argued the trial judge improperly shifted the burden of proof, the verdicts were unreasonable, and the rule against multiple convictions should apply.

The Court of Appeal dismissed the burden of proof and unreasonable verdict arguments but agreed that the Kienapple principle applied to the charges of aggravated assault and assault with a weapon, as they arose from the same delict.

The conviction for assault with a weapon was stayed, but the sentence appeal was dismissed as the original sentence remained fit.