Criminal and Quasi-Criminal Law - OCA

The appellant, Julie Menard, appealed her conviction and sentence.

The Court of Appeal dismissed the appeal against conviction, finding no basis to interfere with the trial judge's thorough reasons regarding witness credibility and reliability.

The appeal against sentence was also dismissed, with the exception of a consensual reduction of the Sex Offender Information Registration Act (SOIRA) order from lifetime to 20 years, in light of the Supreme Court of Canada's decision in R. v. Ndhlovu.

The appellant, Allan Dale Sutherland, appealed his sentence for operating a motor vehicle while disqualified and prohibited, challenging both the 18-month custodial sentence and the lifetime driving prohibitions imposed by the sentencing judge.

The Court of Appeal upheld the 18-month sentence, finding it fit given the appellant's extensive record and the need for specific deterrence.

However, the court found that the sentencing judge erred in imposing lifetime driving prohibitions, as legislative amendments to the Criminal Code (specifically the repeal of s. 259(4) and replacement by s. 320.18, with maximums set by s. 320.24(5)) made such prohibitions discretionary with specific maximum periods.

The court vacated the lifetime prohibition on the first count and varied the prohibition on the second count to 11.5 years, reflecting the maximum permissible period plus the sentence duration.

The appellant sought leave to appeal from the dismissal of his summary conviction appeal for driving with a blood alcohol concentration over the legal limit.

The Court of Appeal applied the two-factor test for granting leave in summary conviction matters, which requires a question of law alone, considering the significance of legal issues to criminal justice administration and the merits of proposed grounds.

The court found the appellant did not meet this test, noting the detailed reasons from the Summary Conviction Appeal court and the introduction of new grounds on appeal.

Leave to appeal was denied.

Stuart Murray, convicted of fraud, sought an extension of time to appeal his conviction, arguing his guilty plea was involuntary and uninformed due to his mental state and unexpected collateral consequences from Law Society proceedings.

The Crown opposed, citing delay and lack of merit.

The motion judge granted the extension, finding that psychiatric evidence raised sufficient doubt about Murray's cognitive functionality at the time of the plea and adequately explained the delay, thus warranting an appeal on the validity of the guilty plea.

The appellant, Furqan Akhtar, appealed his convictions for dangerous driving, criminal negligence, and street racing causing death and bodily harm, following a jury trial.

The appeal raised three grounds: misdirection on the mens rea for dangerous driving and criminal negligence, inadequate jury instruction on the effect of a co-accused's abscondment, and error in instructing the jury on the use of the appellant's prior Highway Traffic Act infractions for credibility assessment.

The Court of Appeal dismissed the appeal, finding no reversible error in the dangerous driving and criminal negligence instructions, and that the instruction on the co-accused's abscondment was sufficient.

While the instruction on prior HTA infractions was deemed an error, it was cured by the proviso as it caused no substantial wrong or miscarriage of justice given the overwhelming evidence against the appellant's credibility.

The appellant, convicted of multiple robberies and severe assaults, appealed her dangerous offender designation and the determinate sentence of ten years (consecutive to a prior five-and-a-half-year sentence) followed by a ten-year long-term supervision order.

The Court of Appeal for Ontario reviewed the sentencing judge's findings regarding the appellant's high risk of violent recidivism and the application of the totality principle.

The Court found no error in the sentencing judge's apprehension of the evidence, analysis, or conclusion that the appellant met the criteria for a dangerous offender designation, nor in the determination of the sentence, including the rejection of a "spree" characterization for the planned offences.

The appeal was dismissed.

The Crown appealed a lower court's decision to set aside a conviction against Becker Bros.

Trucking Inc. for operating a commercial motor vehicle in an unsafe condition, contrary to the Highway Traffic Act.

The appeal judge had ruled that certified Ministry records and copies of documents produced by the driver were inadmissible.

The Court of Appeal found that the appeal judge erred in both conclusions, holding that the Ministry's certified documents were admissible as "statements" under s. 210(7) of the HTA, and that the documents produced by the driver were admissible under s. 216.1(5) of the HTA or as an exception to the hearsay rule (admissions by documents in possession).

The Court allowed the Crown's appeal, reinstating the conviction and sentence.

The appellant appealed his sentence imposed by the Ontario Court of Justice on charges of driving while disqualified and possession for the purpose of trafficking.

The appellant argued that the sentencing judge erred by imposing consecutive sentences when a joint submission at the pre-trial stage had included a term that sentences be concurrent.

The Court of Appeal found the record unclear regarding the sentencing judge's intention on whether sentences should be consecutive or concurrent.

The Crown conceded the ambiguity.

The appeal was allowed and the sentence was reduced to reflect concurrent sentences.

The appellant was convicted of first degree murder following a fatal stabbing outside an Ottawa nightclub.

The Court of Appeal considered whether the conviction was unreasonable, focusing on whether the evidence supported the finding of planning and deliberation required for first degree murder.

The court found that while the appellant's guilt of murder was established, the evidence did not support the conclusion that the killing was planned and deliberate.

The court substituted a conviction for second degree murder, finding that the attack appeared impulsive rather than the product of a calculated scheme.

The appellant sought leave to appeal a nine-year sentence for unlawful act manslaughter based on failing to seek medical attention for a two-year-old child who died.

The trial judge conducted a Gardiner Hearing and found the appellant had assaulted both the mother and child, though could not determine if he inflicted the fatal blow.

The appellant argued the trial judge made palpable and overriding errors in her findings and that the sentence was disproportionate to the six-year sentence imposed on the mother.

The Court of Appeal dismissed the appeal, finding the trial judge's findings were supported by evidence and the disparity in sentences did not constitute error.

Appeal from a conviction for sexual assault.

The appellant claimed his trial counsel provided ineffective assistance, arguing counsel failed to provide disclosure, failed to prepare him to testify, failed to obtain medical and phone records, and failed to confront the complainant with DNA evidence and inconsistent statements.

The Court of Appeal dismissed the appeal, finding that trial counsel's conduct fell within the range of reasonable professional assistance and that there was no miscarriage of justice.

The trial judge's credibility findings were based on the appellant's implausible evidence and were supported by the record.

Appeal from convictions for possession of a firearm while prohibited and possession of a firearm without a licence.

The appellant was prohibited from possessing firearms under a lifetime order.

While on parole, he told his girlfriend his gun was at a firearms dealer in a nearby town.

Police discovered a high-powered rifle for sale under his name at the store.

The appellant testified he had no control over the firearm and that it was being sold on behalf of his brother-in-law to secure a loan.

The trial judge rejected the appellant's evidence and convicted him.

The Court of Appeal allowed the appeal, finding the trial judge erred in his approach to the failure of the defence to call certain witnesses, including reversing the burden of proof by requiring corroborating evidence and making improper inferences about witnesses refusing to lie for the appellant.

The applicant sought leave to appeal a summary conviction appeal court judge's decision dismissing his application to reopen his appeal and extend the time to file a notice of appeal.

The Court of Appeal first determined it had jurisdiction under section 839(1) of the Criminal Code to hear an appeal from a decision refusing to extend time or reopen an appeal.

However, the Court dismissed the application for leave to appeal, finding that despite the lower court applying the test for an extension of time rather than reopening an appeal, there was no injustice.

The applicant had delayed five years without reasonable explanation, and there was no merit to the proposed appeal from his convictions for assault with intent to resist arrest and carrying a concealed weapon.

The appellant sought leave to appeal his sentence of 12 months in jail, a restitution order of $213,084.61, and a fine of $110,000 in lieu of forfeiture for two counts of fraud over $5,000.

He argued the trial judge erred by not imposing a conditional sentence, not giving sufficient weight to the 10-year delay, and in the quantum of the restitution and fine.

The Court of Appeal found no error in principle, noting the trial judge properly treated the offences as large-scale fraud and adequately considered the delay and the appellant's circumstances.

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

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal quashed the appeal as moot because the appellant's underlying finding of not criminally responsible (NCR) had already been reversed on a separate appeal.

The applicant, convicted of aggravated assault and other offences for administering cocaine to her two-year-old son, applied for bail pending her appeal.

She argued her trial counsel provided ineffective assistance due to a pending suspension by the Law Society and a breach of the duty of loyalty.

The Court of Appeal found the grounds of appeal to be weak, noting the trial judge had already dismissed a mistrial application on these grounds.

Given the serious nature of the offences and the weak appeal grounds, the court held the applicant failed to show her detention was not necessary in the public interest.

The application for bail pending appeal was dismissed.

The respondent, a court officer, was convicted of assaulting a young person in his custody.

The trial judge imposed a 90-day intermittent sentence and two years' probation.

On appeal, the summary conviction appeal judge substituted a conditional discharge.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal and restored the trial judge's sentence, holding that a custodial sentence is required for court officers who commit premeditated assaults on vulnerable prisoners, emphasizing the principles of deterrence and denunciation for breaches of trust.

The appellant appealed a 12-month custodial sentence imposed after a guilty plea to two welfare fraud charges over $5,000 arising from the same facts.

The Court of Appeal held that the sentencing judge erred in principle by treating custody as presumptively required and by concluding that a conditional sentence was unavailable for welfare fraud.

Applying the conditional sentence framework under s. 742.1 of the Criminal Code, the court found the statutory requirements were met, noting the appellant's remorse, parental responsibilities, employment history, upgrading efforts, favourable pre-sentence report, and substantial restitution.

The custodial sentence was set aside and replaced with a conditional sentence of two years less one day, including house arrest and community service.

The appellant challenged convictions for trafficking and conspiracy to traffic in heroin arising from two undercover drug transactions supported by surveillance, intercepted telephone conversations, and undercover officer evidence.

The court held that the circumstantial evidence compellingly established knowledge and participation in the conspiracy, and rejected arguments that the trial judge failed to identify the evidentiary basis for conviction or reversed the burden of proof.

Applying the co-conspirator evidence framework, the court found no basis to interfere with the convictions.

However, the court allowed the sentence appeal and reduced the custodial term from eleven years to eight years, placing the appellant at the lower end of the accepted range.

The appellant appealed convictions for sexual offences involving two stepdaughters and also appealed a nine-year sentence.

The court held that although the jury charge pre-dated the governing reasonable doubt instruction case and did not expressly address the third branch of the credibility framework, the charge as a whole adequately conveyed the presumption of innocence, the burden of proof, and the requirement that the verdict be based on the evidence.

The court rejected challenges to the answer to a jury question, the gross indecency charge, and the use of similar fact evidence, noting the limiting instruction and the strength of the Crown's case.

The sentence was held to be fit given the repeated abuse of trust and serious abuse of children in the appellant's care.

Both appeals were dismissed.