Criminal and Quasi-Criminal Law - OCA

James Faichney, found not criminally responsible (NCR) for an assault, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge.

He argued the ORB erred by failing to consider a Gladue report and principles, and that its finding of a "significant threat" to public safety was unreasonable.

The Court of Appeal dismissed the appeal, finding that the ORB implicitly considered Gladue factors relevant to the threat assessment by addressing the availability of culturally appropriate care, and that the "significant threat" finding was reasonable given evidence of medication non-compliance and unrealistic expectations for independent care.

The appellant appealed his conviction for possession for the purposes of trafficking cocaine and failure to comply with conditions of a recognizance.

The appellant was stopped for a non-functional licence plate light, during which the officer detected the odour of burnt marijuana.

Following the discovery of a small amount of marijuana in a grinder, the appellant was arrested.

A subsequent search of the vehicle revealed 172 grams of cocaine hidden under the hood.

The appellant challenged the legality of the arrest and search on Charter grounds, arguing violations of sections 8 and 10 rights.

The trial judge rejected these arguments and convicted the appellant based on circumstantial evidence of knowledge and control.

The Court of Appeal upheld the conviction, finding the officer's actions reasonable and the search lawful as incident to arrest.

An appeal under Part XX.1 of the Criminal Code concerning the Ontario Review Board's disposition restricting the liberty of a person in forensic custody.

The appellant, detained for 35 years following a brutal sexual assault conviction, challenged the Board's finding that he posed a continuing threat to public safety.

The appellant also raised procedural fairness concerns regarding the Board's refusal to issue a summons for surveillance tapes, withholding staff names, and declining to address Charter arguments raised only in submissions.

The Court of Appeal upheld the Board's substantive findings but struck one provision of the order regarding an independent assessment due to lack of notice to the parties.

The appellant sought judicial review by way of certiorari to quash an order of a justice of the peace in a speeding ticket prosecution.

The justice of the peace had adjourned the trial and reserved the appellant's right to argue a stay motion based on Crown non-disclosure at the resumed trial date.

The application judge dismissed the application, finding the order was interlocutory and that there was no denial of natural justice.

The Court of Appeal upheld this decision, holding that the justice of the peace's trial management ruling was within jurisdiction and did not preclude the appellant from pursuing his stay motion.

The appellant was convicted of breaking into and assaulting a 68-year-old woman and breaking into and raping a 54-year-old woman.

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

On appeal, the appellant challenged the admission of DNA evidence obtained through a saliva sample, arguing his Charter rights were violated.

He also challenged the trial judge's failure to preserve evidence and appealed his indeterminate sentence.

The Court of Appeal dismissed all grounds of appeal, finding no Charter violations in the DNA seizure, that the trial judge properly exercised her discretion regarding the destroyed evidence, and that the indeterminate sentence was appropriate given the appellant's high risk of reoffending and consistent refusal to engage in treatment.

The appellant was convicted of attempted murder and conspiracy to commit murder after his three children tried to kill their mother.

At trial, the Crown theorized that the appellant used his religious beliefs to influence the children, and made inflammatory remarks during closing submissions comparing the appellant to notorious cult leaders and calling him a 'Jesus nut'.

The trial judge did not correct these remarks or instruct the jury on how to use the evidence of the appellant's religious beliefs.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the Crown's improper comments and the trial judge's failure to intervene rendered the trial unfair and caused a miscarriage of justice.

The appellant appealed his sentence, arguing the trial judge erred in applying Gladue principles.

The Court of Appeal dismissed the appeal, noting the trial judge took the initiative to order a Gladue report and properly considered the principles, despite the appellant only recently identifying as aboriginal.

The court commended the appellant's rehabilitation efforts but found no basis to interfere given the seriousness of the offences.

The appellant appealed the sentence imposed by the trial judge, arguing that the trial judge erred in principle by rejecting a joint submission on sentence.

The trial judge had added an additional year of driving prohibition and community service, stating the joint submission was 'getting close' to being contrary to the public interest.

The Court of Appeal found that the trial judge applied the incorrect legal test and failed to properly consider the factors underlying the joint submission, including forfeited money, triable issues, and full restitution.

The appeal was allowed, and the sentence was varied to reflect the joint submission of 35 days custody (after pre-trial credit) and a one-year driving prohibition.

The young person appealed his convictions for robbery and weapons dangerous, arguing the trial judge improperly relied on a co-accused's statement, the verdicts were unreasonable, and the reasons were inadequate.

The Crown conceded the trial judge erred in referring to the co-accused's statement but argued the proviso should apply.

The Court of Appeal dismissed the appeal, finding the evidence from the other occupants of the van was compelling and the trial judge's reasons adequately explained the basis for conviction despite the error.

The appellants appealed a decision refusing to quash their committal for trial.

They argued the preliminary inquiry justice lost jurisdiction by refusing to allow them to call witnesses who had provided information relevant to judicial pre-authorizations, which they intended to use to establish Charter breaches.

The preliminary inquiry justice and the appeal judge treated the proposed witnesses as sub-affiants who could only be cross-examined with leave.

The Court of Appeal dismissed the appeal, holding that the witnesses were properly characterized as sub-affiants and that the refusal to allow their cross-examination at the preliminary inquiry did not impair the appellants' right to make full answer and defence.

The appellant sought leave to appeal from a summary conviction appeal court decision upholding his conviction for refusing to provide a breath sample.

He argued he was denied a fair trial as a self-represented accused, alleged improper police motive, and sought a constitutional exemption from the mandatory minimum sentence.

The Court of Appeal dismissed the application for leave to appeal, finding the trial judge provided sufficient assistance, there was no evidence of improper motive, and no discretion existed to grant a constitutional exemption.

The appellant, a store clerk, sold cigarettes to a 17-year-old test shopper without asking for identification and was convicted under the Smoke Free Ontario Act.

He appealed, arguing that the random compliance check constituted entrapment because the authorities lacked reasonable suspicion that he or the store were engaged in illegal activity.

The Court of Appeal dismissed the appeal, holding that the criminal law doctrine of entrapment, specifically the requirement for reasonable suspicion, does not apply to bona fide random test shopping used to monitor compliance with regulatory statutes.

The young person appealed his conviction for robbery of a fast food delivery driver.

The sole issue at trial was identification, which the trial judge determined based on video surveillance, clothing seized upon arrest, and cell phone records.

The Court of Appeal found no error in the trial judge's reliance on the video surveillance or her application of the Nikolovski principle to compare the accused with the person in the video.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board directing his detention at a minimum secure unit, subject to living in the community at the hospital's discretion.

The appellant sought an absolute or conditional discharge.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that the appellant posed a significant risk to public safety was supported by evidence of his lack of insight, need for medication, and risk of drug use.

The Court held that a detention disposition was necessary to ensure the hospital's continued authority to manage his risk and compel his return if his condition deteriorated.

The appellant appealed his convictions for drug trafficking conspiracy, criminal organization offences, and possession of a prohibited weapon.

He argued the trial judge misapprehended evidence from a cooperating witness, failed to consider the mens rea for the criminal organization counts, and erred in finding possession of a punch dagger.

The Court of Appeal dismissed these grounds, finding sufficient corroboration for the witness's testimony and that the conspiracy findings established the requisite mens rea.

However, the appeal was allowed in part to stay three counts based on the Kienapple principle, as conceded by the Crown.

The appellant appealed the sentence entered by the Superior Court of Justice.

The Court of Appeal found no error in the sentence that justified intervention and dismissed the appeal.

The City of Kingston operated a municipal dump site from which toxic leachate migrated into the Cataraqui River.

The Crown and a private citizen laid charges under s. 36(3) of the Fisheries Act.

The trial judge convicted the City and its Director of Environmental Services, but the summary conviction appeal judge ordered a new trial, applying the test from R. v. Inco Ltd. The Court of Appeal allowed the appeal and restored the convictions, holding that the Inco test applies to the Ontario Water Resources Act, not the Fisheries Act.

Under the Fisheries Act, the Crown need only prove that the substance added to the water is deleterious, not that the receiving water itself was rendered deleterious.

The appellant appealed his conviction for sexual assault, arguing the trial judge misused evidence of after-the-fact conduct, failed to find consciousness of innocence from his offer to take a polygraph test, misapplied the rule in Browne v. Dunn, and misapprehended material evidence.

The Court of Appeal rejected all grounds, finding the trial judge's conclusions were reasonable and supported by the evidence.

The appeal against conviction was dismissed, and the sentence appeal was abandoned.

The appellant challenged historic convictions for gross indecency, indecent assault, and common assault arising from repeated sexual abuse of his younger sisters over a lengthy period.

The court held the trial judge's characterization of the appellant as violent and vindictive was reasonably grounded in the evidence and was admissible as narrative context explaining delayed disclosure, not as propensity proof.

The court further held that the convictions rested on a proper credibility assessment, including rejection of the fabrication theory, and that improper Crown cross-examination caused only minimal prejudice.

Leave to appeal sentence was granted, but the 44-month concurrent custodial sentence was upheld as fit given the prolonged abuse, force, threats, and enduring harm.

The appellants challenged a s. 37 order sustaining Crown objections to questions that might reveal the identity of a confidential source described in a wiretap affidavit.

The Court of Appeal held that even if the source acted as a police agent in an unrelated stolen-goods transaction, that did not convert the source into an agent for all purposes or in relation to the appellants' drug investigation.

The court further held that, even assuming the Crown's earlier characterization of the source as an agent in the wiretap materials created prejudice and amounted to an abuse of process, compelled disclosure of identity was unavailable because informer privilege must be protected if it in fact applies.

Any appropriate remedy would instead lie, if warranted, in a Garofoli challenge to the authorization and possible exclusion of intercepted evidence.