Criminal and Quasi-Criminal Law - OCA

The appellant, found not criminally responsible on account of mental disorder (NCRMD) for arson, appealed the Ontario Review Board's decision to continue her conditional discharge with reduced requirements, seeking an absolute discharge.

The Board had determined she remained a "significant threat" to public safety due to partial insight into her illness, attempts to negotiate medication reductions, poor sleep hygiene, and a recent involuntary hospitalization with symptoms similar to her index offence.

The Court of Appeal dismissed the appeal, finding that the Board's conclusion was reasonable and amply supported by the evidence, and that the Board properly considered all evidence, including factors favouring the appellant's absolute discharge, and reduced restrictions accordingly.

The appellant, convicted of six counts related to handgun possession, appealed his 38-month sentence.

He argued the sentencing judge erred by imposing a sentence greater than the Crown's proposal without notice and by refusing sufficient credit for restrictive house arrest (Downes credit).

The Court of Appeal found the sentencing judge misapprehended the Crown's position and committed an error in principle by exceeding the Crown's proposed sentence without allowing further submissions.

The appeal was allowed, and the sentence was reduced to 36 months, incorporating pre-sentence custody and Downes credit.

The appellant, Thanh Tung Phan, appealed his conviction for first-degree murder.

The appeal raised two main grounds: an alleged error in the disposition of a Garofoli application concerning the judicial authorization for surveillance and tracking, and an error in admitting evidence of a history of violence between rival gangs (Chin Pac and Asian Assassinz) to establish motive.

The Court of Appeal found no error in the Garofoli ruling, concluding that the authorizing justice had reasonable and probable grounds even after excising inaccurate information from the Information to Obtain (ITO).

The court also found no error in admitting the gang evidence, determining its probative value for narrative, animus, and motive outweighed its prejudicial effect, especially given the trial judge's careful instructions and the manner of admission.

The appellant appealed his conviction and sentence for aggravated assault.

He sought to admit fresh evidence, a hospital report confirming broken fingers, to support his self-defence argument.

The Court of Appeal dismissed the appeal, finding that even if the fresh evidence were admitted, it would not change the result because there was no basis for a self-defence claim during the second altercation, which was the basis of the charge.

The trial judge had already found that the appellant escalated the conflict and that his actions were not in response to a threat.

An application for interim release pending a new trial ordered by the Court of Appeal.

The applicant had been convicted of assault-related offences and sentenced to 4.5 years imprisonment.

Following release on statutory release and subsequent immigration detention, the Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial.

The applicant sought interim release pending the new trial.

The motions judge granted the application on consent terms but noted that the application should have been brought before the Superior Court of Justice rather than the Court of Appeal, as the Superior Court had concurrent jurisdiction at the time the application was made.

The appellant was convicted of procuring a person to become a prostitute and exercising control, direction or influence over her movements to compel her to engage in prostitution, contrary to sections 212(1)(d) and 212(1)(h) of the Criminal Code.

The appellant was acquitted of similar charges relating to a second complainant.

The trial judge imposed a sentence of two years' incarceration on each charge, to be served concurrently, with six months' credit for pre-trial custody.

On appeal, the appellant challenged the trial judge's credibility assessment and argued the verdicts were unreasonable and inconsistent.

The appellant also sought leave to appeal sentence, arguing it was demonstrably unfit and that a conditional sentence should be imposed.

The applicants sought leave to appeal a Sending Order made under the Mutual Legal Assistance in Criminal Matters Act, which directed that seized records be sent to Belgium for a criminal investigation.

The applicants argued the application judge erred in law by holding he had no jurisdiction to attach terms and conditions to the Sending Order to protect their trade secrets and confidential information from commercial competitors.

The Court of Appeal granted leave to appeal, finding that the scope of the sending court's power to impose terms under s. 15 of the Act is an unsettled question of law of general importance.

The appellant appealed his convictions for sexual assault and related offences.

The Court of Appeal dismissed arguments regarding the trial judge's assessment of the complainant's credibility and the lack of a Vetrovec caution.

However, the Court found the trial judge misapprehended evidence on one count, quashing that conviction and ordering a new trial.

Another conviction was quashed and an acquittal entered because the complainant did not meet the statutory definition of a young person.

The remaining convictions and the total five-year sentence were upheld.

The appellant was convicted of sexual assault and sexual interference involving a minor complainant who alleged he touched her while she slept during an overnight visit.

The appeal focused on whether the trial judge misapplied the burden of proof in a credibility contest between the complainant and the accused.

The Court of Appeal held that although the trial judge correctly recited the W.(D.) principles, his analysis treated the case as a choice between competing versions rather than determining whether the accused’s evidence raised a reasonable doubt.

Because the reasons showed that the possibility of reasonable doubt was not properly considered, the burden of proof was misapplied.

The convictions were set aside and a new trial ordered.

The young person appellant was arrested for possession of stolen property and gave a videotaped statement to police.

During the interview, the appellant began discussing unrelated and more serious offences, including break and enter and theft of marijuana.

The police continued questioning without re-advising the appellant of his right to counsel.

The Court of Appeal held that while the initial caution complied with the Youth Criminal Justice Act, the police violated the appellant's section 10(b) Charter rights by failing to re-advise him when his jeopardy increased.

The appeal was allowed in part, and a new trial was ordered for the more serious charges.

The appellant, a military member, appealed his sexual assault conviction on the basis of unreasonable delay under s. 11(b) of the Charter, and appealed his sentence regarding a $4,000 victim surcharge.

The Court of Appeal dismissed the conviction appeal, finding no error in the motion judge's characterization of pre-charge and post-charge delay.

The sentence appeal was allowed, and the victim surcharge was reduced to the statutory minimum of $100 because there was no inquiry into the appellant's ability to pay the elevated amount.

The appellant appealed her conviction on the basis that the trial judge erred in finding no air of reality to the defence under section 3(2) of the regulations.

The Crown conceded the error, as there was evidence the appellant was holding prescription drugs as an agent for another person.

The Court of Appeal allowed the appeal, set aside the conviction, and entered an acquittal.

The appellant appealed his sentence, arguing the sentencing judge erred in declining to impose a conditional sentence and seeking to introduce fresh evidence of his rehabilitative efforts while on bail.

The Court of Appeal found no error in principle, noting the sentencing judge adequately considered the appellant's family circumstances and the nature of his crimes.

The fresh evidence was deemed an extension of what was expected at sentencing and did not change the outcome.

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

The appellant appealed his sentence after the trial judge rejected a joint submission.

The Court of Appeal held that the trial judge did not err in finding the joint submission contrary to the public interest.

However, the trial judge failed to account for the appellant's lesser role compared to his co-accused.

Considering the appellant's lesser role, pre-trial custody, house arrest, and compelling fresh evidence, the Court of Appeal allowed the appeal and reduced the sentence to 9 months' imprisonment.

The appellant appealed his conviction, arguing that the trial judge misapprehended material evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's reasons and noting that she approached the appellant's evidence from a common sense perspective, ultimately finding parts of his story incredible.

The Court declined to revisit the trial judge's factual findings.

The amicus curiae appointed to assist the self-represented appellant sought to have his fees taxed pursuant to section 684(3) of the Criminal Code.

The Crown argued that the fees should be paid at the standard Legal Aid rate.

The Deputy Registrar found that the case was complex and difficult, and that the requested rate of $235 per hour was reasonable given counsel's expertise.

The fees were taxed at the requested rate.

The appellant appealed a condition of his probation order.

The Crown conceded that condition r(8) of the probation order was not a reasonable condition.

The Court of Appeal granted leave to appeal, allowed the appeal, and deleted the condition.

The appellant appealed his conviction and sentence for a domestic assault that resulted in the victim suffering a broken jaw.

At trial, the victim's out-of-court statements to an emergency room doctor and a police officer were admitted for the truth of their contents, despite her stated inability to recall the events at trial.

The Court of Appeal upheld the admission of the statements, finding they met the requirements of necessity and threshold reliability under the principled exception to the hearsay rule.

The conviction and sentence appeals were dismissed.

The appellant appealed from an order dismissing his summary conviction appeal.

Under s. 839 of the Criminal Code, the appeal was restricted to questions of law alone.

The appellant argued that the summary conviction appeal judge erred in failing to find that the trial judge should have drawn adverse inferences against the complainant and investigating officer.

The Court of Appeal held this was a question of fact, not law.

The Court also rejected arguments regarding equality rights, fresh evidence, and an inappropriate question by Crown counsel during cross-examination.

The appeal was dismissed.

Following a successful appeal that quashed his attempted murder conviction, the appellant was sentenced for maiming and use of a firearm.

The offences occurred during a dispute between high school students, resulting in the victim becoming a paraplegic.

The Court of Appeal considered the severe consequences to the victim, the need for denunciation, the appellant's youth and lack of a criminal record, and 20 months of pre-trial custody.

The Court imposed a total sentence of 10 years' imprisonment.