Criminal and Quasi-Criminal Law - OCA

The appellant appealed a conviction for sexual assault, arguing the trial judge erred in assessing consent and credibility.

The Court of Appeal upheld the conviction, finding the trial judge's credibility assessment was intelligible, coherent, and based on the totality of the evidence, particularly the implausibility of the appellant's account and the plausibility of the complainant's testimony and physical state.

The court dismissed the appeal, affirming the trial judge's findings.

The applicant, Jeremy Bailey, sought bail pending appeal of his 2016 drug trafficking convictions, after his initial bail pending appeal was revoked due to new drug charges and breaches of conditions.

He argued that the subsequent stay of his 2018 charges and potential Charter violations related to his April 2020 arrest constituted a material change in circumstances.

The Court of Appeal denied the application, finding that despite these new developments, the lingering public safety concerns and the need to maintain public confidence in the administration of justice, particularly given his "flagrant" breaches of prior bail conditions, outweighed the reviewability interest.

The appellant pleaded guilty to arson and was sentenced to nine months' imprisonment, probation, and a $40,537.50 restitution order in favour of the insurance company.

He appealed the restitution order.

The Court of Appeal held that while an insurance company can be the subject of a restitution order under s. 738(1)(a) of the Criminal Code, the sentencing judge erred by failing to consider the appellant's inability to pay and the unfairness of the order given that the co-perpetrators who initiated the arson and received the insurance money were not ordered to pay restitution.

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

The appellant appealed his conviction on the basis that the trial judge relied on flawed identification evidence.

The complainant identified the appellant in the holding cells, a procedure the Court of Appeal found seriously flawed despite the appellant's request for it.

The appeal was allowed, the conviction set aside, and a new trial ordered as there was other evidence on the record that might sustain a conviction.

The appellant was convicted of perjury for swearing under oath that he was licensed to practice law in the State of New York.

At trial, the Crown relied on a business record from the New York State Unified Court System showing no record of the appellant.

On appeal, the appellant argued that the evidence only established he was not registered to practice in state courts, not federal courts in New York.

The Court of Appeal agreed that the charge as framed in the indictment was not established by the evidence and declined the Crown's request to amend the indictment.

The appeal was allowed and an acquittal entered.

The Crown appealed a decision of the summary conviction appeal judge, who had acquitted the respondent of a zoning by-law infraction on the basis that notice and an opportunity to comply were preconditions to prosecution.

The respondent conceded this was an error in law.

The Court of Appeal agreed, rejected the respondent's alternative arguments regarding officially induced error and the trial justice's treatment of expert evidence, allowed the appeal, and restored the conviction.

The applicant, a young person, sought a stay of a placement decision transferring him to the federal adult system pending his appeal.

The Court of Appeal dismissed the application, finding that while there was a serious issue to be tried, the applicant failed to demonstrate irreparable harm.

Furthermore, the balance of convenience weighed against a stay, as the trial judge's concerns for the safety of others in the youth system outweighed any potential prejudice to the applicant.

The appellant appealed his conviction, arguing the trial judge erred in finding he intended to mislead the court at his bail hearing.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding that the appellant presented evidence he knew was dishonest to advance his position was supported by the evidence, and that the evidence did not need to be on a material point.

The appellant appealed his conviction for impaired driving causing death, arguing that the trial judge's interventions during the defence expert's testimony raised a reasonable apprehension of bias and that the judge misapprehended the defence theory.

The Court of Appeal dismissed the appeal, finding that the judge's interventions were appropriate in a judge-alone trial involving highly technical evidence and that the judge correctly understood and rejected the defence theory.

The conviction was upheld.

The appellant appealed his conviction for criminal harassment.

He argued that evidence of his criminal record should not have been admitted, that the trial judge erred in instructing the jury on 'repeatedly communicated' instead of 'engaged in conduct', and that the reasonable doubt instruction was flawed.

The Court of Appeal dismissed the appeal, finding that the criminal record evidence was relevant to the complainant's reasonable fear, that communicating constitutes conduct, and that the jury was properly instructed on reasonable doubt.

The appellant was convicted of multiple offences, including possession of a loaded prohibited firearm and possession of marijuana for the purpose of trafficking, following a traffic stop.

He appealed his convictions, arguing the trial judge failed to give adequate reasons, improperly rejected allegations of racial profiling, and erred in evidentiary rulings.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons adequate and no evidence of racial profiling.

However, the Court allowed the sentence appeal, reducing the two-year sentence to two years less 20 days to preserve the appellant's right to appeal his deportation under the Immigration and Refugee Protection Act.

The appellant appealed his sentence for historical offences of gross indecency and indecent assault.

He had served 4.5 months in jail and sought a conditional sentence for the balance of a one-year term.

The Crown conceded that the ten-year weapons prohibition was illegal as the provision did not exist at the time of the offences.

The Court of Appeal allowed the appeal, setting aside the weapons prohibition and ordering the balance of the one-year sentence to be served as a conditional sentence, followed by 12 months of probation, noting the appellant's age, the historical nature of the offences, and his lack of related offences in the interim.

The appellant appealed his conviction for the attempted murder of his daughter, arguing that the Crown's opening address was improper.

He submitted that the opening did not faithfully describe the evidence and improperly referenced cultural considerations, encouraging the jury to rely on negative stereotypes.

The Court of Appeal dismissed the appeal, finding the variation between the opening and the evidence was minor and the comments regarding cultural considerations were not improper.

The Crown appealed a decision quashing a search warrant executed at a physiotherapy clinic during an insurance fraud investigation.

The application judge had ruled that the issuing justice of the peace lacked jurisdiction because the warrant did not include special post-seizure conditions to protect the privacy of patients' medical records.

The Court of Appeal allowed the appeal, holding that section 487 of the Criminal Code adequately balances state and privacy interests.

The Court found no principled basis to engraft mandatory common law conditions onto the statutory scheme for the seizure of non-privileged medical records.

The appellant appealed his convictions and four-year sentence for sexually assaulting his niece.

He argued the trial judge erred in admitting similar fact evidence regarding his daughter and uncharged incidents, providing reasons for the evidentiary ruling at the end of the trial, shifting the burden of proof, and misapprehending evidence.

The Court of Appeal dismissed the appeal, finding the similar fact evidence was properly admitted for narrative and pattern purposes, the burden of proof was correctly applied, and the sentence was appropriate given the breach of trust.

The appellants were convicted of two counts of first degree murder following a lengthy trial.

The Crown's case relied heavily on the testimony of three unsavoury witnesses, including a jailhouse informant.

On appeal, the appellants sought to introduce fresh evidence of post-trial recantations by two of these witnesses and argued that the trial judge made several errors, including failing to give an adequate Vetrovec warning and improperly admitting highly prejudicial evidence of a prior manslaughter conviction.

The Court of Appeal admitted the fresh evidence of one witness's recantation and found that the trial judge erred in his Vetrovec warning and evidentiary rulings.

The cumulative effect of these errors warranted a new trial.

The appeal was allowed and the convictions were quashed.

The Crown appealed a sentence of two years less a day imprisonment, three years probation, and a lifetime driving prohibition imposed on the respondent for criminal negligence causing death.

The respondent, while engaged in a 'show of speed', caused a collision resulting in the death of a 29-year-old mother.

The Court of Appeal dismissed the appeal, finding that while the sentence could have been more substantial, it was not demonstrably unfit given the respondent's lack of criminal record, absence of alcohol or drug use, and prior good character.

Furthermore, the court noted that reincarcerating the respondent after he had already been released on parole would serve no genuine societal interest.

The applicants, charged with the second-degree murder of their infant son, sought a review of a decision denying them bail.

The motion judge had denied bail on the secondary ground, citing concerns for the safety of the applicants' surviving child.

The Court of Appeal found that the surviving child, currently in the custody of the Children's Aid Society, could be adequately protected through strict release conditions prohibiting any contact.

The court concluded that detention was not necessary on the secondary or tertiary grounds and ordered the applicants' release subject to conditions.

The appellant sought leave to appeal the dismissal of his summary conviction appeal, arguing ineffective assistance of counsel at trial regarding the use of videotape evidence.

The Court of Appeal refused leave to appeal due to a largely unexplained three-year delay in moving the appeal forward.

The Court also noted that the ineffective assistance of counsel argument lacked merit, as the decision not to use the videotape did not approach the level of ineffective assistance.

The appellant appealed his convictions for attempted murder, aggravated assault, and discharging a firearm with intent to wound, as well as his sentence of eight years and six months.

The appellant argued the trial judge erred in instructing the jury on identification evidence and in reviewing the theory of the defence.

The Court of Appeal dismissed the conviction appeal, finding the jury was properly instructed and the review of the defence theory was adequate.

The sentence appeal was also dismissed, as the offence was a premeditated, unprovoked act of violence with a firearm causing life-threatening injuries, and the sentence was within the appropriate range.