Criminal and Quasi-Criminal Law - OCA

The appellant was convicted by a jury of sexual assault arising from an incident where initially consensual sexual intercourse escalated to unprotected intercourse without the complainant's consent.

On appeal, the appellant raised three grounds: errors in the W.(D.) jury instructions, improper Crown closing submissions, and that a pre-trial s. 276/278.92 ruling led to trial irregularities amounting to a miscarriage of justice.

The Court of Appeal found no merit in any ground.

The jury instructions properly conveyed each pathway to acquittal, the Crown's closing did not cross the line into oath-helping or rhetorical excess, and the pre-trial ruling did not create any irregularity or unfairness warranting appellate intervention.

The appellant appealed his conviction for trafficking in cannabis, arguing the verdict was unreasonable as the evidence only supported personal use.

The Court of Appeal dismissed the appeal, finding the wiretap evidence supported the trial judge's conclusion.

However, the Court noted that the appellant's criminal record incorrectly reflected a Schedule I offence instead of a Schedule II offence.

The Court ordered that the record be corrected as soon as possible.

The applicant, convicted of first-degree murder, applied for the appointment of counsel under s. 684(1) of the Criminal Code after being denied Legal Aid.

The court found that the applicant had at least one arguable ground of appeal regarding after-the-fact conduct instructions and lacked the ability to advance the complex appeal unrepresented.

The court also accepted that the applicant lacked sufficient financial means, finding his prior transfer of matrimonial home proceeds into trust for his children was reasonable.

The application was granted and counsel was appointed.

The appellant, who was previously found not criminally responsible (NCR) for offences committed in 2000 and 2007, appealed a disposition of the Ontario Review Board that continued his conditional discharge and reinstated a condition prohibiting cannabis use.

The Court of Appeal found the Board's decision unreasonable because it failed to conduct an even-handed analysis of the evidence, pathologized trivial conduct, and ignored significant evidence of the appellant's progress, medication compliance, and abstinence from other illicit drugs.

The appeal was allowed and an absolute discharge was ordered.

The appellant appealed a disposition order of the Ontario Review Board requiring his continued detention at the Southwest Centre for Forensic Mental Health Care with permission to live in approved accommodation.

The appellant sought to quash the order and substitute a Conditional Discharge.

The Court of Appeal upheld the Board's disposition, finding no error in the Board's conclusion that the appellant posed a significant risk to public safety and that the detention disposition was the least onerous and restrictive option available.

The appeal was dismissed.

The appellant appealed her conviction for trafficking heroin and possession of the proceeds of crime, as well as her sentence of 26 months imprisonment.

The appellant challenged the trial judge's findings on three grounds: that the Crown had not proven the case beyond a reasonable doubt, that the trial judge engaged in impermissible speculation rather than permissible inference, and that the trial judge failed to consider contrary evidence.

The Court of Appeal upheld the conviction, finding that the trial judge's inferences from circumstantial evidence, including intercepted communications, the appellant's brief presence in the target's vehicle, and the possession of cash and heroin, were reasonable and not speculative.

The appeal from sentence was dismissed as abandoned.

The appellant appealed his convictions for sexual assault, sexual interference, incest, and breach of probation.

The victim was his teenage daughter, from whom he had been estranged for many years before reconnecting in 2010.

The appellant challenged the trial judge's credibility assessments and claimed the trial judge applied inconsistent standards of scrutiny to the evidence.

The Court of Appeal upheld the convictions, finding the trial judge's conclusions were entitled to deference and were supported by ample evidence.

The appeal was dismissed, as was the abandoned sentence appeal.

The appellant appealed his sentence for break and enter to commit theft and break and enter with intent.

He had pleaded guilty and received a suspended sentence with two years' probation, with pre-sentence custody credited at 1.5:1 (198 days from 132 days).

The enhanced credit resulted in a custodial sentence exceeding 180 days, triggering mandatory deportation as a convention refugee and barring him from appealing the deportation order.

Fresh evidence on appeal demonstrated that trial counsel failed to appreciate the immigration consequences of the enhanced credit.

The Court of Appeal allowed the appeal on consent of the Crown and reduced the pre-sentence custody credit by 19 days to 179 days, thereby avoiding the immigration consequences.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred by finding he continued to beat the victim after an initial punch, a theory not put to him at trial.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding that the initial punch was unprovoked was supported by the evidence and fatal to the appellant's claim of self-defence.

The findings regarding a subsequent beating were therefore irrelevant and did not infect the rejection of the self-defence claim.

The respondent, a convenience store clerk, sold cigarettes to a 17-year-old test shopper after misreading the birth year on the shopper's identification due to 'human error'.

She was convicted of selling tobacco to a minor under the Smoke-Free Ontario Act, but the summary conviction appeal court overturned the conviction, finding her honest mistake satisfied the statutory defence.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the statutory due diligence defence requires a reasonable belief formed after exercising reasonable care in reviewing the identification, which a mere unexplained human error does not satisfy.

The appellant was convicted of sexual assault and sexual interference in relation to his stepdaughter.

At trial, he testified and offered an innocent explanation for the touching, which he had not provided to police upon arrest.

Crown counsel cross-examined him extensively on his failure to provide this explanation earlier, suggesting he had a duty to do so and that his delay undermined his credibility.

The Court of Appeal held that while some cross-examination was justified because the appellant opened the door, the Crown exceeded permissible limits by violating his pre-trial right to silence.

The trial judge also failed to give a proper limiting instruction to the jury.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for child pornography offences and possession of a prohibited weapon, arguing the trial judge erred in admitting two statements he made to police.

He claimed he was psychologically detained during the first statement at his workplace without receiving s. 10 Charter warnings, which tainted his subsequent warned statement at the police station.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the Grant framework and reasonably concluded the appellant was not detained during the initial questioning.

The Crown appealed an order staying proceedings on a minor allegation.

The appeal judge had refused to order a new trial and stayed the proceedings, believing the allegations to be trivial.

The Court of Appeal agreed that the appeal judge erred by second-guessing the Crown's prosecutorial discretion.

However, the Court declined to order a new trial, noting the respondent had already appeared in court four times at personal expense, the allegation was minor, and the Crown had made its legal point.

The appeal was dismissed.

The appellant appealed his conviction, arguing the trial judge erred in finding that the evidence of an unsavoury witness was corroborated.

The Court of Appeal dismissed the appeal, holding that the trial judge properly scrutinized the evidence with great caution and correctly identified evidence capable of confirming the witness's testimony.

The appellant appealed his conviction for impaired care and control of a motor vehicle, arguing that the trial judge reversed the burden of proof and based the decision on how long it takes a person to wake up.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal judge that the trial judge's decision was properly based on factual findings.

The applicant was arrested for impaired driving and, upon speaking with duty counsel, was advised to refuse to provide a breath sample.

He followed this advice and was charged with refusing to comply with a breathalyzer demand.

At trial, he sought a stay of proceedings based on the defence of officially induced error.

The trial judge and summary conviction appeal court held that the defence was unavailable because duty counsel is not a government official.

The applicant sought leave to appeal to the Court of Appeal.

The Court of Appeal denied leave, confirming that duty counsel does not speak on behalf of the state and is not a government official for the purposes of the officially induced error defence.

The Crown appealed the sentence imposed on the respondent, arguing the sentencing judge erred by imposing a conditional sentence after finding the appropriate sentence was 36 months' incarceration.

The Court of Appeal agreed, noting that under s. 742.1 of the Criminal Code, a conditional sentence is unavailable when a sentence of two years or more is imposed.

However, because the respondent had complied with his conditional sentence for six and a half months and made significant rehabilitative efforts, the Court varied the sentence to 36 months' incarceration but stayed the remaining three and a half months to avoid reincarceration.

The appellant appealed his conviction and sentence, arguing that the trial judge's reasons were inadequate and that the failure to obtain a vaginal sample from the complainant constituted unacceptable negligence under the Bero analysis.

The Court of Appeal dismissed the appeal, finding no material misapprehension of the evidence and upholding the trial judge's finding that the failure to collect the sample was not unacceptable negligence.

The sentence appeal was also dismissed.

The moving party, having been committed for civil contempt and sentenced to nine months' imprisonment, brought a motion to stay the sentence pending his appeal.

The Court of Appeal granted the stay, noting that whether analyzed under the civil test for a stay or the criminal provisions for judicial release pending appeal, the moving party raised serious questions to be determined and would suffer irreparable harm if required to serve the sentence before the appeal was heard.

The stay was granted subject to strict conditions, including a requirement to surrender into custody prior to the appeal hearing.

The appellant appealed convictions for historical sexual offences against seven boys, six of whom were former speech therapy patients and one of whom was his step-nephew, as well as a six-year penitentiary sentence.

The court rejected arguments that the trial judge scrutinized the accused's memory more harshly than the complainants' recollections, failed to distinguish credibility from reliability, improperly admitted similar fact evidence, and should have quashed one count for vagueness of timeframe.

The court held that the similar fact evidence properly went to whether the actus reus occurred in the patient counts, that there was no air of reality to collusion or tainting, and that the indictment gave sufficient information to permit a defence.

The sentence was within the normal range for sexual offences by an adult in a position of trust who groomed children over time.