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 sentence for impaired driving causing death and criminal negligence causing death.

The sentencing judge imposed a 10-year driving prohibition commencing on the date of sentencing rather than at the end of the period of imprisonment, which constituted an error under R. v. Lacasse.

The Court of Appeal corrected this error by applying the Lacasse formula: subtracting the 5-year term of imprisonment from the 10-year prohibition, leaving a 5-year prohibition to commence upon release.

However, the court exercised discretion to reduce the credit for the presentence driving prohibition period due to the appellant's breach of that condition, resulting in a final 3-year driving prohibition following release.

The victim surcharge was also set aside on consent.

The Crown appealed a sentence imposed following the respondent's guilty plea to fraud exceeding $41 million.

The respondent had fraudulently redirected GST refunds from the Canada Revenue Agency by submitting false RC366 Direct Deposit Request Forms.

The sentencing judge struck down the mandatory two-year minimum sentence under section 380(1.1) of the Criminal Code as unconstitutional and imposed 18 months imprisonment.

The Court of Appeal allowed the Crown's appeal on the constitutional question (with a dissent), found the sentence manifestly inadequate, and imposed a three-year sentence.

However, the court declined to re-incarcerate the respondent as he had already served the original sentence and demonstrated rehabilitation.

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 Crown appealed a 90-day intermittent sentence imposed on the respondent for using an imitation firearm during a bank robbery, arguing it fell below the mandatory minimum of one year under s. 85(3) of the Criminal Code.

The respondent conceded the sentence was illegal.

The Court of Appeal imposed the mandatory minimum sentence of 12 months.

However, considering the respondent's youth, rehabilitation, restitution, and the time already served, the Court permanently stayed the execution of the sentence, declining to re-incarcerate him.

The appellants, who were convicted of first degree murder and sentenced as adults, brought an application for directions to have their sentence appeal heard prior to and separate from their conviction appeal.

They argued that the delay in hearing the conviction appeal would negatively impact their ability to participate in an Intensive Rehabilitative Custody and Supervision program if their sentence appeal was successful.

The Court of Appeal granted the application, finding that the exceptional circumstances and potential prejudice to the appellants constituted compelling reasons to bifurcate the appeals.

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 a conviction, arguing the trial judge erred in assessing the credibility of the complainant and the appellant.

The Court of Appeal found no error, noting the trial judge's credibility assessments are entitled to deference and the reasons provided ample explanation for accepting the complainant's evidence.

The appeal was dismissed, except for a stay of the conviction on count 1 under the Kienapple principle.

The trial judge found the accused guilty of gun-related offences and adjourned for sentencing.

Months later, the trial judge stated he had reconsidered the findings of guilt, reopened the matter, and entered acquittals without hearing submissions from the Crown.

The Crown appealed.

The Court of Appeal held that while a trial judge sitting alone has jurisdiction to vacate a conviction prior to sentencing in exceptional circumstances, the judge erred in law by entering an acquittal without giving the parties an opportunity to make submissions.

The appropriate remedy was to declare a mistrial.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for robbery with a firearm, arguing the verdict was unreasonable due to insufficient evidence linking him to the attempted carjacking and establishing the weapon was a real firearm.

The Court of Appeal upheld the finding that the appellant was a party to the robbery, but found insufficient evidence to prove beyond a reasonable doubt that the firearm was real.

The appeal was allowed in part, substituting a conviction for robbery and reducing the sentence to 12 months' imprisonment.

The appellants were convicted of first-degree murder for an execution-style shooting related to a drug debt.

On appeal, they argued that the trial judge erred in his instructions to the jury regarding unsavoury witnesses (Vetrovec warning) and the defence of abandonment.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's continuum approach to the Vetrovec warnings, his instructions on confirmatory evidence, or his charge on abandonment.

The appellant appealed his conviction and sentence for criminal negligence causing bodily harm arising from a street racing incident.

He argued the trial judge erred in admitting the out-of-court statements of a recanting witness, allowing the jury to view a DVD of the statement during deliberations, and instructing the jury on criminal negligence.

He also appealed the rejection of a conditional sentence.

The Court of Appeal dismissed the appeal, finding the hearsay statements were necessary and reliable, the jury instructions were adequate, and a significant custodial sentence was required to deter street racing.

The Crown appealed a stay of proceedings ordered under s. 11(b) of the Charter in a sexual assault case that took 35.5 months to reach trial.

The Court of Appeal dismissed the appeal, finding the delay was extraordinary for a simple case and was primarily caused by the Crown's desire to join the prosecution with a second charge and institutional delays.

The court upheld the trial judge's finding of prejudice and concluded the delay was unreasonable and unacceptable.

The appellant appealed his conviction for criminal harassment, which arose from his repeated calls, texts, and visits to the complainant's workplace after she assisted him with his cell phone.

The appellant argued that the trial judge erred in finding the elements of the offence proven and in assessing the complainant's credibility.

The Court of Appeal dismissed the appeal, finding that the evidence supported the trial judge's factual findings and that his credibility assessment was entitled to deference.

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 conviction and sentence for fraud over $5,000.

He argued the criminal proceedings were an abuse of process because they were allegedly used solely to collect a civil debt owed to the complainants.

The Court of Appeal dismissed the conviction appeal, finding no improper purpose behind the prosecution despite some ill-advised emails from Crown counsel.

The sentence appeal was also dismissed, as the 18-month imprisonment and $22,500 restitution order were within the appropriate range and revealed no error in principle.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board erred in its treatment of an impugned letter contained in his hospital records.

The Court of Appeal dismissed the appeal, finding that the Board properly admitted the letter as part of the hospital records without using it for the truth of its contents, and that the Board's decision was reasonable on the totality of the evidence.

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 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 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.