Criminal and Quasi-Criminal Law - OCA

R.H. appealed sentences totaling six years for sexual interference, making child pornography, and accessing child pornography.

The Court of Appeal upheld the global sentence, finding no error in principle by the sentencing judge, who properly considered aggravating and mitigating factors and the principles of denunciation and deterrence for child sexual abuse offences.

The court, however, modified a lifetime internet prohibition order to align with previous jurisprudence and granted credit for pre-sentence custody.

The appellant, Darren Pearce, sought leave to appeal a five-year global sentence for aggravated assault and breach of recognizance.

The Court of Appeal granted leave and allowed the appeal, finding that the sentencing judge erred by failing to adequately address the principle of parity between Mr. Pearce's sentence and that of his co-accused, Terrance Goodwin, who received a substantially shorter sentence for the same crime.

The court substituted a sentence of "time served" equivalent to approximately three and a half years, to achieve appropriate parity, considering Mr. Pearce's pre-sentence custody and credits.

The appellant appealed convictions for aggravated assault and assault with a weapon.

The Court of Appeal found that the trial judge erred in his credibility assessment by impermissibly using the absence of evidence of a motive to fabricate as proof of no motive, and by making blanket credibility findings without sufficient analysis of individual counts or conflicting evidence.

The court applied the curative proviso to one count (Count 6) but not others.

The appeal was allowed for four counts, with a new trial ordered for three and an acquittal entered for one.

The appellant, Todd Crowe, appealed his total sentence of twelve years imprisonment for drug trafficking and weapons offences.

He argued that the concurrent four-year sentences for possession of proceeds exceeded the statutory maximum and that the sentencing judge failed to properly apply Gladue principles.

The Court of Appeal reduced the sentences for possession of proceeds to 18 months concurrently, as conceded by the Crown, but dismissed the appeal regarding the Gladue principles, finding no error in the sentencing judge's application or the weight given to the factors.

The court also denied the admission of fresh evidence.

The Crown appealed a Superior Court order staying charges against three respondents (two brothers and their mother) due to unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The trial judge had calculated the delay at 32 months, exceeding the 30-month Jordan ceiling.

The Court of Appeal found that the trial judge erred in law by including the period from the end of evidence and argument until the stay decision in the Jordan ceiling calculation, based on the Supreme Court's decision in R. v. K.G.K. Correcting this error reduced the net delay to 29.25 months, falling below the ceiling.

The Court also found no error in the trial judge's characterization of other delay periods and concluded that the delay was not unreasonable, even if below the ceiling.

The appeal was allowed, the stay order was set aside, and the matter was remitted to the trial judge to release the verdict.

The appellant, who was previously found Not Criminally Responsible for criminal harassment and mischief, appealed a disposition of the Ontario Review Board maintaining his conditional discharge.

He argued that he no longer posed a significant threat to public safety and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding the Board's conclusion reasonable given the appellant's active symptoms of schizophrenia, lack of insight, and stated intention to stop taking medication if discharged.

The appellant, who was found not criminally responsible for uttering threats, appealed a disposition of the Ontario Review Board continuing his detention order.

The appellant sought an absolute discharge, while amicus curiae argued for a conditional discharge.

The Court of Appeal upheld the Board's decision, finding that the appellant remained a significant threat to public safety due to his lack of insight into his schizophrenia and the likelihood that he would stop taking his medication if discharged.

The appeal was dismissed.

The Crown appealed the sentence imposed on the respondent.

The Court of Appeal dismissed the appeal, finding that the experienced trial judge fully appreciated the gravity of the offences and the applicable range, but correctly found compelling mitigating circumstances that took the case outside the usual range.

The appellant appealed a conviction, arguing the trial judge erred in assessing credibility, applied different standards of scrutiny, and improperly used discreditable conduct evidence regarding an extramarital affair.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.D. principles, did not shift the burden of proof, and correctly used the evidence of the affair to assess credibility rather than for impermissible propensity reasoning.

The appellant appealed his conviction, arguing that a pat-down search conducted by a police officer was unreasonable and that the trial judge's finding that the cocaine belonged to him was speculative.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the search was conducted solely for officer safety and that the amount and value of the cocaine justified the inference of ownership.

The appellant, a designated dangerous offender, appealed the sentence of indeterminate detention.

The appellant argued that a lapse in hospital supervision demonstrated the disposition was inappropriate.

The Court of Appeal dismissed the appeal, finding that the appellant's ability to sexually assault a child during a brief evasion of supervision confirmed the appropriateness of the indeterminate detention disposition.

The court concluded there was no reason to believe the appellant could be controlled in the community.

The appellant appealed an 18-month custodial sentence for fraud against an elderly victim.

The Court of Appeal admitted fresh evidence showing the appellant had been alcohol-free for 6.5 years and had made significant restitution, leaving a balance of approximately $35,000.

The victim supported a conditional sentence requiring full restitution.

The Court allowed the appeal, finding that while the original sentence was fit, the unusual circumstances and fresh evidence warranted a conditional sentence of two years less a day followed by three years of probation to facilitate full restitution.

The Crown sought leave to appeal a summary conviction appeal court (SCAC) decision that overturned the respondent's sexual assault conviction and ordered a new trial.

The SCAC found that the trial judge misapprehended the complainant's evidence regarding whether she consented to the initial sexual contact.

The Court of Appeal agreed with the SCAC, noting clear inconsistencies in the complainant's testimony about her initial consent that the trial judge failed to recognize when assessing her credibility.

Finding no error in the SCAC's decision, the Court of Appeal denied the Crown's application for leave to appeal.

The appellant appealed a disposition of the Ontario Review Board imposing a detention order that required him to live in 'supervised accommodation' if living in the community.

The Court of Appeal found the Board did not act unreasonably in imposing a detention order, but erred in unilaterally imposing the 'supervised accommodation' term without allowing submissions on its meaning, need, or availability.

The appeal was allowed to vary the order, removing the 'supervised accommodation' requirement but directing that the appellant not reside with his father.

The young person appealed a finding of guilt, arguing the trial judge erred in his section 11(b) Charter analysis regarding unreasonable delay.

The Court of Appeal acknowledged errors in the trial judge's application of Youth Criminal Justice Act guidelines.

However, the Court upheld the decision, finding that the lack of actual prejudice and the gravity of the offence outweighed the inferred prejudice from the delay.

The appeal was dismissed.

The Crown appealed the 18-month sentence imposed on the respondent for a home invasion robbery, arguing the trial judge erred in granting 1.6-to-1 credit for time spent in a treatment facility and overemphasized rehabilitation.

The Court of Appeal agreed the trial judge erred in principle regarding the pre-sentence credit and that the sentence was outside the normal range for home invasion robbery.

However, based on fresh evidence of the respondent's exceptional and continued rehabilitation, the Court declined to interfere with the sentence, finding further incarceration would serve little useful purpose.

The appellant appealed her sentence for two bank robberies, seeking to convert the custodial portion into a conditional sentence.

The Court of Appeal dismissed the appeal, finding that the trial judge reasonably balanced the appellant's personal circumstances with the seriousness of the offences, which involved planning and threats of violence.

The sentence imposed was deemed fit.

The appellant appealed his convictions and sentence for sexual offences against two complainants.

He argued the trial judge erred in his jury charge regarding the reliability of the complainants' evidence and the standard of evaluation, and that the Crown made improper comments on reasonable doubt during closing submissions.

The Court of Appeal dismissed the conviction appeal, finding the jury charge was adequate and the Crown's improper comments were cured by the trial judge's instructions.

The sentence appeal was also dismissed, as the prolonged regime of sexual abuse by a parent figure justified the sentence imposed.

The Crown appealed the dismissal of a certiorari application regarding a preliminary inquiry judge's decision to discharge the accused on charges of aggravated assault and failing to provide the necessaries of life.

The charges related to injuries suffered by the accused's infant children.

The Crown argued the preliminary inquiry judge failed to consider the totality of the evidence and impermissibly weighed competing inferences.

The Court of Appeal dismissed the appeal, finding no error in the certiorari judge's conclusion that the preliminary inquiry judge properly considered the evidence and engaged only in the limited weighing permissible for circumstantial evidence at a preliminary inquiry.

The appellant appealed his conviction and sentence, arguing the trial judge misapprehended evidence relating to the complainant's injuries, after the fact conduct, and alleged prior employment at the complainant's convenience store.

The Crown cross-appealed the sentence.

The Court of Appeal found no misapprehension of evidence, noting the trial judge's analysis was comprehensive and supported by the record.

Both the appeal against conviction and the duelling sentence appeals were dismissed.