Criminal and Quasi-Criminal Law - OCA

An applicant convicted of possession of cocaine for the purpose of trafficking sought bail pending his sentence appeal under s. 679(4) of the Criminal Code.

The applicant had been sentenced to two years in custody, less five months' pre-sentence credit.

The Crown opposed bail, arguing the appeal lacked sufficient merit.

The applicant's primary ground of appeal concerned collateral immigration consequences, as a sentence of six months or greater would render him inadmissible to Canada and subject to deportation without a right of appeal.

The court granted leave to appeal but dismissed the bail application, finding the appeal lacked sufficient merit and that continued detention would not cause unnecessary hardship.

The appellant was convicted of possession of cocaine for the purpose of trafficking and breach of recognizance after police found him with crack cocaine in a bathroom of an apartment.

He appealed the convictions, arguing that the police violated his Charter rights under sections 8, 9, 10(a), and 10(b) by unlawfully entering the apartment and detaining him.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant lacked standing to assert a section 8 claim as he had no reasonable expectation of privacy in the apartment, and that his brief detention and subsequent arrest did not violate his section 9 or 10 rights.

The applicant, convicted of first-degree murder, applied under s. 684 of the Criminal Code for state-funded counsel for his conviction appeal after being denied Legal Aid.

The court assessed whether it was desirable in the interests of justice to appoint counsel.

Finding that the proposed grounds of appeal lacked arguable merit and that the applicant was capable of self-representation with the assistance of duty counsel, the court dismissed the application.

The applicant, an Aboriginal man, applied for release on bail pending a new trial for second degree murder and firearm offences.

He had been in custody for almost seven years.

The Court of Appeal had previously quashed his convictions and ordered a new trial due to improper jury instructions on self-defence.

Applying Gladue principles and the three grounds for detention under s. 515(10) of the Criminal Code, the court found the applicant met his onus.

The court noted his strong community support, model institutional record, and the weakened Crown case.

The application was allowed, and the applicant was released on a $5,000 cash deposit and sureties.

The appellant appealed her conviction for assault causing bodily harm, which was entered following a guilty plea.

The Court of Appeal found the plea was invalid and not unequivocal due to shifting facts presented by the Crown, the appellant's statements suggesting a lack of mens rea, and indications she pleaded guilty primarily to be released from jail where she was allegedly denied HIV medication.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The Crown appealed a conditional sentence of two years less a day imposed on the respondent for historical sexual offences against his foster daughter.

The offences occurred over 35 years prior, resulting in the complainant's pregnancy at age 15.

The Court of Appeal found the sentencing judge made several errors in principle, including improperly relying on an unproven finding about when the respondent learned of the pregnancy, misapplying the framework for conditional sentences, and inappropriately treating health issues and social stigma as mitigating factors.

The Court held the sentence was manifestly unfit given the profound breach of trust and the need for denunciation and general deterrence.

The appeal was allowed and a three-year custodial sentence was imposed, with one year of credit given for time served under the conditional sentence.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence.

He argued the sentencing judge erred in failing to exercise discretion against the designation and in finding he did not qualify as a long-term offender.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly assessed the appellant's high risk of violent recidivism, his extensive criminal history, and the lack of a reasonable possibility that his risk could eventually be controlled in the community.

The Crown appealed an acquittal on a charge of failing to stop at the scene of an accident causing death under s. 252 of the Criminal Code.

The central issue was whether the trial judge erred in law in assessing intent to escape civil or criminal liability, including through the doctrine of wilful blindness, where the respondent testified he believed he struck a deer rather than a cyclist.

The Court of Appeal held that the trial judge's treatment of the evidence and credibility findings were, at their highest, matters of mixed fact and law and therefore not reviewable on a Crown appeal restricted to questions of law alone.

The court further held that the correct intent requirement under s. 252 had been accurately stated and applied.

The Crown appeal was quashed.

The appellant was arrested on the street and found in possession of cocaine, marijuana, and cash.

At trial, the judge found there were grounds to detain and eventually arrest the appellant, and convicted him of drug offences.

On appeal, the Court of Appeal found the trial judge erred by conflating the grounds for detention with the grounds for arrest.

The Court held that the arresting officer lacked objectively reasonable grounds to arrest the appellant based merely on observing a hand gesture and the appellant holding his hand closed.

Finding a breach of section 9 of the Charter, the Court applied the Grant framework and excluded the drug evidence under section 24(2), quashing the convictions and entering acquittals.

The respondent pled guilty to several charges and sentencing was adjourned.

On the sentencing date, the trial judge took a recess and, when the Crown prosecutor was a few minutes late returning, dismissed all matters for want of prosecution.

The Crown appealed.

The Court of Appeal allowed the appeal, finding the trial judge had no power to make the order, which was illegal and an abuse of judicial authority.

The dismissals were quashed, convictions substituted, and the matter remitted for sentencing.

The appellant appealed his sentence, arguing the trial judge gave insufficient weight to his rehabilitative efforts and that his sentence was disparate compared to another person convicted in the same police operation.

The Court of Appeal found no error in principle in the trial judge's assessment of the rehabilitative efforts alongside the appellant's lengthy record.

The Court also rejected the disparity argument, noting differences between the offences and offenders justified the different sentences.

The appeal was dismissed.

The appellant challenged his child luring conviction on the basis that text messaging by cellular telephone did not amount to communicating by means of a computer system within the meaning of the Criminal Code.

The court held that text messaging using cellular phones involves interconnected devices and computer programs performing logic and control functions, and therefore falls within s. 342.1(2).

On sentence, the court upheld a six-and-one-half-year global penitentiary term for grooming and sexually assaulting a 12-year-old after inducing her with false promises of millions of dollars.

The court confirmed that grooming may be treated as an aggravating factor and emphasized that denunciation, deterrence, separation of offenders, and child protection are paramount in sentencing adult sexual predators.

The appellant appealed his convictions for attempted murder, aggravated assault, and uttering a death threat, as well as his six-year sentence for attempted murder.

The Crown conceded the aggravated assault conviction violated the Kienapple principle, and it was stayed.

The Court of Appeal dismissed the conviction appeal for attempted murder, finding the trial judge correctly refused to leave self-defence with the jury as there was no objective air of reality to the defence given the pre-emptive nature of the machete attack.

The sentence appeal was also dismissed, as the appellant's subjective fear was not a mitigating factor and the six-year sentence was not manifestly unfit.

The appellant appealed his convictions for assault causing bodily harm and disobeying a court order, as well as his sentence as a dangerous offender.

He argued the conviction was unreasonable due to acquittals on related counts, and that the sentencing judge erred by relying on expert evidence that considered the acquitted counts.

The Court of Appeal dismissed the conviction appeal, finding sufficient corroborative evidence for the assault charge to distinguish it from the acquitted counts.

The sentence appeal was also dismissed, as the trial judge properly disregarded the acquitted counts and the expert confirmed their opinion on the appellant's risk level would remain unchanged.

The young person appealed a conviction for breaking and entering and committing theft.

The sole evidence linking the appellant to the crime was his fingerprints found on window panes removed to gain entry to the building.

The Court of Appeal found that the evidence did not reasonably permit the inference that the fingerprints were placed on the windows in connection with the break-in, as opposed to at some other time.

The appeal was allowed, the conviction quashed, and an acquittal entered.

The Crown appealed a conditional sentence of two years less a day imposed for robbery.

The sentencing judge had determined a penitentiary sentence was warranted but used pre-sentence custody to reduce the sentence to under two years, thereby making a conditional sentence available.

The Court of Appeal held this was an error under R. v. Fice, as pre-sentence custody should be treated as a credit against the appropriate sentence, not a mitigating factor to alter the sentence type.

The appeal was allowed, and a three-year penitentiary sentence was deemed appropriate, resulting in 16 months and two weeks remaining to be served in custody.

The appellant appealed a decision upholding his committal to stand trial on a charge of manslaughter.

The Court of Appeal found no error in the reviewing judge's conclusion that a reasonable jury could find the appellant formed a common intention with a group to assault and intimidate rival gang members, and knew or should have known that bodily harm was likely to result.

The appeal was dismissed.

The appellant, a stranger to the complainant, jumped out from behind bushes, blocked her path, and chased her down a dark street while she was jogging.

He was convicted of criminal harassment and sentenced to three years in prison.

On appeal, the court upheld the conviction, finding that a single incident of highly threatening and persistent conduct can constitute criminal harassment.

However, the court allowed the sentence appeal, reducing the sentence to two years' imprisonment, finding the original sentence disproportionate to the conduct.

In a subsequent addendum, the court struck a probation order it had initially imposed, as the totality of the appellant's sentences exceeded two years.

The appellant appealed his conviction for driving with a blood-alcohol level exceeding the legal limit, arguing the trial judge erred in rejecting his evidence regarding a bolus drinking defence and in her treatment of an expert report.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility findings were grounded in the evidence and she did not err in concluding the expert's opinion lacked a proper foundation after rejecting the appellant's testimony.

The court also affirmed that R. v. Heideman remains binding authority in Ontario regarding the requirement that an expert's report be probative of the blood-alcohol level at the time of the offence.

The Crown appealed the sentence of two years less a day imprisonment plus two years of probation imposed on the respondent for the attempted murder of his estranged wife.

The respondent had intentionally driven his vehicle into his wife's vehicle.

The Court of Appeal found the sentence unfit, noting that the appropriate sentence would have been six years imprisonment less credit for time served, given the domestic context and the planned nature of the attack.

However, because the respondent had already been released and there was no evidence of further misconduct, the Court declined to re-incarcerate him, instead allowing the appeal only to increase the probation period from two to three years.