Criminal and Quasi-Criminal Law - OCA

The appellant sought to challenge the dismissal of his appeal from convictions under the Highway Traffic Act after failing to pursue the appeal for many years.

He argued that the delay resulted from the court’s failure to produce a transcript he claimed to have ordered when filing his notice of appeal.

The appellate court accepted for purposes of the appeal that the transcript may have been ordered but held that the appellant nevertheless bore the responsibility to pursue the appeal with due diligence.

A delay of approximately 17 years without steps to follow up on the transcript did not meet the due diligence requirement.

The court found no error in the appeal judge’s decision dismissing the appeal.

The appellant appealed his convictions for two counts of robbery, breaking and entering a dwelling house and committing robbery, and suffocating another person with intent to commit robbery.

The appeal raised two grounds: first, that the trial judge erred by not instructing himself on the frailties of eyewitness identification evidence, even when the witness purports to recognize someone known; and second, that the trial judge applied a different standard of scrutiny to the complainant's and the appellant's evidence when assessing credibility.

The Court of Appeal dismissed the appeal, finding that the complainant's extended interaction with the appellant reduced the chance of mistaken identity, and that the trial judge was entitled to weigh inconsistencies differently given their varying nature.

The appellant, Stephen Tello, appealed his convictions for conspiracy to import cocaine, trafficking cocaine, and possession of proceeds of crime, and his 15-year sentence.

The Court of Appeal for Ontario dismissed both the conviction and sentence appeals.

The court found no errors in the trial judge's instructions on multiple counts, the co-conspirator's exception to the hearsay rule, or the PGP messages.

The court also refused to allow a new Charter issue regarding the PGP messages to be raised on appeal, finding the decision not to raise it at trial was tactical and no miscarriage of justice would result.

The sentence was deemed fit, emphasizing general deterrence and denunciation for large-scale drug offences.

The appellant appealed his conviction on the basis that the trial judge erred in instructing the jury on wilful blindness.

The Court of Appeal agreed, finding there was no air of reality to wilful blindness and the trial judge failed to refer to any evidence supporting it.

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

The appellant, charged with marijuana possession, production, and possession for the purpose of trafficking, appealed two Superior Court decisions dismissing his applications to prohibit prosecution.

He argued that the relevant provisions of the Controlled Drugs and Substances Act had been invalidated by various courts and were offences unknown to law.

The Court of Appeal dismissed the appeals, noting that it had previously confirmed the provisions remain in full force and effect.

The appellant was convicted of manslaughter following a second trial for a 1985 shooting outside an after-hours club.

He appealed his conviction, arguing the trial judge erred by failing to correct Crown counsel's closing submissions regarding his failure to retreat and his alleged lack of fear.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions on self-defence were adequate and that the jury was not misled by the Crown's submissions.

The appellant was convicted of manslaughter and designated a dangerous offender after rejecting a pre-trial plea offer from the Crown.

On appeal, he argued that the trial judge erred in excluding the entirety of his spontaneous exculpatory statements made upon arrest, in instructing the jury on reasonable doubt and automatism, and in failing to stay the dangerous offender application as an abuse of process.

The Court of Appeal held that while spontaneous exculpatory statements upon arrest may be admissible if the accused testifies, the trial judge's exclusion of the statements did not cause a substantial wrong or miscarriage of justice.

The court also found no errors in the jury instructions and held that the dangerous offender application was not an abuse of process.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault, raising three grounds: failure to consider exculpatory portions of out-of-court statements, applying uneven scrutiny to the evidence, and improperly admitting similar fact evidence.

The Court of Appeal found no error in the trial judge's treatment of the statements, noting they were only probative of the appellant lying to police.

The court also found the trial judge properly cautioned himself against uneven scrutiny and reasonably admitted the similar fact evidence.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal noted merit in the argument that the Board improperly focused on the risk of the appellant breaching a release order rather than the risk to public safety.

However, based on fresh evidence that the appellant had relapsed into substance abuse and was returned to the institution, the Court declined to interfere with the Board's order.

The appeal was dismissed, with the Court noting the appellant could renew his argument for a conditional discharge at his next Board hearing.

The appellant was convicted of sexual assault in 1995 based on the testimony of a single witness.

After a remand from the Supreme Court of Canada, the Court of Appeal considered the admissibility of fresh evidence.

The Court found that trial counsel provided ineffective assistance by failing to use available evidence that could have undermined the credibility of the Crown's sole witness, including evidence of a motive to lie and failure to report the incident.

The Court admitted the fresh evidence, allowed the appeal, quashed the conviction, and ordered a new trial, concluding that the ineffective assistance resulted in a miscarriage of justice.

The appellant appealed his conviction, arguing the trial judge misapprehended the evidence by finding his statement to the police was inconsistent with his testimony.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find the statement inconsistent, especially given the appellant's own testimony concerning its interpretation.

The court found no basis to interfere with the trial judge's findings of fact.

The applicant applied to reopen his appeals, which were previously dismissed as abandoned.

The Court of Appeal dismissed the application, finding that the interests of justice did not warrant the relief.

The court noted the proposed appeals lacked merit, as the trial judge properly applied section 16 of the Criminal Code in finding the applicant did not appreciate the nature and quality of his acts.

Furthermore, the applicant had been fully informed of the implications of abandoning his appeals, and his change of heart was consistent with his history of ambivalence.

The appellant was convicted of arson after representing himself at trial.

He had been denied legal aid and his Rowbotham application for state-funded counsel was dismissed by the trial judge, who held that such orders were reserved for cases posing unique challenges.

On appeal, the Court of Appeal found that the trial judge applied too stringent a test.

The case was complex, involving expert witnesses and similar fact evidence, and the appellant lacked the capacity to defend himself effectively.

The Court held that the erroneous denial of counsel resulted in an appearance of unfairness, constituting a miscarriage of justice without the need to prove actual prejudice.

The appeal was allowed and a new trial ordered.

The applicant, facing extradition to the United States on terrorism-related charges, sought judicial interim release pending the release of the court's reserved judgment on his appeal from a committal order.

The applicant had been on bail without incident for over two years.

The respondent opposed release, citing the public interest and the proximity of a potential surrender.

The court granted the application, finding no enhanced risk of flight and concluding that the public interest did not warrant detention given the applicant's compliance with previous release terms.

The appellant appealed his convictions for multiple sexual assaults and his designation as a dangerous offender.

He argued that a saliva sample used for DNA comparison was obtained in violation of his Charter rights under s. 8 and s. 10(b).

The Court of Appeal held that the appellant provided a valid, informed waiver that severed any connection between the prior s. 10(b) breach and the taking of the sample.

The court also found no error in the jury instructions regarding expert DNA evidence or in the trial judge's dangerous offender designation, which properly assessed the appellant's treatability and risk to the community.

The appeal was dismissed.

The Crown appealed a summary conviction appeal court decision that overturned the accused's conviction for failing to provide a suitable breath sample.

The appeal court judge had found that the trial judge failed to appreciate evidence regarding lack of motive and consciousness of innocence.

The Court of Appeal allowed the appeal and restored the conviction, holding that the appeal court judge misapplied the legal test for appellate review and effectively retried the case.

The Court of Appeal found that the trial judge gave thorough reasons for finding the requisite mens rea and was not required to refer to every piece of evidence, particularly where the evidence in question had marginal relevance to the issue of intent.

The Crown appealed a summary conviction appeal judge's decision that excluded expert evidence from a practitioner of traditional Chinese medicine.

The Court of Appeal allowed the appeal, finding that the evidence had been admitted on consent at trial and the expert was properly qualified.

The conviction was restored.

The appellant appealed his conviction and sentence for driving offences arising from a serious collision.

He argued issues related to bolus drinking, a discrepancy in the time of the collision, and a violation of his right to be present under s. 650 of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly addressed bolus drinking and that the appellant's absence when written reasons were delivered did not violate s. 650.

Leave to appeal the sentence was refused due to the appellant's serious driving record and the severity of the collision.

The appellant appealed his conviction, arguing the trial judge erred in instructing the jury on self-defence, post-offence conduct, and admitting evidence of the deceased's peaceful disposition.

The Court of Appeal found no error in the jury instructions regarding sections 34(1), 34(2), and 37 of the Criminal Code.

The court also upheld the trial judge's treatment of post-offence conduct and the admission of evidence regarding the deceased's peaceful disposition, noting the defence had opened the door to it.

The appeal was dismissed.

The appellant was sentenced on a joint submission to two years in a penitentiary followed by three years' probation.

He appealed to vary the custodial part of his sentence to two years less a day to preserve his right to appeal a deportation order under the Immigration and Refugee Act, a consequence he was unaware of at sentencing.

The Crown did not oppose the variation.

The Court of Appeal allowed the appeal, finding that immigration consequences are a relevant consideration and the variation would not disserve the fitness of the sentence.