Criminal and Quasi-Criminal Law - OCA

The appellant, Jamie Simpson-Fry, appealed his convictions for sexual assault, forcible confinement, uttering threats, and breach of probation.

He argued that he was misled by trial counsel regarding the trial procedure, specifically by not contesting the Crown's statement of facts, and that the trial judge was biased.

The Court of Appeal dismissed the appeal, finding that the appellant understood the "nolo contendre" equivalent procedure followed at trial and that the trial judge was entitled to accept uncontested evidence.

The appellant, Matthew Shedden, appealed his convictions for various drug offences, arguing that the search warrant used to obtain evidence was invalid.

The challenge at trial, which contended there were no reasonable and probable grounds to believe drugs would be found at the residence (his mother's home), was unsuccessful.

The Court of Appeal dismissed the appeal, finding that even if the trial judge applied an incorrect legal standard or provided insufficient reasons, the record amply supported the valid issuance of the search warrant.

The court concluded that reasonable inferences could be drawn from the appellant's observed conduct, including frequent visits to the residence between suspected drug transactions, to establish the necessary reasonable grounds.

The appellant, Tracy Robinson, appealed convictions for causing damage by fire to property and arson with intent to defraud after a judge-alone trial.

The prosecution's case was circumstantial, relying heavily on an Ontario Fire Marshal investigator's expert opinion that the fire was deliberately set.

The defence presented a counter-expert suggesting an electrical cause.

The trial judge accepted the prosecution's expert and found motive and opportunity.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings, and no unreasonable verdicts.

While the trial judge erred in enunciating the R. v. W.(D.) test, the court found he applied it properly in context.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking, arguing that his rights under ss. 8 and 9 of the Charter were violated by an unlawful arrest and an illegal strip search.

The Court of Appeal upheld the motion judge's findings that the police had reasonable grounds to arrest the appellant based on a confidential tip and observed behavior consistent with a drug transaction.

The Court also found that while the rearrangement of the appellant's clothing constituted a strip search, it was conducted reasonably and was necessary for officer safety.

The appeal was dismissed.

The appellant appealed her conviction for possession of 486 grams of heroin for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, and her four-year sentence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly applied the test for wilful blindness and that the evidence supported his findings.

The Court allowed the sentence appeal, finding that the trial judge failed to adequately consider the appellant's difficult background involving serious violence, her rehabilitative potential, and her community involvement.

The Court also found that the trial judge erroneously relied on unrelated criminal conduct as an aggravating factor.

The custodial portion of the sentence was reduced to time served.

The Attorney General of Ontario appealed a Superior Court decision ordering civil forfeiture of a property located at 855 Darby Road, Welland, and associated Hells Angels Motorcycle Club paraphernalia under the Civil Remedies Act, 2001.

The property was owned by members of the HAMC and used as a clubhouse.

The Crown established that mortgage payments were funded in part by dues paid by HAMC members engaged in drug trafficking, and that the property was used as a meeting place where criminal activity was planned.

The Court of Appeal upheld the forfeiture order, finding the property constituted both proceeds and an instrument of unlawful activity, and that the legitimate owner and responsible owner exceptions did not apply.

The appellant appealed his conviction for incest and sexual assault of his teenage daughter, who gave birth to two of his children.

He received a global sentence of ten years.

At trial, the appellant dismissed his counsel midway through cross-examination and applied for a mistrial based on alleged ineffective assistance of counsel.

The trial judge dismissed the mistrial application.

On appeal, the appellant argued the trial judge erred by failing to apply the same standard for assessing ineffective assistance claims used on appeal.

The Court of Appeal upheld the conviction and sentence, holding that the test for a mistrial application differs from the appellate test and remains within the trial judge's discretion.

The appellant appealed a disposition of the Ontario Review Board dated April 12, 2017, regarding his placement and security regime.

The appellant and Waypoint Centre for Mental Health Care argued that the Board's decision was unreasonable.

The Court of Appeal upheld the Board's decision, finding it reasonable.

The Board had concluded that public safety would be compromised if the appellant was transferred unless the maximum security regime at Waypoint could be effectively replicated at the receiving hospital, which would negate the purpose of transfer.

The court noted that further assessment by an independent assessor remained possible at the appellant's annual hearing scheduled for early April.

The appellant appealed both his conviction and sentence for sexual assault against his stepdaughter.

The appellant argued that the trial judge applied a higher level of scrutiny to his evidence than to the Crown's evidence, and failed to adequately address the improbability of the assaults occurring in the family room with the mother potentially nearby.

The Court of Appeal upheld the conviction and sentence, finding that the trial judge's reliance on the appellant's admissions at the time of arrest was well-founded and that his assessment of the evidence disclosed no error.

The appellant was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code and acquitted of making child pornography available under s. 163.1(3).

The appellant appealed his conviction on Charter grounds, arguing that the search of his residence and computer violated s. 8 of the Charter.

The Crown conceded the search was unlawful but argued the evidence should not be excluded under s. 24(2).

The Crown also appealed the acquittal on the making available count, arguing the trial judge erred in applying the mens rea requirement.

The court dismissed the appellant's conviction appeal and allowed the Crown's appeal, ordering a new trial on the making available count.

The Crown appealed a conviction entered by the Superior Court of Justice.

The Court of Appeal considered whether the Summary Conviction Appeal Court judge properly assessed threshold reliability of the complainant's evidence, particularly in light of the complainant's developmental and psychological circumstances.

The court found that the Summary Conviction Appeal Court judge properly deferred to the trial judge's findings and was entitled to review the entirety of the evidence, including expert evidence and inconsistent statements, when assessing threshold reliability.

The appeal was dismissed.

The appellant was convicted at jury trial of importing and conspiracy to import heroin, and of possession of and conspiracy to possess heroin for the purposes of trafficking.

The appeal challenged the trial judge's jury instructions on multiple grounds, including the failure to instruct on frailties of voice identification, the adequacy of the Vetrovec instruction regarding a key Crown witness, the absence of a special instruction regarding co-accused testimony, the failure to provide a remedial instruction on the right to silence, and the trial judge's failure to address inflammatory comments made by co-counsel.

The Court of Appeal dismissed all grounds of appeal and upheld both the convictions and the sentence of 16 years imprisonment.

The appellant appealed the sentence imposed by the trial judge.

The Crown conceded that an error was made in the calculation of pre-sentence custody credit.

Leave to appeal sentence was granted and the appeal was allowed.

The pre-sentence custody credit was recalculated at a 1.5 to 1 ratio, resulting in a reduction of the sentence from 10 years 290 days to 9 years 251 days, with pre-trial custody credited as 3 years 114 days instead of 2 years 75 days.

The appellant sought leave to appeal a summary conviction appeal decision dismissing his appeal from a conviction for mischief under $5,000.

The Court of Appeal denied leave, finding that the proposed grounds of appeal were weak, the legal issues lacked broader significance, and the appellant faced no deprivation of liberty as his probation had expired and he was discharged.

The Crown appealed the accused's acquittal on a charge of attempting to obstruct justice.

The accused had a friend contact the complainant in his sexual assault case, threatening a civil lawsuit and offering a shopping spree if she retracted her complaint.

The trial judge acquitted the accused, finding he lacked the requisite mens rea because he only wanted the complainant to tell what he believed was the truth.

The Court of Appeal allowed the appeal, holding that the mens rea is established when an accused intentionally uses corrupt means to dissuade a witness from testifying, regardless of whether the accused's motive was to ensure the truth was told.

A new trial was ordered.

The appellant pleaded guilty to sexual exploitation and was sentenced to 30 months' imprisonment.

On appeal, he adduced fresh evidence that he was subject to a deportation order and had lost his right to appeal it because his sentence was two years or more.

The Court of Appeal found that while the original sentence was not unfit, the certainty of deportation to a country where he had no ties, combined with his rehabilitation and the fact he had nearly completed his sentence, justified reducing the sentence to two years less a day to preserve his right to appeal the deportation.

The appellant appealed his conviction for sexual assault, arguing the trial judge lacked jurisdiction because he failed to put the appellant to his election under s. 536(2) of the Criminal Code.

The Court of Appeal agreed, finding that the record did not show substantial compliance with the section or an effective waiver by the unrepresented appellant.

As a result, the trial was a nullity.

The appeal was allowed and a new trial was ordered.

The young person appealed a disposition imposed by the Youth Court.

The Court of Appeal dismissed the appeal, finding that the trial judge gave adequate reasons for his credibility findings, properly applied the principles in W.D., and found guilt beyond a reasonable doubt.

The Canadian Civil Liberties Association (CCLA) brought a motion to intervene in a Crown appeal concerning the exclusion of evidence obtained during a dog-assisted search of a high school.

The CCLA also sought permission to adduce fresh evidence, including newspaper articles and a letter from the Ontario Principal's Council.

The court granted the CCLA leave to intervene, file a factum, and participate in oral argument, recognizing its experience and expertise.

However, the court denied the request to adduce fresh evidence, finding the proposed materials lacked probative value and would unfairly widen the scope of the appeal.

In a criminal conviction appeal, the self-represented appellant advised that he did not want counsel appointed to represent him but did not oppose the appointment of amicus curiae.

The court was informed that the appeal had previously been adjourned to permit preparation of the appeal book and consideration of whether amicus should be appointed.

The court appointed amicus curiae under s. 684 of the Criminal Code to assist on the appeal and adjourned the appeal to a date to be fixed by the registrar for further speaking to or hearing.