Criminal and Quasi-Criminal Law - OCA

The Crown appealed a stay of proceedings entered under s. 24(1) of the Charter for a violation of the accused's s. 11(b) right to be tried within a reasonable time.

The application judge had found the net delay exceeded the 30-month presumptive ceiling.

On appeal, the Court of Appeal held that the application judge erred in her treatment of a discrete exceptional circumstance arising from the release of a Supreme Court of Canada decision that necessitated a rehearing of a change of venue motion.

The Court found the Crown had taken reasonable steps to mitigate the resulting delay and deducted an additional 93 days.

This brought the net delay below the presumptive ceiling.

The appeal was allowed and the stay of proceedings was set aside.

The appellant was convicted of 33 counts of voyeurism based on video recordings found on a USB device seized from a safe in his condominium.

He appealed, challenging the validity of the warrant authorizing the search of the safes.

The application judge had found that the information to obtain disclosed sufficient credible and reliable evidence to support the issuing justice's conclusion that a digital storage device would be found in the safes and would afford evidence of the offences under investigation.

The Court of Appeal held that the application judge made no extricable legal error, as his findings were rooted in the evidence and reflected permissible common-sense reasoning rather than speculation or impermissible propensity reasoning.

The appeal was dismissed.

The appellant was convicted of possession of a loaded, chambered, prohibited handgun found in his one-bedroom condominium during the execution of a search warrant.

He appealed both conviction and sentence.

On the conviction appeal, the appellant argued misapprehension of evidence and unreasonable verdict, contending that his brother or a third party may have placed the firearm in the unit.

The Court of Appeal held these submissions amounted to speculative inferences unsupported by the evidentiary record and dismissed the conviction appeal.

On the sentence appeal, the court found no error in principle in the 20-month custodial sentence, holding it was restrained, consistent with parity, and appropriately reflected the aggravating circumstances of a loaded firearm in a residential building.

The appellant, Connor Davison Gibson, brought a motion under section 683(1)(a) of the Criminal Code and rule 12(8) of the Criminal Appeal Rules for an order directing that the wooden board used to cause the deceased’s death (Exhibit 26 at trial) and the audio of the appellant’s 911 call be sent to the Court of Appeal and produced at the hearing of the appeal.

The Crown opposed, arguing that photographs of the board and a transcript of the 911 call were already in the record.

The court dismissed the motion, finding that the actual board and audio would not add anything meaningful to the panel’s deliberations, but noted the panel retains authority to require production of these exhibits if needed.

This endorsement from the Court of Appeal for Ontario addresses a non-publication order under s. 517 of the Criminal Code that was imposed at a bail hearing in the court below.

The endorsement states that the full decision, which contains information covered by this order, will not be published online until the non-publication order ceases to be in effect.

In the interim, a physical copy of the decision is available at the Court of Appeal Registry.

The underlying matter is an application to set aside a detention order.

This is an appeal of a dangerous offender designation and indeterminate sentence.

The appellant argued that the sentencing judge erred by permitting extensive cross-examination of the s. 752.1 expert by the Crown after the defence had cross-examined him, which allegedly undermined the fairness of the hearing.

The Court of Appeal found that while the procedure was unusual, it did not result in unfairness or affect the outcome.

The sentencing judge's conclusion that there was no reasonable expectation that measures other than an indeterminate sentence would adequately protect children, given the offender's history of refusing treatment, was upheld.

The appeal was dismissed.

The appellant, R.M., appealed convictions for attempted abduction of his son and assault of another boy.

The Court of Appeal found that the trial judge erred in instructing the jury on the actus reus of attempted abduction by failing to apply s. 24(2) of the Criminal Code, which designates this as a question of law for the judge.

The court quashed the attempted abduction conviction and substituted it with a conviction for unlawful confinement, lifting the conditional stay on that charge.

The appeal against the assault conviction was dismissed, as were arguments regarding unlawful confinement jury instructions.

The applicant, charged with second-degree murder, sought a review under s. 680(1) of the Criminal Code of the dismissal of his third bail application.

The application argued that a pre-trial ruling allowing a third-party suspect defence constituted a material change in circumstances, warranting a de novo bail hearing.

The motion judge found it arguable that the most recent bail judge erred by applying too high a threshold for "material change" and by not fully balancing factors in his alternative reasons for denying bail.

The application for a direction to review by a panel of the court was allowed.

The appellant was convicted of two counts of possession of a prohibited firearm, careless use of a firearm, and possession of marijuana following a self-inflicted gunshot wound at an industrial unit.

The appellant challenged the lawfulness of two searches: a warrantless entry and a subsequent search conducted pursuant to a warrant.

The trial judge found the warrantless search justified by exigent circumstances and the warrant valid despite exclusion of evidence obtained in breach of Charter rights.

The Court of Appeal upheld the convictions, finding no error in the trial judge's analysis of either search.

The appellant appealed a sentencing decision from the Ontario Court of Justice.

The Crown conceded that the appellant, who was self-represented, was deprived of a fair hearing because the trial judge failed to provide appropriate assistance to her as a self-represented party.

The appellate court found it was not in a position to make the necessary factual findings to conduct the appeal and therefore allowed the appeal, remitting the matter back to the Ontario Court of Justice for a new sentencing hearing.

The appellant appealed a committal order for extradition to the United States to stand trial for Internet luring and child exploitation offences.

The Court of Appeal upheld the committal order and dismissed the application for judicial review of the Minister's surrender order.

The majority found that the search warrants were valid, that the extradition judge did not err in applying the disclosure test, and that the Minister reasonably exercised her discretion in ordering surrender.

The dissent argued that the extradition judge applied the wrong disclosure test and exercised discretion unreasonably, rendering the hearing unfair.

The appellant appealed his convictions for three counts of assault, one count of sexual assault, and one count of unlawful confinement arising from a domestic relationship.

The appellant was acquitted of four other charges and one charge was withdrawn.

He was sentenced to 21 months in jail and three years probation.

On appeal, the appellant challenged the trial judge's rejection of a Charter section 11(b) delay motion and raised three grounds of appeal relating to credibility evaluation and alleged errors in the trial judge's reasoning.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The appellant appealed his conviction for possession of cocaine and marijuana for the purpose of trafficking, arguing that the trial judge erred in dismissing his Charter s. 11(b) application for unreasonable delay.

The Court of Appeal, hearing the appeal concurrently with a co-accused's similar appeal, found no unreasonable delay, agreeing with the trial judge's calculation of 27 months net delay.

The appeal from conviction and sentence was dismissed.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and failure to comply with a recognizance.

The appellant was arrested during a traffic stop on Highway 401 when police discovered cocaine and marijuana in the vehicle.

The trial judge rejected the appellant's testimony that the drugs belonged to another passenger and convicted him based on circumstantial evidence and credibility findings.

The Court of Appeal upheld the conviction, finding no error in the trial judge's credibility assessment, misapprehension of evidence, or the reasonableness of the verdict.

The appellant appealed his conviction for making a threatening gesture (throat-cutting gesture) and his sentence of eight months imprisonment followed by 18 months' probation.

The Court of Appeal found no error in the trial judge's reasoning.

The trial judge's finding that the appellant made a throat-cutting gesture was fully supported by evidence, including the complainant's testimony and the appellant's own statement.

The gesture was made with the requisite intent to threaten.

The sentence was upheld as appropriate given the seriousness of the offence, the vulnerability of the witness, and the need to protect the judicial process.

The appellant was convicted of second degree murder in the death of his wife.

He appealed the conviction, arguing the trial judge erred by refusing to leave the defence of provocation with the jury and by improperly instructing the jury on how to use his post-offence conduct to infer intent.

The Court of Appeal allowed the appeal, finding that there was an air of reality to the subjective element of provocation despite the appellant's testimony that he was not angry.

The Court also held that the trial judge erred in instructing the jury that they could use the appellant's bizarre post-offence conduct to infer an intent to kill, as such conduct was equally consistent with manslaughter.

A new trial was ordered.

The appellant appealed his conviction and sentence, arguing that the police lacked justifiable grounds to search his house and that an officer exceeded his authority.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's conclusion was amply supported by evidence including a 911 call and plain view observations that justified a telewarrant.

The sentence appeal was also dismissed, as the forfeiture order was deemed reasonable and the sentence length was not challenged.

The respondent was convicted of multiple serious offences, including four counts of attempted murder, following a bank robbery where he shot three police officers and a civilian.

The trial judge imposed a total sentence of 14.5 years after credit for pre-sentence custody, rejecting a life sentence on the basis that it is reserved for the 'worst offence committed by the worst offender'.

The Crown appealed the sentence.

The Court of Appeal held that the trial judge erred in principle by rigidly applying the 'worst offence/worst offender' standard.

Given the extreme gravity of the offences, the respondent's extensive violent criminal record, and the need for denunciation and specific deterrence, the Court allowed the appeal and varied the sentences for the attempted murder convictions to life imprisonment.

The appellant law firm appealed the dismissal of its application to quash a search warrant and declare s. 487 of the Criminal Code unconstitutional regarding law office searches.

The Court of Appeal dismissed the appeal, holding that s. 487 is constitutional in respect of law offices provided the guidelines set out by the Supreme Court of Canada in R. v. Lavallee are followed.

The court also found no evidentiary basis to support the appellant's alternative argument that the Lavallee principles were not complied with in this case.

The Crown appealed a sentence imposed for five offences arising from a single incident involving the respondent's estranged spouse and children.

The court held that a 12-month sentence, in addition to pre-trial custody, was manifestly unfit given the night-time armed break-in, death threats, aggravated assault on the spouse in the children's presence, and assault on a child who intervened.

While noting the respondent was a 53-year-old first offender, the court concluded a substantial penitentiary term was required and substituted a sentence of 3.5 years after applying the same pre-trial custody credit.

The court also held that the sentencing judge erred by failing to impose the mandatory s. 109 prohibition order and added a 10-year prohibition.