Criminal and Quasi-Criminal Law - OCA

The appellant, Biao Zhou, appealed his conviction for sexual assault and forcible confinement.

The appeal raised multiple grounds, including errors in jury selection, a jury question, loss of juror notes, closing arguments, and jury instructions on post-offence conduct and consent.

The Court of Appeal dismissed the appeal, finding no reversible errors by the trial judge.

The court addressed the trial judge's procedural error in allocating peremptory challenges, applying the curative proviso, and upheld decisions regarding juror impartiality and trial management.

The appellant, W.M., appealed his conviction for sexual assault.

The central issue on appeal was whether the trial judge misapprehended the appellant's evidence regarding the complainant's state of consciousness at the start of the sexual contact.

The trial judge had found the appellant's evidence on this "crucial detail" to be "internally incompatible and exaggerated" and inconsistent with prior statements.

The Court of Appeal found no misapprehension of evidence by the trial judge, concluding that it was open to the trial judge to reject the appellant's evidence.

The appeal was dismissed.

The appellant, found not criminally responsible for attempted murder, appealed a conditional discharge from the Ontario Review Board, seeking an absolute discharge.

The Court of Appeal found the Board's reasoning for determining a 'significant threat to public safety' insufficient, particularly regarding the appellant's medication compliance and post-discharge support.

The court set aside the Board's disposition and ordered a re-hearing before a new panel.

The appellant was convicted of sexual assault and sentenced to 30 months' imprisonment.

On appeal, the court dismissed the appeal against conviction, finding that the trial judge correctly determined the appellant was reckless or wilfully blind as to consent, precluding the defence of honest but mistaken belief.

The court also dismissed the appeal against sentence, granting leave but finding the sentence was not demonstrably unfit and that the trial judge appropriately considered mitigating factors, imposing a sentence slightly below the typical range for forced penetration.

This is an appeal from a disposition of the Ontario Review Board concerning a restriction of liberty hearing for an appellant found not criminally responsible on account of mental disorder (NCR) for aggravated assault.

The appellant, who has schizophrenia, had his liberty restricted and was transferred to a more secure forensic unit after his mental health deteriorated due to discontinuing medication.

The appellant argued that the Board failed to consider his liberty interests and other needs, including a request for a lateral transfer to another unit, and that the Board's findings were unreasonable.

The Court of Appeal found that the Board considered all required factors and that there was sufficient evidence to support the transfer to a more secure unit, including testimony from the treating psychiatrist regarding the appellant's unmanageability and risk of harm.

The Court dismissed the appeal, finding the Board's conclusion that the restriction of liberty was necessary to be reasonable.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's assessment of evidence.

Specifically, the court upheld the trial judge's use of the appellant's general drug trafficking activities (including marijuana) as relevant to his involvement in cocaine trafficking, her holistic consideration of circumstantial evidence for constructive possession, and her rejection of speculative defence theories in the absence of the appellant's testimony.

The appellant, Trevor Jesse Herdman, appealed his convictions for possession of stolen property, possession of cocaine for trafficking, and failure to comply with a recognizance.

The sole ground of appeal was that the trial judge erred in dismissing his s. 8 Charter challenge to the validity of a telewarrant, arguing that the Information to Obtain (ITO) lacked reasonable grounds as it was based on a confidential informant's (CI) tip that did not meet the Debot criteria.

The Court of Appeal upheld the trial judge's finding that despite the CI's low credibility, the tip was "highly compelling" and "significantly corroborated" by police investigation, providing reasonable grounds for the warrant.

The appeal was dismissed.

The Court of Appeal for Ontario heard two motions arising from two notices of appeal filed by the appellant, Deepan Budlakoti.

The Crown sought to quash a 'Charter Appeal' concerning a pre-trial application dismissal, arguing it was an interlocutory order without a right of appeal.

Mr. Budlakoti sought reconsideration of a decision refusing his application for appointment of counsel for his 'Habeas Appeal' challenging detention conditions.

The court granted the Crown's motion, quashing the Charter Appeal as an interlocutory criminal appeal.

Mr. Budlakoti's motion for counsel was dismissed, as the court agreed there was no arguable ground of appeal for the Habeas Appeal.

The appellant, Bradley Cable, appealed a disposition from the Ontario Review Board ordering his detention at the Southwest Centre for Forensic Mental Health Care, following a finding of not criminally responsible for various offences.

Cable argued the Board erred in not considering a conditional discharge as the least onerous option, despite conceding he posed a substantial public safety risk.

The Court of Appeal dismissed the appeal, finding the Board's decision was amply supported by evidence, including psychiatric reports indicating severe untreated mental health issues and a high risk of reoffending, and that there was no air of reality to the possibility of a conditional discharge.

The appellant was convicted of second-degree murder for killing his mother.

He raised a defence of not criminally responsible by reason of mental disorder (NCR), which the jury rejected.

On appeal, he argued the jury's verdict was unreasonable because it rejected uncontradicted expert psychiatric evidence, and he sought to introduce a new psychiatric report as fresh evidence.

The Court of Appeal dismissed the appeal, finding the jury had a rational basis to reject the expert opinion due to flaws in its factual foundation.

The court also denied the admission of fresh evidence, concluding it lacked cogency and could not reasonably be expected to have affected the verdict.

The appellant was convicted of sexual assault and uttering a threat to cause death.

The complainant died before trial.

Her preliminary inquiry testimony and a videotaped statement to police were admitted into evidence.

On appeal, the appellant argued the trial judge erred in admitting the videotaped statement for the truth of its contents, over-relying on the complainant's demeanour, and applying different levels of scrutiny to the evidence.

The Court of Appeal agreed, finding the videotaped statement was not necessary and constituted an inadmissible prior consistent statement.

The court also found the trial judge placed undue weight on demeanour evidence not subject to cross-examination and applied an uneven standard of scrutiny.

The appeal was allowed and the convictions were set aside.

The appellant appealed the summary dismissal of his mandamus application, which sought to overturn the Crown's decision to stay his private prosecution.

The appellant alleged that the Attorney General was in an inherent conflict of interest, constituting an abuse of process.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that there was no evidence of an abuse of process to justify reviewing the Attorney General's prosecutorial discretion under section 579 of the Criminal Code.

The appellant appealed his convictions for 11 offences against his wife and three children, including assault and threatening with a knife.

The Court of Appeal upheld the convictions supported by the appellant's own admissions but found the trial judge erred by using improper propensity reasoning to convict on the remaining counts.

The appeal was allowed in part, setting aside seven convictions and ordering new trials, while upholding the remaining convictions and the resulting 60-day intermittent sentence.

The appellant appealed her sentence, arguing she was an addict/trafficker rather than trafficking for commercial profit.

The Court of Appeal dismissed the appeal, finding it was open to the sentencing judge to conclude the trafficking activity was undertaken for commercial profit.

The appellant appealed his convictions for assault and gun storage offences.

The Court of Appeal found that evidence of the appellant's refusal to answer police questions about a gun cabinet key was improperly admitted and repeated in the jury charge.

Additionally, the Crown failed to disclose a property report relevant to the gun storage charges.

Given the potential adverse inference on the appellant's credibility, the court quashed all convictions and ordered a new trial.

The appellant, who was previously found not criminally responsible (NCR), appealed a disposition of the Ontario Review Board continuing his detention at a psychiatric hospital.

The amicus curiae argued the Board erred by failing to appoint counsel for the unrepresented appellant under s. 672.5(8) of the Criminal Code or by failing to provide adequate assistance during the hearing.

The Court of Appeal dismissed the appeal, finding that the Board properly considered whether the interests of justice required appointing counsel and reasonably concluded the appellant could participate fairly.

The Court also held that the Board's decision to continue the appellant's detention was reasonable and supported by evidence of his lack of insight, substance abuse history, and risk of violence.

The appellant was convicted of second-degree murder following a fatal altercation outside a bar where the victim was struck with a baseball bat.

The appellant appealed the conviction, arguing the trial judge made several errors in the jury instructions.

The Court of Appeal allowed the appeal, finding the trial judge erred by instructing the jury they could use a witness's prior videotaped statement for the truth of its contents without proper adoption, failing to give a Vetrovec warning for a key Crown witness with credibility issues, improperly dismissing the intoxication defence, and failing to correct the Crown's breach of the rule in Browne v. Dunn.

The conviction was quashed and a new trial ordered.

The appellant's criminal charges were stayed on the eve of trial due to delay and disclosure issues, and the trial judge awarded costs against the Crown under s. 24(1) of the Charter.

The summary conviction appeal judge set aside the costs award.

On further appeal, the Court of Appeal upheld the setting aside of the costs award, finding that while the 16-month delay triggered a s. 11(b) inquiry, the Crown's conduct did not amount to the marked and unacceptable departure from reasonable standards required to justify a costs award.

The Crown appealed the accused's acquittal on charges of dangerous driving and impaired ability causing bodily harm.

The Court of Appeal dismissed the appeal, finding that the trial judge properly directed himself on the elements of dangerous driving and considered the totality of the evidence.

The Court also held that the trial judge applied the correct legal test for impaired ability causing bodily harm, recognizing that even slight impairment of ability is sufficient to make out the offence.

The appellant was convicted of being an occupant in a motor vehicle knowing there was a restricted weapon present.

During deliberations, the jury asked for clarification on the time frame of being aware of the weapon, and the trial judge merely re-read the charge without explaining that the appellant must have had a reasonable opportunity to remove himself or the weapon.

The trial judge also failed to instruct the jury on the use of the main Crown witness's criminal record to assess credibility.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial, finding the trial judge erred on both grounds.