Criminal and Quasi-Criminal Law - OCA

The appellant was convicted of sexual assault and voyeurism and appealed his convictions.

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

The court upheld the trial judge's rejection of the appellant's testimony, finding it illogical and inconsistent, consistent with the principles in R. v. W.(D.).

The court also rejected the appellant's submissions regarding an alleged mistaken inference about the complainant's age and its relation to consciousness of guilt, and a ground concerning the materiality of a photograph's date.

The sentence appeal was dismissed as abandoned.

The appellant, N.A., appealed a one-year custodial sentence for historical sexual interference.

The trial judge had erred by concluding that a mandatory minimum sentence applied, which incorrectly precluded a conditional sentence.

Despite this conceded error, the Court of Appeal dismissed the appeal, finding that the numerous aggravating factors, including the victim's youth, the severe impact of the crime, the breach of a position of trust, and the appellant's victim-blaming, justified the sentence.

The court concluded that the case did not fall into the rare category where a conditional sentence would be appropriate for this type of crime, even with the legal error.

The appellant, J.B., appealed his sexual assault conviction, arguing the trial judge erred by not putting the defence of honest but mistaken belief in consent to the jury, failing to correct improper Crown comments, and imposing an excessive sentence.

The Court of Appeal found there was an air of reality to the defence of honest but mistaken belief in consent, which should have been put to the jury.

Consequently, the appeal was allowed, and a new trial was ordered.

The appellant, found not criminally responsible in 2008 for aggravated assault, appealed the Ontario Review Board's decision to continue her detention order.

She sought an absolute or conditional discharge, arguing the Board failed to adequately explain its finding that she remained a significant threat to public safety and neglected its inquisitorial duty to explore less restrictive dispositions.

The Court of Appeal dismissed the appeal, finding the Board's reasons transparent and intelligible, and that it had no further inquisitorial duty given the record and the appellant's position that she did not want restrictions.

The appellant appealed his convictions for possession of child pornography and making child pornography available, as well as his sentence.

The appellant raised four grounds of appeal: (1) the trial judge erred in not providing reasons for dismissing his section 11(b) Charter application; (2) the trial judge erred in not finding a breach of section 8 Charter rights; (3) the trial judge erred in credibility assessments of defence witnesses; and (4) the trial judge erred in not applying the Kienapple principle to stay one conviction.

The Court of Appeal dismissed the appeal on all grounds, though it acknowledged that the trial judge had erred in failing to provide reasons for the section 11(b) decision and that the Crown's warrantless request for Internet subscriber information violated section 8 rights.

However, the Court found that the evidence should not be excluded under section 24(2) given the seriousness of the offences and society's interest in adjudicating the case on its merits.

The appellant appealed his convictions on three counts of possession of a controlled substance for the purpose of trafficking arising from the discovery of a clandestine methamphetamine laboratory in Scarborough containing approximately 150 kilograms of drugs with a street value of $12 million.

The appellant challenged the verdicts as unreasonable, inconsistent with his acquittal on production charges, and inconsistent with the trial judge's finding that he lacked standing under section 8 of the Canadian Charter of Rights and Freedoms.

The Crown cross-appealed the sentence of 8 years as manifestly unfit and sought a 12-year sentence with delayed parole eligibility.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

Appeal from conviction for robbery and sentence imposed by Justice Eugene Ewaschuk on June 14 and June 29, 2010.

The appellant was convicted of robbery but acquitted of using an imitation firearm.

The appeal raised five grounds challenging the trial judge's conduct during cross-examination of the Crown's key witness, jury instructions on memory loss due to fear, absence of motive to fabricate, elements of the offence, and criticism of defence counsel's closing analogy.

The Court of Appeal dismissed the conviction appeal but allowed the sentence appeal, finding the trial judge erred in applying the Truth in Sentencing Act to calculate pre-sentence custody credit.

The appellant was convicted of first degree murder, arson, and rendering an indignity to a body after he and two accomplices tortured the victim and burned down the house to conceal the crime.

On appeal, the appellant argued the trial judge erred in dismissing an application for the production of a Crown witness's third-party psychological records, and in his jury instructions regarding accomplice evidence (Vetrovec warning) and fabricated statements.

The Court of Appeal found that while the trial judge erred at the first stage of the third-party records analysis, production would not have been ordered at the second stage.

The court also found the jury instructions were adequate and dismissed the appeal.

The appellants were convicted of unlawful confinement and firearms offences following a home invasion.

During closing addresses, the Crown improperly suggested to the jury that the complainant's prior statements to police and at the preliminary inquiry, which were not in evidence, were consistent with her trial testimony and therefore proved she was telling the truth.

The trial judge refused a mistrial application and failed to provide a limiting instruction.

The Court of Appeal allowed the appeal and ordered a new trial, finding the Crown's comments invited the jury to make erroneous use of the evidence and the trial judge's failure to correct the error was fatal.

The appellants were charged with the attempted murder of a drug dealer.

After a jury trial, one appellant was convicted of attempted murder, while the other was convicted of the lesser included offence of aggravated assault.

The appellant convicted of attempted murder appealed, arguing the trial judge erred by failing to instruct the jury on the defence's position regarding the mens rea for attempted murder.

The Court of Appeal found the trial judge erred by failing to instruct the jury on the key evidence supporting the appellant's position that he did not intend to kill the victim.

The conviction for attempted murder was set aside and substituted with a conviction for aggravated assault, with a reduced sentence.

The other appellant's appeal regarding the jury instructions on party liability was dismissed.

The appellant pleaded guilty to criminal harassment and uttering threats.

Years later, he appealed his convictions, seeking to introduce fresh psychiatric evidence to establish he was not criminally responsible on account of mental disorder (NCR-MD) at the time of the offences.

The Court of Appeal dismissed the appeal, finding the fresh evidence did not meet the fourth criterion of the Palmer test.

The court concluded that the appellant's own writings demonstrated he knew his conduct was morally and legally wrong, meaning the fresh evidence could not reasonably be expected to have affected the result.

The Crown appealed a summary conviction appeal judge's decision that overturned the accused's four sexual assault convictions.

The summary conviction appeal judge had found that the trial judge erred by failing to consider the exculpatory value of acquittals on four other counts and by limiting the cross-examination of a Crown witness.

The Court of Appeal allowed the appeal and restored the convictions, holding that the acquittals had no exculpatory value on the other counts and that the trial judge properly limited cross-examination that lacked relevance and probative value.

The appellant appealed a decision of the Ontario Review Board ordering his detention at a maximum secure facility.

The Court of Appeal dismissed the appeal, finding that the Board reasonably applied the criteria in s. 672.54 of the Criminal Code.

The Board was entitled to rely on the appellant's sexually violent history, stalking history, institutional offences, and psychopathy to conclude that maximum security was the least onerous and restrictive disposition.

The appellant appealed his conviction for possession of marijuana for the purpose of trafficking and his four-month custodial sentence.

He argued the trial judge erred in rejecting his innocent explanation for being at a grow operation, finding knowledge and control, and applying the W.D. framework.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessment or inference of knowledge and control.

The court also found no air of reality to a newly raised public duty defence.

The sentence appeal was dismissed as the sentence was within the appropriate range and a conditional sentence was inappropriate given the appellant's prior record.

The appellant appealed his six-month sentence for possession of a large quantity of child pornography, arguing the trial judge erred by effectively excluding a conditional sentence.

The Court of Appeal found no error in principle, noting the trial judge properly considered denunciation, deterrence, the appellant's circumstances, guilty plea, and remorse, but correctly concluded a period of incarceration was required.

The appeal was dismissed.

The appellant appealed a four-year sentence, arguing the trial judge failed to credit twenty-three months of pre-trial custody.

The Court of Appeal agreed that while the global sentence of four years was appropriate, the trial judge erred by not applying the conceded pre-trial custody credit.

The appeal was allowed to apply the twenty-three months credit, resulting in a net sentence of twenty-five months.

The appellants were committed to stand trial for first degree murder following a preliminary inquiry.

They applied for certiorari to quash the committals, arguing a denial of natural justice because they were not permitted to make submissions on post-offence conduct evidence.

The reviewing judge found a denial of natural justice but dismissed the application, concluding the appellants suffered no prejudice as committal was inevitable.

The Court of Appeal upheld this decision, confirming that a reviewing judge has inherent jurisdiction to refuse certiorari where no prejudice occurs, and found sufficient evidence of planning and deliberation to support the committals.

The appellant, a former psychotherapist, appealed his convictions for historical sexual offences against five female patients.

At trial, the appellant argued that the sexual acts were either consensual, part of bona fide therapy, or occurred outside the therapeutic relationship.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge fundamentally erred in his jury instructions on consent by conflating medical 'informed consent' with criminal consent and failing to properly put the defence's theory to the jury.

The Court also held that the trial judge erred in admitting hearsay evidence from a prior disciplinary hearing under the principled exception, as the necessity and reliability criteria were not met.

The appellant appealed his convictions and sentences for unlawfully in a dwelling house, fraud, and attempted fraud.

The Court of Appeal quashed the convictions for unlawfully in a dwelling house and ordered a new trial, finding the trial judge failed to consider the counts separately, address legal issues regarding the appellant's status upon entry, and assess the reliability of the complainants' evidence.

The fraud convictions were upheld, but the sentences were varied because the original sentences exceeded the two-year maximum.

The court imposed a total sentence of 27 months for the fraud and attempted fraud counts, noting the appellant's terrible record of preying on elderly citizens.

The appellant appealed his conviction and sentence, seeking to set aside his guilty plea on the basis that it was involuntary due to pressure from his trial counsel.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's refusal to strike the plea, as the appellant's affidavit lacked credibility and did not demonstrate undue pressure.

The sentence appeal was also dismissed, with the Court finding no error in principle in the trial judge's exercise of discretion under s. 719(3) of the Criminal Code regarding credit for pretrial custody.