Criminal and Quasi-Criminal Law - OCA

The appellant, Steven Vanroy Browne, appealed his conviction for manslaughter, arguing the verdict was unreasonable and that evidence of phone numbers provided to his probation officer was inadmissible.

The Court of Appeal found the verdict reasonable, supported by DNA evidence, mobile phone records, and association evidence, despite inconsistencies in eyewitness identification.

The court also upheld the admission of phone number evidence, ruling it was not compelled and did not violate Charter rights, as the appellant failed to establish a subjective or objective belief of compulsion.

The appeal was dismissed.

The appellants, Vito Buffone and Jeffrey Kompon, appealed their convictions for conspiracy to import cocaine and several substantive offences following a 50-day jury trial.

The appeal raised four grounds: the admissibility and scope of analyst's certificate evidence under the Controlled Drugs and Substances Act (CDSA), the trial judge's instructions on conspiracy (specifically the three-step Carter analysis), the instructions regarding inferences to be drawn from a third party's actions concerning an encrypted cellphone, and the instructions on the substantive counts.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions.

The appellant appealed his conviction for attempted murder and attempt to overcome resistance by suffocation against his wife, and his sentence of 11 years in custody.

The sole issue on appeal concerned the propriety of a sentencing order under section 743.21 of the Criminal Code that imposed an absolute prohibition on contact with his children during the custodial portion of his sentence.

The appellant argued the sentencing judge erred in principle by failing to recognize the division of responsibility between criminal sentencing and family law regimes, and that the family court or Children's Aid Society should determine the nature of his relationship with his children.

The Court of Appeal dismissed the appeal, finding no error in principle and that the sentence was fit.

The appellant appealed his convictions on one count of possession for the purpose of trafficking and one count of possession of proceeds of crime.

The appeal involved two main issues: (1) whether the police violated the appellant's Charter rights (ss. 8 and 9) when they arrested and searched him based on information from a confidential informant, and (2) whether certain telephone calls received on seized cellular phones were admissible as evidence under the principled exception to the hearsay rule.

The trial judge rejected the Charter challenge and admitted the telephone evidence.

The Court of Appeal upheld the convictions, finding no error in the trial judge's application of the Debot test for assessing confidential informant information and finding the telephone calls admissible under the principled exception to hearsay as established in Baldree.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated October 2, 2017.

The appellant, declared not criminally responsible on account of mental disorder, challenged three aspects of the Board's decision: (1) the finding that the appellant posed a significant threat to public safety; (2) the Board's failure to consider a conditional discharge; and (3) the wording of condition 4(f) of the disposition.

The Court of Appeal upheld the Board's findings on the first two issues but amended condition 4(f) to clarify the Board's intention regarding restrictions on the appellant's attendance at locations where children under 14 are present.

The appellant was convicted by jury of first degree murder in the death of Clifford Fair.

The Court of Appeal allowed the appeal, finding the first degree murder conviction unreasonable and entering an acquittal on that charge.

The court ordered a new trial on second degree murder due to errors in the trial judge's instruction on the use of after-the-fact conduct evidence.

The evidence established that the appellant struck the deceased with an aluminum pipe during a confrontation in the appellant's apartment, but the court found insufficient evidence to support findings of planning and deliberation required for first degree murder.

The trial judge's misdirection permitted the jury to improperly use after-the-fact conduct (burial, dismemberment, and statements) as evidence of intent and planning, rather than limiting its use to establishing that the appellant unlawfully caused the death.

The appellant appealed his global sentence of 7 years' imprisonment for drug and property-related offences, including possession of cocaine for the purpose of trafficking and conspiracy to traffic in cocaine.

He argued the sentencing judge erred in finding he was at a high level of the drug business.

The Court of Appeal dismissed the appeal, finding the agreed facts amply supported the inference that he was a high-level trafficker and not merely a non-professional courier.

The sentence fell within the appropriate range.

The applicant sought judicial review of the Minister of Justice's decision to surrender him to the United States, arguing that extradition would violate his section 7 Charter rights due to risks to his personal safety as a cooperating inmate.

The Court of Appeal dismissed the application, finding that the Minister reasonably balanced the risks against the protective measures available in the U.S. prison system.

The Court held that the applicant did not face a level of risk beyond that of most cooperating inmates and that potential placement in a special housing unit would not amount to cruel and unusual punishment.

The Crown appealed a decision of the Ontario Court of Justice which held that the Crown could not appeal a judicial stay of proceedings under the Provincial Offences Act, but rather had to proceed by way of certiorari.

The Court of Appeal allowed the appeal, applying the Supreme Court of Canada's reasoning in Jewitt to find that a judicial stay is tantamount to a dismissal.

Therefore, the Crown has a right of appeal under section 116(1)(b) of the Provincial Offences Act.

The appellant challenged an order of the Superior Court of Justice in a criminal matter.

The Court of Appeal, in a brief endorsement, adopted the motion judge's analysis and conclusions and dismissed the appeal.

A Criminal Code publication restriction applicable to the preliminary inquiry evidence was ordered to continue.

The appellant appealed his sexual assault convictions, seeking to introduce fresh evidence consisting of a death certificate for the complainant's younger brother.

The Court of Appeal admitted the fresh evidence under the Palmer test, finding it was determinative of a factual issue regarding the timing of the alleged offences.

The evidence raised a real question as to whether the appellant committed the assaults as an adult or a juvenile.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The appellant's vehicle was seized by police as proceeds of crime and held under a detention order.

The appellant, claiming to be an innocent third party, commenced a civil action to recover the vehicle and seek damages for its detention.

The Court of Appeal upheld the motion judge's decision to dismiss the action, agreeing that the Criminal Code provisions for innocent third party remedies constitute a complete code, precluding parallel civil proceedings absent allegations of actionable police misconduct.

The appellants appealed their convictions and sentences for commercial-level marijuana trafficking.

They argued that a police stop violated their s. 9 Charter rights and that the resulting evidence should be excluded under s. 24(2).

The Court of Appeal assumed a s. 9 breach but declined to exclude the evidence, finding the breach was not serious, the privacy expectation was minimal, and the police did not act in bad faith.

The court also upheld the six-month custodial sentences, rejecting the appellants' argument for conditional sentences.

The appeals against conviction and sentence were dismissed.

The appellant was convicted of being an accessory after the fact to murder after assisting his cousin in disposing of the bodies of two hitchhikers.

At trial, the appellant claimed he acted under duress due to an implied threat from his cousin, who had just committed the murders in his presence.

The trial judge rejected the defence, finding no air of reality to the claim of an implied threat.

On appeal, the Court of Appeal held that the trial judge erred in law by failing to appreciate the significance of witnessing an execution and by focusing incorrectly on the absence of a specific act or gesture.

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

The applicant, a Canadian citizen, was ordered surrendered for extradition to the United States.

After his appeals were exhausted, he requested the Minister of Justice amend the surrender order to require assurances that he would receive enhanced credit for his five years of pre-trial custody in Canada.

The Minister refused.

The applicant sought judicial review of this refusal.

The Court of Appeal held it had jurisdiction to review the Minister's refusal to amend the order.

However, the court dismissed the application on the merits, finding that because Canadian law does not guarantee enhanced credit for pre-trial custody, the absence of such a guarantee in the United States does not violate section 7 of the Charter.

The appellant, a Canadian citizen, appealed his committal for extradition to the United States on a charge of sexual battery involving his daughter, and sought judicial review of the Minister of Justice's surrender order.

He argued that he had already been punished in Ontario for the same conduct, and that extradition would violate his rights under sections 6 and 7 of the Charter given the mandatory minimum sentence of life imprisonment without parole for 25 years in Florida.

The Court of Appeal dismissed the appeal and the application for judicial review, finding that the Ontario sentence did not punish him for the Florida conduct, the potential penalty did not shock the conscience of Canadians given the horrific nature of the offence, and prosecution in Canada was not a viable option.

The appellant challenged the constitutionality of section 43 of the Criminal Code, which provides a defence for parents and teachers who use reasonable force to correct a child.

The appellant argued that the provision violates sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that while section 43 engages a child's security of the person, it does not violate the principles of fundamental justice.

The court also held that section 43 does not constitute state-imposed cruel and unusual punishment under section 12, and any infringement of equality rights under section 15 is justified under section 1 of the Charter.

The appellant sought leave to appeal sentence for a very serious aggravated assault, arguing the sentence was excessive, that insufficient weight was given to the absence of prior incarceration, and that the delayed parole eligibility order was unwarranted.

The court held that long-term incarceration for public protection was the only realistic option in light of the appellant’s major mental disorder, violent record, and limited rehabilitative prospects.

Although the trial judge was mistaken about the maximum sentence for aggravated assault, the Court of Appeal found no error in principle and no clearly excessive sentence.

Leave to appeal was granted, but the sentence appeal was dismissed, including the order delaying parole eligibility until half the sentence had been served.

The appellant challenged a robbery conviction on the basis that two eyewitness identifications were too unreliable to support the verdict.

The court held that the identification evidence, independently provided by two witnesses, was not so inherently unreliable as to render the conviction unreasonable.

Although the trial judge made one factual error in reviewing the evidence, it did not taint the verdict.

The court further held that the witnesses' independent and unsolicited identification of the appellant from a newspaper photograph before photographic line-ups did not, in the circumstances, taint their later identifications.

The Crown appealed a sentence imposed for widespread internet distribution of child pornography.

The sentencing judge had imposed a 90-day custodial term, substantially below the range he identified, primarily to avoid disrupting the respondent's academic progress.

Fresh evidence established that the sentencing judge had been materially misled about the respondent's university enrolment, academic achievements, and standing.

The Court of Appeal held there was no basis to depart from the 12- to 15-month range identified at first instance and varied the sentence to 12 months, crediting time already served.