Criminal and Quasi-Criminal Law - OCA

The appellant, Terrance Nahmabin, appealed a finding of Not Criminally Responsible on account of Mental Disorder (NCRMD) for various offences.

The Court of Appeal for Ontario found procedural deficiencies in the original NCRMD proceedings, including an improper plea, lack of inquiry into the appellant's understanding of the NCRMD consequences despite his expressed distress, and insufficient reasons from the trial judge explaining the application of s. 16 of the Criminal Code.

The court emphasized the strict requirement for procedural fairness in NCRMD cases due to the serious liberty deprivations involved.

The appeal was allowed, the NCRMD finding was set aside, and a new trial was ordered.

This is a forfeiture application brought by His Majesty the King under s. 771 of the Criminal Code against Nehemiah Campbell and his three sureties (Greg Carter, Anwar Faza, and Sandre Bascoe) due to Campbell's failure to surrender for his appeal hearing.

The court ordered the full forfeiture of Campbell's $20,000 pledge, Carter's $50,000 pledge, and Faza's $10,000 pledge.

Sandre Bascoe's $10,000 pledge was partially forfeited, with $5,000 ordered forfeited, due to her limited financial means.

The decision emphasizes the importance of surety diligence and the 'pull of bail' in maintaining the effectiveness of the bail system.

The appellant, Robert Francis Fox, appealed his conviction for sexual assault after pleading guilty mid-trial.

He sought to withdraw his guilty plea, arguing it was involuntary due to misinformed advice from his trial counsel regarding the collateral consequence of losing access to his young daughter if convicted.

The Court of Appeal, considering fresh evidence from a family and criminal lawyer, found that the trial counsel's advice was exaggerated and incorrect, leading to an improperly informed plea.

The appeal was allowed, the guilty plea set aside, and a new trial ordered.

The appellant, Danny Correa, appealed his convictions for attempted sexual assault and possession of a weapon for a dangerous purpose, as well as his designation as a dangerous offender.

The Court of Appeal for Ontario dismissed the appeal, finding that the trial judge did not err in instructing the jury on the intent required for attempted sexual assault, nor were the verdicts unreasonable or inconsistent.

The court also upheld the dangerous offender designation, finding no material misapprehension of evidence or error in accepting the psychiatric risk assessment, despite a six-year gap in the appellant's offence history.

The appellant, Sivanesan Veerasingam, appealed his convictions for luring a person under 16 and procuring sexual services of a person under 18, and the dismissal of his entrapment application.

The charges stemmed from "Project Raphael" a police undercover operation where an officer posed as a 15-year-old on a website.

Text exchanges indicated the appellant's awareness of the minor's age.

The Court of Appeal for Ontario dismissed the conviction appeal, ruling that evidence from the entrapment hearing could not be used to challenge the initial conviction.

The court also dismissed the entrapment appeal, finding that the police scheme did not prevent the appellant from taking reasonable steps to verify age during communication, and the offence was complete upon communication, not at the hotel meeting.

The appellant appealed convictions relating to child pornography and voyeurism, arguing principally that the trial judge improperly admitted and relied on similar fact and disposition evidence without a voir dire.

The court held that the impugned extrinsic evidence concerning the hidden webcam, neighbourhood children, and other voyeuristic recordings was admissible because its probative value on identity and situation-specific propensity outweighed any prejudicial effect.

Count-to-count evidence was also properly used as circumstantial evidence of identity and context.

The court found no prejudice from the absence of a formal admissibility ruling and dismissed the appeal.

The appellant appealed his dangerous offender designation, arguing there was insufficient evidence of a pattern of violence and that the predicate offence was intended as a property offence.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded there was a pattern of violence against women in their homes.

The Court also agreed that a long-term offender designation was unrealistic given the appellant's history of failing to follow through with therapy and the level of supervision required.

The appellant appealed her custodial sentence.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by failing to obtain Gladue information for the Aboriginal offender and by incorrectly characterizing the offence as a breach of trust.

The court admitted fresh evidence regarding the impact of residential schools and pervasive oxycontin use in the appellant's community.

The sentence of imprisonment was reduced to time served, with the 18-month probation order remaining in place.

The appellant was convicted of mischief after placing a spray-painted, beat-up van on his property line to interfere with his neighbours' attempts to sell their home, amidst an ongoing dispute over basement flooding.

The trial judge and summary conviction appeal judge rejected his defence under s. 430(7) of the Criminal Code, which protects acts done solely for the purpose of communicating information.

The Court of Appeal allowed the appeal and entered an acquittal, holding that the s. 430(7) defence applies even if the communication is intended to persuade or pressure others by interfering with their property rights, provided the act itself is peaceful and solely communicative.

The Crown appealed the respondent's acquittals on charges of robbery and breach of probation.

The Court of Appeal found that the trial judge made several errors, including impermissibly altering the substance of her oral reasons after the Crown filed its Notice of Appeal, raising the issue of the accused's identity in a videotaped interview when it was not contested by the defence, and failing to compare the likeness of the accused in the video with the accused in court.

The Court of Appeal allowed the appeal, set aside the acquittals, and ordered a new trial.

The appellant was convicted of obstructing police in two separate incidents after being stopped while driving an uninsured vehicle.

In both instances, he interfered with police efforts to impound the vehicle and, in one case, to seize his licence plate.

On appeal, he argued the police lacked statutory or common law authority to impound an uninsured vehicle, meaning they were not acting in the lawful execution of their duties.

The Court of Appeal dismissed the appeal, holding that while no express statutory power exists, police have common law authority under the Waterfield/Dedman test to impound uninsured vehicles to protect public safety and control traffic.

The appellant, bound by a s. 161(1)(a) prohibition order preventing him from attending a public park where children under 14 could reasonably be expected to be present, was arrested while working at a game booth at the Super Ex fair at Lansdowne Park.

He appealed his conviction, arguing that a paved fairground is not a 'public park'.

The Court of Appeal dismissed the appeal, holding that the definition of 'public park' under s. 161(1)(a) focuses on the recreational activities available to the public and the likelihood of children being present, rather than the physical geography or presence of green space.

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

He argued the trial judge erred by failing to caution the jury against using the child complainant's section 715.1 videotaped statement to bolster her trial evidence, and that the Kienapple principle should stay the latter two convictions.

The Court of Appeal dismissed the appeal, finding the jury instruction was unnecessary as the videotaped statement forms part of the trial evidence, and holding that Kienapple did not apply because the offences have different legal elements.

The appellant challenged his conviction as a party to a sexual assault with a weapon arising from a group sexual assault committed during a heavily intoxicated gathering, arguing that the trial judge failed to address intoxication and scrutinized defence evidence more harshly than Crown evidence.

The court held that the intoxication defence had an air of reality, but the trial reasons, read contextually, showed the trial judge was aware of the defence and rejected it, thereby permitting meaningful appellate review.

The court also rejected the complaint about uneven scrutiny, finding the credibility analysis thorough and balanced.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because the custodial term was fit and parity with youth co-accused sentenced under a different statutory regime did not assist the appellant.

The appellant pleaded guilty to eighteen offences, including ten for fraud under $5,000, and was sentenced to 18 months' imprisonment plus 161 days of pre-trial custody.

She appealed the custodial portion of her sentence, arguing the sentencing judge erred in granting only 1:1 credit for pre-trial custody without providing an ascertainable rationale.

The Court of Appeal found this to be an error in principle, allowed the appeal, and reduced the sentence to time served based on a 2:1 credit for pre-trial custody.

The Crown appealed the sentence imposed on the respondent following a guilty plea.

The Court of Appeal found that the offence was very serious and would normally attract at least a three-year sentence, particularly given the element of planning.

However, because the respondent had already served nine months in a reformatory and was making progress with his addiction problems, the Court declined to send him to the penitentiary.

The sentence was varied to a maximum reformatory term of two years less a day, followed by three years' probation.

The appellant was convicted of careless driving and failing to report a snowmobile accident under the Motorized Snow Vehicles Act.

He appealed, arguing that the justice of the peace failed to consider his due diligence defence—specifically, his mistaken belief that he was uninjured and that the snowmobile damage was minor—and failed to provide sufficient reasons under the Sheppard standard.

The Court of Appeal agreed, finding that the lower courts ignored the appellant's evidence regarding his condition, the apparent damage, and the trail conditions.

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

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in admitting evidence of a prior sexual assault conviction as similar fact evidence.

The Court of Appeal applied the framework from R. v. Handy and R. v. Blake, finding that the similarities between the prior incident and the current allegations were merely generic and lacked distinctive unifying features.

The court concluded the probative value of the evidence failed to outweigh its prejudicial effect.

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

The appellant appealed his conviction for three counts of assault causing bodily harm by the discharge of a firearm arising from a nightclub shooting.

At trial, the primary defence was identity, but on appeal, the appellant solely argued the issue of self-defence.

The Court of Appeal dismissed the appeal, finding that based on the trial judge's findings of fact, the defence of self-defence under sections 34(2) or 37 of the Criminal Code could not assist the appellant.

The appellant appealed his summary conviction for harassment and sought to introduce fresh evidence.

The Court of Appeal dismissed the application to introduce fresh evidence, finding it did not meet the Palmer threshold.

The Court also dismissed the appeal, finding no error in the appeal judge's endorsement of the trial judge's conclusion that the appellant's conduct was persistent, ongoing, constituted harassment, and was not trifling in nature.