Criminal and Quasi-Criminal Law - OCA

The appellant appealed his conviction for firearms offences and breaches, and his sentence.

The conviction appeal argued the trial judge failed to adequately address significant discrepancies between police officers' evidence.

The sentence appeal argued the trial judge failed to give credit for pre-sentence incarceration conditions related to the COVID-19 pandemic.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's assessment of evidence or in the sentencing judge's discretion regarding enhanced credit for COVID-19 conditions.

The applicant, Shaun Rootenberg, sought an order for the appointment of counsel under s. 684(1) of the Criminal Code for his appeal, having exhausted legal aid options.

The Crown opposed, arguing the appeal lacked arguable merit and counsel was not necessary.

The court found that while the proposed grounds of appeal were weak, they were arguable for the purpose of the application.

Specifically, the second and third grounds, concerning the legal implications of strip searches during pre-trial custody and sentencing credits, involved significant and novel legal components, making the appointment of counsel necessary for a fair and effective appellate review.

The application for the appointment of counsel to advance all three grounds of appeal was granted.

The Crown appealed a forfeiture order made by a Justice of the Ontario Court of Justice under section 490(9)(3)(d) of the Criminal Code.

The respondents did not appear.

The Court of Appeal determined that appellate jurisdiction lay with the Superior Court of Justice under section 490(17)(b), and transferred the appeal accordingly to the Superior Court of Justice at St. Catharines.

The appellants were convicted of manslaughter following a trial by judge and jury.

Their convictions on break and enter to commit robbery were stayed pursuant to the Kienapple principle.

The appellants appealed their manslaughter convictions on various grounds and sought leave to appeal their sentences.

The Crown also sought leave to appeal the sentence imposed on one appellant.

The Court of Appeal found that the jury charge on the critical counts of manslaughter was insufficient to meet the functional requirements for an adequate jury charge, particularly in failing to adequately relate the evidence to the key issues and the parties' positions.

The conviction appeals were allowed and a new trial was ordered on all original charges.

The Crown appealed the sentence imposed on two young persons, arguing it was manifestly unfit.

The Crown also sought to establish judicial criteria for the grant of a reprimand by a youth court judge.

The Court of Appeal dismissed the appeal, finding the sentence was legally available and that the sentencing judge properly considered all relevant factors, including the seriousness of the offence and the circumstances of the offenders.

Both young persons had undertaken substantial rehabilitative measures independently.

The appellant appealed his conviction, arguing the trial judge erred by failing to consider whether his arrest and detention were arbitrary beyond non-compliance with section 495(2) of the Criminal Code.

The Court of Appeal dismissed the appeal.

The Court found no basis in the record to conclude the officer's conduct was arbitrary, noting the appellant was found lying on a median beside a busy roadway and volunteered that he possessed marihuana.

The appellant appealed a 22-month sentence for offences including assault, death threats, criminal harassment, and breach of recognizance.

The Court of Appeal found the sentencing judge erred in principle by failing to consider the totality principle when imposing consecutive sentences.

Given the offender's youth, the court granted leave to appeal and reduced the total sentence to 18 months, resulting in 13 months going forward after accounting for 5 months of pre-sentence custody.

The appellant appealed his convictions, arguing that the trial judge breached his right to be present at his trial under s. 650(1) of the Criminal Code by holding in-chambers discussions about a Parks challenge and having private conversations with potential jurors.

The Court of Appeal held that the in-chambers discussions were preliminary and did not breach the Code.

While the private discussions with potential jurors did breach s. 650(1), the court applied the curative proviso under s. 686(1)(b)(iv), finding that the appellant suffered no prejudice as his counsel was present, no objections were raised, and all jurors spoken to privately were excused.

The appellant appealed his conviction for sexual assault and his sentence as a dangerous offender.

He argued the trial judge made several errors in his jury instructions, including failing to charge on the mens rea of consent and improperly instructing on prior consistent statements.

He also argued the sentencing judge committed a Johnson error by failing to consider a long term offender designation before imposing a dangerous offender designation.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

The sentence appeal was also dismissed, as the court found no reasonable possibility that a long term offender designation would have been imposed given the expert evidence of the appellant's high risk to reoffend.

The appellant appealed his conviction, arguing that the trial judge's questioning of a recanting Crown witness demonstrated a prejudgment of the witness's credibility and the appellant's guilt.

The Court of Appeal dismissed the appeal, finding that the manner and timing of the questions, the absence of objection by trial counsel, and the nature of the witness's testimony did not establish prejudgment.

The appellant appealed his conviction for possession of ecstasy for the purpose of trafficking.

He argued that the trial judge erred by failing to exclude evidence under s. 24(2) of the Charter after finding a s. 8 breach when police seized drugs from his home without a warrant.

The police had attended a domestic dispute, and the appellant's common law spouse volunteered the drugs to them.

The Court of Appeal upheld the trial judge's finding that the breach was inadvertent and minor, and that the trial judge did not err in balancing the Grant factors.

The court also rejected arguments that the trial judge shifted the burden of proof or provided inadequate reasons.

The appellant appealed his convictions for several sexual offences, arguing that the trial judge provided inadequate reasons, failed to account for inconsistencies in the complainant's evidence, and improperly shifted the burden of proof.

The Court of Appeal dismissed the appeal, finding that while the reasons could have been fuller, the trial judge grasped the essence of the case, made essential factual findings, and properly applied the burden of proof and the W.(D.) framework.

The appellant appealed his conviction and sentence for a serious weapons offence involving a loaded handgun.

He argued that his investigative detention violated his rights under sections 8 and 9 of the Charter.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly concluded that reasonable grounds for detention existed based on reliable confidential information corroborated by surveillance.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit given the prevalence of handgun crimes in the community.

The appellant appealed a finding of Not Criminally Responsible (NCR) and a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal from the NCR finding, holding that the appellant's guilty plea was unequivocal and there was no dispute regarding fitness.

The appeal from the Board's order was dismissed as moot because the appellant was scheduled to be moved to another facility.

The Crown appealed an order of an Ontario Court of Justice judge who purported to exercise delegated habeas corpus powers to declare the accused's detention in jail unlawful.

The accused had been ordered to undergo a mental health assessment at a hospital but was held in jail due to a lack of beds.

A Superior Court judge had remitted the accused's habeas corpus application to the lower court under s. 775 of the Criminal Code.

The Court of Appeal quashed the appeal, holding that the lower court judge's order was not a judgment issued on the return of a writ of habeas corpus, as s. 775 does not permit the delegation of superior court habeas corpus powers to a lower court.

Consequently, there was no statutory jurisdiction to hear the appeal under s. 784(5) of the Criminal Code.

The appellant appealed his conviction, arguing that the trial judge erred in failing to find that the initial police stop was arbitrary.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of fact supported the conclusion that the initial detention was not arbitrary, and there was no basis to interfere with those findings.

The Canadian Foundation for Children Youth and the Law brought a motion for leave to intervene as a friend of the court in an appeal involving a young person.

The Court of Appeal for Ontario granted the motion, subject to conditions including that the moving party take the record as it exists, file a factum of no more than 20 pages, and make oral argument of no more than 30 minutes.

The moving party was also permitted to reference the Convention on the Rights of the Child and other international treaties ratified by Canada.

The appellant appealed his conviction for holding out, arguing the trial judge erred by relying on a police officer's testimony regarding slang terms as expert evidence.

The Court of Appeal dismissed the appeal, finding the testimony was properly admitted as the officer's lay understanding of a conversation to which he was a party.

This evidence, combined with the packaging and neighbourhood context, was sufficient to prove the charge.

The 18-year-old appellant pleaded guilty to aggravated assault and firearms offences, receiving a sentence of five years and two months after credit for pre-trial custody.

On appeal, he sought to introduce fresh evidence regarding systemic racism and background factors facing black Canadians.

The Court of Appeal declined to admit the fresh evidence, finding that while such factors could be relevant in sentencing, the appellant's crimes were too serious for them to affect the result.

However, the Court allowed the appeal and reduced the sentence to four years and two months, finding the trial judge erred by focusing almost exclusively on denunciation and general deterrence for a youthful offender facing his first penitentiary sentence.

The appellants appealed jury convictions and sought to adduce fresh evidence that a knife said at trial to belong to one appellant was actually the victim's knife dropped at the scene.

The Crown conceded the fresh evidence justified a new trial for one appellant, but argued it was not admissible or decisive for the other under the Palmer criteria.

The court held the Crown's joint venture theory and the way the knife evidence was used at trial bound the appellants together for purposes of the fresh evidence analysis.

The appeals were allowed, the convictions set aside, and a new trial ordered for both appellants.