Criminal and Quasi-Criminal Law - OCA

This Crown appeal addresses the timeframe within which an initial refusal to provide a roadside breath sample (ASD demand) can be retracted before constituting a criminal offence.

The Court of Appeal for Ontario reconciled the "same transaction" principle from R. v. Domik with the "immediately" requirement of the Criminal Code s. 320.27(1)(b).

The court held that Domik applies to ASD demands, but the "same transaction" window is limited by the time police can lawfully obtain a sample "immediately" considering operational time and unusual circumstances, as interpreted by R. v. Breault.

The trial and summary conviction appeal judges erred in law by not properly applying these constraints.

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

The appellant, Geoffrey Le Feuvre, appealed an Ontario Review Board disposition ordering his detention at the Centre for Addiction and Mental Health (CAMH), arguing the Board's finding of significant public threat was unreasonable.

The Court of Appeal for Ontario found the appeal moot because a subsequent urgent hearing resulted in a new disposition transferring the appellant to a different facility with community living privileges.

The court declined to hear the appeal on its merits due to the material change in circumstances and ordered an expedited new hearing by the Board to assess the significant threat issue based on the appellant's current situation.

The appellant, Nicholas Johnson, appealed his conviction for second-degree murder, challenging the trial judge's refusal to qualify a proposed expert mid-trial.

The expert was intended to recover access to the appellant's Google account via his cell phone to obtain location services data.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision, noting the lack of a proper application and insufficient evidence regarding the expert's qualifications or the admissibility of the potential data.

The appellant, an overnight attendant at a group home, was convicted of criminal negligence causing the death of a resident with developmental disabilities who drowned in a bathtub.

The appellant had left the resident unsupervised, contrary to an "eyes-on" protocol.

On appeal, the court found the verdict unreasonable due to insufficient evidence of causation.

The forensic pathologist's opinion on drowning was based on information not fully supported by the record, and he could not eliminate other potential causes like a sudden cardiac event.

The court noted a risk of the jury reasoning backward from the death to infer causation without sufficient evidentiary basis.

The conviction was set aside, and an acquittal was entered.

The appellant sought leave to appeal a Summary Conviction Appeal Court decision that dismissed his appeal from convictions for assault and sexual assault.

The appellant argued that the trial judge erred by confusing the distinction between a proved absence of motive to lie and the absence of evidence of a motive to lie.

The Court of Appeal denied leave to appeal, finding that the legal principle was well-settled and the merits of the appeal were not strong.

The trial judge's statement that she did not find a motivation to fabricate was a rejection of the defence submission rather than a positive finding that no motive existed.

The appellant, a criminal defence lawyer, was convicted of smuggling drugs into the Toronto Jail for a former client during a professional visit.

On appeal, he argued that the trial judge applied uneven scrutiny to the evidence and erred in refusing to order the production of third party records relating to the prevalence of drug smuggling at the jail.

The Court of Appeal allowed the appeal, finding that the trial judge subjected the appellant's evidence to a stricter level of scrutiny than the Crown's evidence, and erred in concluding that the third party records were not likely relevant.

A new trial was ordered.

The appellant appealed his conviction for second degree murder and the sentence increasing his period of parole ineligibility.

On the conviction appeal, the appellant argued the trial judge erred in instructing the jury on intoxication and the required intention for murder.

The Court of Appeal found the trial judge properly instructed the jury on the relevance of intoxication to mens rea and adequately summarized the defence's position regarding an alcohol-induced blackout.

On the sentence appeal, the Court found no error in the trial judge's exercise of discretion in weighing aggravating and mitigating factors.

Both the conviction and sentence appeals were dismissed.

The appellant appealed his convictions for robbery and firearm-related offences, as well as his 11-year sentence.

He argued the trial judge misapprehended medical and gunshot residue evidence, and applied uneven scrutiny to the defence evidence.

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

On the sentence appeal, the court upheld the 11-year sentence as fit but granted leave to vary the pre-sentence custody credit to 1.5:1 in accordance with R. v. Summers.

The Crown appealed the 12-year sentence imposed on the respondent for his role in a terrorist bomb plot targeting locations in Toronto.

The respondent had pleaded guilty to doing anything with intent to cause an explosion for the benefit of a terrorist group.

The Court of Appeal found the sentencing judge over-emphasized mitigating factors and under-emphasized the enormity of the crime.

The effective sentence was increased from 12 to 18 years, and an order was made requiring the respondent to serve one half of his sentence before being eligible for full parole.

The respondent pleaded guilty to participating in a terrorist plot to detonate bombs at the Toronto Stock Exchange, CSIS Headquarters, and a military base.

The sentencing judge imposed a 14-year sentence (7 years after pre-trial custody credit) and declined to increase parole ineligibility, emphasizing the respondent's youth, lack of criminal record, and rehabilitative prospects.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, holding that the sentencing judge gave inadequate weight to the enormity of the planned mass murder and the unique nature of terrorism offences.

The sentence was increased to 20 years (13 years after credit), and the respondent was ordered to serve one-half of his sentence before being eligible for parole.

The appellant appealed his convictions for dangerous driving and drug offences.

On the dangerous driving conviction, the Court of Appeal admitted fresh evidence regarding a police officer's misconduct record but found it would not have affected the trial judge's credibility assessment.

On the drug convictions, the court declined to enter acquittals, finding there was some evidence of continuity, and upheld the summary conviction appeal court's order for a new trial.

The Crown appealed the sentence imposed on the respondent after the trial judge terminated a dangerous offender application and sentenced him to a conventional term.

The trial judge had excluded a psychiatric assessment report based on perceived power imbalances, lack of independence, and late disclosure of materials.

The Court of Appeal found the trial judge erred in excluding the report, as there was no evidence of collaboration between the Crown and the assessing psychiatrist, and the respondent suffered no prejudice from the late disclosure.

Given the complete record and the respondent's high risk of violent reoffending, the Court of Appeal declared the respondent a dangerous offender and imposed an indeterminate sentence.

The appellant appealed a disposition of the Ontario Review Board ordering his detention in a medium security setting at the hospital, despite submissions from the hospital and the Attorney General that his detention in a minimum security setting should be continued.

The Court of Appeal found no legal error and held that the disposition was reasonable given the appellant's worsened mental condition, recent elopement, violent ideation, and high risk for future elopements and violent recidivism.

The appeal was dismissed.

The appellant appealed his conviction for selling crack cocaine to an undercover police officer, arguing the trial judge erred in instructing the jury on identification evidence and that the Crown improperly cross-examined him regarding his alibi and prior criminal record.

The Court of Appeal found that the jury instructions on identification, when read as a whole, properly distinguished between certainty and reliability.

The court also held that the Crown's cross-examination on the appellant's alibi and prior record was proper and cured by appropriate limiting instructions.

The appeal was dismissed.

The Crown appealed a costs order made by the Superior Court of Justice.

The respondent conceded that the appeal should be allowed.

The Court of Appeal allowed the appeal and set aside the costs order.

The appellant appealed his conviction for sexual offences against a child.

He argued the trial judge erred by refusing to take judicial notice of physical signs of sexual intercourse in a child and by treating his failure to contact his family as after-the-fact conduct indicative of guilt.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to take judicial notice or in his treatment of the after-the-fact conduct.

The appellant appealed a disposition of the Ontario Review Board.

The appellant failed to appear at the hearing despite being advised by amicus curiae that the appeal could be dismissed if he did not appear.

The Court of Appeal dismissed the appeal as abandoned.

The plaintiffs in a civil action arising from an assault sought production of police and Crown records relating to the young offenders who committed the assault.

The motion judge ordered production under the Rules of Civil Procedure, and a subsequent judge ordered compliance subject to a vetting process.

The Attorney General appealed, arguing that the Youth Criminal Justice Act (YCJA) provides the exclusive mechanism for accessing such records.

The Court of Appeal agreed, holding that section 118(1) of the YCJA clearly and unambiguously limits access to young offender records to the procedures set out in that Act, precluding the Superior Court from ordering production under Rule 30.10 or its inherent jurisdiction.

The appeal was allowed and the production order set aside.

The appellant appealed his global sentence of 32 months' imprisonment (after 40 months' credit for pre-trial custody) for sexual assault, unlawful confinement, and breach of recognizance.

He argued the trial judge failed to adequately consider his rehabilitation prospects, imposed a sentence higher than the Crown's submission, failed to mitigate for time spent in segregation, and imposed an excessive sentence.

The Court of Appeal dismissed the appeal, finding no error in principle and concluding the sentence was proper given the violent nature of the offences and the appellant's lengthy prior record.

The appellant appealed his conviction on the basis that the trial judge's credibility findings regarding an eight-year-old child witness were unreasonable.

The Court of Appeal found profound internal inconsistencies in the child's evidence that went to the core of the alleged offence, which the trial judge failed to reconcile.

The Court held that the trial judge erred by lowering the standard of proof due to the complainant's age.

The appeal was allowed, the convictions were set aside, and an acquittal was entered.