Criminal and Quasi-Criminal Law - OCA

The appellant, Robert Freedland, appealed his conviction for counselling extortion.

The Crown's case relied heavily on the testimony of a key witness, Mr. James, whose credibility was central.

The Court of Appeal considered two main issues: the admissibility of non-expert opinion evidence from a store clerk and the trial judge's failure to provide a limiting instruction regarding Mr. James's prior consistent statements.

The court found that while the error regarding the non-expert opinion evidence was harmless, the failure to instruct the jury on the limited use of prior consistent statements constituted non-direction amounting to misdirection, which was not salvageable by the curative proviso.

The appeal was allowed, and a new trial was ordered.

The appellant appealed a conviction for sexual assault, arguing the trial judge misapprehended evidence regarding the timing and location of the assaults.

The complainant testified about assaults occurring between 1995 and 1999, when she was 11-13 years old.

A key inconsistency involved a distinctive tattoo on the appellant, which the complainant claimed to have seen throughout the assaults, but which the trial judge found was acquired after the appellant moved out and the abuse allegedly stopped.

The Court of Appeal found that the trial judge was entitled to reconcile inconsistencies in the complainant's memory regarding precise timing and location, while still accepting the essential nature of the sexual assaults.

The appeal was dismissed.

The appellant sought bail pending appeal following his fourth conviction for sexual assault, for which he received a four-year sentence.

The Crown opposed the application on the grounds that detention was necessary in the public interest and that the grounds of appeal were frivolous.

The Court of Appeal dismissed the application, finding that the appellant failed to meet his burden of establishing that detention was not necessary in the public interest under section 679(3) of the Criminal Code.

The court found the grounds of appeal to be very weak, the offence to be serious, and evidence of above-average risk to reoffend in a sexual manner.

The Crown appealed a sentence imposed for child luring involving prolonged sexually explicit internet communications with a 12-year-old victim, including inducement to create and transmit child pornography.

The court held the sentencing judge erred by discounting the impact on the victim and by failing to treat the production of child pornography and grooming conduct as significant aggravating factors.

Distinguishing prior authorities where conditional sentences were imposed in police sting operations, the court found denunciation and deterrence required incarceration in a case involving an actual child victim over many months.

Leave to appeal sentence was granted, the appeal was allowed, and a custodial sentence of two years less a day was imposed.

The appellant was convicted of possession of MDMA for the purpose of trafficking and sentenced to four years' imprisonment after police found nearly 100,000 Ecstasy tabs in his vehicle.

On appeal, he argued that his arrest, based on a confidential informant's tip, lacked reasonable and probable grounds, rendering the subsequent search unlawful under ss. 8 and 9 of the Charter.

The Court of Appeal upheld the trial judge's application of the Debot factors, finding the tip compelling, the informant credible, and the information corroborated.

The appeals against conviction and sentence were dismissed.

The appellant appealed his convictions and sentence for assault, mischief, and failure to comply with an undertaking.

The charges arose from an altercation where the appellant evicted his teenage daughter, grabbed her, and threw her computer, as well as a subsequent breach of a no-contact order regarding another daughter.

The Court of Appeal dismissed the appeal, finding the daughter was not a trespasser, the trial judge properly inferred damage to the computer, and the appellant could not use an unauthorized third party to communicate.

The 45-day sentence was upheld as reasonable.

The appellant appealed his conviction and sentence for firearm offences.

He argued the trial judge misapprehended evidence in rejecting his testimony.

The Court of Appeal found that while the trial judge made one factual error, it was not material to the conviction.

On the sentence appeal, the Court agreed that the sentence for unauthorized possession should be concurrent, not consecutive, to the sentence for possession of a loaded restricted firearm.

The Court upheld the trial judge's calculation of presentence custody credit, noting the appellant's poor conduct in custody negated the quantitative rationale for enhanced credit.

The total sentence was reduced from six to five years.

The appellant, a police officer, was convicted of assault and assault with a weapon after using excessive force against an intoxicated complainant during an arrest.

His appeal to the summary conviction appeal court was dismissed.

He sought leave to appeal to the Court of Appeal, arguing that the lower courts erred in their application of the justification defence under section 25(1) of the Criminal Code.

The Court of Appeal dismissed the application for leave, finding no error of law and concluding that the proposed appeal did not raise an unsettled question of law of public importance.

The applicant sought leave to appeal a Summary Conviction Appeal Court decision that quashed his acquittal.

The trial judge had rejected the applicant's defence of non-insane automatism because he failed to lead expert evidence as required by R. v. Stone.

Furthermore, there was no evidence that the applicant was tricked into consuming alcohol.

The Court of Appeal denied leave to appeal, finding no issue of sufficient merit or importance.

The Ontario Review Board appealed a costs order made against it by an application judge following a successful application by the respondent to quash an adjournment order made by the ORB.

The Court of Appeal allowed the appeal and set aside the costs order, finding that the application judge applied the wrong test.

The Court held that the test for awarding costs against the ORB should be at least as stringent as the test for awarding costs against the Crown in criminal matters, requiring a marked and unacceptable departure from reasonable standards, which was not met in this case.

The young person appealed the decision to sentence him as an adult.

He argued the trial judge erred by failing to consider the immigration consequences and possible deportation resulting from the sentence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's determination, particularly given the position taken by defence counsel at trial and the absence of a proper evidentiary record regarding deportation.

The Crown appealed a youth sentence but conceded the appeal was moot as it was no longer seeking a custodial disposition.

The Court of Appeal declined to exercise its discretion to hear the moot appeal, finding it was largely fact-driven and not an exceptional case.

The appeal was dismissed for mootness.

The appellant, who was found not criminally responsible for sexual assault and detained for 24 years, appealed a decision of the Ontario Review Board refusing to grant him an absolute discharge under s. 24(1) of the Charter.

The Court of Appeal held that the ORB is not a court of competent jurisdiction to grant an absolute discharge as a Charter remedy because it lacks the structural competence and remedial jurisdiction.

However, the Court allowed the appeal in part, finding that the ORB's failure to impose conditions in its disposition to address the appellant's treatment impasse was unreasonable, and remitted the matter for a new hearing.

The Crown appealed the respondents' acquittals for criminal negligence causing death following a fatal horseback riding accident involving a ten-year-old novice rider.

The Crown argued the trial judge erred in excluding evidence of prior incidents involving the horse and expert evidence regarding safe trail ride operations.

The Court of Appeal found that the trial judge erred in excluding one prior incident and the expert evidence, as the expert evidence met the necessity criterion.

However, the appeal was dismissed because the Crown failed to demonstrate with a reasonable degree of certainty that the verdicts would not necessarily have been the same had the errors not occurred.

The appellant appealed his conviction for extortion, having been acquitted of related assault charges arising from the same incident.

The Court of Appeal found that the trial judge misdirected the jury by providing a generic instruction on extortion that included 'threats', which could have led the jury to convict based on words alone, despite the Crown's case requiring proof of physical assault.

The conviction was quashed and a new trial ordered.

The appellant pleaded guilty to multiple property-related offences, including break and enters.

At trial, there was a joint submission for a three-year sentence, but the trial judge rejected it and imposed a five-year sentence.

On appeal, the Court of Appeal held that the proposed three-year sentence was within the appropriate range, given the appellant's youth, lack of prior lengthy sentences, and efforts to overcome addiction.

The appeal was allowed, and the sentence was varied to three years by making certain sentences concurrent.

The appellant appealed his conviction for having care and control of a motor vehicle while impaired.

The Court of Appeal dismissed the appeal, agreeing with the lower courts that the appellant was in care and control.

The court noted the appellant was heavily intoxicated, the keys were in the ignition, the car was running, and he had stated an intention to resume driving.

The appellant was convicted of dangerous driving causing death and bodily harm after losing control of his vehicle while speeding on a wet road.

He appealed his convictions, arguing his s. 11(b) Charter rights were violated and the Attorney General lacked authority to prefer the indictment under s. 577 of the Criminal Code after his committal was quashed.

The Court of Appeal dismissed the conviction appeal, agreeing with the trial judge's analysis.

However, the sentence appeal was allowed, as the trial judge erred in principle regarding the appropriateness of a conditional sentence.

The sentence was reduced from two years less a day to 15 months imprisonment.

The Crown appealed a sentence in which the trial judge imposed a conditional sentence.

The court held the sentencing judge was in the best position to assess the effect of the respondent's serious mental illness on the commission of the offence and that there was evidence supporting that finding.

The court also relied on the respondent's youth, controlled mental illness, family support, and the Crown's position at trial.

Leave to appeal sentence was granted, but the appeal was dismissed.

The Crown appealed an order staying an assault prosecution after a charge screening form incorrectly indicated that the matter would proceed summarily.

The Court of Appeal held that the notation was merely an administrative error and did not amount to a binding election, particularly because the charge had been laid outside the limitation period for summary proceedings.

The court further held that the subsequent decision to proceed by indictment caused no prejudice or hardship capable of justifying a stay of proceedings.

The appeal was allowed, the stay was set aside, and the matter was remitted to the Ontario Court of Justice.