Criminal and Quasi-Criminal Law - OCA

The appellant was convicted by jury of possession of heroin for the purposes of trafficking and possession of heroin.

On appeal, the Crown conceded that the trial judge erred by failing to provide a W.D. instruction in the jury charge that would have made clear that a route to acquittal was available even if the jury disbelieved the appellant's evidence.

The appellate court agreed that the curative proviso could not be relied upon.

The appeal was allowed and a new trial was ordered on counts 2 and 3 of the indictment.

The appellant appealed a decision of the Ontario Review Board that continued his detention order under Part XX.1 of the Criminal Code.

The appellant argued that the Board applied the wrong legal test and failed to meaningfully consider whether a conditional discharge would adequately protect the public.

The Court of Appeal dismissed the appeal, finding that the Board properly considered the statutory requirements, including the safety of the public and the reintegration of the accused into society, and that the Board's decision to continue the detention order was reasonable and entitled to deference.

The Crown appealed the acquittal of the respondent on drug and firearms charges.

The trial judge found that police violated the respondent's Charter rights under section 8 by obtaining a search warrant based on stale information.

The warrant was issued on February 26, 2016, to search the respondent's vehicle for cocaine and related items, based on information that the respondent had allegedly delivered drugs to a target of investigation on February 3, 2016, and possibly on December 18, 2015.

The trial judge concluded that the 23-day delay between the last alleged transaction and the warrant execution rendered the information insufficient to establish reasonable grounds to believe evidence would be found in the vehicle.

The trial judge excluded the evidence under section 24(2) of the Charter.

The Court of Appeal (majority) dismissed the Crown's appeal, finding no error in the trial judge's analysis of the staleness of the information or the application of the section 24(2) factors.

The appellant appealed his conviction for armed robbery and related offences, as well as his eight-year sentence.

The trial judge found that police unlawfully detained the appellant by deliberately delaying his appearance before a justice of the peace beyond the 24-hour requirement under section 503 of the Criminal Code.

However, the trial judge declined to stay proceedings, finding that the integrity of the justice system would be better served by proceeding to trial on the merits.

The Court of Appeal upheld the conviction but modified the sentence, correcting errors in the application of the Kienapple principle and reducing the global sentence to five years concurrent with one-year sentences on related charges.

The appellants were convicted of first degree murder in the shooting death of Joel Waldron.

The Crown could not prove which appellant was the shooter but argued both were guilty as one was the shooter and the other aided or abetted the killing.

The appellants appealed on grounds that the trial judge's charge to the jury was deficient in relating evidence to the elements of aiding and abetting and planning and deliberation.

The Court of Appeal found the jury charge was factually unbalanced and failed to properly relate evidence to the necessary legal elements, particularly regarding aiding and abetting.

While the court did not find the verdict unreasonable, it quashed the convictions and ordered a new trial due to the deficiencies in the charge.

An appeal from a disposition of the Ontario Review Board dated May 24, 2017.

The appellant, found not criminally responsible on account of mental disorder for robbery in 2010, challenged the Board's decision to impose a detention disposition rather than a conditional discharge.

The appellant argued that a conditional discharge with treatment conditions could manage his risk as effectively as detention.

The Court of Appeal upheld the Board's disposition, finding that the Board correctly applied the legal test and that its conclusion was reasonable given the appellant's recent deterioration, non-compliance with conditions, medication non-adherence, and the limitations of the Mental Health Act in managing his risk.

The appellant appealed his conviction and sentence for criminal harassment.

The appellant abandoned his conviction appeal but sought leave to introduce fresh evidence and to appeal his sentence on the grounds that it was imposed without consideration of collateral immigration consequences that arose from amendments to federal immigration legislation introduced after sentencing.

The Crown conceded that had these consequences been known at sentencing, they would have affected the result.

The court granted the fresh evidence application, granted leave to appeal sentence, and allowed the appeal, imposing a suspended sentence with credit for six months less one day of pre-sentence custody and two years' probation.

The appellant appealed his guilty plea to manslaughter entered in 2001 for the death of a 13-month-old child.

The appeal arose from the reinvestigation of cases involving Dr. Charles Smith, a pathologist whose evidence regarding cause of death in children was later found to be unreliable.

The appellant had pleaded guilty based significantly on Dr. Smith's opinion that the child died from asphyxia caused by the appellant.

Fresh evidence established that Dr. Smith's conclusions were flawed and unsupported by the autopsy findings.

Multiple independent pathologists concluded the cause of death was unascertained.

The Crown conceded that Dr. Smith's flawed opinion played a significant role in the appellant's decision to plead guilty and agreed that it was in the interests of justice to set aside the conviction and order a new trial.

The appellant was convicted by jury of robbery, use of an imitation firearm, and masking his face, and was sentenced to a global sentence of twelve years' imprisonment.

He appealed his sentence, seeking leave to appeal and relying on fresh evidence regarding his personal history, including his status as a Crown ward and his victimization by physical and sexual abuse while in state care.

The Crown conceded that the sentencing judge committed an error in principle by failing to obtain or consider information about the appellant's personal circumstances.

The Court of Appeal allowed the appeal and reduced the sentence to ten years' imprisonment, finding that the sentencing judge's error impacted the fitness of the sentence and that the appellant's personal circumstances were relevant to assessing his moral blameworthiness.

The appellant appealed his conviction, arguing the trial judge erred by failing to address why accepted Crown witness evidence failed to raise a reasonable doubt.

The Court of Appeal dismissed the appeal, finding that the facts found by the trial judge created an overwhelming inference of guilt that was not displaced by the matters relied on by the appellant.

The appellant was convicted of possession of marijuana and ketamine for the purpose of trafficking after police, acting on a confidential informant's tip and subsequent surveillance, arrested her and searched her vehicle and residences.

On appeal, she argued her ss. 8 and 9 Charter rights were violated because the police lacked objectively reasonable grounds for her arrest and the search warrant for her home was unjustified.

The Court of Appeal dismissed the conviction appeal, finding the informant's tip was credible, compelling, and corroborated by surveillance, providing reasonable grounds for arrest and a sufficient nexus to search the residence.

The court also declined to admit fresh evidence and dismissed the sentence appeal.

The appellant appealed his conviction for sexual assault of a 13-year-old complainant he met on a dating website.

The appellant argued the trial judge erred in his credibility assessments, including his reasons for rejecting the appellant's evidence, his use of a friend's evidence to corroborate the complainant's allegations, and his finding that the complainant had no motive to fabricate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings and concluding that the trial judge properly applied the W.(D.) test.

The appellant, a police officer, appealed her convictions and five-year consecutive sentences for arson and administering a noxious substance.

The appellant had spiked her daughter-in-law's drink with a sleep aid during a discussion about a custody dispute, and subsequently set fire to the house while the victim slept.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of the expert fire evidence or the complainant's testimony.

The sentence appeal was also dismissed, as the consecutive sentences were justified for offences invading distinct societal interests, and the global sentence was fit given the serious aggravating factors.

The appellant appealed his 15-year sentence for manslaughter.

The Court of Appeal upheld the 15-year sentence, finding it fit for a brutal aggravated homicide and noting the sentencing judge made no errors regarding parity or the appellant's role.

However, the Court found the sentencing judge erred in granting only 1.22 days of credit for pre-trial custody based on a lack of pre-charge programming.

The Court increased the pre-trial custody credit to the standard 2-for-1 ratio, reducing the remaining sentence to eight years and six months.

The appellant appealed a disposition of the Ontario Review Board, seeking an absolute discharge and community living privileges.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that the appellant continued to pose a significant risk to public safety was reasonable based on unchallenged evidence.

The Court also found the Board's assessment regarding community living privileges was reasonable, though it directed that future reviews include more information regarding the appellant's aboriginal status and a future-looking treatment plan.

The appellant appealed his designation as a dangerous offender following convictions for attempted murder and aggravated sexual assault, arguing he should have been designated a long-term offender.

He submitted the trial judge erred by restricting his expert's testimony and rejecting the expert's opinion on his prospects for controlling his alcoholism.

The Court of Appeal dismissed the appeal, finding the trial judge properly qualified the expert and was entitled to prefer the Crown expert's evidence that the appellant's prospects for treatment were extremely poor.

The appellant appealed her sentence for her involvement in a marijuana grow operation, arguing the trial judge erred by failing to explain why a conditional sentence could not serve the goals of deterrence.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the appellant's temptation to reoffend and the prevalence of grow operations in the community.

The court held that the short jail term, which allowed the appellant to maintain employment, was fit and that this was not a rare case where a conditional sentence would be appropriate.

The appellant appealed his conviction, arguing the trial judge erred in finding the necessary mens rea based on wilful blindness.

The trial judge found the appellant should have suspected there was more to a parcel he delivered to a jail than clothing.

The Court of Appeal held that the trial judge erred in law by applying an objective standard ('should have alerted') rather than a subjective one, and by finding a level of suspicion ('may be more') that fell short of the 'probability' required for wilful blindness as defined in R. v. Jorgensen.

The conviction was quashed and a new trial ordered.

The appellant was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime after police stopped his vehicle and searched him.

The police suspected the appellant was involved in drug trafficking after observing his interactions with a suspected prostitute.

During the stop, an officer touched the appellant's groin area, leading to the discovery of cocaine and cash.

The Court of Appeal found that while the initial stop was justified, the search violated the appellant's s. 8 Charter rights as it was not conducted for officer safety.

The Court concluded that the trial judge erred in admitting the evidence under s. 24(2), as the breach was serious and its admission would bring the administration of justice into disrepute.

The appeal was allowed and acquittals were entered.

The appellant appealed his assault conviction, arguing the trial judge erred in determining the location of the assault.

The Court of Appeal held it was open to the trial judge to infer the assault occurred at the complainant's room based on the absence of a blood trail.

The Court also found that any misapprehension of evidence regarding the appellant's brother's cooperation with police was not material to the result.

The appeal was dismissed.