Criminal and Quasi-Criminal Law - OCA

The applicant, Terry Lynn Bardwell, sought bail pending appeal of her conviction and sentence for drug trafficking and carrying a concealed weapon.

She had previously pleaded guilty and received a conditional sentence, which was later terminated due to breaches, leading to her incarceration.

The court applied the test for bail pending appeal under s. 679(3) of the Criminal Code, finding that while the appeal was not frivolous, the applicant failed to satisfy the court that she would surrender into custody or that her detention was not necessary in the public interest, given her history of breaching the conditional sentence terms while living with her proposed surety.

The application for release pending appeal was dismissed.

The appellant, Sean Hirnam, appealed his conviction for sexual assault, raising three grounds: uneven scrutiny of evidence by the trial judge, erroneous reliance on a prior case (R. v. J.J.R.D.), and error in applying the test for communicated consent.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed the evidence, including the appellant's exaggerated injury and the complainant's minor inconsistencies.

The court also found that the trial judge's reference to R. v. J.J.R.D. was a passing one and not material, and that her finding of no communicated consent, based on the ambiguity of the complainant's conduct, was a call within her discretion and not subject to interference on appeal.

The appellant was convicted of three counts of historical sexual assault against two teenage nieces committed between 1976 and 1986, and received a global sentence of six years.

On appeal, the appellant challenged the trial judge's admission of similar fact evidence regarding his 2009 convictions for sexual offences against his step-daughters.

The Court of Appeal upheld the conviction and sentence, finding no error in the trial judge's analysis that the probative value of the similar fact evidence outweighed its prejudicial effect, particularly given the striking similarities in the circumstances of the incidents despite some dissimilarities in the nature of the acts.

The appellant, previously found not criminally responsible for setting a bus on fire, appealed an Ontario Review Board disposition imposing a detention order with community living.

He argued that a conditional discharge was the least onerous and least restrictive disposition.

The Court of Appeal dismissed the appeal, finding that the Board reasonably concluded the appellant continued to pose a significant threat to public safety due to his schizophrenia and substance use disorder, and that a detention order was necessary to manage his risk.

The appellant, a Canadian citizen convicted of drug smuggling in Japan, was transferred to Canada to serve the remainder of his sentence under the International Transfer of Offenders Act.

His 13-year Japanese sentence was adapted to the Canadian maximum of 10 years.

The appellant brought a habeas corpus application, arguing that 400 days spent in a Japanese workhouse in lieu of paying a fine should be credited toward his Canadian custodial sentence.

The Court of Appeal dismissed the appeal, holding that the fine and imprisonment were separate elements of the Japanese sentence, and the workhouse days were served solely to purge the fine, not on account of the penal sentence.

The appellant, an Aboriginal man, was convicted of manslaughter by a jury in the District of Kenora.

He appealed his conviction on the basis that the jury roll from which his petit jury was selected was unrepresentative, as it systematically under-represented Aboriginal on-reserve residents.

The Court of Appeal found that the state failed to make reasonable efforts to address known, long-standing problems with the delivery and return rates of jury questionnaires on reserves.

This failure violated the appellant's rights under sections 11(d) and 11(f) of the Charter.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction, arguing the trial judge failed to consider his evidence and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding the trial judge accepted the appellant's evidence about the ten-second episode but concluded that by deliberately showing off and squealing his tires, the appellant left himself too little time to correct his accidental acceleration.

The findings were open to the trial judge on the record.

The appellant appealed his fraud convictions, arguing the trial judge erred by finding it irrelevant that he did not act fraudulently in 18 other cases and by noting without evidence that this was a common pattern in fraud cases.

The Court of Appeal dismissed the appeal, holding that the trial judge's comment on common practice was not relied upon and was common sense.

The court found no error in the trial judge's conclusion that the appellant's intention in the 18 other cases did not speak to his intention in the 16 charged cases, as there was ample other evidence of mens rea.

The Crown appealed a summary conviction appeal judge's decision ordering a new trial for the accused, who had been convicted of driving with excess alcohol.

The appeal judge had found that the trial judge erred in interpreting 'forthwith' under s. 254(2) of the Criminal Code as 'within a reasonable time' rather than 'immediately'.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that 'forthwith' requires a prompt demand and immediate response, but allows for a reasonably necessary delay to enable the officer to properly discharge their duty.

The 17-minute delay in this case was found to be reasonably necessary.

The appellant appealed a 12-month sentence imposed by the trial judge, which was twelve times the joint submission at trial.

The Court of Appeal found that the trial judge overemphasized the dangerousness of the drug and gave too little weight to the lack of severity of the crime, its low level of sophistication, and the offender's unfortunate circumstances.

On appeal, both the appellant and the Crown submitted that the appropriate sentence was six months plus probation.

The Court of Appeal agreed, granted leave, allowed the appeal, and varied the sentence to six months.

The appellants, who were each found not criminally responsible on account of mental disorder (NCRMD) on consent, appealed their verdicts.

They argued that the Criminal Code violates sections 7 and 15 of the Charter by failing to mandate an inquiry into whether an accused's consent to an NCRMD finding is voluntary and informed, similar to the inquiry required for guilty pleas under section 606(1.1).

The Court of Appeal dismissed the Charter challenges, finding no violation of fundamental justice or equality rights.

The Court also dismissed the appellants' individual arguments regarding the reasonableness of their verdicts, fitness to stand trial, and ineffective assistance of counsel.

The appellant appealed his conviction and sentence for possession of child pornography.

He argued that evidence of two pairs of underwear found in his possession upon arrest should have been excluded because its prejudicial effect outweighed its probative value, and that the trial judge erred by failing to give a limiting instruction to the jury.

The Court of Appeal dismissed the appeal, finding the evidence was relevant, no objection was made at trial, and a limiting instruction was unnecessary given the defense's position.

The sentence appeal was also dismissed as the sentence was fit.

The appellant was convicted of assaulting his mother-in-law and father-in-law following a family dispute.

The trial judge relied on the appellant's failure to apologize after colliding with his mother-in-law as post-offence conduct to infer intent and reject his claim that the contact was accidental.

On appeal, the Crown conceded that neither the appellant nor the victim was asked about an apology during their testimony.

The Court of Appeal held that the trial judge erred in making this finding and using it to assess credibility and intent.

The court declined to apply the curative proviso, allowed the appeal, and ordered a new trial.

The appellant appealed his convictions for breaking and entering, kidnapping, and several sexual offences against a nine-year-old child, as well as his sentence.

The Court of Appeal found that the trial judge misapprehended the DNA evidence, which was not completely consistent with the appellant's guilt and contained exculpatory elements.

Consequently, the convictions for the sexual offences were set aside and a new trial was ordered.

The convictions for breaking and entering and kidnapping were upheld.

The sentence was reduced and the order delaying parole eligibility was set aside.

The appellant was convicted of sexual assault with a weapon and forcible confinement based primarily on eyewitness identification by the complainant.

The appellant appealed, arguing the verdict was unreasonable and that the trial judge misapprehended the alibi evidence.

The Court of Appeal found that the trial judge erred in her application of the W.(D.) framework by compartmentalizing the evidence and misapprehended several key pieces of defence evidence.

Concluding that the identification evidence displayed numerous indicia of unreliability and the alibi evidence was strong, the Court allowed the appeal, set aside the conviction, and entered an acquittal.

The appellant pleaded guilty to three counts of fraud and was sentenced to three years in the penitentiary.

He appealed his convictions, seeking to set aside his guilty pleas on the basis of procedural irregularities and a miscarriage of justice.

The Court of Appeal found that the pleas were informed, voluntary, and intended, and that the trial judge's failure to comply with s. 726 of the Criminal Code resulted in no prejudice.

The appeal from conviction was dismissed, and the appeal from sentence was dismissed as abandoned.

The appellant challenged her conviction on the basis that the trial judge shifted the burden of proof, unfairly assessed credibility, and erred in finding a document was concocted without independent evidence.

The court held that the impugned passage had to be read in context, that the trial judge properly applied the W.(D.) framework, and that the credibility analysis was reasonable.

It further held that the finding of concoction flowed directly from the rejection of the appellant’s evidence regarding the exhibit and was distinguishable from prior authorities requiring independent evidence.

The conviction appeal was dismissed.

Leave to appeal sentence was granted, but the sentence appeal was also dismissed as the sentence was manifestly reasonable and, if anything, lenient.

The appellant challenged sexual assault convictions and sought leave to appeal sentence following a jury trial.

He argued the trial judge erred in the charge to the jury, that the verdicts were unreasonable given internal inconsistencies and admitted untruths in the complainant's prior statements, and that the sentencing judge accepted unduly aggravating facts.

The court held the impugned jury instructions were adequate and appropriate, including the instruction drawn almost verbatim from authority concerning youthful complainants.

It further held there was evidence on which a properly instructed jury acting reasonably could convict and found no error in the sentencing judge's factual findings or in the sentences imposed.

The Crown sought an extension of time to serve and file a motion for leave to appeal from a summary conviction appeal judgment that had set aside a sexual assault conviction and ordered a new trial.

The proposed appeal concerned the application of s. 278.1 of the Criminal Code to a psychiatrist’s records of joint counselling sessions involving the complainant and the accused.

The court held that, although the Crown’s diligence in locating and serving the respondent before the filing deadline was open to criticism, the Crown had formed an intention to appeal within time, no undue prejudice was shown, and the proposed appeal was arguable.

Given the significance of the legal issue and the interests of justice, the extension was granted.

The appellant challenged his conviction on evidentiary and credibility-assessment grounds.

The court held that evidence relating to a stolen Nintendo and a note left by the appellant was admissible, provided it was not used as propensity evidence, and found no such misuse on the record.

However, the trial judge's reasons showed a failure to assess whether disbelief of the appellant's testimony nonetheless left the court with a reasonable doubt in a case turning on credibility.

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