Criminal and Quasi-Criminal Law - OCA

The appellant, C.G., appealed his convictions for sexual assault, sexual interference, invitation to sexual touching, and breach of recognizance.

The Court of Appeal found that the trial judge made three fundamental errors: an inadequate analysis of "inadvertent collusion" concerning defence witnesses, a failure to analyze crucial competing exculpatory evidence (e.g., creaky floors, light sleepers, appellant's work schedule), and an improper application of the principles from R. v. W. (D.) by not explaining why the exculpatory evidence failed to raise a reasonable doubt.

The trial judge also erred by relying on a stereotype about sex offenders taking "incredible risks" without proper evidentiary foundation.

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

Appeal from conviction for two counts of first degree murder.

The appellant killed two friends and attempted suicide, raising a not criminally responsible on account of mental disorder (NCR) defence.

The trial judge convicted after finding the appellant had the capacity to know that society would regard his actions as morally wrong, despite suffering from a mental disorder.

The appellant raised four grounds of appeal: (1) misinterpretation of "knowing that it was wrong" under s. 16(1) of the Criminal Code; (2) misapprehension of evidence regarding psychotic state; (3) request to recognize diminished responsibility as a partial defence; and (4) request to recognize suicide pact as a partial defence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant was convicted of armed robbery and firearms offences.

At trial, the victim recanted his preliminary inquiry identification of the appellant.

The Crown introduced the preliminary inquiry evidence for its truth and a video of the victim's initial photo line-up identification.

The appellant appealed, arguing the trial judge erred in his jury instructions regarding the use of the video line-up, prior inconsistent statements of a witness, and the failure to give a Vetrovec warning for the recanting victim.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate and the trial judge's cautions regarding the witness's evidence were sufficient.

The appellant appealed a first degree murder conviction, arguing that the verdict was unreasonable because the Crown's case was entirely circumstantial and that police vetting of prospective jurors constituted an abuse of process.

The court applied the unreasonable verdict standard and held that the cumulative effect of the evidence of motive, opportunity, access, and post-offence conduct was capable of supporting findings of unlawful killing, murder, and planning and deliberation.

The court also held that police checks for criminal records and outstanding charges, without Crown involvement and without any resulting unfairness in jury selection, did not amount to a per se abuse of process.

The appeal was dismissed.

The appellant appealed his conviction and sentence, arguing the trial judge's reasons were insufficient.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons were sufficient for appellate review and that photographic evidence supported the victim's testimony.

The appellant sought leave to appeal a Superior Court decision that dismissed his summary conviction appeal from a 1999 Ontario Court decision.

The appellant failed to appear at the hearing.

The Court of Appeal heard the matter in his absence and denied leave to appeal, finding that the appeal had no merit and raised no issues of importance beyond the parties.

The appellant pleaded guilty to possession of a forged credit card and possession of property obtained by crime over $5,000.

He was sentenced to 15 months' imprisonment, one year of probation, and a $4,100 restitution order.

On appeal, he argued the trial judge erred by not crediting his strict bail conditions and in considering parity with a co-accused.

The Court of Appeal upheld the custodial sentence given the appellant's extensive criminal record, but varied the restitution order to $2,100 as the evidence of loss was unclear and the appellant had volunteered to pay that amount.

The accused appealed his convictions for sexual interference and invitation to sexual touching involving three young complainants.

The Crown appealed the conditional sentence of 18 months imposed by the trial judge.

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

However, the Court allowed the Crown's sentence appeal, holding that the trial judge erred in finding exceptional circumstances to justify a conditional sentence for these offences.

The sentence was varied to 14 months' imprisonment.

The applicants applied to re-open an appeal previously decided by the Court of Appeal, arguing that the court was misled by false evidence regarding the status of a police informant.

The Crown conceded that newly disclosed evidence contradicted the evidence relied upon in the original appeal, which had determined the individual was a police informer rather than a police agent.

The Court of Appeal dismissed the application, holding that while there is inherent jurisdiction to set aside a judgment based on fraud or newly discovered evidence, the proper forum to seek such relief is the court of first instance (the Superior Court), not the appellate court.

The accused was previously found unfit to stand trial on two charges of first degree murder.

The Ontario Review Board subsequently determined he was fit to stand trial and ordered him returned to court.

The accused sought to appeal the Review Board's opinion.

The Crown brought a motion to quash the appeal.

The Court of Appeal granted the motion and quashed the appeal, holding that there is no statutory right of appeal from a Review Board's opinion on fitness under section 672.48 of the Criminal Code, and no interlocutory appeals exist in criminal matters.

The appellants were convicted of first-degree murder after the victim was brutally beaten and robbed in an underground parking garage.

On appeal, they argued the trial judge erred by excluding out-of-court statements from a deceased third party who had confessed to the murder, by misdirecting the jury on reasonable doubt, and by misdirecting the jury on the elements of first-degree murder based on unlawful confinement.

The Court of Appeal dismissed the appeal, finding the third party's hearsay statements lacked threshold reliability, the reasonable doubt instruction was adequate, and unlawful confinement in the course of a robbery can provide the basis for first-degree murder under s. 231(5)(e) of the Criminal Code.

The appellant was convicted of sexual assault against an intellectually disabled complainant.

At trial, the Crown did not argue that the complainant lacked the capacity to consent, but the trial judge instructed the jury on capacity under s. 273.1(2)(b) of the Criminal Code.

The Court of Appeal held that while expert evidence is not strictly required to assess capacity, the trial judge erred by leaving the issue with the jury when it was not raised by the Crown, prejudicing the defence.

The conviction was set aside and a new trial ordered.

The appellant appealed his conviction for failing to comply with an approved screening device demand, arguing that the trial judge misapprehended the evidence and that the criminalization of the refusal under the Criminal Code infringed his rights against self-incrimination and to counsel under the Charter.

The Court of Appeal held that the trial judge did not misapprehend the evidence regarding the police officer's standard practice of checking the mouthpiece.

Furthermore, the Court found that the primary goal of roadside screening is preventive, the results cannot be used at trial, and the intrusion is minimal.

Therefore, the criminalization of the refusal does not infringe the principle against self-incrimination or the right to counsel.

The Crown appealed an order declaring s.488.1 of the Criminal Code unconstitutional as infringing the Charter of Rights and Freedoms.

The appeal was argued together with a companion case.

The court dismissed the appeal for the reasons given in the companion decision.

The appellant challenged the constitutionality of the Criminal Code procedure governing seizure of documents from a lawyer's office during a criminal investigation.

The court held that solicitor-client privilege attracts the highest level of protection and that a statutory search procedure must impair that confidentiality only minimally.

Section 488.1 failed that standard because privilege could be lost automatically through lawyer inaction, because the provision required disclosure of the client's name to the state in order to claim privilege, and because it permitted Crown inspection of the impugned document on the privilege application.

The court concluded that the mandated procedure produced an unreasonable search and seizure contrary to s. 8 and, absent any s. 1 justification, declared the provision unconstitutional and of no force and effect.

The appellant challenged his conviction and sentence, arguing that the trial judge erred in admitting weapon evidence following a search.

The court applied the Collins framework under s. 24(2) of the Charter and held that the trial judge did not err in her treatment of the second and third categories of factors.

Although the trial judge did not expressly address the degree of departure from reasonable and probable grounds, the court found any departure was not significant in light of officer safety concerns, limited opportunity for further investigation, and the matching informant description.

The finding of good faith was reasonably supported by the evidence, and the appeal was dismissed.

The Crown appealed a youth court acquittal on a charge of trafficking in a substance represented or held out to be cocaine.

The trial judge erred in holding that the Crown was required to prove that the substance was not in fact cocaine.

Applying the authorities on held-out substances, the court held that the actus reus is the sale of something represented to be a controlled substance, and that the actual identity of the substance is immaterial.

The evidence amply supported that the respondent held out the substance as cocaine.

The acquittal was set aside, a finding of guilt was entered, and a one-year probation disposition was imposed.

The appellant appealed jury convictions on two counts of trafficking in a narcotic, arguing loss of identification evidence, inadequate jury instructions on in-dock identification, inconsistent verdicts, and unreasonable verdicts.

The court held that the lost identification card relating to an acquitted count caused no prejudice to the defence on the remaining count.

It further found the jury was thoroughly instructed on the frailties and unfairness of in-dock identification.

Considering the surveillance, close-range observations, self-identification to police, and other objective features of identification, the court concluded the verdicts were reasonably supported by the evidence and dismissed the appeal.

The appellant appealed a first degree murder conviction arising from the disappearance of a 14-year-old victim whose body was not found until after conviction.

The court upheld the admission of a jailhouse informant's evidence, finding the informant was not acting as a state agent when the initial inculpatory statements were elicited and therefore there was no breach of the appellant's s. 7 right to silence.

The court also rejected the proposed fresh evidence concerning the later discovery and forensic examination of the remains, holding that it did not materially undermine the informant's evidence or the Crown's theory and would not reasonably have affected the verdict.

The appeal was dismissed.

The respondent challenged the constitutionality of the Criminal Code DNA warrant provisions authorizing seizure of bodily substances for forensic analysis.

The Court of Appeal held that the challenge was properly resolved under s. 8 of the Charter, and that if the regime satisfied s. 8 scrutiny it could not be contrary to the principles of fundamental justice under s. 7 on the self-incrimination theory advanced.

The court found the statutory scheme contained substantial judicial and privacy safeguards, upheld the ex parte warrant structure, and rejected the lower court's attempt to read in a notice requirement.

Fresh evidence concerning updated DNA technology undermined the basis for striking down the hair-sample provision, which was reinstated.

The cross-appeal was dismissed and the declaratory application was dismissed.