Criminal and Quasi-Criminal Law - OCA

The Crown sought an order to bifurcate its sentence appeal from the respondent's conviction appeal, both arising from the same proceedings.

The respondent was convicted of firearms offences, failing to remain at the scene of an accident, and refusing to comply with a demand for a breath sample, and was sentenced to a conditional sentence of 2 years less one day (618 days after Summers credit).

The Crown sought leave to appeal the sentence as tainted by errors in principle and demonstrably unfit, seeking a penitentiary sentence of 46 months and re-incarceration.

The respondent's conviction appeal was not yet perfected, with legal aid pending and no transcripts ordered.

The motion judge granted the Crown's request to bifurcate the appeals, finding that the conviction and sentence appeals were discrete and that delay in perfecting the conviction appeal would significantly prejudice the Crown's position on the sentence appeal.

An appeal of an Ontario Review Board disposition dated January 29, 2025, concerning whether the Board erred in declining to add a community living clause to a detention order.

The appellant argued that the majority of the Board focused exclusively on public safety and dismissed the attending psychiatrist's opinion that the clause would be therapeutically beneficial.

The Court of Appeal dismissed the appeal, finding that the Board's majority was entitled to determine that adding a community living clause would be therapeutically harmful on balance in the specific circumstances of the case, notwithstanding the psychiatrist's contrary opinion.

The appellant was convicted of attempted murder and related offences for firing shots at a female acquaintance, striking her twice.

The sole issues at trial were the identity of the shooter and intent to kill.

The trial judge rejected direct identification evidence and limited-weight photo identification evidence, instead relying almost entirely on circumstantial evidence including GPS data from the suspect vehicle, security camera footage with timestamps, and DNA evidence.

The appellant appealed on the grounds that the trial judge erred in accepting the accuracy of security camera timestamps without proper authentication and that the verdict was unreasonable.

The Court of Appeal upheld the conviction, finding no legal error in the trial judge's application of the law regarding measurement devices in common usage and concluding that the verdict was reasonable based on the totality of the circumstantial evidence.

The appellant appealed his convictions for production and possession of methamphetamine for the purpose of trafficking, arguing the trial judge erred in failing to exclude evidence under s. 24(2) of the Charter.

The appellant claimed his ss. 10(a) and 10(b) rights were breached due to a delay in providing a Vietnamese interpreter upon his arrest.

The Court of Appeal found no error in the trial judge's application of the Grant factors, noting the delay was an isolated mistake, the appellant was not mistreated, and the evidence was obtained pursuant to a valid search warrant issued prior to the arrest.

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

The appellant, Baba Ouedraogo, appealed his convictions for sexual assault, sexual interference, and choking, arguing the trial judge failed to adequately scrutinize certain evidence, including the complainant's injuries, toxicology report, video evidence, and identity evidence.

The Court of Appeal found that the appellant's arguments primarily sought to re-weigh evidence already considered by the trial judge.

The court noted that the physical evidence strongly contradicted the appellant's account and confirmed key aspects of the complainant's testimony, despite the trial judge having some concerns about her credibility in other areas.

The conviction appeal was dismissed, with the sentence appeal proceeding separately.

The appellant appealed convictions for five sexual offences, including sexual assault, human trafficking, and related material benefit and advertising charges.

The appeal raised four grounds concerning the trial judge's treatment of evidence: a misapprehension of a text message, exclusion of WhatsApp messages, refusal to permit cross-examination on prior "sexual punishment" and improper reliance on two text messages.

The Court of Appeal dismissed all grounds, finding that the trial judge's mistake regarding the text message was not essential to the reasoning, the WhatsApp messages were properly excluded under s. 276 of the Criminal Code and Canada Evidence Act due to authenticity concerns and prejudice, the refusal to permit cross-examination on prior sexual punishment was correct as it related to impermissible "twin myth" reasoning, and the reliance on the two text messages was proper.

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

The appellant sought to withdraw his guilty plea to one count of uttering threats, claiming he was pressured due to being in custody and unable to afford trial counsel.

The Court of Appeal dismissed the appeal, finding that the plea was informed and voluntary.

The court noted that while pressures exist when pleading guilty in custody, the plea comprehension inquiry conducted by the trial judge, coupled with the appellant's representation by counsel and lack of voiced concerns at the time, indicated a clear and informed waiver of his right to trial.

The appeal against sentence was also dismissed as the sentence had already been served.

The appellant appealed his conviction for sexual assault with a weapon, sexual assault causing bodily harm, and sexual assault, and sought leave to appeal his five-year sentence.

The appeal challenged the trial judge's credibility and reliability findings, arguing they were flawed and inconsistent, particularly regarding the complainant's capacity to consent and alleged motive to fabricate due to a herpes diagnosis.

The Court of Appeal dismissed the appeal, upholding the trial judge's credibility findings and finding ample evidentiary support for the conclusion that the complainant lacked the capacity to consent.

Leave to appeal sentence was also denied as no error in principle was asserted.

The appellant, D.M., appealed his dangerous offender designation and indeterminate sentence, which followed convictions for sexual assault and child pornography.

The Crown conceded that the sentencing judge erred by not explicitly considering the appellant's future treatment prospects at the designation stage, as required by R. v. Boutilier.

However, the Court of Appeal found this error to be harmless, concluding that the overwhelming evidence, including consistent psychiatric opinions on the appellant's high risk of sexual recidivism and his lack of credibility regarding amenability to treatment, compelled the dangerous offender designation and indeterminate sentence.

An application to admit fresh evidence was also dismissed as it would not have altered the outcome.

The appeal was dismissed.

The appellant, S.H., appealed convictions for sexual interference and sexual assault.

The core issue on appeal was whether the trial judge misapplied the second stage of the R. v. W.(D.) analysis regarding reasonable doubt in credibility cases, despite correctly citing the principles.

The Court of Appeal found that, reading the trial judge's reasons as a whole, it could be inferred that the judge rejected the appellant's exculpatory testimony entirely, rendering it incapable of raising a reasonable doubt.

The appeal was dismissed.

Two appellants were convicted of sexual assault and related offences following a trial in the Ontario Court of Justice.

The appellants appealed their convictions on two grounds: (1) the trial judge erred in finding that text messages and photographs had not been properly authenticated and thus had no probative value, and (2) the trial judge misapprehended evidence relating to photographs upon which one complainant was cross-examined.

The appellants sought to adduce fresh evidence from a computer forensic examiner regarding the authenticity and integrity of the electronic documents and from trial counsel regarding due diligence.

The Court of Appeal allowed the appeal, finding that the trial judge applied an overly stringent authentication standard, misapprehended material evidence, and that the fresh evidence satisfied the conditions for admission on appeal.

A new trial was ordered.

The appellant appealed his convictions on two counts of assault using a weapon and one count of assault causing bodily harm arising from an altercation at a pizza store.

The trial judge found the appellant used a screwdriver to assault the store owner and employee, and rejected his self-defence claim.

The Court of Appeal allowed the appeal, finding that the trial judge's excessive interventions during the appellant's testimony undermined the appearance of fairness and resulted in actual unfairness.

The trial judge's pointed cross-examination of the appellant, belittling comments to defence counsel, and persistent challenging of the appellant's account prevented him from presenting his version of events.

The convictions were set aside and a new trial was ordered.

The appellant appealed his conviction, challenging the trial judge's decision not to formally self-instruct in accordance with the Vetrovec warning regarding the credibility of a co-accused who testified.

The Court of Appeal found no basis to conclude the trial judge erred in exercising his discretion.

The trial judge had properly considered the co-accused's status and motivation to fabricate, found her evidence honest and supported by corroborating evidence, and provided ample reasons for rejecting the defence theory of evidence planting.

The appeal was dismissed.

The appellant appealed his conviction, arguing that there were no objective grounds for his arrest and that the gun found in his possession should not have been admitted into evidence.

The Court of Appeal upheld the trial judge's finding that there were both subjective and objective grounds for arrest based on a constellation of factors observed by the officers.

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

The appellant appealed his sentence on the grounds that the trial judge failed to provide reasons for denying 1.5:1 credit for pre-trial custody and that such denial constituted an error in principle.

The Court of Appeal found that while the absence of explicit reasons was concerning, the trial judge's decision was justified based on the nature of the manslaughter conviction, the appellant's institutional record showing gratuitous violence, his significant criminal history, and his refusal to address addiction issues.

The court concluded this was a rare case where enhanced credit should not be granted.

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

The court ordered correction of the warrant of committal to reflect 1:1 credit for 1083 days of pre-sentence custody.

The applicant sought leave to appeal his conviction for driving while disqualified from the dismissal of his summary conviction appeal.

The applicant proposed to argue that the courts below failed to properly address eyewitness identification issues.

The Court of Appeal dismissed the leave application, finding that the legal issues did not raise questions of significance to the general administration of criminal justice and that no clear legal error was disclosed.

The summary conviction appeal court judge correctly articulated the applicable legal principles and properly resolved the weaknesses in the identification evidence.

The appellant was convicted of assault causing bodily harm and forcible seizure following an alleyway beating outside a nightclub.

At trial, the judge admitted a security guard's written statement identifying the appellant as a participant under the past recollection recorded exception to the hearsay rule.

The appellant appealed his convictions, arguing the statement lacked threshold reliability and that phone call evidence was mishandled.

He also appealed his three-and-a-half year sentence.

The Court of Appeal dismissed the appeals, finding the hearsay evidence met the traditional exception's conditions, the jury was properly instructed, and the sentence was proportionate to the gravity of the vigilante attack.

The appellant appealed convictions for sexual assault and sexual interference arising from allegations by a child complainant.

The Court of Appeal held that the trial judge erred in law by treating the appellant's failure to give an immediate unequivocal denial to a vague police allegation as a basis to reject his testimony, and by applying different standards of scrutiny to the complainant's evidence and the defence evidence.

While the court rejected the argument that the verdict was unreasonable, it found the credibility analysis legally flawed and capable of producing a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for historical sexual assault and his sentence as a dangerous offender.

He argued the trial judge erred in admitting similar fact and reply evidence, and that the sentencing judge should have imposed a long-term offender order instead of a dangerous offender designation, given the potential use of anti-androgen medication.

The Court of Appeal dismissed the conviction appeal, finding no error in the evidentiary rulings.

The sentence appeal was also dismissed, as the sentencing judge correctly concluded there was no reasonable possibility of controlling the appellant's risk in the community, given his life-long condition and the uncertainty of his long-term commitment to taking sex drive reducing medication.

The appellant appealed his conviction and sentence for possession for the purpose of trafficking in crack cocaine.

He argued the police lacked reasonable and probable grounds for his arrest and that the Crown failed to prove possession for the purpose of trafficking.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly applied the subjective and objective tests for reasonable and probable grounds and reasonably inferred the purpose of trafficking.

However, the sentence appeal was allowed based on fresh evidence of the appellant's rehabilitation, reducing the 18-month sentence to time served plus two years' probation.