Criminal and Quasi-Criminal Law - OCA

The appellants, David Case and Celine Loyer, appealed their convictions for sexual assault, arguing the verdicts were unreasonable due to the complainant's "flashback" memory being unreliable.

The majority of the Court of Appeal dismissed the appeals, finding the trial judge's assessment of the complainant's memory and the confirmatory evidence to be reasonable and not fundamentally flawed.

The dissenting judge would have ordered a new trial, concluding that the trial judge's reasoning regarding the reliability of the "sleeping flashback" was circular and illogical, and that the confirmatory evidence was overstated.

Both sentence appeals regarding a no-contact condition were also dismissed.

This is an appeal from a conviction for second-degree murder and aggravated assault.

The appellant challenged the trial judge's jury charge regarding the sufficiency of cautions on eyewitness identification evidence and an ante-mortem statement, and sought to admit fresh evidence.

The Court of Appeal dismissed the fresh evidence motion, finding it did not meet the Palmer threshold.

It also dismissed the conviction appeal, concluding that the trial judge's jury instructions on eyewitness identification (including photo/in-dock identification and collusion) and the ante-mortem statement were sufficient and did not constitute an error, particularly given that the accused was known to the eyewitness.

The appellant appealed convictions for home invasion related offences, challenging the admissibility and reliability of fingerprint evidence due to alleged confirmation bias, and the trial judge's dismissal of an application for a stay of proceedings based on alleged Charter breaches during an altercation in custody.

The Court of Appeal dismissed the appeal, finding no error in the admission of fingerprint evidence and upholding the trial judge's decision to deny a stay, noting the high bar for such a remedy.

The appellant, self-represented at trial, was convicted of armed bank robbery.

On appeal, he argued the trial judge erred by failing to instruct himself on a key witness's motive to lie and by relying on the appellant's uncompleted testimony after indicating it would not be used.

The Court of Appeal found no error regarding witness credibility but agreed the trial judge erred in using the appellant's testimony for conviction after leading him to believe it would not be used, thereby jeopardizing trial fairness.

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

The appellant, T.D., appealed convictions for sexual assault and extortion, and sought leave to appeal sentence.

The appeal challenged the trial judge's W.D. analysis regarding the appellant's credibility and the assessment of the complainant's credibility, particularly her explanation for falsifying immigration documents.

The Court of Appeal found no error in the trial judge's application of the W.D. principle, concluding that the judge properly assessed the appellant's evidence and only relied on corroborated portions of the complainant's testimony.

The conviction appeal was dismissed, and leave to appeal sentence was denied.

The appellant appealed his conviction for robbery and a three-year sentence.

The appeal challenged the reasonableness of identity evidence, the admissibility of rebuttal evidence, and the rejection of alibi evidence.

The Court of Appeal dismissed the conviction appeal, finding the identity evidence sufficient and the rebuttal evidence properly admitted.

However, the court found the trial judge erred in principle by over-emphasizing denunciation and deterrence for a youthful first offender with strong rehabilitative prospects.

Consequently, the sentence was varied from three years to two years less a day, followed by one year of probation.

A motion to file fresh evidence was dismissed as it merely confirmed existing evidence of rehabilitative prospects.

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, Jesse David Harvey, appealed his sentence of 3 years' incarceration for numerous breaches of probation orders and assault, having abandoned his conviction appeal.

The primary ground of appeal was that the sentencing judge erred by referring to the Crown's consideration of a dangerous offender application.

The Court of Appeal dismissed the appeal, finding the sentence was fit and that the sentencing judge's brief reference to a dangerous offender application, when contextualized by the appellant's repeated failure to abide by court orders in a domestic violence situation, did not constitute an error or transform the sentencing into an informal dangerous offender hearing.

The appellant appealed her convictions for impaired operation causing death, impaired operation causing bodily harm, and failing to remain, and sought leave to appeal her global five-year sentence.

The appellant had pleaded guilty to the charges but later sought to strike her plea, alleging duress.

The Court of Appeal dismissed the conviction appeal, finding no legal error in the trial judge's conclusion that the guilty plea was voluntary and informed, noting that a change of mind after the fact is insufficient to set aside a plea.

The Court also dismissed the sentence appeal, finding the sentencing hearing was conducted fairly, the sentence was warranted by the facts and the appellant's driving record, and there was no basis to interfere with the trial judge's discretion regarding credit for pre-sentence custody.

The appellant appealed his conviction for sexual assault, his designation as a dangerous offender, and the imposition of an indeterminate sentence.

The trial judge's finding that the complainant's passivity was due to fear and not consent was upheld, with the Court of Appeal affirming that silence or passivity does not constitute communicated consent.

The court also upheld the dangerous offender designation and indeterminate sentence, citing the appellant's history of sexual assaults and the intractability of his behavioural challenges, supported by expert psychiatric evidence.

Both the conviction and sentence appeals were dismissed.

The appellant was convicted of multiple offences relating to a residential break-in and theft of firearms.

On appeal, he argued the trial judge erred in denying him standing to challenge a warrantless search of his girlfriend's vehicle, unfairly dismissed his s. 8 Charter challenges and Garofoli application, and erred in finding reasonable grounds for search warrants.

The Court of Appeal dismissed the appeal, finding that while the trial judge acted unfairly in summarily dismissing the Garofoli application and standing arguments without hearing submissions, no miscarriage of justice occurred because the applications had no reasonable prospect of success.

The appellant, who was previously found not criminally responsible on account of mental disorder, appealed an Ontario Review Board disposition ordering his detention at a forensic psychiatric facility.

He argued the Board's finding that he posed a significant threat to public safety was unreasonable and that the Board breached its duty to inquire into his allegations of staff interference.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and supported by the evidence, and that the appellant's complaints lacked the air of reality necessary to trigger the Board's duty to inquire.

The appellant appealed both his conviction and sentence.

On the conviction appeal, the appellant failed to identify any error made by the trial judge, and the court found no basis to interfere with the conviction.

On the sentence appeal, duty counsel argued that the trial judge failed to give sufficient weight to mitigating factors, but the court rejected this submission, finding that the trial judge had carefully considered the mitigating factors and imposed a sentence within the range suggested by defence counsel.

Both appeals were dismissed.

The appellant appealed his conviction on a single ground: that the trial judge erred in dismissing his motion to stay proceedings for breach of s. 11(b) of the Charter (right to trial within reasonable time).

The appellant had been arrested on five counts of criminal harassment in November 2008 and subsequently re-arrested six times over three years on similar charges.

After a lengthy and complex procedural history spanning over four years, the appellant pleaded guilty to five counts and was sentenced to probation.

The Court of Appeal dismissed the appeal on two bases: first, that the appellant's guilty plea barred him from challenging the pre-trial s. 11(b) ruling under the Fegan doctrine; and second, on the merits, that even under the Jordan framework (which post-dated the trial judge's decision), the delay did not constitute a breach of s. 11(b) when defence delay and transitional exceptional circumstances were properly accounted for.

The appellant appealed his conviction for second-degree murder and the sentence imposed, including a 15-year period of parole ineligibility.

The appellant killed his mother by striking her with a baseball bat and stabbing her repeatedly with a knife.

The trial judge instructed the jury on the statutory partial defence of provocation.

The jury rejected the provocation defence and convicted the appellant of second-degree murder.

On appeal, the appellant raised four grounds of appeal regarding the trial judge's charge to the jury, the admission of evidence, and the period of parole ineligibility.

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

The young person appealed the sentence imposed for a serious offence.

The Court of Appeal dismissed the appeal, finding that the seriousness of the offence and its consequences for the victim demanded incarceration to reflect the young person's degree of responsibility.

The length of the sentence was held to be well within the appropriate range.

The appellant appealed his sentence of 12 months' incarceration and two years' probation for multiple offences, including forcible entry, assault causing bodily harm, and uttering death threats.

He argued the sentence was harsh, failed to adequately apply the Gladue analysis, and violated the jump principle.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's application of Gladue or the jump principle, and concluding the sentence was fit and within the appropriate range.

The appellant was convicted of robbery, disguise with intent, and possession of an imitation firearm, and sentenced to 30 months' imprisonment.

On appeal, he argued the trial judge erred in allowing the Crown to cross-examine his mother, an alibi witness, on a prior false police report, and in failing to properly instruct the jury on the use of that evidence.

The Court of Appeal found the cross-examination was generally permissible but the jury instructions were inadequate.

However, the Court applied the curative proviso due to the overwhelming evidence of guilt.

The sentence appeal was allowed, and the sentence was reduced to two years less a day to reflect the youthful offender's excellent prospects for rehabilitation.

The Crown appealed a Summary Conviction Appeal Court decision upholding the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The trial judge had excluded the breath readings under s. 8 of the Charter, finding the police officer lacked reasonable and probable grounds because the approved screening device had not been calibrated within departmental guidelines.

The Court of Appeal allowed the appeal, holding that the trial judge applied the wrong test by effectively requiring the Crown to prove the device was in good working order rather than assessing whether the officer had reasonable grounds on an objective basis.

A new trial was ordered.

The appellant was convicted of importing cocaine and sentenced to seven years' imprisonment.

On appeal, she argued the trial judge improperly restricted the Parks question during jury selection and misdirected the triers on the challenge for cause.

The Court of Appeal dismissed the conviction appeal, finding the permitted question encompassed both the attitudinal and behavioural components of the Parks inquiry and the triers were not misled.

However, the sentence appeal was allowed because the trial judge erred by failing to give the appellant credit for her cooperation with the police.

The sentence was reduced to six years.