Criminal and Quasi-Criminal Law - OCA

The Crown appealed the respondent's acquittal on serious drug trafficking charges, which resulted from the trial judge's exclusion of evidence seized under search warrants.

The trial judge had found the warrants improperly authorized due to insufficient compelling and corroborated confidential source information, leading to a Charter s. 8 violation and s. 24(2) exclusion.

The Court of Appeal found that the trial judge erred in misapprehending the evidence regarding the compelling nature of the confidential information and misapplying the corroboration requirement.

The Court also found an error in assessing the nexus between the alleged offences and the searched locations.

The appeal was allowed, acquittals set aside, and a new trial ordered, as the searches were deemed legally authorized.

The applicant, Christopher Janisse, sought bail pending appeal of his convictions for multiple drug trafficking offences and possession of proceeds of crime, for which he received a 16-year sentence.

The Court of Appeal for Ontario considered the three-part test under section 679(3) of the Criminal Code: whether the appeal is not frivolous, whether the applicant will surrender, and whether detention is necessary in the public interest (balancing enforceability and reviewability).

While the Crown conceded the first two factors, the court found that despite the grounds of appeal not being frivolous and involving alleged police misconduct, the seriousness of the offences, the length of the sentence, and the applicant's concessions on certain counts weighed heavily in favour of enforceability.

The application for bail pending appeal was denied.

The appellant appealed his convictions on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm, as well as seeking leave to appeal his sentence.

The trial judge refused to grant an adjournment to allow the appellant to retain counsel, resulting in the appellant proceeding unrepresented.

The trial judge failed to address the appellant's inability to read or write and his limited English proficiency despite being informed of these facts.

The trial judge also improperly directed the defence expert to conduct cross-examination of the Crown's expert.

The Court of Appeal found these errors deprived the appellant of a fair trial and allowed the appeal, ordering a new trial.

The appellant was convicted at trial on three counts of trafficking in fentanyl and three counts of knowingly using a forged document.

The charges related to his alleged participation in a scheme to obtain and use forged prescriptions for fentanyl patches.

The central issue at trial was identity—whether the appellant himself attended at the pharmacy to have the prescription filled or whether someone falsely presented himself as the appellant.

The trial judge accepted the evidence of a co-conspirator that the appellant participated in the scheme and rejected the appellant's claim that his health card had been lost or stolen.

On appeal, the appellant challenged the trial judge's failure to assist him as a self-represented accused and claimed misapprehension of evidence.

The Court of Appeal found the trial was fair but allowed the appeal with respect to one trafficking count where there was insufficient evidence.

The appellant was convicted of sexual assault against a friend of his and his long-time girlfriend.

The case rested largely on the complainant's recognition of the appellant as a man she saw standing in a doorway for several seconds immediately after waking up in a dark room, and on the appellant's equivocal responses when confronted by his girlfriend about the allegations.

The Court of Appeal found that the trial judge erred in law by instructing the jury that recognition evidence of a known person is different from identification evidence of a stranger, when in fact recognition evidence is subject to the same frailties and risks.

The trial judge also erred by failing to instruct the jury on the dangers of relying on reaction evidence, particularly where the accused was confronted with vague allegations and given no details of the specific conduct alleged.

The conviction was set aside and a new trial ordered.

The appellant sought judicial review by way of certiorari to quash an order of a justice of the peace in a speeding ticket prosecution.

The justice of the peace had adjourned the trial and reserved the appellant's right to argue a stay motion based on Crown non-disclosure at the resumed trial date.

The application judge dismissed the application, finding the order was interlocutory and that there was no denial of natural justice.

The Court of Appeal upheld this decision, holding that the justice of the peace's trial management ruling was within jurisdiction and did not preclude the appellant from pursuing his stay motion.

The appellant was charged with speeding under the Highway Traffic Act.

He requested disclosure of the testing and operating procedures from the user manual for the Genesis Handheld Directional traffic radar device used to measure his vehicle's speed.

The prosecutor refused disclosure, taking the position that user manuals constitute third-party records requiring a third-party production application.

The justice of the peace ordered disclosure.

The prosecutor obtained a certiorari order quashing the disclosure order.

The Court of Appeal allowed the appeal, finding that the certiorari order was improper and that the disclosure was required as first-party disclosure under the Stinchcombe regime.

The Court of Appeal for Ontario considered a motion by the Attorney General of Canada to extend the suspension of a declaration of constitutional invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The lower court had found that the "fifth working day review" for administrative segregation violated section 7 of the Canadian Charter of Rights and Freedoms due to the lack of meaningful independent review.

The respondent sought an extension to allow Parliament to enact Bill C-83, which would replace administrative segregation with "structured intervention units." The court granted the extension to April 30, 2019, finding that immediate effect would pose unacceptable danger to correctional personnel and inmates, despite expressing concern about Canada's delay in addressing the constitutional infirmity and the absence of interim measures or adequate explanation of how the proposed legislation would remedy the breach.

The appellant appealed his sentence of 45 months for possession of a loaded prohibited firearm and 12 months consecutive for breach of a firearm prohibition order.

The appellant argued the sentencing judge erred by disregarding principles of totality and parity, engaging in double counting, ignoring mitigating factors, and misapprehending evidence.

The Court of Appeal dismissed the appeal, finding the global sentence was well within the range for similar offenders and similar offences, and that the sentencing judge properly considered the relevant factors.

The appellant was convicted on 18 counts relating to drug trafficking and firearm possession following an undercover police operation.

He was sentenced to seven years imprisonment (three and one-half years on firearm offences and four years on drug offences, made consecutive and then reduced on a global basis).

The appellant appealed both conviction and sentence on three main grounds: alleging a breach of section 8 Charter rights regarding the search warrant, claiming the trial judge's amended reasons constituted after-the-fact justification, and asserting the verdict was unreasonable.

The appellant also sought leave to appeal sentence, arguing the consecutive sentences were inappropriate.

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

The Crown appealed a stay of proceedings granted on the basis of unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

The respondents, correctional officers, were charged with failing to provide the necessaries of life following the death of an inmate at the Elgin-Middlesex Detention Centre.

The application judge found the net delay exceeded the 30-month presumptive ceiling established in R. v. Jordan and that no exceptional circumstances justified the delay.

The Court of Appeal allowed the appeal, finding the application judge erred in calculating defence delay, failed to recognize a discrete event, and failed to account for case complexity.

The court concluded that the resulting delay for one respondent fell just below the ceiling and for the other fell only three weeks above, justified by case complexity and transitional exceptional circumstances.

The appellant was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code and acquitted of making child pornography available under s. 163.1(3).

The appellant appealed his conviction on Charter grounds, arguing that the search of his residence and computer violated s. 8 of the Charter.

The Crown conceded the search was unlawful but argued the evidence should not be excluded under s. 24(2).

The Crown also appealed the acquittal on the making available count, arguing the trial judge erred in applying the mens rea requirement.

The court dismissed the appellant's conviction appeal and allowed the Crown's appeal, ordering a new trial on the making available count.

An appeal from the Ontario Review Board's November 14, 2016 disposition continuing the appellant's detention at a General Forensic Unit and refusing a transfer to another institution.

The appellant raised two issues: (1) whether the Board erred in refusing a second adjournment and dismissing a document disclosure motion, and (2) whether the Board erred in failing to find that the hospital's March 2016 reduction of privileges and implementation of a behaviour intervention plan infringed Charter rights under sections 7 and 9.

The Court of Appeal dismissed the appeal, finding no reversible errors in the Board's decisions.

The appellant was convicted of sexual assault following a jury trial.

On appeal, the court found that the Crown engaged in improper conduct during cross-examination and closing address, including eroding the appellant's right to silence by suggesting he should have provided information to police earlier, and mischaracterizing forensic evidence.

The trial judge failed to provide correcting jury instructions to address these issues.

The court found that the cumulative effect of these problems resulted in an unfair trial and a miscarriage of justice.

The conviction was set aside and a new trial was ordered.

The appellant was convicted of sexual assault-related charges involving his daughter and stepdaughter.

He appealed on four grounds: (1) the trial judge's refusal to sever the counts; (2) the admission of the "teaching" comment as similar fact evidence while excluding the underlying acts; (3) alleged errors in the jury charge; and (4) the exclusion of expert evidence.

The Court of Appeal dismissed all grounds of appeal, finding no reversible error in the trial judge's rulings on severance, similar fact evidence, jury instructions, or the exclusion of the psychological report.

The appellant was charged with speeding under the Highway Traffic Act and was assisted by his brother-in-law, an unlicensed non-lawyer, in proceedings before a justice of the peace.

A stay of proceedings was granted due to the prosecutor's failure to provide proper disclosure in violation of Charter rights.

On appeal to the Ontario Court of Justice, the appeal judge refused to permit the brother-in-law to continue representing the appellant based on general concerns about non-licensed persons representing defendants in provincial offence matters.

The appeal judge set aside the stay.

The Court of Appeal allowed the appeal, finding the appeal judge erred by failing to apply the proper legal test for disqualifying a representative and by relying on a blanket concern rather than examining the particular circumstances and competence of the representative.

The appellant challenged an order permitting an FBI "clean team" to examine seized computer servers and prepare a report to assist the court in determining what material should be sent to the United States under the Mutual Legal Assistance in Criminal Matters Act.

The servers were seized pursuant to a valid search warrant in connection with an investigation into alleged copyright infringement.

The court held that while the application judge had jurisdiction under section 15(2) of the Act to make such an order, the application judge erred in failing to consider the effect on the appearance of fairness and judicial impartiality of having an entity closely associated with one of the adversaries examine the material and prepare the report.

The court set aside the order and held that any entity retained to assist the judge should be independent of the interested parties, absent compelling circumstances such as unique expertise.

The appellants, Vice Media Canada Inc. and journalist Ben Makuch, appealed the dismissal of their application to quash a production order requiring them to produce documents relating to their communications with Farah Shirdon, a Canadian resident who had joined ISIS and was charged with terrorism offences.

The appellants also sought to unseal the affidavit supporting the production order and challenged a non-publication order.

The Court of Appeal upheld the production order, finding that the Garofoli standard of review applied and that the issuing judge reasonably balanced the competing interests of law enforcement and freedom of the press.

The court allowed the appeal in part regarding the sealing order, directing that most material be unsealed with limited redactions.

The court also addressed the non-publication order, finding it a valid alternative to sealing but noting that certain portions of the affidavit may not require the publication ban.

The appellant was convicted at jury trial of importing and conspiracy to import heroin, and of possession of and conspiracy to possess heroin for the purposes of trafficking.

The appeal challenged the trial judge's jury instructions on multiple grounds, including the failure to instruct on frailties of voice identification, the adequacy of the Vetrovec instruction regarding a key Crown witness, the absence of a special instruction regarding co-accused testimony, the failure to provide a remedial instruction on the right to silence, and the trial judge's failure to address inflammatory comments made by co-counsel.

The Court of Appeal dismissed all grounds of appeal and upheld both the convictions and the sentence of 16 years imprisonment.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated April 29, 2016.

The appellant, found NCRMD for sexual assault, challenged the Board's decision to continue his detention in a Secure Forensic Unit rather than place him in a general forensic unit or impose a hybrid order allowing discretionary transfer.

The appellant conceded he remained a significant threat to public safety and that detention was appropriate, but argued the Board erred in: (1) failing to provide reasons for rejecting a hybrid order; (2) misapprehending evidence regarding his low risk for coercive sexual contact; and (3) failing to apply the least restrictive disposition test.

The Court of Appeal dismissed the appeal, finding no legal error in the Board's disposition.