Criminal and Quasi-Criminal Law - OCA

The Crown appealed stays of proceedings granted to two respondents charged in a massive cross-border drug trafficking investigation.

The application judge had found the delay exceeded the Jordan ceiling and declined to deduct time for joint-trial scheduling or find the case exceptionally complex.

The Court of Appeal allowed the appeal, holding that the 107 days of joint-trial scheduling delay should have been deducted as a discrete exceptional circumstance.

Furthermore, the overarching complexity of the multi-agency project prosecution, which involved voluminous disclosure, justified the remaining modest delay above the ceiling.

The stays were set aside and the matters remitted for trial.

The appellant, convicted of first-degree murder, appealed on three grounds: erroneous admission of character evidence, inadequate jury instruction regarding R. v. Villaroman principles on mens rea, and failure to provide a corrective instruction for improper bolstering of eyewitness testimony.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to admit character evidence, which was deemed relevant after the appellant put his character in issue.

The court also found the jury instruction on reasonable doubt and circumstantial evidence adequate, negating the need for a specific Villaroman instruction.

Finally, the omission of a corrective instruction was deemed immaterial given trial counsel's lack of insistence.

The appellant, Vanessa Canlas, appealed a fine of $833,238 imposed after her conviction for fraud, arguing errors in the calculation of the fine.

Specifically, she contended that the sentencing judge failed to account for cash payments made to her employees and incorrectly attributed $2.213 million as income.

She also argued that only J.V. Variety's commission from certain payments should have been included as income, with the balance deducted from misappropriated funds.

The Court of Appeal found no merit in these submissions, noting that the sentencing judge had already addressed these arguments with clear and cogent reasons.

The court found no basis to interfere with the sentencing judge's decision and dismissed the appeal.

The appellant, Kumaraguruparan Manickam, appealed his conviction for two counts of fraud over $5,000 and one count of uttering a forged document, and in the alternative, his sentence of 18 months' imprisonment.

The trial judge found the appellant wilfully blind to a fraudulent cheque deposit scheme involving fake business accounts and counterfeit cheques, resulting in over $250,000 loss to banks.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's finding of wilful blindness or credibility assessment, despite some imprecise language.

The court also granted leave to appeal the sentence but denied the appeal, affirming that the sentencing judge properly applied the principle of restraint while imposing a significant jail sentence due to the seriousness and premeditated nature of the fraud.

The respondent pleaded guilty to failing to provide the necessaries of life after her nine-year-old daughter, who had cerebral palsy, died from malnutrition and dehydration.

The sentencing judge imposed a sentence of one day in jail and three years of probation, after crediting the respondent with 17 months of pre-disposition custody.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding that the sentencing judge erred by failing to prioritize denunciation and deterrence as required by section 718.01 of the Criminal Code, improperly considering the failures of the Children's Aid Society as a mitigating factor, and imposing a demonstrably unfit sentence.

The Court substituted a sentence of three years in a penitentiary, but stayed the execution of the remaining 19 months of custody.

The appellants were convicted by a jury of importing cocaine and conspiracy to import cocaine, based largely on the testimony and eyewitness identification of a co-conspirator who had already been convicted.

On appeal, the appellants argued the verdicts were unreasonable and challenged the trial judge's jury instructions.

The Court of Appeal found the verdicts were not unreasonable but allowed the appeals and ordered new trials due to errors in the jury charge.

Specifically, the trial judge provided an inadequate Vetrovec caution that distracted the jury from the witness's motive to cooperate with police, and gave boilerplate instructions on eyewitness identification that failed to highlight the specific frailties of the witness's evidence.

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, who was found not criminally responsible for assault with a weapon and aggravated assault, appealed the Ontario Review Board's disposition continuing her detention order.

She sought an absolute discharge.

The Court of Appeal found the Board's decision reasonable, noting the appellant's severe and persistent mental illness, history of violence, treatment non-compliance, and substance use.

The Board correctly applied the legal tests to conclude she remained a significant threat to public safety and that a detention order was the least onerous and appropriate disposition.

The appellant appealed his convictions for break and enter, assault, and uttering threats, as well as his sentence.

He argued the trial judge erred in relying on eyewitness recognition evidence and in denying enhanced credit for strict bail conditions.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's identification conclusion was supported by the totality of the evidence, including threatening Facebook messages.

The sentence appeal was dismissed regarding bail credit, but allowed on consent to grant the appellant one year from release to pay an $810.93 restitution order.

The appellant, who had a lengthy history of violent offences against intimate partners, was convicted of attempted murder and choking.

The sentencing judge designated him a dangerous offender and imposed an indeterminate sentence, finding no reasonable expectation that a lesser measure would adequately protect the public.

On appeal, the appellant argued the judge improperly presumed an indeterminate sentence was required and failed to adequately consider treatment options.

The Court of Appeal dismissed the appeal, holding that the sentencing judge engaged in a rigorous, individualized assessment of the evidence and properly concluded that the appellant's risk could not be managed in the community.

The applicants, convicted of defrauding investors of over $5 million in a Ponzi scheme, sought the appointment of counsel under s. 684 of the Criminal Code for their appeal.

The Court of Appeal dismissed the application, finding that the applicants failed to demonstrate that it was desirable in the interests of justice to have legal assistance, as the issues were straightforward and the applicants were capable of advancing their claims.

Furthermore, the applicants failed to provide adequate evidence of their financial need or that they had exhausted all other means of paying for counsel.

The applicant, convicted of second degree murder for killing his son, applied for bail pending his conviction and sentence appeal.

The Crown opposed bail solely on the public interest ground under s. 679(3)(c) of the Criminal Code.

The Court of Appeal granted bail, finding that the reviewability interest outweighed the enforceability interest.

The court noted the applicant's advanced age, health challenges, successful prior release history, and the strength of his appeal, particularly the trial judge's failure to instruct the jury on the partial defence of provocation.

The appellant appealed his convictions for robbery, possession of a weapon for a dangerous purpose, and breaches of probation, as well as his 40-month sentence.

He argued the trial judge unevenly scrutinized his credibility compared to the complainant cab driver, and that the sentencing judge failed to apply the jump principle and give appropriate weight to his rehabilitation efforts.

The Court of Appeal dismissed the conviction appeal, finding no basis to interfere with the trial judge's credibility findings.

The sentence appeal was also dismissed, as the increased violence of the robbery justified the sentence and the judge properly considered the appellant's rehabilitation efforts, except the victim surcharge was set aside.

The appellant, a young Indigenous woman, pleaded guilty to importing cocaine.

The sentencing judge rejected her s. 15 Charter challenge to s. 742.1(c) of the Criminal Code, which precluded a conditional sentence for her offence, and imposed a 17-month custodial sentence.

On appeal, the appellant argued that s. 742.1(c) and (e)(ii) violated ss. 7 and 15 of the Charter.

The Court of Appeal allowed the appeal, finding that the provisions violated s. 15 by discriminating against Aboriginal offenders and s. 7 by being overbroad.

The provisions were struck down, and a sentence of time served was substituted.

The Empowerment Council and the Criminal Lawyers' Association brought motions for leave to intervene in an appeal from a decision of the Ontario Review Board.

The underlying appeal concerned whether the failure to provide resources for supportive community housing breached the appellant's rights under section 7 of the Charter, and whether the Board had remedial jurisdiction to order funding.

The court dismissed the Empowerment Council's motion, finding its proposed intervention on the Board's inquisitorial role would not assist the court.

The court granted the Criminal Lawyers' Association's motion to intervene solely on the issue of the Board's remedial Charter jurisdiction to make funding orders.

The appellants were convicted of trafficking and possession for the purpose of trafficking in cocaine following a lengthy police surveillance operation dubbed 'Project Odyssey'.

On appeal, they argued the trial judge erred in his handling of a confidential informant privilege application, in refusing to stay proceedings for alleged police misconduct, and in rendering unreasonable verdicts based on circumstantial evidence.

The Court of Appeal dismissed the appeals, finding no error in the in camera, ex parte procedure used for the privilege claim, upholding the trial judge's factual findings regarding police conduct, and concluding the circumstantial evidence overwhelmingly supported the convictions.

The appellant appealed from a decision denying certiorari to quash his committal to stand trial on firearms charges.

The charges related to a handgun with a defective firing pin.

A firearms expert testified that a replacement pin could be sourced and installed relatively easily, though it was temporarily out of stock.

The Court of Appeal dismissed the appeal, finding no error in the reviewing judge's conclusion that there was sufficient evidence to infer the handgun could be adapted for use as a firearm within a reasonable time.

The appellant pled guilty to trafficking approximately 3.5 kg of cocaine over four transactions and was sentenced to seven years' imprisonment.

On appeal, he argued the sentencing judge erred in applying the parity principle and in establishing an eight-year starting range before mitigating factors.

The Court of Appeal dismissed the appeal, finding no error in the application of the parity principle given the co-accused's lesser roles, nor in the determination of the appropriate sentencing range for kilogram-level cocaine trafficking.

The appellant was convicted of impaired driving causing bodily harm and refusing to provide a urine sample after his car rolled backward and pinned a police officer.

At the station, he consulted duty counsel.

A drug recognition expert then demanded a drug evaluation and subsequently a urine sample.

The appellant's request for a second consultation with counsel was denied.

On appeal, the Court of Appeal held that the s. 10(b) Charter right to counsel was not breached, as the demands were foreseeable investigative procedures that did not constitute a change in circumstances or new jeopardy requiring a second consultation.

The conviction and sentence were upheld, save for the victim surcharge.

The appellant was convicted of sexual assault based on evidence that the complainant was extremely intoxicated and incapable of consenting when the appellant engaged in sexual activity with her.

The appellant appealed, arguing the trial judge erred by failing to consider whether the complainant's lack of memory raised a reasonable doubt regarding consent or honest but mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were compelling and based on the totality of evidence demonstrating the complainant's extreme intoxication and incapacity to consent, not merely on the complainant's testimony.