Criminal and Quasi-Criminal Law - OCA

The appellant, A.S., appealed a dangerous offender designation and indeterminate sentence imposed for multiple sexual and child pornography offences involving her minor children.

The appeal raised two arguments: that the sentencing judge failed to consider the appellant’s future treatability at the designation stage (a "Boutilier error") and erred by not considering a less restrictive sentencing option.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had properly applied the principles from R. v. Boutilier, deeply engaged with the psychiatric evidence regarding treatability and intractability, and correctly concluded that a lesser sentence would not adequately protect the public given the appellant's lifelong risk and the unlikelihood of rehabilitation within a determinate period.

The appellant appealed his convictions and sentence, arguing his guilty plea was uninformed due to a lack of awareness of potential immigration consequences.

The Court of Appeal dismissed the appeal against conviction, finding it unbelievable that the appellant, given his prior immigration history, was unaware of the potential consequences.

However, the court allowed the appeal against sentence, varying it to reflect the joint submission that had been made at the time of the guilty plea.

The appellant pleaded guilty to possession of ketamine for the purpose of trafficking, producing ketamine, and failing to comply with a recognizance.

He appealed his convictions, seeking to set aside his guilty pleas to challenge a pre-trial ruling under s. 11(b) of the Charter, and appealed his 15.5-year sentence.

The Court of Appeal dismissed the conviction appeal, finding the guilty pleas were voluntary, unequivocal, and informed.

However, the Court allowed the sentence appeal, finding the original sentence demonstrably unfit and disproportionate for a first-time offender who pleaded guilty.

The total sentence was reduced to 10 years.

The applicant sought leave to appeal from the Summary Conviction Appeal Court's refusal to extend time to appeal a 2014 sentence.

The applicant argued the original sentence was illegal, an issue not raised previously.

The Court of Appeal found a strong argument for illegality and granted leave to appeal, setting aside the SCAC's refusal and remitting the matter to the SCAC to determine if time should be extended for an appeal on the legality of the sentence and, if so, to determine the appropriate sentence.

The Crown appealed a trial judge's decision to stay proceedings against three accused (Pauls, Jamal Yusuf, and Jamis Yusuf) for assault causing bodily harm and unlawful confinement, citing unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The trial judge had attributed most of the 35-month delay to the Crown's inaccurate time estimate and mishandling of a defence disclosure request.

The Court of Appeal re-evaluated the delay, finding that while the Crown was initially responsible for the misestimate, all parties and the court shared responsibility once the trial progressed.

The defence's disclosure request was deemed unnecessary and inappropriate, contributing to delay.

After further deductions for defence-caused delay (counsel unavailability, Pauls' illness) and joint responsibility for misestimates, the net delay for all respondents fell below the 18-month presumptive ceiling.

The Court also rejected the respondents' challenges to their guilt findings.

An appeal from an Ontario Review Board disposition finding that an NCR accused with schizophrenia and substance use disorders constituted a significant threat to public safety and ordering continued detention.

The appellant challenged the Board's application of the legal test for "significant threat" under the Criminal Code.

The Court of Appeal found the Board failed to properly apply the Winko standard by relying on speculative harm ("could" result) rather than assessing the real likelihood and seriousness of harm together.

The court allowed the appeal and returned the matter to the Board for a new hearing with proper legal analysis.

An appellant who was found not criminally responsible appealed the Ontario Review Board's disposition continuing his detention in a forensic hospital.

The appellant sought a conditional discharge but the primary issue was whether the Board should exercise its inquisitorial powers to investigate alternative community residential arrangements.

The Court of Appeal found that while a conditional discharge was not available due to the appellant's significant risk to public safety, the Board had erred in failing to properly exercise its inquisitorial duties to break the residential impasse.

The Court allowed the appeal and ordered a new hearing.

The appellant was convicted of internet luring of a person he believed to be under 16 years of age contrary to s. 172.1(1)(b) of the Criminal Code and transmitting sexually explicit material to a person he believed to be under 16 years contrary to s. 171.1(1)(b).

The latter count was conditionally stayed on the basis of R. v. Kienapple.

The appellant was sentenced to 18 months' imprisonment and three years' probation, along with ancillary orders including a weapons prohibition.

The appellant appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly analyzed the evidence and rejected the appellant's testimony as unworthy of belief.

On the sentence appeal, the Court set aside the victim surcharge but upheld the weapons prohibition as mandatory under s. 109(1)(a) of the Criminal Code.

The appellant appealed his convictions for robbery and breach of probation, as well as his sentence of 20 months imposed following a judge-alone trial.

The sole issue on the conviction appeal was whether the prosecution should have been stayed for unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The trial judge found that after appropriate deductions, the delay did not exceed the presumptive ceiling of 18 months established in R. v. Jordan.

The Court of Appeal upheld the trial judge's analysis, finding no error in the attribution of delay periods and confirming that the total delay, even after correcting for one instance of double-counting, remained below 18 months.

The sentence appeal was also dismissed as the sentencing judge committed no error of law or principle.

The victim surcharge was set aside in light of R. v. Boudreault.

The appellant appealed his conviction for theft and fraud, and his sentence of three years' custody with a restitution order of $125,000.

The appellant had managed his elderly mother's finances and depleted her retirement savings from approximately $557,000 to $83.43 over two and a half years.

The trial judge found the appellant had stolen at least $200,000.

On appeal, the appellant challenged the admission of two videotaped statements made by his mother to police and raised a Charter delay argument for the first time.

The Court of Appeal upheld the conviction and sentence, finding no error in the trial judge's admissibility ruling and declining to entertain the Charter argument raised for the first time on appeal.

The appellant was convicted of drug-related offences following a search of his residence that yielded cocaine, marijuana, crystal methamphetamine, drug paraphernalia, and cash.

The appellant appealed his conviction, challenging the validity of the search warrant on Charter grounds.

The trial judge upheld the warrant based on the Debot criteria, finding the confidential informant's information compelling and credible, with moderate corroboration.

The Court of Appeal dismissed the appeal, rejecting the appellant's arguments that the trial judge misstated the legal test and misapplied the Debot factors.

The appellant was convicted of sexual assault and sexual interference against a 13-year-old victim.

The main ground of appeal concerned the admissibility of a partial recording of a telephone call between the appellant and the victim's mother, in which the appellant apologized and appeared to be crying.

The appellant also challenged the admission of incomplete text messages.

The Court of Appeal upheld the trial judge's evidentiary rulings, finding that the victim's mother's testimony provided sufficient context for the recorded statement and that the trial judge properly instructed the jury regarding the incomplete text messages.

The appellant was convicted of importing and possession for the purpose of trafficking 175 kilograms of cocaine and sentenced to 14 years' imprisonment.

He appealed the sentence, arguing the sentencing judge placed undue emphasis on denunciation and deterrence and insufficient weight on his rehabilitation and first-time offender status.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly weighed all relevant factors, including the appellant's age and positive pre-sentence report, and that the sentence was not demonstrably unfit given the large quantity of cocaine involved.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in finding no air of reality to the defence of honest but mistaken belief in consent, misapprehended evidence, and improperly relied on the complainant's demeanour.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed himself on credibility, correctly concluded the appellant knew the complainant was not consenting, and made no reversible errors in assessing the evidence or demeanour.

The applicants sought leave to appeal a Sending Order made under the Mutual Legal Assistance in Criminal Matters Act, which directed that seized records be sent to Belgium for a criminal investigation.

The applicants argued the application judge erred in law by holding he had no jurisdiction to attach terms and conditions to the Sending Order to protect their trade secrets and confidential information from commercial competitors.

The Court of Appeal granted leave to appeal, finding that the scope of the sending court's power to impose terms under s. 15 of the Act is an unsettled question of law of general importance.

The appellant was convicted of numerous firearms offences after police found stolen guns in his storage locker.

The search warrant was based on an Information to Obtain (ITO) relying on a confidential informant.

At trial, the Crown provided a judicial summary of the redacted ITO under step six of Garofoli, which the trial judge found adequate.

On appeal, the appellant sought to challenge the constitutionality of step six of Garofoli for the first time and argued the summary was inadequate.

The Court of Appeal dismissed the conviction appeal, refusing to hear the new constitutional argument and upholding the adequacy of the summary.

The sentence appeal was allowed only to grant enhanced credit for pre-trial custody at a rate of 1.5:1, reducing the net sentence to eight years and one month.

The appellant was convicted of first-degree murder following a home invasion.

The Crown's case relied on text messages, circumstantial evidence, a jailhouse informant, and an in-court identification by the victim's mother made for the first time during cross-examination.

The appellant appealed the conviction, arguing the trial judge erred in his instructions to the jury regarding the eyewitness identification and the jailhouse informant.

The Court of Appeal allowed the appeal, finding that the trial judge's instruction on the eyewitness identification evidence constituted a fatal misdirection by failing to highlight the specific dangers of the delayed, in-court identification.

A new trial was ordered.

The Crown appealed the youth's acquittals for human trafficking and living on the avails of prostitution, while the youth cross-appealed his convictions for assault and breach of an undertaking.

The Court of Appeal allowed the Crown's appeal, finding the trial judge erred by applying a subjective standard to the definition of exploitation and by concluding a single act could not constitute prostitution.

The youth's cross-appeal was dismissed as the trial judge's credibility findings and verdicts were reasonable.

A new trial was ordered on the trafficking and prostitution charges.

The applicant applied for judicial review of the Minister of Justice's decision to maintain an order surrendering her for extradition to the United States on drug trafficking charges.

The applicant argued that the Minister failed to adequately consider her role as the sole caregiver to her young child, the differences in sentencing regimes between Canada and the US (such as the Mother-Child Program), and international human rights jurisprudence.

The Court of Appeal dismissed the application, finding that the Minister had fully considered the applicant's personal circumstances, the potential impact on her child, and the relevant legal principles, and that his decision was not unreasonable.

The appellant applied to re-open his sentence appeal and introduce fresh evidence regarding the immigration consequences of his 26-month sentence for fraud over $5,000.

The fresh evidence demonstrated that a sentence of two years or more would deprive him of the right to appeal a deportation order.

The Court of Appeal granted the application, admitted the fresh evidence, and reduced the sentence to two years less a day, noting the appellant's long-term residence in Canada, family ties, and lack of connections to his homeland.