Criminal and Quasi-Criminal Law - OCA

The appellant appealed his eight-month sentence for uttering a death threat to a correctional officer.

The appeal raised the issue of collateral immigration consequences that were not considered at sentencing.

As a landed immigrant, a sentence of six months or more would trigger mandatory deportation without a right of appeal under the Immigration and Refugee Protection Act.

The Court of Appeal admitted fresh evidence regarding the appellant's immigration status and the danger opinion process initiated by the Canadian Border Services Agency.

The court reduced the sentence to six months less one day, finding that while collateral immigration consequences are relevant to sentencing, the sentence must remain proportionate to the offence and the offender's degree of responsibility.

The Crown appealed a sentence where the trial judge set aside a notice of prior conviction under s. 255 of the Criminal Code, relying on a provincial appellate decision.

The Supreme Court of Canada subsequently reversed that decision, meaning the trial judge erred by failing to impose the mandatory minimum sentence of 120 days.

The Court of Appeal allowed the appeal and imposed the 120-day sentence, but stayed it because the respondent had already served a full 12-month conditional sentence.

The appellant was convicted of multiple firearms offences after police found guns in a duffle bag at his mother's house.

On appeal, he argued the trial judge erred by admitting a recanting witness's videotaped statement under the principled exception to the hearsay rule, by improperly using his pre-trial silence to reject his testimony, and by entering multiple convictions for the same delict.

The Court of Appeal dismissed the appeal against the convictions, finding the hearsay statement met threshold reliability and the trial judge did not rely on pre-trial silence.

However, the court applied the Kienapple principle to enter conditional stays on several duplicate counts.

The trial judge found the accused guilty of gun-related offences and adjourned for sentencing.

Months later, the trial judge stated he had reconsidered the findings of guilt, reopened the matter, and entered acquittals without hearing submissions from the Crown.

The Crown appealed.

The Court of Appeal held that while a trial judge sitting alone has jurisdiction to vacate a conviction prior to sentencing in exceptional circumstances, the judge erred in law by entering an acquittal without giving the parties an opportunity to make submissions.

The appropriate remedy was to declare a mistrial.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for sexual assault and administering a stupefying substance, arguing the trial judge erred in assessing his credibility.

The trial judge had rejected the appellant's testimony on the basis that he tailored his evidence to fit arguments raised during a voir dire regarding his police statement.

The Court of Appeal held that this reasoning improperly turned the appellant's statutory right to be present at his trial against him, undermining his right to a fair trial.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for second-degree murder and his sentence of life imprisonment with 14 years of parole ineligibility.

He argued that the trial judge's presiding over both his bail hearing and trial created a reasonable apprehension of bias, and that the jury charge contained errors regarding post-offence conduct, intent, and lacked balance.

The Court of Appeal dismissed the conviction appeal, finding no apprehension of bias and concluding that the jury charge, read as a whole, did not result in a miscarriage of justice.

The sentence appeal was also dismissed, as the trial judge made no errors in principle given the brutal, drug-related nature of the planned robbery and killing.

The appellant was convicted of robbery with a firearm and related offences following a home invasion.

On appeal, he argued the trial judge erred in admitting in-dock identification evidence and in failing to adequately warn the jury about the frailties of eyewitness identification.

The Court of Appeal dismissed the appeal, finding the in-dock identification was properly admitted and the trial judge's instructions on the frailties of the identification evidence were strong, unequivocal, and adequate.

The appellant appealed his conviction for first-degree murder, arguing that the trial judge erred in admitting police investigative narrative evidence and that the Crown improperly cross-examined him on his alibi, infringing his right to silence.

The Court of Appeal held that the investigative narrative evidence was properly admitted in reply because the defence had attacked the integrity of the police investigation.

The Court also found that while some of the Crown's cross-examination and jury address regarding the appellant's right to silence and false alibi were problematic, the trial judge's instructions adequately protected the appellant's fair trial rights.

The appeal was dismissed.

The applicants sought leave to appeal their convictions for building a farm roadway in a regulated wetland without a permit from the Conservation Authority.

They argued that the Provincial Policy Statement under the Planning Act immunized them from prosecution for farming activities.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed legal question had no merit, as the Provincial Policy Statement only applies to the exercise of authority affecting a planning matter and does not override the Conservation Authority's jurisdiction to regulate wetlands.

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

He argued the trial judge made several errors in his jury instructions, including failing to charge on the mens rea of consent and improperly instructing on prior consistent statements.

He also argued the sentencing judge committed a Johnson error by failing to consider a long term offender designation before imposing a dangerous offender designation.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

The sentence appeal was also dismissed, as the court found no reasonable possibility that a long term offender designation would have been imposed given the expert evidence of the appellant's high risk to reoffend.

The appellant, who was previously found not criminally responsible for threatening death, appealed a disposition of the Ontario Review Board granting him a conditional discharge rather than an absolute discharge.

The appellant argued he did not pose a significant threat to public safety.

The Court of Appeal dismissed the appeal, finding the Board reasonably concluded based on expert evidence that the appellant would stop his medication if unsupervised, quickly decompensate, and pose a significant risk of harm to the public.

The appellant pleaded guilty to offences related to a large-scale marijuana grow operation and was sentenced to 15 months' imprisonment.

On appeal, he argued the trial judge demonstrated a reasonable apprehension of bias through comments about ethnicity and erred by not imposing a conditional sentence.

The Court of Appeal condemned the trial judge's stereotypical comments about ethnicity but upheld the custodial sentence, noting conditional sentences are rarely appropriate for large-scale commercial grow operations.

However, the Court allowed the appeal to correct a mathematical error the trial judge made when calculating the sentence reduction for the guilty plea, reducing the sentence to 10 months' imprisonment.

The appellant appealed a conviction for fraud.

The Court of Appeal dismissed the appeal, finding it unnecessary to decide if the conduct amounted to theft by conversion.

The Court held that making use of funds while being wilfully blind to their source constitutes dishonesty, satisfying the elements of fraud.

The appellant, a lawyer, appealed a conviction for criminal contempt arising from a sentencing submission that inadvertently misled the trial judge regarding her client's pre-sentence custody status.

The trial judge found that the actus reus of contempt was established and placed the burden on the appellant to purge the contempt with an explanation and apology, which he ultimately rejected.

The Court of Appeal allowed the appeal and entered an acquittal, holding that the trial judge erred by failing to properly assess whether the Crown had proven the requisite mens rea beyond a reasonable doubt, and finding that the record did not support a finding of intentional or reckless conduct.

The appellant appealed his convictions for robbery, use of a firearm, and aggravated assault, as well as his 11-year sentence.

He argued that the trial judge erred in admitting his non-videotaped statements to police and photo array identification evidence that did not meet the Sophonow requirements.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly instructed the jury on the weight of the evidence and affirmed that police should record interviews from the outset.

The sentence appeal was also dismissed as the sentence was fit given the gratuitous shooting and the appellant's lengthy criminal record.

The appellant was convicted of impaired driving causing death and bodily harm after his truck collided with a van.

He fled the scene and claimed he consumed alcohol only after returning home.

The trial judge rejected his evidence, drawing an adverse inference from his failure to call his mother and a friend to corroborate his post-accident drinking, and finding he lied about a conversation based on a misapprehension of evidence.

The Court of Appeal held that the trial judge erred in misapprehending the evidence and improperly drawing an adverse inference against the accused for failing to call confirmatory evidence.

The cumulative effect of these errors resulted in a miscarriage of justice.

The conviction appeal was allowed and a new trial ordered, while the sentence appeal for failing to remain and public mischief was dismissed.

The appellant appealed a decision upholding his committal for trial on a charge of first degree murder.

The appellant argued that there was insufficient evidence that he knew the victim's death was likely as a result of the assault.

The Court of Appeal dismissed the appeal, finding that the appellant's admissions to his girlfriend, combined with the nature of the assault, provided a basis upon which a reasonable jury could infer the requisite knowledge for murder.

The appellant appealed his conviction, arguing errors in the summary conviction appeal court judge's treatment of the defences of consent and self-defence.

The Court of Appeal found no error in law, noting the significant size disparity between the appellant and the complainant, and concluding there was no air of reality to the suggestion of a consensual fight.

The court also found no basis for self-defence, which had been expressly disavowed at trial.

The appeal was dismissed.

The appellants appealed jury convictions and sought to adduce fresh evidence that a knife said at trial to belong to one appellant was actually the victim's knife dropped at the scene.

The Crown conceded the fresh evidence justified a new trial for one appellant, but argued it was not admissible or decisive for the other under the Palmer criteria.

The court held the Crown's joint venture theory and the way the knife evidence was used at trial bound the appellants together for purposes of the fresh evidence analysis.

The appeals were allowed, the convictions set aside, and a new trial ordered for both appellants.

The appellant appealed convictions for sexual assault and sexual touching involving a child complainant, arguing ineffective assistance of trial counsel and seeking to adduce fresh evidence of an alleged recantation.

The court held that counsel's decision not to call the complainant's mother was a defensible strategic choice and that the failure to obtain a rebuttal expert caused no prejudice because the proposed opinion evidence did not undermine the core issue of identity of the perpetrator.

Applying the Palmer framework, the court found the proposed fresh evidence was not reasonably capable of belief due to pervasive contradictions and unreliability.

The conviction appeal was dismissed, and although leave to appeal sentence was granted, the five-year penitentiary sentence was upheld as fit.