Criminal and Quasi-Criminal Law - OCA

The Crown appealed a youth sentence for dangerous driving causing death.

The sentencing judge had found that ss. 42(5)(a) and 42(2)(p) of the Youth Criminal Justice Act, which restrict deferred custody orders, violated ss. 7 and 15(1) of the Charter.

The Court of Appeal allowed the appeal, holding that the provisions are constitutional when viewed within the YCJA's broader sentencing framework, which provides robust non-custodial alternatives like youth probation.

The sentence was varied to 18 months' probation and 100 hours of community service.

The appellants, Andrew Smoke and Eric Smoke, appealed their convictions for the second degree murder of Andrew “Scruff” Davis.

The Court of Appeal for Ontario dismissed both appeals, finding no error in the trial judge’s instructions to the jury regarding aiding and abetting, after-the-fact conduct, and the use of statements attributed to Andrew.

The court also found the verdict against Eric was not unreasonable, given the circumstantial evidence, including DNA and video evidence.

The appellant, who was found not criminally responsible for second-degree murder in 2002, appealed a disposition of the Ontario Review Board ordering his continued detention.

He argued that the Board erred in finding he remained a significant threat to public safety and in failing to mandate that the hospital actively seek community housing for him.

The Court of Appeal for Ontario upheld the Board's finding that the appellant continues to pose a significant threat to public safety.

However, the Court allowed the appeal in part, holding that the Board erred by not including a formal condition in its disposition requiring the hospital to exercise all due diligence in securing community housing.

The appellant, David Bynoe, appealed his sentence for firearms offences, assault, and uttering threats.

The Court of Appeal for Ontario granted leave to appeal but dismissed the sentence appeal, finding no error in the trial judge’s reasoning or exercise of discretion.

The court addressed arguments regarding the use of lack of acceptance of responsibility as an aggravating factor, the failure to allow the appellant to speak before sentencing, and the reasonableness of the custodial sentence for assault and uttering threats.

The court found that while the appellant should have been allowed to address the court, there was no basis to conclude this would have affected the sentence.

The Court of Appeal for Ontario declined jurisdiction to hear Dwayne Gordon’s application for judicial release pending retrial on human trafficking charges, following the setting aside of his convictions.

The court found that the Superior Court of Justice was better suited to conduct the contested bail hearing, particularly given the Crown’s desire to cross-examine the proposed surety.

The decision clarifies the exclusive and concurrent jurisdiction of the appellate and trial courts regarding bail release after an order for a new trial, and the circumstances in which the appellate court will exercise its jurisdiction.

The appellant, found not criminally responsible (NCR) for past offences, appealed a disposition by the Ontario Review Board that ordered his detention at a forensic mental health facility with community privileges, rather than granting his request for a conditional discharge.

The Board denied the conditional discharge due to public safety concerns, emphasizing the need for swift intervention in case of mental state decompensation, despite the appellant's recent stability.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable.

The court deferred to the Board's expert opinion, supported by the appellant's psychiatrist, that a detention order was necessary to ensure public protection by allowing intervention before the criteria for involuntary admission under the Mental Health Act were met, which conditional discharge mechanisms might not adequately provide.

The appellant appealed his convictions for gross indecency and sexual assault, arguing ineffective assistance of trial counsel.

The Crown conceded several areas of counsel's incompetence, including failures to thoroughly investigate collusion among complainants, explore opportunity, challenge inconsistencies in testimony, and adequately prepare the appellant for trial.

The Court of Appeal found that the cumulative impact of these failures undermined the reliability of the verdict, particularly concerning the credibility of a key complainant and the application of similar fact evidence.

The court concluded that there was a reasonable probability that the trial outcome would have been different with effective counsel.

The appellant, found Not Criminally Responsible (NCR), appealed a detention order, arguing for a conditional discharge as the least onerous and restrictive disposition.

The Court of Appeal upheld the Ontario Review Board's decision, finding that the Board reasonably rejected a conditional discharge.

The Board's decision was based on the appellant's history of non-compliance with hospital stays, her limited insight into her mental illness, and the unsuitability of the proposed housing with her husband, given their problematic relationship and her past unstable housing as a risk factor.

The court found no error in the Board's assessment that a detention order was necessary to manage the significant risk to public safety.

The appellant, Brandon Morgan, appealed his sentence for aggravated assault and failing to comply with court orders, seeking a reduction due to the impact of the COVID-19 pandemic on his incarceration conditions.

The Court of Appeal for Ontario dismissed the appeal, finding that while judicial notice could be taken of the pandemic's general impact, the requested sentence reduction would render the sentence disproportionate to the gravity of the offence and the offender's blameworthiness, even considering collateral consequences.

The court noted that the original sentence was already lenient and that parole authorities could consider the pandemic's impact.

The appellants were convicted of first-degree murder in the stabbing death of a landlord.

The victim was stabbed 29 times and, while dying, made pointing gestures toward the appellant Nurse before expiring.

The appellants appealed on two grounds: (1) the admissibility of the victim's gestures as hearsay evidence, and (2) the lawfulness of a second forensic analysis of deleted BlackBerry Messenger chats conducted with updated software one year after the initial analysis.

The Court of Appeal upheld the convictions, finding the gestures admissible under the dying declaration and spontaneous utterance exceptions to the hearsay rule, and that the second analysis of previously extracted data did not constitute a fresh search requiring new authorization.

The appellant appealed a sentencing decision imposing a conditional sentence of six months followed by one year probation for two Criminal Code offences related to applying for and using a false passport.

The appellant argued the sentencing judge erred in law or principle in refusing to impose a conditional discharge by failing to properly consider the "public interest" factor under section 730 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding the sentencing judge's conclusion that a conditional discharge was not in the public interest was entirely warranted given the appellant's use of a fraudulent passport to make multiple entries into the United States.

The 76-year-old appellant pleaded guilty to fraud over $5,000 involving a breach of trust against a friend.

She was initially sentenced to 18 months' imprisonment and ordered to pay $84,336.41 in restitution.

On appeal, the court admitted fresh evidence that the appellant had made full restitution after selling her house.

Given her age, poor health, and the Crown's original position supporting a conditional sentence upon restitution, the Court of Appeal allowed the appeal and imposed a 15-month conditional sentence.

The appellant appealed his conviction, arguing that the photo lineup identification should have been given no weight because the complainant was shown a grainy video of the scene months prior, and the lineup only contained six photos.

The Court of Appeal dismissed the appeal, finding that the trial judge was alive to these considerations and carefully weighed the relevant factors in concluding the case was made out beyond a reasonable doubt.

The sentence appeal was abandoned.

The appellant appealed the sentence imposed following a jury trial, specifically challenging the probation order.

The Court of Appeal found that the probation was properly imposed for the purposes of rehabilitation and protection of the public, noting a lack of evidence that the appellant had taken steps towards rehabilitation to prevent reoffending.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed his murder conviction, arguing the trial judge erred by provisionally ruling that if the defence led 'other suspect' evidence regarding strychnine in the deceased's home, the Crown could lead evidence of the accused's wife's death by strychnine poisoning the previous year.

The Court of Appeal dismissed the appeal, finding the trial judge correctly held that without evidence of the accused's special access to strychnine, the other suspect evidence would leave the jury with a distorted picture.

The ruling was a fair balancing of the evidence.

The applicant, convicted of aggravated assault and other offences for administering cocaine to her two-year-old son, applied for bail pending her appeal.

She argued her trial counsel provided ineffective assistance due to a pending suspension by the Law Society and a breach of the duty of loyalty.

The Court of Appeal found the grounds of appeal to be weak, noting the trial judge had already dismissed a mistrial application on these grounds.

Given the serious nature of the offences and the weak appeal grounds, the court held the applicant failed to show her detention was not necessary in the public interest.

The application for bail pending appeal was dismissed.

The appellant appealed a decision of the Ontario Review Board, arguing that the Board erred in rejecting his request for a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the Board was aware of the request and reasonably determined that it was premature to reduce the restrictions on the appellant given his present circumstances.

The appellant appealed his conviction for criminal harassment, arguing he lacked the requisite mens rea because he attempted to disguise himself and hide his presence from the complainant.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to infer recklessness from the proven facts, including that the appellant drove slowly past the complainant's gym twice in a distinctive car and ran onto the street as her vehicle was leaving.

The appellant appealed his designation as a long-term offender, arguing that the predicate offence of obstructing justice could not constitute a 'serious personal injury offence' under section 752 of the Criminal Code.

The appellant had sent a threatening letter to a former partner while on bail, leading to convictions for criminal harassment and obstructing justice.

The Court of Appeal dismissed the appeal, holding that obstructing justice meets the definition of a serious personal injury offence because it carries a maximum sentence of ten years or more and, on the facts of this case, the conduct inflicted or was likely to inflict severe psychological damage on the recipient.

The appellant appealed his conviction and sentence.

The Court of Appeal held that the trial judge was entitled to conclude the appellant's statement was an admission of guilt and to accept the complainant's evidence on the issue of lack of consent despite inconsistencies.

The conviction appeal was dismissed.

The court found no error in principle in the sentence, granting leave to appeal but dismissing the sentence appeal.