Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario dismissed Gerrard De Souza’s appeal from convictions for indecent assault and sexual assault.

The appellant raised three grounds of appeal, all relating to the trial judge’s assessment of credibility and reliability.

The Court found no error in the trial judge’s approach, holding that her findings were grounded in the evidence and not in stereotypes or improper reasoning.

The Court also found no error in the trial judge’s handling of inconsistencies in the complainant’s evidence or in her rejection of the defence theory of motive to fabricate.

The conviction appeal was dismissed.

The appellant, Sukhchain Brar, appealed his conviction for first-degree murder of his wife, Gurpreet Brar.

He admitted the killing but sought a manslaughter conviction based on lack of mens rea or provocation.

The appeal raised constitutional challenges to s. 232(2) of the Criminal Code, which defines the partial defence of provocation, arguing it infringes s. 7 of the Charter by being arbitrary and overbroad.

The Court of Appeal dismissed the constitutional challenge, finding the purpose of the amendment was to limit provocation to serious unlawful conduct, not just to address "honour killings." The court also dismissed other non-constitutional grounds of appeal related to jury instructions on provocation, cultural/religious motive, ante-mortem statements, and after-the-fact conduct.

The appellant, convicted of break and enter, theft, and weapons offences, appealed the conviction, arguing the trial judge erred in dismissing his application for a stay of proceedings based on alleged excessive force by the arresting officer.

The appellant claimed misapprehension of evidence regarding the "one plus one policy" and his "want to die" statement.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusions on reasonable force, stating the "one plus one policy" was not misused and the appellant's statement did not alter the emergency situation.

The court affirmed the appellant failed to prove the force used was unreasonable.

This is an appeal from a conviction and sentence.

On consent, the conviction for permitting the transmission of sexually explicit material to a person under 16 years was quashed.

Leave to appeal sentence was granted, and the sentence was varied.

Specifically, the prohibition orders under s. 161(1)(c) and (d) of the Criminal Code were modified, and the duration of the Sexual Offender Information Registration Act (SOIRA) order was reduced from life to 20 years, with the quashed conviction removed from its scope.

The appellant, Maurice Johnson, appealed his convictions for kidnapping and sexual assault.

He argued that the trial judge misapprehended evidence, failed to address inconsistencies in the complainant's testimony, and did not properly consider the issue of consent.

The Court of Appeal for Ontario dismissed the appeal, finding that any alleged misapprehensions were immaterial, the purported inconsistencies did not negate the elements of the offences, and the trial judge's conclusion that the complainant did not consent to the sexual activity was legally and factually sound, given the coercive circumstances of the three-day ordeal.

This is a motion brought by Raed Jaser, an appellant in a terrorism-related conviction appeal, seeking production of a post-sentence psychiatric report pertaining to his co-accused, Chiheb Esseghaier.

Jaser argues the report is necessary to support a fresh evidence application on appeal, contending that if Esseghaier was unfit to stand trial, it could constitute a miscarriage of justice for Jaser.

The Crown opposed the production.

The Court of Appeal, applying the Trotta and McNeil factors, found that Jaser met the prima facie entitlement for production.

Given Esseghaier's privacy interests as a non-party, the court ordered the psychiatric assessment to be produced to the panel for in camera inspection, reserving the decision on full production to the parties.

The appellant, Marc Leduc, appealed two first-degree murder convictions.

The appeal concerned the trial judge's decision to admit similar act evidence across counts and the jury instructions regarding its use.

The Court of Appeal found that the trial judge correctly applied the "striking similarity" test for admitting similar act evidence to rebut coincidence, which effectively served to prove identity.

The court also upheld the severance ruling, which was based on the likely success of the similar act application.

Finally, the court dismissed the argument regarding jury instructions, noting that defence counsel at trial had specifically objected to the instruction the appellant now sought on appeal, and that the instruction given was adequate.

The appellant appealed his convictions arising from a vehicular accident, arguing his guilty pleas should be struck.

He claimed he pled guilty under the mistaken belief it would grant him access to drug treatment court and that he could easily strike the pleas later.

The Court of Appeal found the pleas were not informed, noting the absence of a s. 606(1.1) Criminal Code plea inquiry and a comment by the trial judge suggesting the pleas could be easily struck.

The appeal was allowed, the guilty pleas were set aside, and the matter was remitted to the lower court.

K.V. sought an extension of time to file a notice of appeal against a Superior Court judge's decision to quash a subpoena issued to the prosecuting Crown counsel in his ongoing sexual offence trial.

The Crown opposed, arguing lack of merit and delay.

The Court of Appeal granted the extension, finding the appeal not frivolous and that K.V. had a right to appeal, despite concerns about trial delay, as the complainant's evidence was complete.

The applicant, convicted of first-degree murder, applied for the appointment of a special commissioner to inquire into allegations of juror misconduct.

A juror alleged undue pressure, verbal abuse, and exposure to extrinsic information during deliberations.

The Court of Appeal dismissed the application, finding that the alleged conduct was intrinsic to the deliberation process and protected by the jury secrecy rule.

The court held there was an insufficient evidentiary basis to establish extrinsic influence or obstruction of justice.

The Crown appealed the acquittal of the respondent.

The Court of Appeal dismissed the appeal as abated due to the death of the respondent.

The appellant appealed a conviction for sexual assault, arguing that the trial judge erred by failing to consider the absence of evidence that anyone heard the alleged assault.

The appellant contended that given the complainant's evidence, it was implausible that no one would have heard anything if the assault had actually occurred.

The Court of Appeal dismissed the appeal, finding that the trial judge understood and correctly applied the law regarding absence of evidence and reasonable doubt, and that the trial judge's thorough reasons demonstrated a clear path to conviction based on the facts found.

The appellant sought leave to appeal his sentence imposed for robbery, disguise with intent to commit theft, and failure to comply with a recognizance.

Two grounds were advanced: first, that the victim surcharge must be set aside (agreed to by the Crown); and second, that 54 days served in custody for unrelated offences (the Mississauga Offences) should be credited toward his sentence for the Vaughan Offences after his conviction on the Mississauga Offences was overturned on appeal.

The court granted leave to appeal and set aside the victim surcharge but dismissed the appeal on the second ground, holding that custodial time served for one offence cannot be credited toward sentencing for another offence, even where the offences are related or interconnected.

The appellant appealed both conviction and sentence from a trial judgment entered by Justice Peter Bawden of the Superior Court of Justice.

The appellant raised concerns about the trial judge's credibility findings in the Notice of Appeal but did not advance these submissions orally.

The Court of Appeal found no error in the trial judge's credibility assessment.

The appellant also expressed regret about not testifying at trial, but this concern was not raised in the Notice of Appeal and the Court found no basis for appellate intervention.

On the sentence appeal, duty counsel advanced two arguments alleging errors in the reasons for sentence, both of which were rejected by the Court of Appeal.

The appellant appealed a probation order imposed by the sentencing judge that prohibited him from contacting his parents.

The appellant argued that the sentencing judge had changed position from what was indicated during the joint pre-trial meeting, thereby prejudicing him by denying him the opportunity to make submissions on this condition.

The Court of Appeal dismissed the appeal, finding no procedural unfairness and noting that probation had not been decided during sentencing submissions.

The court also noted that the parents could consent to contact if they wished.

The appellants appealed a sentence imposed by the Superior Court of Justice.

The application judge declined to consider the issue of proportionality in relation to forfeiture.

The Crown argued that the factual findings made forfeiture the only available result.

The Court of Appeal disagreed, finding that the application judge was required to consider proportionality in accordance with s. 19.1(3) of the Criminal Code.

The court determined it was not in a position to conduct its own proportionality analysis given the multiple factors required to be considered under R. v. Craig.

The appeal was allowed and a new hearing on forfeiture was ordered.

The appellant appealed his conviction for fraud over $5,000 and conspiracy to commit fraud, as well as the $300,000 restitution order imposed at sentencing.

The appellant was represented by experienced trial counsel and conducted an exhaustive plea inquiry prior to entering his guilty plea.

The Court of Appeal found no basis to set aside either the conviction or the restitution order, which the appellant had agreed to through counsel.

The conviction appeal was dismissed, leave to appeal sentence was granted, but the sentence appeal was also dismissed.

The appellant appealed his conviction on three counts of fraud over $5,000 and his sentence.

The appellant challenged the lawfulness of his detention by police and raised Charter breaches under sections 8, 9, 10(a), and 10(b).

The Court of Appeal upheld the trial judge's finding that the police detention was lawful, as officers had authority to investigate a vehicle parked in an empty community centre parking lot at 3:00 a.m. with its motor running and lights on.

The court declined to address the section 10 Charter issues as they were not raised at trial.

The court affirmed the conviction for fraud, finding the trial judge properly applied the elements of fraud and that the evidence supported guilt on all counts.

The court also found no error in principle in the sentencing decision and declined to interfere with the sentence imposed.

The appellant appealed his conviction for possession of methamphetamine for the purposes of trafficking and possession of a weapon for a purpose dangerous to public safety, as well as seeking leave to appeal his sentence.

The conviction appeal raised three grounds: erroneous credibility findings, misapprehension of evidence, and an improper adverse inference from the appellant's right to remain silent.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's credibility findings were reasonable, the evidence was not misapprehended, and no adverse inference was drawn from the appellant's silence.

On the sentence appeal, the Court found an error in the structure of the sentence and modified it to three years on the trafficking offence and one year on the weapons offence, both concurrent, less time served of 19.5 months.

The appellant was convicted of possession of a firearm knowing it to be obtained by crime under s. 96(1) of the Criminal Code.

On appeal, the appellant raised two grounds of appeal: (1) that the trial judge erred in finding the appellant's police statement voluntary, arguing it was tainted by an earlier involuntary statement to a non-police actor; and (2) that the admission of evidence derived from the involuntary statement rendered the trial unfair.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the derived confessions rule and no trial fairness concerns arising from the admission of the impugned evidence.