Criminal and Quasi-Criminal Law - OCA

The appellant appealed a conviction for dangerous operation of a conveyance causing bodily harm arising from a collision with an electric scooter rider on a residential street.

He argued that the trial judge misapprehended the evidence concerning his emotional state, improperly relied on demeanour evidence, and erred in rejecting his position that the incident reflected only a momentary lapse of attention.

The court held that the characterization of the appellant's emotional condition was supported by the record, that any demeanour-based inference was invited by defence counsel, and that the trial judge committed no reversible error in treating the conduct as a marked departure from the reasonable standard of care.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The Court of Appeal for Ontario allowed the Crown's appeal from acquittals entered after a trial judge excluded evidence of narcotics seized from Prince Asante's vehicle, finding the police lacked reasonable and probable grounds for arrest.

The appellate court held that the trial judge erred in law by misapplying the standard for reasonable and probable grounds, improperly discounting circumstantial and pattern evidence, and requiring proof of the accused's identity beyond what the law demands for a lawful arrest.

The acquittals were set aside and a new trial ordered.

This is a sentence appeal by Brendan Bananish from a 7-year and 3-month global sentence (reduced to 24 months after credit), designation as a long-term offender, and an 8-year long-term supervision order, following a violent attack on an intimate partner.

The appellant raised several grounds of appeal, including alleged expert bias, dispute of prior conviction facts, and the fairness of the sentencing process.

The Court of Appeal found no merit in the grounds raised and dismissed the appeal, granting leave to appeal sentence but upholding the trial judge’s findings and sentence.

The appellant, Hang Shi, appealed his conviction for aggravated assault arising from an incident in which his wife sustained significant injuries after a parking lot altercation.

The Court of Appeal found no merit in any of the grounds of appeal, holding that the trial judge properly assessed the reliability of the bystander’s eyewitness testimony, which was corroborated by Mr. Shi’s own text messages.

The court also found no error in the application of the burden of proof or in the treatment of after-the-fact conduct.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed the conviction and sentence appeals of Corey and Curtis Murray, who were convicted of second degree murder in the death of Trevor Seraphine.

The main issues on appeal concerned the police failure to preserve certain surveillance video evidence and the Crown’s late disclosure of the loss of this evidence.

The court found that while the loss of evidence breached the appellants’ Charter rights, the trial judge’s remedial jury instructions were adequate and a stay of proceedings was not warranted.

The court also upheld the 20-year parole ineligibility periods, finding them fit in the circumstances.

The Crown appealed a summary conviction appeal court's decision to stay proceedings against the respondent for "over 80" due to unreasonable delay under s. 11(b) of the Charter.

The delay was caused by the COVID-19 pandemic.

The summary conviction appeal judge (SCAJ) found the Crown had not taken reasonable steps to mitigate delay by accepting consecutive trial dates instead of exploring earlier non-consecutive ones.

The Court of Appeal allowed the Crown's appeal, holding that the SCAJ erred by failing to defer to the trial judge's assessment of local circumstances and the reasonableness of the Crown's actions in managing the pandemic-induced backlog.

The Court clarified that the heightened urgency for scheduling retrials (as per MacIsaac) does not apply to initial trials delayed by exceptional circumstances like COVID-19.

The stay of proceedings was set aside, and the conviction restored.

The appellant, M.V., appealed an eight-year global sentence for sexual interference, child luring, and child pornography.

The Court of Appeal found that the trial judge erred in principle by relying on aggravating circumstances from the sexual interference offences to determine the sentence for the child luring offences, effectively sentencing the appellant twice for the same conduct.

The court allowed the appeal, set aside the original sentence, and substituted a five-and-a-half-year global sentence, emphasizing the importance of respecting joint sentencing submissions and the principle of totality.

The appellant, M.C., appealed his conviction for child luring and sought leave to appeal his sentence.

The core issue was whether the trial judge erred by excluding M.C. and his counsel from an ex parte hearing during a s. 278 Criminal Code third-party records application.

The Court of Appeal found that the s. 278 application was part of the trial, making M.C.'s exclusion a jurisdictional error under s. 650 of the Criminal Code.

The Crown failed to rebut the presumption of prejudice, as the exclusion impacted M.C.'s ability to make full answer and defence and harmed the appearance of justice.

The court allowed the appeal, set aside the conviction, and ordered a new trial.

Lin Yang appealed his conviction for possession of marijuana for the purpose of trafficking.

The appeal focused on the trial judge's assessment of the credibility of the sole defence witness, Ze Yi Xu, who offered exculpatory evidence.

The Court of Appeal found that the trial judge made two material errors in assessing Mr. Xu's credibility: a misapprehension of evidence regarding vehicle availability and an illogical reasoning error concerning Mr. Xu's delay in informing the police.

These errors were deemed essential to the trial judge's rejection of the witness's testimony.

The appeal was allowed, and a retrial was ordered.

The appellant, Gary Austin, was convicted of fraud and theft based on circumstantial evidence, where he received over $165,000 from fraudulent cheques drafted by a general manager of a company.

Austin appealed, arguing the trial judge misapplied the principles from R. v. Villaroman regarding circumstantial evidence and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding that the trial judge, when read as a whole, correctly applied the Villaroman standard by concluding that guilt was the only reasonable inference.

The court also found the reasons sufficient for appellate review, noting that speculative inferences of innocence, contrary to human experience, do not constitute reasonable doubt.

This is an appeal from convictions for receiving a material benefit, procuring, and advertising under the Criminal Code.

The appellant argued that the trial judge reversed the burden of proof by seeking positive evidence to support the defence theory.

The Court of Appeal reviewed the trial judge's reasons contextually and found that the judge understood and correctly applied the burden of proof, accepting the complainant's evidence which supported the elements of each offence.

The appeal was dismissed.

The appellant appealed his conviction for possession of marijuana for the purpose of trafficking, arguing the trial judge erred in finding reasonable and probable grounds for arrest and search.

The appeal raised issues regarding the reliability of an officer's smell evidence, the interpretation of "neutral" observed behaviours, and the consideration of a neighbourhood's character in establishing grounds for arrest.

The Court of Appeal dismissed the appeal, affirming that the trial judge was entitled to accept the officer's evidence and that the cumulative behaviours, combined with the smell of marijuana, provided objectively reasonable grounds for arrest and search.

The court also clarified that while presence in a high-crime area alone is insufficient for grounds, it did not undermine the arrest in this case given other factors.

The Crown applied under s. 679(6) of the Criminal Code to revoke the respondent's bail release order, which had extended his release pending appeal.

The respondent opposed and brought a cross-application for release pending appeal.

The court found reasonable grounds to believe the respondent had committed new indictable offences while on bail, including possession of break-in instruments, stolen mail, ammunition, and potential bomb-making materials.

The court concluded that the enforcement interest outweighed the reviewability interest, particularly given the nature of the new charges and the reduced concern for appeal delay.

Consequently, the respondent's bail release was revoked, and his application for release pending appeal was denied.

The appellant appealed his conviction for possession of child pornography and his 15-month custodial sentence.

He argued the trial judge erred in her Garofoli ruling regarding the search warrant and in declining to exclude evidence under s. 24(2) of the Charter despite finding three s. 8 breaches.

He also argued the sentence was harsh given his medical condition.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's application of the law on amplification or the Grant analysis.

The sentence appeal was also dismissed, with the court deferring to the trial judge's consideration of the appellant's medical condition.

The appellant appealed a disposition of the Ontario Review Board that denied his request for an absolute discharge and continued his conditional discharge.

The appellant argued the Board misapprehended evidence regarding his medication compliance and imposed an unreasonable disposition.

The Court of Appeal dismissed the appeal, finding that while there was a minor factual error, it was not material to the Board's analysis.

The Court held that the Board's decision was reasonable and justified given the appellant's lack of insight, history of substance abuse, and risk of future harm.

An appeal from an Ontario Review Board detention order with privileges up to the possibility of community accommodation.

The appellant challenged the Board's decision on three grounds: insufficient reasons, procedural error due to gaps in the record, and failure to adequately address why a conditional discharge was not the least restrictive disposition.

The Court of Appeal dismissed the appeal, finding no error in the Board's reasoning, no procedural defect, and that the detention order fell within a range of reasonable outcomes based on evidence of ongoing mental illness, delusional thinking, substance abuse, medication non-compliance, and lack of insight into symptoms.

The appellant appealed her conviction for importing cocaine after returning from Jamaica with approximately three kilograms of cocaine concealed in her suitcase.

The sole issue at trial was knowledge—whether the appellant knew the controlled substance was in her suitcase.

The appellant raised multiple grounds of appeal, including allegations that the Crown's closing address improperly invited speculation, that the trial judge's charge was deficient regarding good character evidence and the element of knowledge, and that the jury was left with an unbalanced view of the case.

The Court of Appeal dismissed all grounds of appeal, finding that the Crown's submissions were supported by circumstantial evidence, that the charge adequately addressed the permissible uses of character evidence in context, and that the jury received proper instructions on the burden and standard of proof.

The Crown appealed a trial judge's declaration that section 719(3.1) of the Criminal Code, specifically the "bail misconduct exclusion," was unconstitutional.

The bail misconduct exclusion restricts pre-sentence custody credit to 1:1 (rather than the enhanced 1.5:1 credit) where an accused's bail was cancelled due to alleged misconduct while on release.

The Court of Appeal upheld the trial judge's finding that the provision violates section 7 of the Charter as overbroad.

The court found that the legislative purpose of the bail misconduct exclusion—to deter misconduct while on release—is not rationally connected to all of its impacts, particularly where individuals are punished for alleged (rather than proven) misconduct, or where detention results from inability to satisfy a reverse onus rather than actual misconduct.

The appellant appealed a summary conviction appeal decision, arguing the trial judge failed to find the officer had objectively reasonable and probable grounds to believe the roadside screening device was working before demanding a blood sample.

The Court of Appeal dismissed the appeal, finding that the trial judge was alive to the need for both subjective and objective grounds, and that such a finding was implicit in the reasons.

The summary conviction appeal judge also correctly found a basis for reasonable and probable grounds.

The appellant sought to appeal a conviction entered after a guilty plea, after the federal Crown concluded that the conviction occasioned a miscarriage of justice.

The Court of Appeal received fresh evidence in the form of a sealed affidavit, granted an extension of time, quashed the conviction, and directed a new trial, with the Crown undertaking to stay further proceedings.

The court also addressed an application by the federal and provincial Crown to continue a sealing order over the affidavit.

Applying open court principles discussed in Dagenais, the court held that a sealing order was appropriate in rare circumstances but required notice to media outlets.