Criminal and Quasi-Criminal Law - OCA

The appellant appealed the refusal to terminate a SOIRA order after obtaining a pardon.

The court held that the application judge properly applied the statutory criteria in s. 490.016(1) of the Criminal Code and the mandatory factors in s. 490.016(1.1), and made no error in principle in concluding the appellant failed to prove either no connection to the registry's purpose or gross disproportionality.

The court rejected arguments that a pardon alone justified termination, that the Crown had to file the pardon materials, and that the seriousness of the predicate offences had been overstated.

The court also dismissed a fresh evidence motion because the materials were unsworn and did not satisfy the Palmer criteria.

The appellant appealed jury convictions for two counts of second degree murder and one count of attempted murder arising from a triple shooting, and sought leave to appeal sentence.

The court held that no eyewitness-identification instruction was required because the surviving victim had known the appellant for many years and the real frailties in the evidence concerned memory and reliability, which were adequately covered in the charge.

The court further held that the jury was sufficiently instructed on the proper use of after-the-fact conduct evidence and that the surviving victim's spontaneous post-shooting statements were properly admitted under the res gestae exception to hearsay.

Leave to appeal sentence was granted, but the 25-year parole ineligibility period for the second degree murder convictions was upheld as fit and free of error in principle.

The appellant, convicted by a jury as a party to a commercial robbery for acting as the getaway driver, challenged both conviction and sentence.

The Court of Appeal held that the circumstantial evidence, including cellphone searches, call activity, her links to the robbers before and after the offence, and her role in transporting the robbers and stolen property, reasonably supported the inference that she knew in advance that a robbery involving violence or threats would occur.

The court also held that although Crown counsel's reconstructed dialogue in closing submissions was improper and should not be used, the tactic did not render the trial unfair in light of the qualifications given, the evidentiary foundation for the inferences, and the trial judge's corrective instruction.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because no error in principle or factual error was shown and there was no basis to interfere with the custodial sentence.

The appellant appealed a 10-year penitentiary sentence imposed for a sexual assault committed with another person while the victim was threatened with an imitation firearm.

He argued that the sentencing judge failed to fairly weigh aggravating and mitigating factors and that the sentence was demonstrably unfit.

The Court of Appeal rejected those grounds, finding no error in the sentencing analysis and no basis to interfere with the fitness of sentence.

With the respondent's consent, the court corrected a calculation error in presentence custody credit and adjusted the credit to 2,054 days.

Appeal from an Ontario Review Board disposition under Part XX.1 of the Criminal Code concerning a person under the Board’s jurisdiction who had been approved for supervised community living but had not yet secured an appropriate placement.

The Board expanded the permitted geographic scope of community accommodation to Southern Ontario but declined to order an independent housing assessment, finding the request premature in light of ongoing placement efforts.

The Court of Appeal found no error in that approach and dismissed the appeal.

The court added that, if housing is still not secured by the next review hearing, the Board should engage its inquisitorial mandate and require further evidence, expert or otherwise, on the housing challenges.

The appellant appealed a twenty-month custodial sentence for possession of heroin for the purpose of trafficking, arguing that the sentencing judge should have imposed a conditional sentence.

The Court of Appeal held that although a conditional sentence may be available in unusual opioid-trafficking cases, denunciation and general deterrence will typically require incarceration.

The sentencing judge conducted a case-specific analysis, and the applicable deferential sentence-appeal standard disclosed no basis for appellate intervention.

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

The applicant, sought for extradition by the United States on serious drug trafficking and money laundering charges, applied for a review of a detention order denying him judicial interim release.

The application judge had denied bail primarily on the primary ground, finding a high risk of flight due to the applicant's unexplained wealth and the unreliability of his proposed sureties.

The Court of Appeal found no reviewable error in the application judge's assessment of the evidence, including the applicant's finances, the bail letter, and the proposed sureties.

A motion to adduce fresh evidence of an arthritis diagnosis was also dismissed.

The application for review was dismissed.

The Crown appealed the respondent's acquittals on charges of sexual assault, incest, and human trafficking against his biological daughter.

The trial judge had acquitted the respondent based on reasonable doubt arising from material inconsistencies in the complainant's evidence and reliability concerns related to her hallucinations, delusions, and heavy street drug use.

On appeal, the Crown argued the trial judge relied on myths and stereotypes about mental illness and assessed the evidence piecemeal.

The Court of Appeal dismissed the appeal, finding the trial judge's reliability concerns were grounded in case-specific evidence, not stereotypes, and that he properly assessed the evidence as a whole.

The accused appealed sentence after receiving a conditional sentence and probation for invitation to sexual touching arising from sexualized messages sent to a child, arguing that the sentencing judge should have granted a conditional discharge.

The Crown cross-appealed, asserting that the sentencing judge failed to make a mandatory DNA order, improperly omitted a contemplated s. 161(1) prohibition order, and inserted unlawful long-duration restrictions into the probation order.

The Court of Appeal held that the sentencing judge erred about the availability of a discharge, but the error had no impact because the reasons showed that only a punitive conditional sentence could satisfy denunciation and deterrence.

The court therefore dismissed the accused's sentence appeal, made the mandatory DNA order, corrected the unlawful probation terms, and declined to impose a new s. 161(1) order because the accused had not been given notice or an opportunity to make submissions.

The appellant appealed his convictions for assault, unlawful confinement, and sexual assault.

He argued the trial judge erred in analyzing the defence of honest but mistaken belief in consent and in applying delayed reporting principles to physical assault.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded that the appellant failed to take reasonable steps to ascertain consent after an initial refusal, and made no error in assessing the complainant's credibility regarding her delayed reporting.

The appellant was convicted of sexual assault arising from an incident during an Uber ride and appealed on the basis of alleged errors of fact and law, primarily contending that the trial judge applied uneven scrutiny to the evidence.

The appellant argued that an Uber receipt, which showed a direct route from pick-up to drop-off, was exonerating and had been given insufficient weight.

The Court of Appeal found no error, deferring to the trial judge's credibility and fact-finding, which included cogent reasons for concluding that the receipt did not accurately reflect the route taken.

The appeal was dismissed.

The appellant was convicted of sexual interference (with the sexual assault conviction stayed under the Kienapple principle) following a trial in the Superior Court of Justice.

The offences involved repeated sexual touching of a complainant between the ages of 13 and 15, who attended a home daycare operated by the appellant's wife.

On appeal, the appellant raised three grounds: (1) improper use of a fabrication finding to bolster the complainant's evidence; (2) failure to expressly reject his denial of the offences under the W.(D.) framework; and (3) misapprehension of the evidence regarding the complainant's alleged motive to lie.

The Court of Appeal dismissed all three grounds, finding the fabrication finding was used only as a credibility assessment tool, that the denial was plainly rejected on a holistic reading of the reasons, and that the trial judge clearly understood and implicitly rejected the motive to lie argument.

The sentence appeal was dismissed as abandoned.

The appellant, convicted of 12 counts of fraud, brought a motion seeking directions and assistance in cross-examining police and civilian witnesses regarding the late disclosure of police emails.

The appellant sought production of redacted portions of emails generated between 2021 and 2024 concerning the disclosure process.

The Court of Appeal dismissed the motion, finding it was a request for production governed by the Trotta test.

The court concluded there was no reasonable possibility that ordering production would result in admissible fresh evidence or assist in developing a successful ground of appeal, as there was no air of reality to the underlying abuse of process claim.

The appellant pled guilty to defrauding her employer of over $210,000 through fraudulent schemes and forgeries over several years.

She appealed her sentence of two years less a day, arguing the sentencing judge erred by not imposing a conditional sentence.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's emphasis on the appellant's significant criminal record for similar offences and the need for specific and general deterrence, despite her guilty plea and full restitution.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred by dismissing his application to sit at counsel table rather than in the prisoner's box.

The Court of Appeal dismissed the appeal, taking the opportunity to clarify the legal framework for courtroom seating.

The Court held that an in-custody accused is presumed to sit in the prisoner's box, though trial judges retain discretion to permit alternative seating based on security, trial fairness, and the ability to make full answer and defence.

The Court found the trial judge's decision was reasonable and that standard jury instructions adequately mitigate any potential stigma associated with the prisoner's box.

The appellant appealed his conviction for conspiracy to import cocaine into Canada.

He argued that the trial judge erred in finding that his discussions with co-conspirators amounted to a concluded agreement, and that the trial judge misapplied the co-conspirators' exception to the hearsay rule.

The Court of Appeal found no error in the trial judge's conclusion that the appellant had agreed to join the conspiracy to import cocaine by airplane.

The court also held that the trial judge properly applied the Carter framework and did not improperly rely on hearsay evidence.

The appeal was dismissed.

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 appellant challenged a conviction for possession for the purpose of trafficking in carfentanil and fentanyl found in a bedroom linked to a suspected drug operation, arguing that the circumstantial evidence did not exclude the reasonable possibility that a former co-accused possessed the drugs.

Applying the circumstantial evidence principles in Villaroman and appellate deference to a trial judge’s inference drawing, the court held that the alternative theory was speculative because the appellant had keys to the building and unit, had been seen repeatedly in the bedroom, and had been linked to a debt list found there, while the former co-accused had none of those connections.

The appellant also sought to reduce a fit 10-year sentence through fresh evidence of extensive post-sentence rehabilitation.

Applying the Palmer criteria and sentence appeal principles concerning changed circumstances, the court refused the fresh evidence and held the sentence remained fit because rehabilitation had already been recognized as a major mitigating factor and ongoing custodial progress was better addressed by correctional and parole authorities.

The conviction appeal and sentence appeal were dismissed, although leave to appeal sentence was granted.

The appellant appealed convictions for firearm-related offences.

The firearm, ammunition, and an oversized magazine were seized from the appellant's home pursuant to a search warrant obtained after a threatening interaction between the appellant and his associates and a restaurant owner.

The appellant challenged the warrant through a Garofoli application, arguing the affiant mischaracterized the video evidence in the information to obtain and that the trial judge misapprehended the video surveillance evidence.

The Court of Appeal found no mischaracterization in the ITO and no error in the trial judge's assessment of the video evidence, dismissing the appeal.

The appellant challenged an annual Review Board disposition that maintained a conditional discharge based on a finding of significant threat to public safety.

On appeal under Part XX.1 of the Criminal Code, the court admitted post-hearing psychiatric evidence showing medication discontinuation without decompensation, a revised diagnosis, and a materially lower structured risk assessment.

Applying the interests of justice framework for fresh evidence in NCRMD appeals, the court held the new record required allowing the appeal.

The court found remittal unnecessary because an absolute discharge was the only reasonable disposition on the updated evidence.