Criminal and Quasi-Criminal Law - OCA

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, Selvin De Flores Bermudez, appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

The Crown cross-appealed the three-year concurrent sentence imposed at first instance.

The Court of Appeal dismissed the conviction appeal, finding no error in the admission of bad character evidence (due to defence counsel's tactical decision) or the trial judge's approach to emotional response evidence.

The court granted leave to appeal sentence, concluding that the trial judge erred in declining to apply the sentencing principles from R. v. Friesen to historical offences.

The Court of Appeal substituted a four-year custodial sentence, emphasizing that the effects of the sentence on the offender and his prospects for rehabilitation, while considered, cannot take precedence over the harm caused to the child victim.

The Crown appealed the acquittal of the respondent on charges of sexual assault, sexual interference, invitation to sexual touching, and assault involving a child victim between ages 11 and 14.

The respondent had made admissions in a voluntary police statement but denied the allegations at trial.

The trial judge found the respondent's denials not credible and characterized portions of the police statement as a confession to a sexual crime, yet acquitted the respondent.

The appellate court found the trial judge engaged in faulty reasoning, failed to make necessary findings of fact, failed to reconcile conflicting evidence, and provided insufficient reasons for the acquittal.

The court allowed the appeal and ordered a new trial on all counts.

The appellant was convicted on 42 counts of possession of stolen property and fraud following a trial before a judge alone.

The trial judge used evidence from multiple counts as similar fact evidence to support findings of knowledge and intent, without any request from the Crown to do so.

The Court of Appeal found that the trial judge erred in applying similar fact evidence without a Crown request and without conducting a proper admissibility inquiry.

The court held that such evidence is presumptively inadmissible and requires an onus on the Crown to satisfy the trial judge that its probative value outweighs its prejudicial effect.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for theft from mail contrary to s. 356(3) of the Criminal Code.

Both the Crown and the appellant agreed that the guilty plea was uninformed because the appellant was not aware of the immigration consequences of a conviction for that offence.

The parties agreed that had the appellant been fully informed, he would have pled guilty to the lesser included offence of theft under $5,000 contrary to s. 334(b) of the Criminal Code.

On consent, the appeal was dismissed, the conviction for theft from mail was set aside, and a conviction for theft under $5,000 was substituted.

The sentence remained unchanged and had already been served.

A police officer convicted by jury of dangerous driving causing death and sentenced to eight months in prison sought bail pending appeal.

The Crown opposed release, arguing the grounds of appeal lacked merit and that public confidence in the administration of justice required incarceration pending appeal.

The motion judge granted bail, finding the grounds of appeal relating to sufficiency of focus on the dangerous driving and guidance on marked departure were not frivolous and warranted close examination.

The judge held that public interest was best served by allowing the applicant to challenge the conviction before serving the sentence.

The appellant was convicted of sexual assault and designated a dangerous offender with an indeterminate sentence.

He appealed both conviction and sentence.

The Court of Appeal upheld the conviction, finding the evidence of sexual assault of an unconscious, highly intoxicated complainant was overwhelming.

On the sentence appeal, the court confirmed that the trial judge's findings satisfied the requirements of intractability and high likelihood of harmful recidivism established in R. v. Boutilier.

The court rejected arguments regarding misapprehension of prior criminal record, consideration of unproven allegations, and failure to consider Gladue factors and alternative measures.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault following a judge-alone trial.

The complainant testified that the appellant overpowered her, pinned her on a bed, and touched her sexually without consent.

The appellant provided a contradictory account, claiming the complainant initiated sexual contact and that he ended it after thinking of his girlfriend.

The trial judge convicted the appellant based on acceptance of the complainant's evidence, supported by corroborating evidence including a torn bra, a mark on the complainant's neck, and text messages.

The appellant raised five grounds of appeal challenging the trial judge's credibility findings and evidentiary rulings.

The appellate court dismissed all grounds of appeal, finding no legal error or overriding error of fact in the trial judge's decision.

The applicant sought leave to appeal a Provincial Offences Appeal Court decision dismissing his appeal from a conviction for speeding.

The applicant was charged with speeding on Highway 2 in the Region of Durham, clocked at 107 km/h in a 70 km/h zone.

He was convicted at trial and again at a retrial after his first conviction was overturned due to a misapplication of the rule in R. v. W.(D.).

The motion judge granted leave to appeal on three grounds: (1) misapplication of the W.(D.) rule by the Justice of the Peace; (2) improper restriction of cross-examination regarding prior inconsistent testimony; and (3) failure to provide adequate assistance to a self-represented accused.

Application for bail pending appeal from convictions for bribery, attempt to obstruct justice, criminal breach of trust, and trafficking cocaine, with a sentence of 13 years' imprisonment less 6 months' credit.

The applicant sought to establish that his appeal was not frivolous, that he would surrender himself into custody, and that his detention was not necessary in the public interest.

The court found that while the applicant's grounds of appeal were not frivolous and he would likely surrender himself, his detention was necessary in the public interest given the gravity of the offences, the aggravated circumstances of their commission, and the weakness of the grounds of appeal.

The application was dismissed and the appeal was expedited.

The appellants were convicted of attempted murder by a jury, based primarily on the recognition evidence of the victim.

They appealed their convictions, arguing the verdicts were unreasonable due to frailties in the identification evidence and the victim's lack of credibility.

They also argued the trial judge erred by failing to give a Vetrovec warning, providing an insufficient jury charge on eyewitness identification, and admitting cellular telephone records.

The Court of Appeal dismissed the appeals, finding the verdicts reasonable, the jury instructions adequate, and the cellphone records properly admitted as voluntary statements.

The appellant appealed a decision of the Summary Conviction Appeal Court dismissing his appeal from a conviction for sexual assault.

The appellant argued that his guilty plea was equivocal.

The Court of Appeal dismissed the appeal, finding no error in the lower court's decision, as the appellant had twice unequivocally acknowledged the accuracy of the facts supporting the constituent elements of the offence prior to his plea.

The appellant appealed his convictions on the basis that the trial judge erred in finding his evidence not credible.

The trial judge's primary reason for rejecting the appellant's credibility was a finding that the appellant deliberately failed to disclose his complete criminal record.

The Court of Appeal found this was not a fair basis for rejecting the evidence, as the incomplete record was due to an inadvertent error by both Crown and defence counsel, and the appellant readily admitted the missing convictions during cross-examination.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The appellant appealed his convictions and sentences for multiple offences, including procuring prostitution, assault, and extortion.

He argued the trial judge's jury charge was deficient for failing to include a Vetrovec warning, distinguish between credibility and reliability, and instruct on all constituent elements of the offences.

The Court of Appeal found the charge deficient but concluded it did not amount to reversible error for most counts, as the case rested simply on the complainant's credibility.

However, the court substituted a conviction for common assault in place of assault with a weapon because the trial judge failed to specify the weapon in the charge.

The total sentence of eight years was upheld, though the individual sentences were varied to correct an unlawful six-year concurrent sentence for common assault.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, holding that even if the appeal was not moot, the Board's disposition was reasonable and supported by the evidence.

The appellant appealed his conviction and sentence.

Based on a concession by the Crown, which the Court of Appeal found to be proper and correct, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

The appellant appealed his convictions for assault causing bodily harm, uttering a threat, and pointing a firearm against his intimate partner, as well as his sentence.

He argued the trial judge erred in admitting and using evidence of discreditable conduct, and in finding a pellet gun was a firearm.

The Court of Appeal dismissed the conviction appeal, finding the discreditable conduct evidence was properly admitted as narrative and the pellet gun met the definition of a firearm.

The sentence appeal was also dismissed, with the Court noting that under s. 732(3) of the Criminal Code, the imposition of a conditional sentence alongside an intermittent sentence causes the intermittent sentence to be served on consecutive days.

The Crown appealed the accused's acquittal on a serious drug offence, arguing the trial judge erred in excluding evidence under s. 24(2) of the Charter.

The trial judge had found a s. 8 violation based on a search conducted at the scene.

The Court of Appeal allowed the appeal, finding the trial judge misapprehended the evidence and failed to properly address relevant considerations.

The Court held that the search was minimally intrusive, conducted in private, and the officer reasonably believed he was complying with police procedures.

Given the seriousness of the offence and the critical nature of the evidence, its exclusion would bring the administration of justice into disrepute.

The acquittal was set aside and a new trial ordered.

The appellant appealed a summary conviction appeal court decision that overturned a stay of proceedings entered by the trial judge for unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal dismissed the appeal, agreeing with the appeal judge that the trial judge erred by failing to consider neutral delay factors, such as obtaining trial continuation dates, and by presuming prejudice without evidence.

The appeal judge correctly concluded that the delay was not unreasonable.

The appellant appealed his conviction, arguing that the police officer failed to comply with the immediacy requirement for a breath demand under section 254(2) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the evidence clearly showed the officer formed a reasonable suspicion and made the demand immediately.