Criminal and Quasi-Criminal Law - OCA

The appellant appealed his convictions for possession of fentanyl and cocaine for the purpose of trafficking and possession of proceeds of crime.

The appeal raised four grounds: (1) whether the first case management judge erred in denying leave to cross-examine the affiant; (2) whether the second case management judge erred in dismissing the motion to relitigate the cross-examination application; (3) whether the application judge erred in rejecting the Charter section 8 challenge to the search warrant; and (4) whether the application judge erred in admitting evidence despite a violation of the appellant's section 10(b) rights.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

This is an application for bail pending appeal by an applicant convicted of six serious sexual offences against two younger cousins, for which he received a 12-year global sentence.

The applicant sought bail under s. 679(3) of the Criminal Code, arguing his appeal was not frivolous and his detention was not necessary in the public interest.

The Court of Appeal found the first ground of appeal (lack of accredited interpreter) frivolous due to insufficient evidence.

The second ground (jurisdiction to amend indictment for charges spanning youth and adult periods) was deemed weak, with the court finding no material prejudice from the amendment.

Given the seriousness of the offences and the diminished strength of the appeal grounds, the court concluded that the applicant failed to establish that his detention was not necessary in the public interest.

The application for bail pending appeal was dismissed.

The appellant, Rashawn Salmon, appealed his convictions for various drug and firearms offences, arguing that the reviewing judge erred in dismissing his pre-trial Charter motion.

Specifically, he challenged the lawfulness of search warrants for his condo unit and vehicle, alleging s. 8 breaches regarding CCTV footage and the sufficiency of grounds for the warrants.

The Court of Appeal dismissed the appeal, finding no reversible error in the reviewing judge's conclusions that the police obtained information from authorized persons, that there were reasonable grounds for the search warrants, and that the vehicle seizure was lawful.

The court reiterated that a piecemeal approach to warrant review is inappropriate and that property management can consent to police access to common areas.

The appellant, Peter Knelsen, appealed his convictions for sexual assault, sexual interference, and child luring.

The central issue was whether the trial judge erred in admitting text messages between the appellant and the complainant, which the trial judge found were obtained in violation of the appellant's s. 8 Charter rights but admitted under s. 24(2).

The Court of Appeal dismissed the appeal, finding that the trial judge erred in concluding the appellant had standing to assert his s. 8 rights, as he had no objectively reasonable expectation of privacy in the text messages exchanged with the 15-year-old complainant, especially given the messages constituted the offence of child luring.

The appellant, A.B., appealed his conviction for sexual assault, arguing errors in the trial judge's jury charge regarding prior inconsistent statements, demeanour evidence, and wilful blindness/recklessness.

The Court of Appeal dismissed the first two grounds but found that the trial judge erred in instructing the jury on the mens rea requirement for sexual assault, specifically regarding recklessness and wilful blindness.

The trial judge's instruction incorrectly suggested an objective standard ("should have inquired") rather than the required subjective standard of knowledge.

The court found this error was not harmless, especially given the jury's acquittal on other counts, suggesting a potential reasoning error based on what a reasonable person ought to have known.

The appeal was allowed, and a new trial was ordered.

The appellant, convicted of dangerous driving and arson, appealed only the arson conviction.

The appellant argued that the trial judge misapprehended expert evidence regarding the cause of the fire, specifically in excluding the possibility that a cigarette accidentally caused it.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence by the trial judge.

The court affirmed the trial judge's entitlement to accept or reject expert testimony and to conclude, based on the evidence, that the fire was intentionally set by the appellant.

The appellant, Joseph Grant-Stuart, appealed his conviction for importing cocaine and possessing it for the purpose of trafficking, and sought leave to appeal his nine-year sentence.

The conviction appeal argued errors in the trial judge's response to a jury question on reasonable doubt and improper Crown closing submissions.

The sentence appeal argued the sentence was unfit due to insufficient weight given to mitigating factors like age and health.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible error in the trial judge's jury instructions or the Crown's submissions, and that the sentence was fit and within the appropriate range for drug importing cases.

The appellant was convicted of aggravated assault after striking the complainant, causing severe brain injuries.

He appealed his conviction on five grounds, primarily challenging the trial judge's self-defence analysis, including misapprehension of evidence, defensive purpose, reasonableness of actions, and application of R. v. W.(D.).

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the appellant's actions were not reasonable in the circumstances, particularly considering his role in initiating the confrontation and available alternatives.

The applicant, serving a five-year sentence for incest, applied for bail pending his sentence appeal.

He argued that the sentencing judge erred in upholding the constitutionality of the mandatory minimum sentence under the Nur framework and that his sentence was unfit.

The motions judge dismissed the application, finding that while the constitutional challenge was not without merit, the applicant failed to demonstrate that a successful appeal would result in a significantly lower sentence such that he would have already served it by the time the appeal is heard.

The appellant appealed his convictions for sexual offences against two young children who attended his home daycare.

The trial judge had admitted the children's unsworn statements under the principled exception to the hearsay rule and rejected the appellant's testimony.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred by relying on defence counsel's trial tactics to impugn the appellant's credibility and by finding the necessity criterion for hearsay met without expert evidence of psychological trauma or a proper voir dire on the children's ability to recollect.

The applicant, convicted of preventing electors from voting in the 2011 federal election and sentenced to nine months' imprisonment, applied for bail pending his sentence appeal.

The Crown conceded the applicant would surrender into custody but argued the appeal was frivolous and detention was necessary in the public interest.

The Court of Appeal granted the application, finding the sentence appeal raised arguable issues given the novelty of the offence, and that the public interest favoured release to ensure the appeal would not be rendered moot before it could be heard.

The appellant appealed the sentences imposed for two charges, one of which was an indictable offence.

The Crown conceded that the sentencing was improperly conducted in the absence of the accused without the required inquiry, and that the sentences were excessive.

The Court of Appeal allowed the appeal, varying the sentences to two months consecutive on each charge to account for pre-trial custody, and declined to impose a probation term.

The appellant appealed a decision of the Ontario Review Board ordering that he continue to be subject to a conditional discharge.

He argued for an absolute discharge, supported by a doctor's opinion.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's continuing pattern of criminal behaviour, impulsivity, and need for monitoring.

The Crown appealed the accused's acquittals on drug and firearms charges.

The trial judge had excluded evidence, including a loaded handgun and drugs, after finding that the police violated the accused's s. 8 Charter rights by seizing his cell phone during an investigative detention.

The Court of Appeal allowed the appeal, holding that the officer was justified in seizing the cell phone for officer safety and evidence preservation, as the accused was heard telling someone 'they're here now'.

The Court found no s. 8 breach and further held that even if a breach occurred, it was not serious and the evidence should not have been excluded under s. 24(2).

The appellant appealed from a summary conviction appeal court decision that upheld his conviction.

He sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the appeal, finding the fresh evidence irrelevant and inadmissible, and identifying no error in the summary appeal court judge's reasons.

The appellant appealed his conviction, arguing the trial judge erred in applying the doctrine of recent possession and in dismissing his application for unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal held that the trial judge properly applied the doctrine of recent possession without reversing the burden of proof.

The Court also found no error in the trial judge's decision to treat the appellant differently from his co-accused regarding the delay, given his greater number of charges, role in the offences, and minimal prejudice.

The appeal was dismissed.

The appellant was convicted of production of marijuana, possession for the purpose of trafficking, and wilful damage to property related to two commercial grow operations.

He appealed his 18-month sentence, arguing the trial judge improperly sentenced him as part of a criminal organization and improperly considered his immigration status as an aggravating factor.

The Court of Appeal dismissed the appeal, finding the sentence fit and that a conditional sentence would not satisfy the principle of general deterrence.

The appellant appealed his sentence after forging his wife's signature 26 times over eight months to withdraw $114,994.07 from her RRSP account, leaving her with a $25,000 tax debt.

The sentencing judge rejected the appellant's explanation for the use of the funds and concluded that a conditional sentence was inappropriate given the breach of trust, planning, and need for denunciation and general deterrence.

The Court of Appeal found no error in the sentencing judge's analysis or in the restitution order, noting that any overlapping issues could be addressed in family law proceedings.

The appeal was dismissed.

The appellant appealed his conviction and sentence for a home invasion where the complainants were threatened at gunpoint, held hostage, and threatened with being set on fire.

The appellant argued the trial judge failed to give adequate reasons for accepting the complainants' evidence despite its frailties.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were adequate and showed he considered the frailties and rejected the suggestion of collusion.

The sentence appeal was also dismissed, as the six-year sentence (less pre-trial custody credit) was not manifestly unfit given the serious aggravating factors, including the appellant's role as the instigator.

The appellant appealed convictions for sexual offences arising from allegations by his stepdaughter following a judge-and-jury trial.

The Court of Appeal held that Crown counsel repeatedly breached the duty of fairness by personalizing the prosecution, misstating the appellant's evidence, engaging in improper and sarcastic cross-examination, and reading a misleading excerpt from Supreme Court of Canada authority to the jury.

The trial judge compounded the unfairness by repeating an inaccurate version of the appellant's evidence and failing to correct the improprieties.

The cumulative prejudice deprived the appellant of a fair trial.

A new trial was ordered.