Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal on a charge of accessory after the fact to murder.

The court found that the evidence did not support leaving the charge to the jury on the basis of wilful blindness, as there was no basis for a reasonable jury to find that the respondent knew or was wilfully blind to the fact that the victim had died.

The court also held there was no air of reality to the included offence of being an accessory after the fact to attempted murder, as the evidence established the victim died and there was no live issue as to causation.

The Court of Appeal for Ontario dismissed Riley Kostuk’s appeal from his conviction for second degree murder.

Kostuk argued that his right to counsel under s. 10(b) of the Charter was violated, that the trial judge erred in admitting evidence of prior discreditable conduct, and that evidence of his schizophrenia was improperly admitted or not properly limited.

The court found no error in the trial judge’s rulings, holding that the appellant had an operating mind when consulting counsel, that the prior conduct evidence was properly admitted for motive and identity, and that the references to mental health did not prejudice the trial.

The appeal was dismissed.

The appellant, Harris Haidary, appealed his sexual assault conviction.

The Court of Appeal found that the trial judge erred by relying on an impermissible inference that Mr. Haidary had "tailored" his testimony to conform to the Crown's evidence.

This form of reasoning is legally wrong, absent exceptional circumstances not present here.

Furthermore, the trial was rendered unfair because Mr. Haidary was not given notice that such an inference could be drawn against him, depriving him of the opportunity to address it.

The court declined to apply the curative proviso.

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

The appellant, A.S., appealed a dangerous offender designation and indeterminate sentence imposed for multiple sexual and child pornography offences involving her minor children.

The appeal raised two arguments: that the sentencing judge failed to consider the appellant’s future treatability at the designation stage (a "Boutilier error") and erred by not considering a less restrictive sentencing option.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had properly applied the principles from R. v. Boutilier, deeply engaged with the psychiatric evidence regarding treatability and intractability, and correctly concluded that a lesser sentence would not adequately protect the public given the appellant's lifelong risk and the unlikelihood of rehabilitation within a determinate period.

The appellant, Yasin Abdulle, appealed his conviction for second-degree murder and his 15-year parole ineligibility period.

The conviction appeal challenged the admission of evidence regarding prior violent incidents between rival gangs and the use of rap music lyrics during cross-examination.

The sentence appeal argued that the trial judge erred by minimizing the impact of systemic anti-Black racism on the appellant's moral culpability.

The Court of Appeal dismissed both appeals, finding no error in the admission of prior incident evidence or the use of rap lyrics for cross-examination.

While acknowledging the trial judge's error in dismissing evidence of anti-Black racism, the Court found this error did not impact the fit sentence, given the seriousness of the "near first-degree murder" offence and the need for denunciation and deterrence.

Michael Theriault appealed his conviction for common assault and his nine-month sentence, stemming from an altercation where he, an off-duty police officer, and his brother assaulted Dafonte Miller, a young Black man, after catching him stealing from their truck.

The trial judge had acquitted the brothers of aggravated assault and obstruction of justice but convicted Michael of common assault for striking Miller with a pipe when Miller was retreating.

The Court of Appeal dismissed Michael Theriault's appeal, upholding the conviction and sentence.

The Crown's cross-appeal against the acquittals was also dismissed without addressing its merits, as the Crown had indicated they would not pursue a new trial if Michael Theriault's common assault conviction was upheld.

This is an appeal from convictions for first degree murder (Marcus Alexis) and manslaughter (Brian Funes) arising from an armed robbery and fatal shooting.

Alexis appealed on grounds of jury instruction errors regarding constructive first degree murder and the relation of evidence to legal issues.

Funes appealed on grounds that the trial judge erred in leaving party liability under s. 21(1) of the Criminal Code with the jury, arguing it was not available on the evidence.

The Court dismissed Alexis's appeal, finding the jury instructions adequate.

Funes's appeal was allowed, his conviction set aside, and a new trial ordered, as the trial judge erred in instructing the jury on s. 21(1) liability for manslaughter, which was not supported by the evidence.

The appellant was convicted of possessing MDMA for the purpose of trafficking and possessing proceeds of crime.

He appealed his conviction, arguing that his Charter rights under ss. 8 and 9 were violated due to unlawful continued detention and search.

The trial judge found the initial detention and pat-down lawful, but the search of the appellant's knapsack unlawful, admitting the evidence under s. 24(2) of the Charter.

The Court of Appeal upheld the trial judge's finding that the appellant's continued detention was lawful, emphasizing the totality of circumstances and the reasonable suspicion held by police in a dangerous situation.

Consequently, the appeal against conviction was dismissed, though a mandatory victim fine surcharge was quashed.

Benham Yaali sought leave to appeal a 13-year sentence for manslaughter, arguing the sentencing judge erred by considering handgun possession as an aggravating factor and by failing to properly account for provocation.

The Court of Appeal found no error in principle and that the sentence was not demonstrably unfit, upholding the sentencing judge's discretion in weighing factors.

Leave to appeal was granted, but the appeal was dismissed, except for setting aside the victim impact surcharge.

The appellant appealed his sentence of 10 years' imprisonment imposed following his guilty plea to two counts of operating a motor vehicle while impaired and causing death, two counts of criminal negligence causing death, two counts of operating a motor vehicle while impaired and causing bodily harm, and two counts of criminal negligence causing bodily harm.

The collision occurred when the appellant, heavily intoxicated and driving at 187 km/hr, ran a red light and struck another vehicle, killing two passengers and seriously injuring two others.

The Court of Appeal allowed the appeal and reduced the sentence to seven years, finding the original sentence demonstrably unfit.

The court also set aside victim surcharges and varied the driving prohibition to eight years commencing at the end of imprisonment.

A dissenting opinion would have reduced the sentence to six years, placing greater weight on Gladue factors relating to intergenerational trauma.

The appellant appealed his conviction for extortion, arguing that the trial judge provided inadequate reasons, misapprehended evidence, and misapplied the principles of R. v. W.D. The Court of Appeal dismissed the appeal, finding that the trial judge's reasons, read as a whole, provided a detailed assessment of the evidence and credibility.

The court also found that the trial judge's inferences were supported by the evidence and that she correctly applied the burden of proof.

The appellant appealed his conviction for sexual interference involving his 13-year-old stepdaughter.

He argued the trial judge erred in assessing the complainant's credibility, applied different standards of scrutiny to the evidence, and reached irreconcilable conclusions by acquitting him of sexual assault but convicting him of sexual interference.

The Court of Appeal found no error in the trial judge's approach to the evidence, noting her findings were rooted in the record and her reasonable doubt on the sexual assault count did not contradict her satisfaction that the sexual interference count was proven.

The appeal was dismissed.

The applicant moved for an extension of time to appeal his convictions for mischief and theft, arguing his guilty pleas were uninformed because his lawyer failed to advise him of the immigration consequences.

The applicant, a permanent resident, faced a mandatory deportation order under the Immigration and Refugee Protection Act due to the mischief conviction.

The Court of Appeal granted the motion, finding the applicant had an arguable case that his plea was not informed and that his delay in appealing was reasonably explained by his recent schizophrenia diagnosis and the delayed receipt of the deportation notice.

The appellant was convicted of assault with a weapon after striking the complainant with a baseball bat.

On appeal, the appellant argued that the trial judge failed to appreciate the evidentiary value of a prior inconsistent statement attributed to the complainant in an ambulance report, which indicated the assailant was unknown.

The Court of Appeal dismissed the appeal, finding that the trial judge properly recognized the statement's potential for impeachment but accepted the complainant's in-court testimony that he did not make the statement.

The appellant appealed his conviction for public mischief, arguing that the false allegations he made to the Children's Aid Society did not constitute a 'report' under s. 140(1)(c) of the Criminal Code because they were not made directly to a police officer.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that a report does not need to be made directly to the police.

The court also found ample evidence that the appellant intended to mislead the police and upheld the trial judge's instruction on the burden of proof.

The appellant was convicted of first-degree murder after the deceased was found in a submerged vehicle.

At trial, the Crown relied on unchallenged toxicology evidence suggesting the deceased died within 15 to 20 minutes of his last drink, supporting the theory of a planned murder.

On appeal, the appellant sought to introduce fresh toxicology evidence, conceded as correct by the Crown, showing the trial expert's time estimate was scientifically unsound.

The Court of Appeal applied the Palmer test and admitted the fresh evidence, finding it could reasonably be expected to have affected the jury's verdict.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellant appealed his conviction.

Fresh evidence was introduced demonstrating that the appellant was not criminally responsible by reason of a mental disorder at the time of the offence.

The Crown and amicus curiae agreed with substituting a finding of not criminally responsible.

The Court of Appeal allowed the appeal, set aside the convictions, substituted a verdict of not criminally responsible on account of mental disorder, and referred the matter to the Review Board.

The appellant appealed his conviction for sexual assault, arguing the trial judge made several errors in the jury charge.

Specifically, the appellant contended the trial judge gave flawed instructions regarding the use of his extensive criminal record, misstated the W.(D.) instruction by telling the jury to consider only credible evidence, and erred in the reasonable doubt instruction.

The Court of Appeal agreed that the cumulative effect of these errors left it unclear whether the jury properly understood its task.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellant operated a website containing audiovisual material and written stories depicting violence against women.

He was convicted of making, possessing, and distributing obscene material.

On appeal, the Court of Appeal found the trial judge erred in instructing the jury that adult nudity alone could amount to explicit sex for the purposes of obscenity.

The court ordered a new trial for the audiovisual counts but upheld the conviction for the written stories, which clearly depicted explicit sex and violence.

The sentence was varied to a $2,000 fine.

The appellants pleaded guilty to criminal negligence causing death, abandoning children, and fraud after leaving their five children in the care of a 10-year-old, during which time their six-month-old infant choked to death.

On appeal, they sought to introduce fresh evidence claiming they had left the children with an adult relative, which the court rejected as not reasonably capable of belief.

The court dismissed the conviction appeal, finding the guilty pleas were properly accepted.

However, the court allowed the sentence appeal on a joint submission, finding the sentencing judge erred in holding that a conditional sentence was unavailable for fraud involving a breach of trust, and imposed a nine-month conditional sentence.