Criminal and Quasi-Criminal Law - OCA

The Court of Appeal for Ontario considered whether the right to counsel under section 10(b) of the Charter requires police to provide a detainee with a renewed opportunity to consult counsel before a strip search incident to arrest.

The Court held that, given the highly invasive nature of strip searches, the right to reconsult is necessary to fulfill the purpose of section 10(b).

The Court found two additional Charter breaches: a 20-minute delay in informing the appellant of his right to counsel, and the failure to provide an opportunity to reconsult before the strip search.

However, after a fresh section 24(2) analysis, the Court concluded that the evidence was properly admitted and dismissed the appeal.

The Court of Appeal for Ontario considered three appeals arising from two convictions and an order for a new trial in impaired driving cases.

The central issue was whether, under the amended Criminal Code, the Crown must adduce direct evidence from an analyst or the analyst’s certificate to prove the alcohol standard used to calibrate an Approved Instrument, or whether the certificate or testimony of a qualified technician is sufficient.

The court followed the Yukon Court of Appeal’s decision in R. v. MacDonald, holding that the qualified technician’s certificate is evidence of the facts alleged in it, including that the alcohol standard was certified by an analyst.

The appeals were dismissed.

The appellant, Milad Babadi, sought to reopen his appeal from convictions and sentence after his appeal was previously dismissed.

The Court of Appeal for Ontario declined to admit new evidence and dismissed the motion to reopen, finding no compelling basis to do so and confirming the finality of its earlier decision.

The appellant appealed his convictions for sexual assault, common assault, and mischief, and sought leave to appeal his global sentence.

The Court of Appeal dismissed the appeals against the sexual assault and common assault convictions, finding no errors in the trial judge's assessment of DNA evidence, resolution of inconsistencies, or consideration of post-offence conduct.

However, the mischief conviction was quashed due to insufficient analysis by the trial judge.

The sentence appeal was allowed only to correct a pre-sentence custody credit error, with the overall sentence upheld as appropriate given the nature of the offences and the appellant's record.

The appellant appealed his convictions for breaking and entering, voyeurism, and criminal harassment against his former intimate partner.

He argued the trial judge erred in finding animus, failing to explicitly find the complainant was fearful, and convicting on circumstantial evidence.

The Court of Appeal dismissed the appeal, finding ample evidence of animus, clear evidence of fear upon the discovery of a hidden camera, and overwhelming circumstantial evidence that left no reasonable doubt of guilt.

The applicant, Alexander Sangster, sought bail pending his conviction and sentence appeal for aggravated assault, assault causing bodily harm, firearm offences, and breach of recognizance.

He was sentenced to seven years and seven months.

The Crown opposed bail, arguing detention was necessary in the public interest.

The court granted bail, finding that the applicant had made substantial progress in managing his addiction, reducing public safety risk, and that the public interest in reviewability outweighed the enforceability interest, especially given the length of sentence already served and the arguable grounds of appeal.

The appellant, Jessy Herlichka, appealed his conviction for second-degree murder, arguing three errors by the trial judge: flawed instructions on the defence of intoxication, refusal to qualify a proposed defence expert in a specific area of expertise, and an inadequate curative instruction after a Crown witness suggested the appellant murdered the victim.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's instructions on intoxication, the limitation of expert testimony, or the curative instruction, concluding that the jury was properly equipped to determine the requisite state of mind for murder.

The appellant was convicted of criminal harassment, sexual interference, and sexual assault involving three complainants.

The central issue at trial was the identity of the perpetrator.

The appellant appealed the convictions, arguing that the trial judge erred in admitting evidence from three educators who claimed the appellant resembled a police composite sketch, that the jury charge on eyewitness identification was inadequate, and that the verdicts were unreasonable.

The Court of Appeal allowed the appeal, finding that the jury charge failed to highlight specific weaknesses and exculpatory features in the eyewitness evidence.

Furthermore, the Court concluded that the verdicts were unreasonable because the identification evidence was largely generic and contradicted by distinctive features the appellant did not possess.

Acquittals were substituted for all convictions.

The appellant was convicted of first degree murder in the death of his former girlfriend.

He appealed on five grounds, all relating to errors in the trial judge's charge to the jury.

The Court of Appeal found that the trial judge erred in: (1) providing contradictory instructions on the relevance of post-offence conduct to planning and deliberation; (2) instructing the jury that post-offence conduct was relevant to the provocation defence when the parties had agreed it was not; (3) failing to include a separate box for the provocation defence in the decision tree, thereby conflating provocation with the mental element required for murder; and (4) failing to correct misstatements in the Crown's closing address.

The cumulative effect of these errors compromised the integrity of the verdict.

The appeal was allowed, the conviction of first degree murder was set aside, and a new trial was ordered on both counts.

The appellant appealed his convictions for robbery, use of an imitation firearm, and wearing a disguise with intent to commit an indictable offence arising from an attempted robbery on January 6, 2013.

The appellant raised three grounds of appeal challenging the trial judge's evidentiary rulings and jury instructions.

The Court of Appeal dismissed the appeal, finding no error in the admission of cell phone records, the denial of the motion for directed verdict on the robbery count, or the jury instruction on party liability.

The appellant appealed her three-year sentence (less six months pre-sentence custody credit) imposed following a guilty plea to trafficking in firearms.

The appellant challenged the mandatory minimum sentence under s. 99(2)(a) of the Criminal Code as contrary to s. 12 of the Charter on the basis that it was overly broad and could be grossly disproportionate in certain circumstances.

The Court of Appeal dismissed the appeal, finding it unnecessary to address the constitutional argument as the three-year sentence was fit and appropriate even without the mandatory minimum, given the serious aggravating factors present.

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.

Two appellants, both found not criminally responsible on account of mental disorder and incapable of consenting to medical treatment under provincial law, appealed detention orders imposed by the Ontario Review Board.

The central issue was whether an accused person incapable of consenting to medical treatment could nonetheless consent to a condition regarding psychiatric or other treatment under section 672.55(1) of the Criminal Code.

The Court of Appeal held that the capacity required to consent to such a condition differs from the capacity required to consent to the treatment itself.

An accused need only understand information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to it, including potential consequences for liberty.

The Court overruled its prior jurisprudence to the contrary and allowed the appeals, remitting the matters back to the Board for re-hearing.

An appeal from an Ontario Review Board disposition concerning an NCR accused person's Charter rights.

The appellant sought systemic remedies from the Board for violations of his section 8 Charter right arising from unauthorized seizure of urine samples.

The Board found the Charter violation but declined to grant systemic remedies, determining it lacked jurisdiction to do so.

The Court of Appeal upheld the Board's decision, holding that while the Board has jurisdiction to determine Charter issues and grant individual remedies, it does not have jurisdiction to impose broad systemic or institutional orders.

The Board's mandate is limited to supervising individual NCR accused persons and ensuring their conditions are least onerous and restrictive consistent with public safety.

The appellant appealed his conviction for assault and his suspended sentence.

At trial, he admitted punching the complainant but claimed self-defence, alleging she was the aggressor.

The trial judge rejected this defence, relying on neighbours' testimony that the complainant was on the ground in a defensive position while the appellant punched her, concluding the force used was excessive.

The Court of Appeal found no error in the trial judge's assessment of the evidence and dismissed the conviction appeal.

Leave to appeal the sentence, which was exactly what the appellant had requested at trial, was refused.

The appellant appealed a 22-month sentence for offences including assault, death threats, criminal harassment, and breach of recognizance.

The Court of Appeal found the sentencing judge erred in principle by failing to consider the totality principle when imposing consecutive sentences.

Given the offender's youth, the court granted leave to appeal and reduced the total sentence to 18 months, resulting in 13 months going forward after accounting for 5 months of pre-sentence custody.

The appellant was convicted of attempting to obstruct justice and breach of recognizance after allegedly dissuading a witness from testifying by suggesting he obtain a false doctor's note.

The indictment was particularized to allege dissuasion 'by a threat or other corrupt means'.

The trial judge found the suggestion of a false doctor's note constituted the corrupt means.

On appeal, the majority held that the false doctor's note was not the means of dissuasion, but rather the fear of cross-examination on a prior fraud.

Because the Crown failed to prove the particularized means, and amending the indictment on appeal would prejudice the appellant, the appeal was allowed and acquittals entered.

Blair J.A. dissented, finding the false doctor's note was an integral part of the corrupt means of dissuasion.

The young person appealed a conviction under s. 86(1) of the Criminal Code involving a paint-gun.

The Court of Appeal agreed with the trial judge that the paint-gun was a 'firearm' under s. 2 of the Criminal Code.

However, the trial judge erred in law by applying a negligence standard instead of the correct standard of 'a marked departure from the standard of care of a reasonable person in the circumstances' for s. 86(1).

The Court declined to apply the proviso, allowed the appeal, set aside the conviction, and ordered a new trial.

The accused was charged with driving over the legal limit.

At trial, he argued that the warrantless seizure of his breath violated his s. 8 Charter rights.

The Crown called no evidence to establish that the police officer had reasonable and probable grounds to make the breathalyzer demand.

The trial judge excluded the evidence and acquitted the accused.

The Summary Conviction Appeal Court allowed the Crown's appeal, holding that the accused bore the burden of proving the seizure was unreasonable.

The Court of Appeal allowed the accused's appeal and restored the acquittal, confirming that a warrantless seizure of breath is prima facie unreasonable and the burden shifts to the Crown to prove its reasonableness.

The appellant challenged sexual assault convictions and sought leave to appeal sentence following a jury trial.

He argued the trial judge erred in the charge to the jury, that the verdicts were unreasonable given internal inconsistencies and admitted untruths in the complainant's prior statements, and that the sentencing judge accepted unduly aggravating facts.

The court held the impugned jury instructions were adequate and appropriate, including the instruction drawn almost verbatim from authority concerning youthful complainants.

It further held there was evidence on which a properly instructed jury acting reasonably could convict and found no error in the sentencing judge's factual findings or in the sentences imposed.