Criminal and Quasi-Criminal Law - OCA

The appellant appealed her conviction for aggravated assault against a 13-month-old child, arguing the trial judge erred in assessing conflicting expert medical evidence on the causation of the child's head injury.

The Court of Appeal found that the trial judge improperly preferred the Crown's expert opinion in isolation before considering the totality of the evidence, thereby misapplying the R. v. W.(D.) framework.

This led to a flawed assessment of the defence's alternative theories and a failure to properly consider whether the evidence raised a reasonable doubt.

The appeal was allowed, and a new trial ordered.

Sharon Atkinson, found not criminally responsible on account of mental disorder (NCRMD) for arson, appealed the Ontario Review Board's conditional discharge, seeking an absolute discharge or a new hearing.

The appellant, diagnosed with Prader-Willi syndrome, intellectual disability, and personality disorder, argued the Board erred in finding her a significant threat to public safety and in assessing the sufficiency of civil mechanisms.

The Court of Appeal dismissed the appeal, upholding the Board's finding that the appellant remained a significant threat due to her persistent behavioural issues, high risk of recidivism, and lack of a viable plan for an absolute discharge, concluding that civil mechanisms would be inadequate to manage the risk.

The Crown appealed an acquittal in a child pornography case where the trial judge excluded evidence obtained through a search warrant.

The trial judge found the warrant was invalid because police failed to verify information from the National Center for Missing and Exploited Children (NCMEC) report for accuracy, failed to include a disclaimer from the NCMEC report, failed to confirm Microsoft's use of PhotoDNA software, and found the information stale despite only seven to eight months having elapsed.

The Court of Appeal allowed the Crown's appeal and entered a conviction, finding the trial judge applied an incorrect legal standard by requiring verification for accuracy rather than assessing reasonableness, and erred in substituting her own views for those of the issuing justice.

A motion for directions regarding the proper route of appeal in a matter involving solicitor-client privilege and litigation privilege over documents and audio files seized by the Ontario Provincial Police.

The moving parties sought clarification on whether the Court of Appeal for Ontario had jurisdiction to hear the appeal.

The single judge in chambers declined to hear the motion and adjourned it to be heard by a three-judge panel, holding that questions of the court's jurisdiction must be decided by a panel, not a single judge.

The appellant was convicted of multiple drug trafficking and possession offences arising from events in spring 2011.

He appealed his convictions on the grounds that the trial judge misdirected the jury on the prohibition against applying evidence across counts in a multi-count case, failed to correct improper cross-examination and closing arguments by the Crown, and failed to properly instruct on propensity reasoning.

The Court of Appeal found that the trial judge erred by providing ambiguous instructions on cross-count reasoning, failing to correct the Crown's improper invitations to the jury to use evidence from one count to determine guilt on other counts, and providing contradictory responses to jury questions.

The court concluded that the jury's verdicts were tainted by legally impermissible reasoning and ordered a new trial.

The appellant was convicted of dangerous operation of a motor vehicle causing bodily harm after a severe rear-end collision on a highway.

At trial, he argued that his roadside admission to being the driver was statutorily compelled under the Highway Traffic Act, violating his Charter right to silence, and that the subsequent breath demand was not made 'forthwith'.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant volunteered the information freely and that the brief delay in making the breath demand was justified by public safety concerns at the chaotic accident scene.

The appellant, a physiotherapy assistant, was convicted of sexually assaulting a patient.

He appealed his conviction, arguing that the trial judge erred by considering the complainant's demure dress in court and her apparent religious beliefs as factors bolstering her credibility.

The Summary Conviction Appeal Court dismissed the appeal.

On further appeal, the Court of Appeal held that while the trial judge erred in law by treating the complainant's manner of dress and religious beliefs as relevant to her credibility, these factors were given minimal weight and did not cause a substantial wrong or miscarriage of justice.

The appeal was dismissed.

The appellant appealed his conviction for first degree murder in the killing of a taxicab driver.

He argued that the trial judge erred in her instructions on the use of his police statements and post-offence conduct, and that the Crown's cross-examination was improper.

He also alleged ineffective assistance of trial counsel for failing to lead evidence of a 'family conspiracy' by his co-accuseds' family to frame him.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions or the Crown's cross-examination, and concluding that trial counsel's tactical decisions were sound and did not constitute ineffective assistance.

The appellant appealed his convictions for robbery with an imitation firearm, disguise with intent, and possession of a weapon for a purpose dangerous to the public peace.

The Crown's case was entirely circumstantial, relying heavily on DNA evidence found on a balaclava and toy gun retrieved from a garbage bin near the scene of the bank robbery.

The appellant argued the trial judge failed to consider the whole of the evidence, reversed the burden of proof regarding his testimonial silence, provided insufficient reasons, and reached unreasonable verdicts.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the law regarding the accused's silence and that the circumstantial evidence reasonably supported the convictions.

The appellant appealed convictions for a 'no permit' offence and a 'failure to stop' offence.

At the provincial offences appeal, the prosecutor conceded the appellant had a valid permit and invited an acquittal, and also conceded the fine for failure to stop should be reduced.

The appeal judge peremptorily dismissed the appeal without giving effect to the concessions.

The Court of Appeal found this resulted in a miscarriage of justice, allowed the appeal, entered an acquittal on the 'no permit' charge, and reduced the penalty on the 'failure to stop' charge to a suspended sentence.

The appellant appealed his convictions for assault with a weapon and assault causing bodily harm, as well as his sentence, following a domestic incident where he struck his spouse with a shovel.

The Court of Appeal dismissed the conviction appeal grounds relating to unreasonable delay under s. 11(b) of the Charter and the application of the W. (D.) test for credibility.

However, the court agreed that the Kienapple principle applied, staying the conviction for assault with a weapon as it arose from the same delict.

The sentence appeal was dismissed, with the court finding the custodial sentence reasonable given the severity of the spousal abuse.

The appellant appealed his conviction for impaired driving, arguing that his continued detention after a lawful traffic stop was arbitrary under s. 9 of the Charter, and that the breathalyzer technician's observations of his impairment should have been excluded under s. 24(2).

The Court of Appeal dismissed the appeal, finding that the initial detention was lawful under s. 216(1) of the Highway Traffic Act and the continued detention was justified to investigate his dangerous driving.

The court held that the technician's observations were not conscriptive evidence and did not arise from a Charter violation.

The appellant appealed his conviction for second degree murder, arguing the trial judge erred in admitting expert police evidence regarding a 'code of silence' in the community where the shooting occurred.

The Crown introduced this evidence to explain why the sole eyewitness initially lied to police about witnessing the murder.

The Court of Appeal dismissed the appeal, finding the evidence was relevant and necessary to provide context for the witness's behaviour, and that the trial judge implemented extraordinary safeguards to prevent prejudice, including prohibiting the word 'gang' and providing clear limiting instructions to the jury.

The accused appealed his conviction for sexual assault.

The complainant and the accused were intimate partners who engaged in erotic asphyxiation.

The complainant testified that she consented in advance to being choked into unconsciousness and to the sexual activity that occurred while she was unconscious.

The trial judge convicted the accused, holding that a person cannot legally consent in advance to sexual activity while unconscious.

The Court of Appeal allowed the appeal and entered an acquittal, finding that the Criminal Code does not prohibit a person from consenting in advance to sexual touching expected to occur while unconscious, and that the Crown could not rely on bodily harm to vitiate consent on a charge of sexual assault simpliciter.

The appellant appealed convictions for two sexual assaults arising from a former intimate relationship and sought to replace concurrent custodial sentences with conditional sentences.

The court held that the trial judge properly applied the W.(D.) framework, did not materially misapprehend the complainant's evidence, and did not subject the appellant's testimony to uneven scrutiny.

On sentence, the court held that the second assault properly engaged a trust-based aggravating consideration within the parties' prior intimate relationship and that the sentences imposed were not demonstrably unfit.

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

The appellant was convicted of possession of crack cocaine for the purpose of trafficking, possession of proceeds of crime, and possession of stolen property.

At trial, she testified that a passenger handed her the cocaine and she hid it in her wig out of panic.

The trial judge rejected her explanation, partly because she did not offer it to the police when searched.

On appeal, the Court of Appeal held that the trial judge infringed the appellant's right to silence by using her failure to explain to the police as a basis for finding her incredible.

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

The appellant appealed his convictions for sexual offences against his five-year-old daughter.

He argued the trial judge misapprehended evidence, failed to appreciate inconsistencies in the child's testimony, and applied a stricter standard of scrutiny to his evidence, thereby reversing the onus of proof.

The Court of Appeal found no material misapprehension of evidence and held that the trial judge properly assessed credibility based on principles applicable to child witnesses.

The appeal was dismissed.

The appellant appealed his sentence after being convicted of sexual assault, choking, unlawful confinement, uttering threats, assault, and failing to comply with a probation order.

The sentencing judge found the appellant to be a long-term offender and imposed a 9-year determinate sentence for the sexual assault and related offences, plus consecutive sentences for other offences and a 10-year supervision order.

The Court of Appeal dismissed the sentence appeal, finding the sentence appropriate given the appellant's extensive record and the horrific circumstances of the offences.

The appellant appealed his conviction for impaired driving causing bodily harm, arguing the verdict was unreasonable after the trial judge excluded his admission of being the driver under section 7 of the Charter.

The Crown appealed the sentence of 60 days imprisonment, two years probation, and a four-year driving prohibition as demonstrably unfit.

The Court of Appeal dismissed both appeals.

The conviction was supported by in-dock identification and circumstantial evidence, including the appellant's obvious impairment at the scene.

While the 60-day sentence was a marked departure from the usual range, the Court deferred to the trial judge, finding the leniency was offset by the probation order and the lengthy driving prohibition.

The appellant was charged with murder and convicted of manslaughter by a jury.

The trial judge sentenced the appellant to 15.5 years in prison, finding that the appellant knew the gun was loaded.

On appeal, the Court of Appeal found that the trial judge misapprehended the evidence, as an accomplice's testimony could support the conclusion that the appellant believed the gun was unloaded.

Given the gravity of the offence, the appellant's young age, and lengthy pre-trial custody, the Court of Appeal varied the manslaughter sentence to 12 years.

A concurrent sentence for robbery was not varied.