Criminal and Quasi-Criminal Law - OCA

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 was convicted of firearm possession and drug trafficking and appealed both his conviction and sentence.

The conviction appeal argued that the information to obtain a search warrant (ITO) lacked sufficient grounds, specifically alleging the affiant misled the Justice of the Peace (JP) regarding the appellant's address and failed to establish reasonable grounds for drugs at his residence.

The Court of Appeal found that while the reviewing judge misapprehended one argument, it was immaterial as police observations provided sufficient grounds for the search warrant.

The conviction appeal was dismissed.

On the sentence appeal, the Crown conceded credit for time served, and the Court granted enhanced credit (1.5:1) for 145 days, resulting in 217 days credit.

The sentence appeal was allowed.

The appellant appealed his convictions and sought leave to appeal his sentence for four offences related to an attempted convenience store robbery.

The Court of Appeal dismissed the conviction appeal but granted leave to appeal the sentence.

The sentence was adjusted to mitigate unforeseen collateral immigration consequences for the appellant, a permanent resident, by re-allocating pre-sentence credit and treating restrictive bail conditions as a mitigating factor rather than a direct reduction in sentence, ensuring the effective sentence per count did not exceed 179 days.

The appellant appealed his convictions for sexual assault, sexual interference, and assault against his former girlfriend's children, as well as his dangerous offender designation and indeterminate sentence.

He argued the trial judge erred in assessing the credibility of the child complainant and improperly took judicial notice of child behaviour in sexual abuse cases.

He also argued his severe physical disabilities from a stroke reduced his risk of reoffending, warranting a determinate sentence.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's credibility assessments.

The sentence appeal was also dismissed, as the trial judge reasonably concluded the appellant's risk could not be managed in the community despite his physical impairments.

The appellant, a private informant, laid an information alleging that a police force and several officers committed seven indictable offences based on his partner's workplace grievances.

Following a pre-enquete, a justice of the peace refused to issue process on six counts due to a lack of evidence on essential elements, and the Crown stayed the seventh count.

The appellant applied for orders in lieu of mandamus and certiorari, which the application judge dismissed.

The Court of Appeal dismissed the appeal, finding no jurisdictional error by the justice of the peace and no flagrant impropriety in the Crown's stay of proceedings.

The appellant appealed the dismissal of his application to quash his committal for trial on charges of trafficking in cocaine and possession for the purpose of trafficking.

The charges arose from an undercover police operation where pre-marked buy money was used, and a subsequent search warrant executed at the appellant's residence yielded cocaine and drug paraphernalia.

The Court of Appeal dismissed the appeal, finding that a properly instructed jury acting reasonably could return guilty verdicts based on the evidence.

The appellant was convicted of child luring after communicating online with an undercover police officer posing as a 15-year-old girl.

The trial judge relied on the statutory presumption of belief in age and the appellant's failure to take reasonable steps to ascertain the interlocutor's age.

On appeal, the court applied the Supreme Court's intervening decision in Morrison, which struck down the presumption of belief in age as unconstitutional.

The Court of Appeal held that the trial judge's reliance on the unconstitutional presumption and the failure to take reasonable steps to establish the essential element of belief was a reversible error.

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

The appellant appealed his conviction for break and enter and theft, which was based entirely on circumstantial evidence.

The Court of Appeal found that the evidence, while suspicious, was equally consistent with the appellant becoming involved with the stolen vehicle after the break-in and thefts had occurred.

The court determined that the inferences necessary to prove possession of the vehicle or participation in the initial crimes could not be reasonably drawn, and therefore, the trier of fact could not reasonably be satisfied that guilt was the only reasonable conclusion.

The appeal was allowed, and acquittals were entered.

The appellant was convicted of two counts of sexual assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's similar fact evidence ruling or credibility assessment.

The court also dismissed the sentence appeal, deeming the 14-month concurrent sentence fit given the serious nature of the crimes against very young victims.

The appellant was convicted of firearms and drug offences following a warranted search of his apartment.

He appealed his convictions, arguing the Information to Obtain (ITO) the search warrant was insufficient and relied on careless drafting.

The Court of Appeal dismissed the conviction appeal, finding the ITO, when read as a whole, provided reasonable grounds to believe the evidence sought would be found in the apartment.

The court also dismissed the sentence appeal, upholding the 22-month custodial sentence as fit.

The Crown appealed the respondent's acquittal on charges of importing cocaine and possession for the purpose of trafficking.

The trial judge had excluded evidence obtained from a cell phone search incident to arrest and a subsequent search of the respondent's residence, finding Charter breaches.

The Court of Appeal held that while the trial judge erred in his approach to the cell phone search in light of recent Supreme Court jurisprudence, the error did not have a material bearing on the acquittal.

Even if the cell phone evidence was included in the Information to Obtain, there was insufficient evidence to establish reasonable grounds to issue the warrant for the residence.

The appeal was dismissed.

The appellants appealed a Superior Court order quashing their discharge at a preliminary inquiry regarding a tractor trailer robbery.

The Crown's case relied on circumstantial evidence and testimony from former co-accused implicating the appellants in other robberies.

The appellants argued the motion judge improperly treated evidence from other counts as similar fact evidence.

The Court of Appeal dismissed the appeal, finding the motion judge correctly identified a jurisdictional error by the preliminary inquiry judge in failing to consider the evidence as a whole, and that the similarities between the robberies supported an inference that the same group committed them.

The appellant pleaded guilty to possession of powder cocaine for the purpose of trafficking and was sentenced to 12 months' imprisonment.

He appealed the sentence, seeking a reduction to six months less one day to avoid immigration consequences, arguing the trial judge failed to properly consider his post-traumatic stress disorder and misapprehended the sentencing range.

The Court of Appeal dismissed the appeal, finding the trial judge carefully considered all relevant factors and imposed a fit sentence within the applicable range.

The appellant, an octogenarian with medical issues, appealed his concurrent 12-month custodial sentences for historical sexual assault, interference, and exploitation of a child.

He argued the sentence should be served conditionally.

The Court of Appeal dismissed the appeal, finding the sentence was below the usual range for prolonged sexual abuse by a person in a position of trust, and that denunciation and deterrence required a custodial sentence despite the appellant's medical difficulties.

The appellant was convicted of manslaughter and sentenced to eight years in custody.

He appealed the sentence, arguing he should have received enhanced pre-trial custody credit on a 1.5 to 1 basis and that the sentence was unfit because he did not bring the gun to the scene.

The Crown conceded the pre-trial custody issue, and the Court of Appeal applied the Summers framework to increase the credit to 39 months.

However, the court dismissed the fitness of sentence appeal, finding the sentencing judge had already accounted for the fact that the appellant did not bring the gun and that the sentence was fit given the aggravating factors.

The appellant, previously found not criminally responsible for robbery and mischief, appealed a disposition of the Ontario Review Board that reaffirmed a hybrid detention order.

He argued he should be granted an absolute discharge, claiming he had initially malingered his symptoms and did not suffer from a mental disorder.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that the appellant suffered from a major mental illness and remained a significant threat to public safety was well-supported by the evidence.

The Crown appealed the trial judge's decision to stay charges against two accused involved in a marijuana grow operation.

The trial judge stayed the charges against the first accused because a Mandarin interpreter was unavailable on the final day of trial, citing judicial independence and unreasonable delay.

The charges against the second accused were stayed based on a finding that police breached the knock-and-announce rule and section 7 of the Charter during the execution of a search warrant.

The Court of Appeal allowed the Crown's appeal, finding the trial judge erred in principle and in law on both stays.

The stays were set aside and a new trial was ordered for both accused.

The appellant appealed his conviction and sentence for a sexual offence.

He argued the trial judge erred by relying on the complainant's prior consistent statements, treating his non-cooperation with police as consciousness of guilt, misapplying reasonable doubt regarding his physical limitations, and ignoring exculpatory portions of his statement.

The Court of Appeal dismissed the conviction appeal, finding the trial judge did not rely on the prior statements for credibility, properly addressed the physical limitations, and considered the exculpatory statement.

The sentence appeal was also dismissed as no error was found in the sentence imposed.

The appellant was convicted of robbery, unlawful confinement, and other offences arising from a home invasion.

The Crown alleged she acted as an aider or formed a common intention with the principals under s. 21(2) of the Criminal Code.

On appeal, the appellant argued the trial judge's jury instructions were confusing and failed to explain the essential elements of the offences.

The Court of Appeal agreed, finding the instructions failed to link the general principles of party liability to the specific offences charged and improperly commingled the alternative grounds of liability.

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

The young person appealed findings of guilt for three offences related to the sexual touching of a young child while babysitting.

The appellant argued the trial judge failed to properly scrutinize the complainant's evidence, improperly shifted the burden of proof by referencing the appellant's failure to testify, and failed to properly consider defence expert evidence regarding the appellant's psychological profile.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the evidence or application of the burden of proof.