Criminal and Quasi-Criminal Law - OCA

The Crown brought a motion to bifurcate its sentence appeal from the respondent's conviction appeal.

The respondent had been convicted of sexual assault of a child and sentenced to a conditional sentence of two years less a day.

The Crown sought leave to appeal the sentence as demonstrably unfit and argued that if the appeals were heard together, the delay would render the sentence appeal redundant, as the respondent would have served a significant portion of the conditional sentence by the hearing date.

The motion judge accepted the Crown's submission, finding that the anticipated delay constituted a compelling reason for bifurcation and that the issues on the two appeals were discrete.

The motion was granted.

The Court of Appeal for Ontario dismissed B.N.'s application for bail pending appeal from convictions for sexual assault and related offences.

The court found that, although the ground of ineffective assistance of counsel clearly surpassed the "not frivolous" standard, public safety concerns—given B.N.'s extensive history of breaches and violence—outweighed reviewability and enforceability interests.

The decision applies the Oland/Farinacci framework for bail pending appeal and emphasizes the stand-alone importance of public safety in intimate partner violence cases.

The appellant, Jude Thangarajah, sought an extension of time to file a notice of appeal from his 2017 convictions and to seek leave to appeal his sentence.

The Court of Appeal for Ontario dismissed the motion, finding that Mr. Thangarajah did not form a timely intention to appeal, failed to adequately explain the lengthy delay, and did not demonstrate arguable grounds of appeal.

The court also found that granting the extension would prejudice the Crown and the administration of justice, and emphasized the importance of finality for the complainant and the public.

The appellant, C.O., appealed convictions for two counts of sexual interference involving his then partner’s 14-year-old daughter.

The appeal raised two main issues: whether the trial judge erred in her application of the principles from R. v. J.J.R.D. and whether she drew speculative inferences or misapprehended the evidence.

The Court of Appeal found no error in the trial judge’s reasoning or application of the law, including her treatment of peripheral evidence and credibility findings.

The appellant’s application to admit fresh evidence was also dismissed as not meeting the legal threshold.

The appeal was dismissed.

The appellant, Ian Bush, appealed his conviction for three counts of first-degree murder.

The appeal was based on two grounds: the trial judge's error in admitting evidence seized from the appellant's home without proper individual analysis of probative value versus prejudicial effect, and an erroneous jury instruction on first-degree murder regarding transferred intent.

The Court of Appeal found that both errors occurred.

However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that the overwhelming evidence, particularly the fact that the murders occurred while the victims were forcibly confined (which automatically elevates murder to first-degree), meant no substantial wrong or miscarriage of justice occurred.

The appeal was dismissed.

The appellants, U.K. and R.P., appealed their convictions for sexual assault, arguing the trial judge erred in jury instructions regarding fabrication as post-offence conduct and the application of the W.(D.) principles.

The Court of Appeal found that the trial judge erred by instructing the jury on fabrication of trial evidence without independent evidence, and by providing a deficient fabrication instruction that failed to distinguish between disbelieved and fabricated evidence, explain independent evidence, or require consideration of alternative explanations.

Furthermore, the trial judge erred in the W.(D.) instruction by conflating the appellants' evidence and treating defence evidence as an all-or-nothing proposition.

These errors were deemed prejudicial, going to the heart of credibility assessment and the burden of proof.

The court declined to apply the curative proviso.

The appellant, Nicholas Wong, appealed his dangerous offender designation and indeterminate sentence.

He was convicted of two counts of attempted murder with a firearm and other related offences.

The Crown sought the dangerous offender designation based on a pattern of repetitive and persistent aggressive behaviour, including prior firearm possession offences.

Wong argued the sentencing judge erred by considering firearm possession as part of the pattern and by admitting expert evidence on gang affiliation and prior gun use.

The Court of Appeal dismissed the appeal, finding no errors in the sentencing judge's determination that Wong met the dangerous offender criteria, nor in the admission of the challenged evidence.

The appellant, H.P., appealed his sexual assault conviction, raising three grounds: whether his s. 276 voir dire testimony was compelled and improperly used against him contrary to s. 13 of the Charter; whether the cross-examination on the voir dire was overly broad; and whether the trial judge erred in finding corroboration of the complainant's evidence.

The Court of Appeal dismissed the appeal, affirming that s. 276 voir dire evidence is not compelled, the cross-examination was not unfair given the scope of the affidavits, and the trial judge's assessment of corroborative evidence was reasonable and entitled to deference.

R.D. appealed his conviction for sexual interference, sexual assault, and uttering threats, citing deficiencies in the jury charge and an unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The Crown cross-appealed the sentence, arguing the trial judge erred in not applying an aggravating factor related to a position of trust.

The Court of Appeal dismissed both R.D.'s conviction appeal, finding the jury charge adequate and the delay not unreasonable, and the Crown's sentence appeal, upholding the trial judge's finding that a position of trust was not established in the particular circumstances.

The appellant appealed his conviction for sexual interference and attempt to obstruct justice, as well as the lifetime Sex Offender Information Registration Act (SOIRA) order imposed as an ancillary order on sentence.

The appellant abandoned his conviction appeal but challenged the lifetime SOIRA order, arguing it should be 20 years.

Both the appellant and respondent agreed on this issue.

The court found that although there is no right of appeal from a SOIRA order imposed under s. 490.012(1) of the Criminal Code, the trial judge retains inherent jurisdiction to correct an erroneous SOIRA order.

The appeal was quashed for want of jurisdiction, but the appellant was directed to return the matter to the trial judge for correction.

The appellant appealed her conviction for robbery arising from a drug transaction where the complainant was stabbed multiple times.

At trial, there was conflicting evidence regarding who was buying and selling the drugs, and what type of drugs were involved.

The trial judge convicted the appellant but failed to make specific findings of fact regarding what was stolen, which was necessary as the Crown had particularized the charge as stealing money.

The Court of Appeal found that while the verdict was not unreasonable, the trial judge's reasons were insufficient because they did not address the charge as particularized.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions on the sole issue of whether the 2013 self-defence provisions of the Criminal Code have retrospective application.

The Court of Appeal dismissed the appeal, noting that it had previously determined in R. v. Bengy that the provisions do not have retrospective effect.

The appellant appealed the imposition of an $8,000 fine, arguing it was excessive and that the trial judge failed to make sufficient inquiry into his ability to pay.

The Court of Appeal agreed that the trial judge erred in this regard, though it affirmed that a fine reflecting the seriousness of the offence was appropriate.

The appeal was allowed and the fine was reduced to $6,000, with one year to pay.

The appellant appealed a global sentence of 22 months.

The Court of Appeal found the overall sentence fit but held the trial judge erred by refusing to consider parole ineligibility when assessing pre-trial custody credit.

Applying recent jurisprudence, the Court increased the pre-trial custody credit to 2:1, resulting in the sentence being varied to time served.

The appellant appealed his conviction for the sexual assault of a 15-year-old complainant.

He argued the trial judge erred by relying on hearsay evidence, permitting improper cross-examination about whether he found the complainant attractive, and failing to properly apply the W.D. principles for assessing credibility.

Both parties also sought to introduce fresh evidence.

The Court of Appeal dismissed the applications to introduce fresh evidence, finding it did not meet the Palmer test.

The Court dismissed the appeal, holding that the hearsay evidence was properly used to infer state of mind, the cross-examination was permissible to rebut the appellant's assertion of good character, and the trial judge correctly applied the burden of proof.

The appellant appealed his dangerous offender designation and indeterminate sentence for the aggravated assault of a woman he had been dating.

He argued that the sentencing judge erred in excluding the possibility that his risk to the public could be managed in the community under a long-term offender designation.

The Court of Appeal dismissed the appeal, finding that the sentencing judge's conclusion that the appellant's risk could not be controlled in the community was amply supported by the record.

The Crown appealed the sentence imposed on the respondent.

The Court of Appeal found no basis to interfere with the trial judge's disposition, noting the trial judge considered all relevant principles, the seriousness of the offence, a Gladue report, and the respondent's substantial progress in addressing his alcohol problem prior to sentencing.

The respondent's post-sentence progress further confirmed the wisdom of the sentence.

The appeal was dismissed.

The applicant, who was self-represented, applied for bail pending his appeal from convictions for attempting to obstruct justice.

He had been sentenced to ten months' imprisonment.

The Crown conceded the appeal was not frivolous but opposed release on public interest grounds, citing the applicant's criminal record, which included breaches of court orders and forcible confinement.

The court denied the application, finding it was not in the public interest to release the applicant due to the risk that he would commit further offences, including offences against the administration of justice.

The appellant was convicted of conspiracy to traffic in heroin and trafficking in heroin.

At trial, the judge directed a verdict of acquittal on possession charges but allowed the jury to consider evidence relating to those charges when deliberating on the remaining counts.

On appeal, the appellant argued this violated the Supreme Court's ruling in Grdic.

The Court of Appeal dismissed the appeal, holding that Grdic does not apply to overlapping evidence in a single proceeding with multiple counts, as established in Arp.

The court also dismissed grounds of appeal relating to the 'in furtherance' jury instruction and the trial judge's reference to money found in a stuffed bear.

The appellant appealed his conviction for break, enter and theft.

The trial judge had convicted the appellant based on circumstantial evidence, specifically that his promise to appear from an unrelated matter was found inside the premises.

The Court of Appeal allowed the appeal and quashed the conviction, finding that there was no evidence of a break-in, no evidence the appellant entered the premises, and the presence of the promise to appear did not establish that the appellant was the thief.

The circumstantial case could not reasonably support the finding that the appellant was the only reasonable inference.