ONCA 2017

The appellant appealed his conviction for multiple sexual offences against his step-sister, who was significantly younger.

The trial judge found the appellant had been in a position of trust and had exploited the complainant's vulnerability.

The appellant raised two grounds of appeal: (1) apprehension of bias based on the trial judge's interventions during trial, and (2) misapprehension of evidence.

The Court of Appeal rejected both grounds, finding the trial judge's interventions were appropriate and did not give rise to a reasonable apprehension of bias, and that there was no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed.

The Crown appealed the acquittal of a former senior advisor to the Prime Minister on a charge of influence peddling contrary to section 121(1)(d) of the Criminal Code.

The respondent had negotiated a contract providing commissions to his girlfriend on sales of water treatment systems to First Nations communities, with the understanding that he would use his government contacts to promote the company.

The trial judge acquitted the respondent, finding that there was no "matter of business relating to the government" because First Nations communities had autonomy in purchasing decisions and INAC was not involved in approving such purchases.

The Court of Appeal was divided: the majority allowed the appeal and entered a conviction, interpreting "any matter of business relating to the government" broadly to include the respondent's exercise of influence on government officials regarding the sale of products to First Nations.

The dissent would have dismissed the appeal, finding no error of law in the trial judge's interpretation and reasoning.

The appellant was convicted of human trafficking, receipt of material benefits, withholding documents to facilitate trafficking, assault, uttering a threat, and breach of undertaking.

He received a global sentence of five years on the trafficking charge with concurrent sentences on other offences, reduced by 757 days for pre-sentence custody.

On appeal, the conviction was upheld but the sentence was modified.

The court found the trial judge erred in applying different credit calculations for pre-conviction versus post-conviction custody, as the conditions in detention centres were identical.

The court granted leave to appeal sentence and allowed the appeal, crediting the appellant with 1033 days of pre-sentence custody, resulting in a remaining custodial sentence of two years and two months.

The appellant was convicted by jury of second degree murder in the shooting death of a drug dealer.

He appealed on two grounds: (1) that the trial judge erred in rejecting evidence regarding an alternate suspect, and (2) that the trial judge erred in instructing the jury on party liability through aiding.

The Court of Appeal upheld the conviction, finding that the trial judge properly excluded the alternate suspect evidence as lacking sufficient probative value, and that while references to aiding may have been unnecessary, the jury charge read as a whole would not have misled the jury regarding the requirement that the appellant be a principal or joint principal with the requisite mental state.

The appellant was convicted of possession of controlled substances and possession for the purpose of trafficking based on evidence seized from his residence and vehicle pursuant to search warrants.

The central fact in the Information to Obtain (ITO) supporting the warrants was false: the police believed the appellant had sent a text message setting up a drug transaction, but it was actually sent by an employee.

The trial judge dismissed the appellant's Charter s. 8 application.

On appeal, the Court of Appeal found the search warrants invalid, as the false information was the central basis for the residence search, and the remaining evidence was insufficient.

The court also found the warrant overbroad and the execution improper.

Applying s. 24(2) of the Charter, the court excluded the evidence and set aside the convictions.

An applicant convicted of two counts of first degree murder sought reconsideration of a prior decision denying his application for appointed counsel under s. 684(1) of the Criminal Code.

The applicant argued material changes in circumstances had occurred since the initial denial.

The court found that the applicant had demonstrated material changes, including: the inmate duty counsel program's refusal to assist; provision of previously missing financial documents to Legal Aid; and evidence addressing concerns about a property foreclosure proceeding.

The court determined both criteria under s. 684(1) were satisfied: it was desirable in the interests of justice to appoint counsel given the complexity and arguability of the appeal, and the applicant lacked sufficient financial means to retain counsel.

Counsel was appointed.

The appellant appealed his conviction for robbery, arguing that the verdict was unreasonable and that the trial judge's reasons were insufficient.

The Court of Appeal upheld the conviction, finding that the victim's identification evidence—based on his knowledge of the appellant, recognition of his voice, identification of a can of bear mace previously in the appellant's possession, and recognition of the appellant when his mask was pulled off—provided a reasonable basis for conviction.

The court also found the trial judge's reasons adequate, demonstrating a proper understanding of the evidentiary record and the dangers of identification evidence.

The appellant appealed a sentence imposed for drug trafficking.

The Court of Appeal upheld the sentence, finding that the trial judge properly emphasized denunciation and the harm caused by drug trafficking in the community.

The court noted that the trial judge appropriately gave considerable weight to the fact that the appellant had trafficked while on bail for a prior trafficking offense.

Although rehabilitation was not entirely disregarded, it played a secondary role in the sentencing decision.

The sentence was found to be fit, and the appeal was dismissed.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated May 20, 2016.

The hospital had recommended a conditional discharge, but the Board imposed a detention order with conditions.

The appellant challenged the Board's decision on multiple grounds, including the refusal to order a conditional discharge and the failure to order a second opinion or independent assessment in light of a potential treatment impasse.

The Court of Appeal upheld the Board's decision, finding no error in the Board's reasoning regarding the appellant's non-compliance with essential drug treatment and the requirement for hospital-approved residence.

The appellant appealed his conviction for impaired driving causing bodily harm under section 255(2) of the Criminal Code.

The primary ground of appeal concerned the trial judge's admission of a prior inconsistent statement made by a defence witness for the truth of its contents.

The Court of Appeal found that while the trial judge erred in conducting an analysis regarding whether the statement could be used for its truth (a matter neither party had addressed), this did not constitute reversible error.

The trial judge had only used the statement for the proper purpose of assessing the witness's credibility and had not relied upon it for its truth in reaching the conviction.

The appeal was dismissed.

The appellant appealed an indeterminate sentence imposed for convictions of aggravated assault, sexual assault, forcible confinement, and uttering threats.

The sentencing judge had found the appellant to be a dangerous offender under the Criminal Code.

The appellant argued that a determinate sentence of 10 years imprisonment followed by a 10-year long-term supervision order would adequately protect the public.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's analysis and conclusion that the appellant's proposed release and treatment plans could not adequately protect the public.

The Crown appealed a decision by Justice Maranger dismissing an application for certiorari and mandamus relating to a preliminary inquiry judge's ruling discharging the respondent on count five of an information.

The Crown had subsequently preferred a six-count indictment with count six being identical to the discharged count five.

The respondent's counsel conceded in oral argument that the indictment was properly preferred under s. 574.1(b) and indicated no intention to challenge it at trial.

The Court of Appeal dismissed the appeal as moot but commented on the merits, finding that the preliminary inquiry judge had committed jurisdictional error by failing to consider all evidence relevant to the amended count five, which alleged a continuing sexual assault over a three-year period in Ontario and Quebec.

The appellant was convicted after a 21-day jury trial of 32 charges including sexual assault, assault with a weapon, and assault causing bodily harm.

The convictions arose from a pattern of domestic abuse spanning over 10 years, including facilitation of sexual assault by strangers and assaults with various weapons.

The appellant appealed on grounds of ineffective assistance of counsel and multiple errors in the jury charge.

The Court of Appeal dismissed all grounds of appeal, finding no merit to the claims of ineffective assistance or errors in the charge to the jury.

The appellants appealed a trial judgment awarding moral damages of $60,000 for breach of the implied contractual obligation of good faith in the manner of dismissal, along with general damages of ten months' salary in lieu of notice and $25,000 for sexual harassment under the Human Rights Code.

The appellants contended the moral damages award should be reduced to $20,000, arguing the trial judge considered irrelevant factors and that the award duplicated the sexual harassment damages.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the manner of dismissal holistically, including pre- and post-termination conduct that constituted bad faith.

The court held that moral damages and Human Rights Code damages serve different purposes and do not constitute double recovery.

The appellant was convicted of first degree murder in the death of Karina Neff.

He did not deny killing the deceased but claimed he lacked the mens rea for murder and was therefore guilty of manslaughter.

The appeal raised two issues: (1) whether the trial judge erred in admitting a video-recorded statement of a witness with a disability under section 715.2 of the Criminal Code when the witness could not confirm the truth of the statement from present recollection; and (2) whether the trial judge erred in dismissing an application for mistrial after the Crown made prejudicial remarks in closing address regarding the defence's expert evidence and the issue of intent.

The Court of Appeal dismissed the appeal, holding that the adoption test under section 715.2 is the same as under section 715.1 and does not require present recollection, and that the trial judge properly exercised discretion in refusing a mistrial and addressing any prejudice through corrective jury instructions.

The appellant was convicted of sexual assault for anally penetrating a 19-year-old co-worker at a workplace Christmas party without consent.

The trial judge sentenced him to nine months' imprisonment followed by two years' probation.

The appellant, a permanent resident of Canada, appealed on the basis that the sentence was unfit, particularly given that a sentence of six months or more would trigger immigration consequences under the Immigration and Refugee Protection Act, resulting in loss of the right to appeal a removal order.

The Court of Appeal dismissed the appeal, finding the sentence fit and holding that the trial judge did not err in first determining an appropriate sentence and then considering whether immigration consequences warranted reduction.

The appellant appealed his conviction for possession of cocaine for the purposes of trafficking and his sentence of 5 years less time served.

On the conviction appeal, the appellant challenged the trial judge's finding that he was in possession and control of the basement where cocaine was found, and argued that his mental health condition at trial prevented him from presenting a full defence.

The Court of Appeal found the trial judge's conclusion regarding possession and control was open to him and rejected the mental health argument due to lack of fresh evidence.

On the sentence appeal, duty counsel conceded the sentence fell within a proper range but argued the trial judge failed to give proper effect to a 10-year gap between prior convictions and failed to account for mental health issues in custody.

The Court of Appeal dismissed both appeals.

The appellant appealed his conviction for sexual assault entered on June 18, 2013.

The appellant raised two grounds of appeal: (1) ineffective assistance of trial counsel for failing to subpoena certain witnesses and lead evidence of negative forensic test results, and (2) that the trial judge erred by not providing a W.D.-like instruction to the jury.

The Court of Appeal found no merit in either argument and dismissed the appeal.

The appellant appealed a summary judgment dismissing its unjust enrichment claim against the respondents on the basis that the action was commenced outside the two-year limitation period under the Limitations Act, 2002.

The motion judge found that the appellant knew or ought to have known of all material facts giving rise to the claim by January 2012, when the respondent admitted under cross-examination that Silverwood had supplied flooring for the M5V Project.

The Court of Appeal allowed the appeal, finding that the respondent's testimony that profits were less than the management fee removed the possibility of damage from the appellant's mind, and that the appellant only discovered the actual damage when the respondent later admitted in 2015 that the project had made at least $200,000 in profit.

The action commenced in September 2015 was therefore within the limitation period.

The appellant sought leave to appeal from a Summary Conviction Appeal Court decision dismissing his appeal of an assault conviction.

The appellant had been represented at trial by a law student from a legal aid clinic and argued on appeal that he received ineffective legal representation because his counsel failed to raise Charter issues regarding a strip search conducted after his arrest.

The Court of Appeal dismissed the application for leave to appeal, finding that the Summary Conviction Appeal Court Judge's determination regarding the reasonableness of the legal representation was a case-specific determination that did not extend beyond the four corners of the case and was not clearly wrong.

The other issues raised by the appellant also failed to meet the test for leave to appeal.