ONCA 2024

The applicant, convicted of sexual offences against two young girls and sentenced to seven years, sought bail pending appeal of his convictions and sentence.

The Court of Appeal for Ontario denied the application, finding that the applicant failed to establish that his detention was not necessary in the public interest.

The court determined that the grounds of appeal regarding inadvertent collusion, similar fact evidence admissibility, and the sentencing judge's analysis of health circumstances were very weak, not clearly surpassing the 'not frivolous' criterion.

The balance of the competing interests of enforceability (seriousness of the crime) and reviewability (weakness of appeal grounds) favoured enforceability, concluding that a reasonable member of the public would lose confidence in the administration of justice if the applicant were released.

The appellant, Dellen Millard, brought an appeal.

The court rejected his argument that a judge's mere presence on a panel that previously ruled adversely against him raised a reasonable apprehension of bias.

However, the court granted his request for an adjournment to prepare written submissions, putting the matter over to a future Kingston inmate sitting.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

The appellant, Ghana Ariharan, appealed his sentence for fraud over $5,000 and failing to comply with an undertaking.

The sentencing judge imposed an 18-month custodial sentence (less pre-sentence credit) and a concurrent three-month sentence, along with a restitution order and fine in lieu of forfeiture of $81,995.00.

The appellant argued his restitution efforts were not adequately considered and the breach of undertaking sentence was excessive.

The Court of Appeal found the restitution efforts insignificant and the breach sentence not excessive.

However, the court agreed the trial judge erred in calculating the restitution and forfeiture amounts, adjusting them to $77,795.00.

The appeal was allowed to this extent and otherwise dismissed.

The appellant, convicted of firearms offences including intentional discharge of a restricted firearm, appealed his conviction and sentence.

He challenged the trial judge's W.(D.) instruction and treatment of defence expert evidence in the jury charge, arguing they were inconsistent with the defence theory and confusing, especially given the Crown's closing submissions.

Alternatively, he sought leave to appeal the five-year custodial sentence, contending the trial judge erred by not considering a sentence below the mandatory minimum.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible error in the jury charge or the sentencing decision.

The Crown appealed the acquittal of the respondent on charges including sexual assault and robbery.

The trial judge had found reasonable doubt due to credibility issues with both the complainant and the respondent.

The Court of Appeal found that the trial judge erred in law by relying on stereotypical reasoning about how a sexual assault victim should behave and by failing to properly consider confirmatory evidence.

These errors materially affected the assessment of the complainant's credibility.

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

Mr. Stephens, convicted of mischief and failing to comply with a probation order in 2009, sought to reopen his appeal to argue for a not criminally responsible on account of mental disorder (NCR) defence.

He had previously been found NCR for unrelated 2011 offences.

His summary conviction appeal of the 2009 convictions was dismissed in 2014, and subsequent motions to reopen were also dismissed.

He brought a new motion relying on a 2024 psychiatric assessment.

The Court of Appeal dismissed the motion, finding that the new report lacked the cogency to establish an NCR defence or to justify reopening the appeal, especially given the applicant's own inconsistent factual account of the events.

Travelers Insurance Company of Canada appealed the dismissal of part of its subrogated claim for payment from proceeds of crime forfeited to the Crown.

The core issue was whether Travelers had an interest in the forfeited property by way of a constructive trust due to the Crown's erroneous failure to include Travelers' subrogated claim (Xpertdoc) in the initial restitution order.

The Court of Appeal found that the Crown's erroneous omissions, combined with the near certainty that restitution would have been made, amounted to unjust enrichment, supporting a constructive trust in Travelers' favour.

The appeal was allowed, and Travelers was granted relief from forfeiture for the full amount of the Xpertdoc claim.

The appellant, convicted of multiple firearms offences, appealed his convictions on two grounds: misapprehension of evidence by the trial judge regarding forensic testing, and unreasonable verdicts due to the circumstantial evidence not eliminating the possibility of another person hiding the guns.

The Court of Appeal found the trial judge's misapprehension of evidence was not material to the conviction.

It also found the verdicts were reasonable, as the inference of the appellant's knowledge and control over the hidden firearms was available given his operation of the studio and the nature of the hidden items.

The appeal was allowed in part, quashing the conviction on one count of careless storage of a firearm (Count 16) and entering an acquittal, but otherwise dismissed.

The appellant, convicted of aggravated assault and sentenced to three and a half years, appealed his sentence, questioning the sufficiency of "Downes credit" and seeking a further reduction based on post-sentencing rehabilitation efforts.

The Court of Appeal deferred to the trial judge's decision on Downes credit, finding no error in principle, and determined that the post-sentencing rehabilitation, while commendable, did not warrant an additional sentence reduction in this case.

The appellant sought to recognize a verbal talaq divorce from 2010, arguing it was a legal divorce in the United Arab Emirates.

The motion judge dismissed the recognition motion, finding it did not conform with s. 22 of the Divorce Act and principles from Abraham v. Gallo, lacking judicial oversight or satisfactory evidence of foreign law.

The Court of Appeal found no errors in the motion judge's decision, affirming that no admissible evidence was provided to show the divorce was overseen by a judicial body or otherwise recognizable in Canada.

The appeal was dismissed.

The appellant appealed the dismissal of her dental negligence action via summary judgment.

She alleged procedural unfairness, insufficient disclosure, and conflicting expert evidence regarding the amount of anesthetic administered and resulting injuries.

The Court of Appeal found no procedural unfairness or reversible errors, affirming the motion judge's use of enhanced fact-finding powers.

The court upheld the preference for the respondent's evidence on anesthetic dosage and lack of causation, and the rejection of the appellant's expert evidence due to admissibility issues.

The appeal was dismissed with costs awarded to the respondent.

This is an appeal from a disposition of the Ontario Review Board (ORB) concerning an individual found not criminally responsible on account of mental disorder (NCRMD) for uttering threats and possessing a weapon.

The ORB upheld a detention order, finding the appellant remained a significant threat to public safety.

The appellant challenged the ORB's finding of significant threat, arguing the evidence did not support it under the Winko test, and that the Board erred by not granting a conditional discharge.

The Court of Appeal dismissed the appeal, finding no fault with the ORB's comprehensive analysis of the Winko test and its decision not to grant a conditional discharge given the appellant's history of substance abuse, medication non-compliance, and aggression following a previous conditional discharge.

The appellant, J.F., appealed his convictions for multiple offences including assault, sexual assault, forcible confinement, uttering death threats, and careless storage of firearms.

The appeal challenged the trial judge's assessment of the complainant's credibility, specifically regarding the explanation of memory gaps due to trauma, reliance on testimonial demeanour, and the use of lack of exaggeration.

The appellant also argued insufficient reasons for the convictions.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly applied the principles of credibility assessment, did not reverse the burden of proof, and provided sufficient reasons for the verdict.

The appellant, D.B., appealed his convictions for three historical sexual offences against his niece.

The appeal raised three grounds: improper use of evidence regarding the appellant's reaction/inaction when confronted with allegations, improper Crown submissions inviting the jury to infer the appellant lied to secure an acquittal, and failure to caution the jury on extrinsic misconduct evidence.

The Court of Appeal found that the jury was not sufficiently instructed on the lack of probative value of the reaction evidence and on the impermissible reasoning regarding the appellant's motive to lie.

These errors undermined the presumption of innocence and left the jury unequipped to fairly decide the case.

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

The appellants, Thulani Chizanga and Shamar Meredith, appealed their convictions for second-degree murder and Mr. Meredith appealed his sentence.

The main issues on appeal included the admissibility of a "Super 8 Video" as prior discreditable conduct evidence, the trial judge's jury instructions on joint enterprise liability, post-offence demeanour evidence, and defence theories, as well as sentencing errors related to aggravating factors and mitigating circumstances.

The majority dismissed all appeals, finding no legal errors in the trial judge's decisions regarding evidence admissibility, jury instructions, or sentencing.

A dissenting judge would have allowed the conviction appeals and ordered a new trial, arguing the Super 8 Video was improperly admitted and instructed upon, particularly concerning its probative value for joint enterprise to kill.

The appellant, Chad Michael Kennedy, appealed his convictions for arson, criminal harassment, uttering death threats, possession of an explosive substance, disobeying a court order, and breaches of probation, as well as his global sentence of 28 months.

The appeal primarily focused on the reliability of eyewitness identification and alleged inconsistencies with video evidence regarding the arson charges.

The Court of Appeal found that the trial judge properly cautioned himself regarding eyewitness testimony and adequately grappled with the alleged inconsistencies, concluding the video quality was too poor to contradict the eyewitness account.

The court also dismissed the sentence appeal, finding no error in principle.

The Crown appealed a $7,500 fine imposed on a corporate defendant for an Occupational Health and Safety Act violation, arguing the lower courts erred in assessing the corporation's size and applying the parity principle between individual and corporate offenders.

The Court of Appeal allowed the appeal, finding that the lower courts incorrectly restricted consideration of the corporation's economic activity to the local operation and improperly relied on sentencing precedents for individuals.

The fine was increased to $40,000.

The appellant appealed convictions for drug and proceeds of crime charges, alleging ineffective assistance of trial counsel regarding a s. 8 Charter application challenging the validity of a search warrant.

The appeal focused on counsel's failure to challenge the accuracy of GPS tracking data relied upon by police and counsel's agreement to allow the Crown to introduce amplification evidence from the affiant.

The Court of Appeal dismissed the appeal, finding no prejudice from counsel's tactical decisions and upholding the trial judge's conclusion that there were sufficient grounds for the search warrant.

The appellant, a Muslim charity, appealed the dismissal of its application challenging a Canadian Revenue Agency (CRA) audit process, alleging violations of its Charter rights due to discriminatory targeting and Islamophobic attitudes.

The application judge dismissed the challenge as premature, citing an insufficient factual record and the availability of administrative appeal processes under the Income Tax Act.

The Court of Appeal upheld the dismissal, affirming the court's discretion to refuse to decide a case based on a preliminary and incomplete factual record, even for Charter relief.

While disagreeing with the lower court's suggestion that the Tax Court's jurisdiction would necessarily bar a subsequent Superior Court Charter challenge, the appellate court found the prematurity finding to be correct given the ongoing administrative process.