Criminal and Quasi-Criminal Law - ONCA

Appeal from conviction for sexual assault and related offences.

The sole ground of appeal concerned an unsuccessful application to stay proceedings for unreasonable delay.

After accounting for defence delay, the trial judge found net delay of over 18 months and identified two exceptional circumstances, including pandemic-related backlog.

The appellant argued the trial judge erred by failing to articulate how pandemic delay specifically impacted the case and by speaking in generalities.

The appellate court upheld the trial judge's reasoning, finding it was open to her to rely on her familiarity with the jurisdiction and the pandemic delay it was experiencing, and that she was not required to assign the delay to a particular period of time.

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.

C.H. appealed convictions for mischief under $5000, uttering threats, common assault, and sexual assault committed against his former fiancée.

The appeal raised several grounds, including the trial judge's treatment of character evidence, application of the rule in R. v. W.(D.), evaluation of motive and delay in reporting, treatment of exculpatory evidence for sexual assault, and misuse of a prior consistent statement.

The Court of Appeal dismissed the appeal, finding no reversible error in most grounds.

While acknowledging an error in the trial judge's hypothetical comment on exculpatory evidence for sexual assault and the misuse of a prior consistent statement, the court concluded these errors did not contribute to the convictions or warrant setting them aside.

Dellen Millard and Mark Smich appealed their first-degree murder convictions for the death of Timothy Bosma.

The appeals raised issues concerning the admissibility and jury instructions on bad character evidence in a joint trial with antagonistic defences, jury instructions on planning and deliberation, and the propriety of closing addresses by the Crown and co-counsel.

The Court of Appeal dismissed both appeals, finding no reversible error in the trial judge's decisions regarding evidence admissibility, jury instructions, or the sufficiency of corrective instructions for closing arguments.

The applicant sought an extension of time to file a notice of appeal, leave to appeal sentence, and a release order pending appeal.

The primary issue was the court's jurisdiction to grant a release order under s. 679 of the Criminal Code, as the applicant had already been released under an invalid Superior Court order.

The court initially refused the release order, holding that the applicant was not in "custody" for the purposes of s. 679 while released under the invalid order.

The court granted the release order only after the applicant surrendered into physical custody, clarifying that an invalid release order remains binding until negated by due process or surrender.

Yanlin He sought leave to appeal the dismissal of his appeal from convictions for employing individuals without the required certificate of qualification for the compulsory trade of construction electrician.

He argued that the work performed was that of an industrial electrician (a voluntary trade) and that interpretation errors in a key witness's trial evidence affected his right to a fair trial.

The Court of Appeal admitted fresh evidence regarding the interpretation errors but found that even with the new translation, the Justice of the Peace's conclusion that the work constituted that of a construction electrician was open to her.

The court determined that the first issue was one of mixed fact and law, not law alone, and that the interpretation error, while raising a question of law, did not lead to a miscarriage of justice.

Leave to appeal was denied as the matter was fact-driven and did not transcend the parties or public interest, especially given the impending repeal of the relevant Act.

The appellant, convicted of aggravated sexual assault and sentenced to ten years' incarceration, appealed both the conviction and sentence.

The conviction appeal was based on claims of ineffective trial counsel, including failures in cross-examination, calling witnesses, eliciting expert opinion, and exploring photo tampering, as well as suggestions of improper discussions and conflict of interest.

The sentence appeal argued the trial judge erred in treating lack of remorse as an aggravating factor and in identifying primary sentencing objectives inconsistent with Gladue factors.

The Court of Appeal dismissed the conviction appeal, finding no basis for incompetence and noting the strong Crown case supported by forensic evidence.

It also dismissed the sentence appeal, finding that even if the trial judge erred regarding remorse, it had no impact given other serious aggravating factors, and that deterrence and denunciation were appropriate objectives.

The appellant appealed his conviction and sentence imposed by the Ontario Court of Justice.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's acceptance of the complainant's evidence regarding the appellant driving a dump truck at her, resulting in the truck becoming stuck on rocks.

The court rejected the appellant's photographic evidence and found no error in the trial judge's refusal to adjourn proceedings to permit a last-minute s. 11(b) Charter application.

The court also found no impropriety in the appointment or conduct of amicus.

The appeal was dismissed.

The appellant sought an adjournment to retain counsel but the proposed counsel advised that he had not been retained and did not expect to be.

Duty counsel advised the court that he was abandoning the appeal.

The court found no basis for a further adjournment and dismissed the appeal as abandoned.

The appellant appealed both conviction and sentence from a trial judgment entered by Justice Peter Bawden of the Superior Court of Justice.

The appellant raised concerns about the trial judge's credibility findings in the Notice of Appeal but did not advance these submissions orally.

The Court of Appeal found no error in the trial judge's credibility assessment.

The appellant also expressed regret about not testifying at trial, but this concern was not raised in the Notice of Appeal and the Court found no basis for appellate intervention.

On the sentence appeal, duty counsel advanced two arguments alleging errors in the reasons for sentence, both of which were rejected by the Court of Appeal.

This is a motion decision regarding a non-publication order imposed at a bail hearing.

A section 517 Criminal Code non-publication order was in effect, precluding publication of evidence, information, representations, and reasons.

The full decision in the underlying appeal contains information covered by the non-publication order and therefore was not immediately available on the Court of Appeal for Ontario's website pending the cessation of the order.

An appeal from a conviction and sentence imposed by the Superior Court of Justice.

The appellant appealed both the conviction entered on October 10, 2017, and the sentence imposed on November 24, 2017.

However, the conviction appeal was not pursued during oral argument by either duty counsel or the appellant, and accordingly the conviction appeal was dismissed.

The appellant appealed his sentence for sexual interference and sexual assault, both involving the same complainant and occurring within the same date range.

The trial judge imposed consecutive two-year sentences on both counts.

The Court of Appeal found that the two counts were alternative ways of pleading the same incidents rather than distinct offences, and therefore one count should have been stayed under the Kienapple principle.

The court allowed the appeal, stayed count 6, and set aside any victim surcharge.

The appellant appealed a sentence imposed by the Ontario Court of Justice.

The Court of Appeal allowed the appeal in part, setting aside the victim fine surcharge totalling $900 (comprised of 7 fines).

All other aspects of the appeal were dismissed as abandoned.

The appellant appealed his conviction for sexual assault and forcible confinement arising from an altercation with his domestic partner.

The appellant had pled guilty to other related charges.

The trial judge conducted a judge-alone trial and found the appellant guilty on both counts, imposing a global sentence of 3 years and 9 months, less 3 months for pre-sentence bail conditions.

The appellant appealed on grounds of misapprehension of evidence and unreasonableness of verdict.

The Court of Appeal upheld the conviction, finding the trial judge provided detailed and comprehensive reasons addressing all concerns raised.

The sentence appeal was also dismissed as fit, except the victim fine surcharge was set aside as unconstitutional.

The appellant was convicted of assault causing bodily harm following an altercation in a correctional facility where he punched the complainant 25 to 30 times in the head.

The sole defence at trial was self-defence.

The trial judge found that the Crown had disproved self-defence beyond a reasonable doubt, concluding that the appellant had launched a pre-emptive attack to maintain his status as the "heavy" rather than in genuine self-defence.

The appellant appealed, arguing that the trial judge failed to adequately consider the prison context and the "inmate's code." The Court of Appeal dismissed the appeal, holding that while the prison setting must be considered as a contextual factor, it does not override the Criminal Code's legal definition of self-defence.

The appellant appealed both conviction and sentence from a trial decision rendered by Justice J.A.T. Colvin of the Ontario Court of Justice on May 9, 2016, with sentence imposed on August 19, 2016.

The appellant argued that the trial judge erred in assessing the complainant's evidence by failing to assess its reliability despite assessing credibility.

The Court of Appeal found no error in the trial judge's assessment, noting that the trial judge considered all relevant factors affecting the trustworthiness of the complainant's evidence and that corroborating evidence from the complainant's sister was available.

The appeal from conviction was dismissed.

Leave to appeal sentence was also refused, as no basis for appellate intervention was demonstrated.

The appellant appealed convictions for assault, using an imitation firearm in committing an offence, threatening to cause bodily harm, and carrying a concealed weapon arising from an altercation in a secondary school washroom.

The trial judge convicted based on the complainant's evidence, which was contradicted by the appellant and co-accused.

The appellant raised two grounds of appeal: uneven scrutiny in the trial judge's assessment of evidence and misapprehension of evidence based on impermissible speculation.

The Court of Appeal dismissed both grounds, finding that the trial judge applied consistent standards and that the conclusions drawn were reasonable inferences from the evidence as a whole.

The appellant appealed her sentence for contempt of court, imposed for refusing to testify at her father's perjury trial.

The father was charged with perjury for allegedly lying under oath at a previous trial of the appellant's fiancée.

The appellant had been sentenced to one year imprisonment consecutive to time already being served for perjury convictions related to testimony given at the fiancée's earlier trial.

The Court of Appeal dismissed the sentence appeal, finding the sentence was not unfit.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated October 31, 2016.

The appeal was dismissed.

An addendum was issued after the reasons were prepared and signed, noting that counsel for the appellant subsequently provided the reasons for a ruling of July 31, 2014, which stayed the criminal harassment charge.

The trial judge's reasons, which detailed the evidence including the effect on the victim and the appellant's assessment under the Mental Health Act, were acknowledged by counsel to undermine many of the arguments made during the appeal, though the court found these reasons did not change the basis for dismissing the appeal.