Criminal and Quasi-Criminal Law - ONCA

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, Julien Jutras, appealed his convictions for sexual assault and voyeurism, arguing that the trial judge's reasons were insufficient.

He contended that the trial judge failed to adequately address inconsistencies in the complainant's testimony and an alleged motive for her to fabricate evidence.

The Court of Appeal found that while it would have been preferable for the trial judge to explicitly address these points, the reasons, when read holistically and in context, were not insufficient.

The court noted that the trial judge clearly accepted the complainant's evidence, which was supported by the graphic photos, and that a failure to explain the rejection of a submission does not render reasons deficient if the acceptance of contrary evidence is clear.

The appeal was dismissed.

The appellant appealed his convictions for sexual offences against his daughter, arguing the trial judge erred in refusing to review the complainant's personal journals, failing to consider her motive to lie, and assessing credibility.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision that reviewing the highly private journals was not necessary in the interests of justice, given the availability of other evidence to support the appellant's motive theory.

The Court also found the trial judge properly considered the motive theory and made reasonable credibility findings supported by the evidence.

The appellant appealed his fraud convictions, arguing the trial judge erred in dismissing his pre-trial s. 11(b) Charter application for unreasonable delay and in refusing to allow a second s. 11(b) application post-trial but pre-sentencing.

The Court of Appeal upheld the application judge's calculation of delay, confirming that time runs from the date the information is sworn, not the arrest date, and that incomplete disclosure did not cause the delay.

The Court also found no error in the trial judge's refusal to adjourn sentencing for an unperfected second delay application.

The appeal from conviction was dismissed, and the sentence appeal was abandoned.

The appellant, V.N., appealed his conviction for possessing and accessing child pornography, arguing his guilty plea was uninformed due to unawareness of collateral consequences: a lifetime SOIRA order and ineligibility for a criminal record suspension.

The Court of Appeal dismissed the appeal, finding that V.N. failed to present credible evidence establishing a reasonable possibility that he would not have pleaded guilty had he been aware of these consequences, as his primary concerns at the time of the plea were addressed.

The appellant was convicted of importing cocaine after 3.7 kilograms of the drug were found concealed in spice packages in his luggage upon arrival from Jamaica.

He appealed, arguing the trial judge applied the wrong standard for wilful blindness, ignored after-the-fact conduct, and improperly took judicial notice of restaurant spice requirements.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the wilful blindness standard as an alternative to her primary finding of actual knowledge, and made no reversible errors in her assessment of the evidence.

The appellants were convicted of unlawful act manslaughter for failing to provide the necessaries of life to their 27-month-old daughter, who died of what trial experts concluded was a combination of asthma and malnutrition.

On appeal, the appellants sought to introduce fresh expert evidence from a forensic pathologist and a pediatric bone disorder expert, challenging the trial evidence on the cause of death.

The Court of Appeal admitted the fresh evidence, noting it was highly cogent and undermined the Crown's theory of liability at trial.

The appeals were allowed, the convictions set aside, and a new trial ordered.

The appellant appealed his conviction and sentence from the Superior Court of Justice.

The conviction appeal was dismissed as the appellant raised matters to which defence counsel did not object at trial and which did not affect the fairness of the trial.

However, leave to appeal sentence was granted and the sentence appeal was allowed.

The Crown conceded that the trial judge made calculation errors in sentencing.

The appellate court varied the sentence to time served.

The appellant appealed her conviction from the Superior Court of Justice, arguing that the trial judge committed a palpable and overriding error by failing to make more detailed inquiries into the appellant's mental status while she was testifying.

The Court of Appeal rejected this submission, finding that the trial judge had made sufficient inquiries, the appellant had confirmed she was able to continue and had no difficulty with her memory, and defence counsel did not pursue the issue at trial.

No fresh evidence was produced to support the appellant's claim that her mental status would have interfered with her ability to testify.

The appellant appealed his convictions for assault and breach of probation arising from a domestic dispute.

At trial, the judge erroneously excluded exculpatory statements made by the appellant to a police officer.

The Crown conceded the error but argued the curative proviso should apply.

The Court of Appeal held that the error was not harmless or trivial, as the convictions relied heavily on the complainant's credibility, which was contested.

The curative proviso could not be applied, and the convictions were quashed.

The appellant appealed his conviction, arguing that he received ineffective assistance from his trial counsel.

He alleged that his counsel failed to properly cross-examine the complainant on inconsistencies, failed to comply with the rule in Browne v. Dunn, and improperly asserted alternative defences.

The Court of Appeal dismissed the appeal, finding that trial counsel's performance was reasonable, the trial judge was aware of the evidentiary frailties, and there was no miscarriage of justice.

The appellant was convicted of two offences under the Customs Act and received a conditional discharge.

The summary conviction appeal judge set aside the sentence, finding the trial judge erred in law regarding the mens rea requirement.

The Court of Appeal granted leave to appeal, finding the summary conviction appeal judge misapprehended the trial judge's comments, which were directed at whether the conduct was planned and deliberate for sentencing purposes, not mens rea.

The trial judge's sentence was restored, and a request for a Kienapple stay was declined.

The appellant appealed his conviction for mischief and his 17-month sentence for mischief and sexual exploitation.

The mischief occurred when the appellant pulled the parking brake of a moving vehicle driven by his stepdaughter, who had refused to let him out.

The appellant argued the driver was unlawfully confining him, meaning she was not in lawful use of the vehicle.

The Court of Appeal dismissed the conviction appeal, finding the Crown negated unlawful confinement as it requires a significant period of time.

The sentence appeal was also dismissed, as the cumulative sentence reflected no error in principle given the breach of trust and vulnerability of the sexual exploitation complainant.

The appellant appealed her sentence and dangerous offender designation, arguing that the public could be adequately protected by a determinate sentence made consecutive to her lengthy remanet.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion that the appellant's violent behaviour could not be controlled in the community was supported by the evidence and entitled to deference.

The Crown appealed a directed verdict of acquittal on a charge of first degree murder.

The trial judge had refused to admit an agreed statement of facts from a youth's guilty plea for the truth of its contents after the youth recanted portions implicating the respondent.

The Court of Appeal allowed the appeal, finding the trial judge erred in concluding the opportunity to cross-examine the youth was illusory due to solicitor-client privilege and in failing to properly assess circumstantial indications of the statement's reliability.

The appellant appealed his sentence.

The Crown agreed the sentence should be reduced by 11 days for time served.

The Court of Appeal noted the trial judge failed to consider the appellant's positive steps toward rehabilitation.

Leave to appeal was granted, and the sentence was varied from six months consecutive to six months concurrent, with an 11-day reduction for time served.

The appellant appealed a disposition of the Ontario Review Board that rejected a conditional discharge.

The Court of Appeal found that, aside from a comment regarding the appellant being treatment consent incapable, the Board's decision was reasonable and amply supported by the evidence.

The appeal was dismissed.

The Crown appealed a conditional sentence imposed on the respondent for a sexual assault conviction where the Crown had proceeded by indictment.

The Court of Appeal held that the conditional sentence was illegal under section 742.1 of the Criminal Code and set it aside.

However, given the respondent's positive rehabilitative steps, time spent on bail, and time served under house arrest, the Court substituted a sentence of time served.

The accused chased a stolen vehicle at high speeds and struck and killed a police officer who had stepped onto the highway to deploy a spike belt.

The accused was acquitted of criminal negligence causing death but convicted of the included offence of dangerous driving.

The Crown appealed the acquittal, arguing the defence closing address was unfair and the jury instructions on causation were misleading.

The accused appealed the conviction, arguing the trial judge improperly interrupted the defence closing and erred by instructing the jury to consider his driving throughout the entire chase rather than just at the point of impact.

The Court of Appeal dismissed both appeals, finding the trial judge's caution to the jury adequately addressed the defence closing, the causation instructions were proper, and the dangerous driving charge correctly encompassed the continuous transaction of the chase.

The young person appealed his conviction for robbery, arguing that the trial judge's interventions created the appearance of an unfair trial.

The Crown conceded the appeal.

The Court of Appeal found that the trial judge's interventions during the cross-examination of the complainant and the investigating officer impaired defence counsel's full testing of the evidence and gave the appearance of having pre-judged the credibility of the police officer.

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