Criminal and Quasi-Criminal Law - ONCA

The applicant sought bail pending appeal after being convicted of sexual assault, uttering death threats, and breaching a release order, resulting in a three-and-a-half-year imprisonment sentence.

The application for bail pending appeal was dismissed.

The court found that while the appeal was not frivolous and the applicant would likely surrender, detention was necessary in the public interest due to an extensive criminal history, including prior sexual assault and harassment convictions, and a significant track record of breaching court orders, which outweighed the proposed surety's assurances.

This is an appeal from convictions for drug and firearm offences and the imposed sentence.

The appellant challenged the validity of search warrants, the warrantless "pinging" of his cell phone, and the calculation of pre-trial custody credit.

The Court of Appeal dismissed the conviction appeal, upholding the trial judge's findings on the warrants and the admissibility of evidence, including the "judge-shopping" issue.

The sentence appeal was allowed to grant additional pre-trial custody credit.

The appellant sought leave to appeal his conviction for refusing to comply with a breath demand.

The Superior Court had dismissed his appeal.

The Court of Appeal considered whether the trial judge failed to address the appellant's disorientation and possible concussion following an accident as raising a reasonable doubt, and whether an alleged lie by a police officer provided grounds for leave to appeal.

The court found that the trial judge was clearly aware of the disorientation evidence, having acquitted the appellant on the impaired driving charge, and that any alleged police officer lie had no impact on the conviction for refusing to provide a breath sample.

Leave to appeal was denied.

However, the sentence appeal was allowed in part to strike the victim surcharge.

The appellant was convicted of break and enter of a dwelling house and other offences based primarily on DNA evidence found in a glove discovered at the crime scene.

The Crown admitted in an agreed statement of fact that the appellant's DNA was found in the glove but called no expert evidence regarding DNA transfer characteristics or whether the appellant's DNA was the sole profile on the glove.

The Court of Appeal found the verdicts unreasonable, holding that the DNA evidence alone was incapable of bearing the burden of proving the appellant left the glove at the scene.

The convictions were set aside and acquittals entered.

The appellant was convicted of voyeurism under s. 162(1)(b) of the Criminal Code for taking still photographs from a live video stream during intimate video chats with the complainant without her knowledge or consent.

The appellant appealed, arguing that the complainant could not have had a reasonable expectation of privacy since she willingly appeared nude on camera, and that he did not act "surreptitiously" because the complainant never explicitly objected to screenshots being taken.

The Court of Appeal dismissed the appeal, holding that the complainant had a reasonable expectation of privacy in the circumstances and that the appellant acted surreptitiously with the intent that the complainant remain unaware of the recording.

The appellant appealed a conviction from the Ontario Court of Justice, which had been upheld on summary conviction appeal.

The appellant contended that the trial judge erred with respect to alibi evidence, identity evidence from a Crown witness, and by not holding a voir dire on a particular issue.

The Court of Appeal agreed with the reasoning of both the trial judge and the summary conviction appeal judge, and refused to grant leave to appeal.

The appellant appealed his conviction for second-degree murder on three grounds: (1) whether the trial judge erred in refusing to put the defence of provocation to the jury; (2) whether the trial judge misdirected the jury on the use of evidence that the appellant did not apply the brakes immediately after striking the victim; and (3) whether the trial judge erred in failing to recuse Crown counsel for failing to disclose certain information communicated by a Crown witness.

The Court of Appeal dismissed all three grounds of appeal and upheld the conviction.

The appellant appealed her sentence of 12 years for manslaughter in the stabbing death of her sister-in-law.

The appellant was tried on a charge of second-degree murder but was convicted of manslaughter.

The sentencing judge imposed a 12-year sentence, characterizing the offence as aggravated manslaughter.

The appellant, through duty counsel, challenged three factual findings made by the sentencing judge: that the appellant stabbed the deceased in the neck, that the stabbing would cause bodily harm, and that the deceased was holding her baby at the time of the stabbing.

The Court of Appeal upheld the sentence as fit and proper.

The appellant was convicted of firearms offences and possession of cocaine for trafficking after police officers detained him on a street in Windsor, Ontario without reasonable suspicion, violating his Charter rights under sections 8, 9, and 10(b).

The trial judge found the detention arbitrary and the searches unlawful but admitted the evidence under section 24(2) of the Charter, finding the police acted in good faith.

The Court of Appeal allowed the appeal, holding that the trial judge erred in assessing the seriousness of the Charter breach by relying solely on the officers' subjective belief that they were not detaining the appellant.

The court found the police should have known they were exceeding their powers following the Supreme Court's decision in R. v. Grant, and excluded the evidence, entering acquittals on all counts.

The appellant appealed his conviction on two counts of sexual assault against his step-granddaughter.

The trial judge found that the appellant sexually assaulted the complainant on multiple visits over a nine-year period, characterizing the assaults as part of an ongoing course of conduct.

The complainant acquiesced to the appellant's demands out of fear and therefore did not consent.

The appellant raised two grounds of appeal: that the trial judge reversed the burden of proof by drawing a negative inference from the absence of medical evidence regarding the appellant's physical capability, and that the trial judge failed to apply the third step of the W.(D) test.

The Court of Appeal dismissed both grounds and upheld the conviction.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated September 19, 2017.

The appellant, found not criminally responsible on account of mental disorder in 2009, sought transfer from Waypoint Centre for Mental Health Care to a less secure facility.

Although the parties agreed a transfer was appropriate, the Board majority refused the transfer.

The appellant challenged the decision on grounds of procedural unfairness and failure to impose the least onerous and least restrictive disposition.

The Court of Appeal allowed the appeal and remitted the matter to the Board, finding that while procedural fairness was maintained and the Board's decision fell within the range of reasonable outcomes, the Board erred by failing to consider ordering an independent psychiatric assessment given the uncertainty surrounding the appellant's diagnosis.

The Crown appealed an acquittal on dangerous driving causing bodily harm under section 249(1) of the Criminal Code.

The Crown argued that the trial judge erred in his analysis of the mens rea component by relying on the respondent's lack of deliberate intention to create danger and failed to consider all relevant circumstances.

The Court of Appeal upheld the acquittal, finding that the trial judge correctly applied the established test from Supreme Court jurisprudence, properly considered whether the respondent had deliberate intention to cause danger, and appropriately applied the modified objective test in concluding there was no marked departure from the standard of care of a prudent person.

The appellant was convicted of fraud over $5,000 and sentenced to one year in custody.

She appealed both conviction and sentence.

The appellant claimed that additional paycheques she received were payments for files she had brought to the lawyer's practice, allegedly pursuant to an agreement for 10% of earnings.

The trial judge rejected the appellant's evidence as internally inconsistent, unsupported, and unreliable, while accepting the lawyer's evidence as credible and supported by bank records.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's application of the W. (D.) test, no misapprehension of evidence, and no basis for interfering with the sentence imposed.

The appellant was convicted of sexual assault and sexual interference arising from a single incident involving a six-year-old complainant.

The trial judge stayed the sexual assault conviction under the Kienapple principle and sentenced the appellant to 15 months in custody followed by one year probation.

On appeal, the Court found that the trial judge erred by using evidence of the complainant's emotional and psychological problems as a teenager to bolster the reliability of her testimony regarding the assault.

The trial judge improperly relied on the absence of alternative explanations for the complainant's behaviour and engaged in circular reasoning by using the complainant's acceptance of the causal link between the assault and her subsequent problems to support the reliability of her evidence of the assault itself.

The Court allowed the appeal and ordered a new trial.

The Crown appealed the acquittal of the respondent on a charge of driving with a blood alcohol level over 80 mg per 100 ml of blood.

The trial judge found that the constable's demand for a breath sample violated section 8 of the Charter because the constable had not followed three procedures in the OPP manual for the Drager Alcotest 6810 device, and therefore could not have reasonably believed the device was functioning properly.

The trial judge excluded the breath samples under section 24(2) of the Charter.

The summary conviction appeal court upheld the acquittal.

The Court of Appeal allowed the Crown's appeal, finding that the trial judge erred in concluding there was no objective basis for the constable's belief that the device was functioning properly, and that the trial judge erred in excluding the evidence under section 24(2).

The appellant appealed his conviction and sentence for criminal harassment, breach of recognizance, and breach of probation.

He sought to strike his guilty pleas, arguing they were not voluntary.

The Court of Appeal found no basis to strike the pleas, noting that the appellant was represented by counsel, personally entered his guilty pleas, addressed the court before sentencing, and was actively involved in the proceedings.

The court held that the appellant's dissatisfaction with the sentence did not undermine the voluntariness of his pleas.

The appeal was dismissed.

The appellant appealed his conviction for aggravated assault on three grounds: that the trial judge improperly drew an adverse inference from the failure to call a material witness; that the trial judge failed to adequately consider frailties in eyewitness identification evidence; and that there was no evidentiary basis to reject the appellant's account of an earlier incident.

The appellant also sought leave to appeal sentence.

The Court of Appeal dismissed all grounds of appeal, finding that the trial judge did not draw an improper adverse inference, adequately addressed eyewitness frailties, and was amply supported by the record in rejecting the appellant's version of events.

Leave to appeal sentence was granted but the sentence appeal was dismissed as the sentence was within range and appropriate given the severity of injuries.

The appellant appealed his convictions for sexual assault, sexual interference, and unlawful confinement against his daughter when she was under 16 years of age.

The sole ground of appeal was that the trial judge provided insufficient reasons for meaningful appellate review.

The Court of Appeal dismissed the appeal, finding that while the trial judge's reasons were brief, they were sufficiently clear to demonstrate why the conviction was reached.

The trial judge properly assessed credibility and reliability of witnesses, accepted the complainant's evidence regarding the April 16, 2013 offences, and correctly applied the W.(D.) analysis to reject the appellant's denial and defence evidence.

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 conviction for trafficking in fentanyl (six 100 microgram fentanyl patches), possession of fentanyl for the purpose of trafficking, and possession of the proceeds of crime.

The Court of Appeal upheld the conviction, finding that guilt was the only reasonable inference from the circumstantial evidence.

However, the court found that the trial judge erred in principle by considering the appellant's pending oxycodone trafficking charges as an aggravating factor at sentencing.

The court reduced the sentence from 33 months to 20 months custody.