Criminal and Quasi-Criminal Law - ONCA

The Crown appealed a trial judge's decision declaring s. 286.3(2) of the Criminal Code, which imposes a mandatory minimum five-year sentence for procuring a prostitute under 18, unconstitutional under s. 12 of the Charter.

The Court of Appeal dismissed the Crown's appeal, agreeing with the trial judge's finding that the mandatory minimum was grossly disproportionate for a reasonable hypothetical offender with significantly reduced moral culpability, such as a victim-offender.

The court also addressed the procedural issue of the Crown's premature notice of appeal, finding no prejudice to the respondent.

The appellant was convicted of sexual assault and sentenced to two years' imprisonment following a trial in which the trial judge found that the complainant fell asleep and awoke to find the appellant engaged in non-consensual intercourse with her.

The appellant appealed his conviction on three grounds: (1) the trial judge erred in assessing evidence of prior sexual activity; (2) the trial judge erred in applying the rule in Browne v. Dunn; and (3) the trial judge reversed the burden of proof.

The Court of Appeal allowed the conviction appeal on the ground that the trial judge erred in finding violations of the rule in Browne v. Dunn and in drawing negative inferences about the appellant's credibility as a result.

The Court found that these errors adversely impacted the appellant's credibility and that there was a real risk the erroneous findings influenced the trial judge's assessment of the evidence and tipped the scale toward a finding of guilt beyond a reasonable doubt.

The conviction was quashed and a new trial was ordered.

The appellant appealed his conviction for a drug-related offence.

The Crown's case relied on the appellant placing a bag in a car, which was later found to contain drugs after being in a motel room for over two hours.

The Court of Appeal found the verdict unreasonable, as there was no evidence regarding who had access to the bag while it was in the motel room.

The trial judge erred by looking for evidence that the contents had changed, rather than requiring the Crown to prove beyond a reasonable doubt that they had not changed.

The appeal was allowed, the conviction quashed, and an acquittal entered.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in rejecting his defence of honest but mistaken belief in consent.

The complainant had repeatedly refused sex before finally saying 'okay' after the appellant persisted.

The Court of Appeal held that the complainant's final 'okay' was ambiguous in the context of her prior refusals, triggering the appellant's obligation to take steps to ascertain whether there was a reasonable basis for his belief in consent.

As the appellant took no such steps, the appeal was dismissed.

The accused was charged with defrauding his employer.

The trial judge stayed the proceedings, finding that the Crown breached the accused's section 7 Charter rights by failing to provide a full and independent forensic audit covering his entire employment period, and noting potential section 11(b) delay issues.

The Crown appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the right to make full answer and defence does not impose a duty on the Crown to investigate possible defences, and that the delay was largely institutional and not unreasonable.

The appellant appealed his conviction and sentence for impaired driving causing death and breach of recognizance.

At trial, the central issue was whether the appellant or the deceased passenger was driving when the vehicle rolled into a ditch.

The Court of Appeal upheld the trial judge's finding that the appellant was the driver, noting it was amply supported by witness testimony and expert evidence.

On the sentence appeal, the appellant argued for a conditional sentence based on his aboriginal background and Gladue principles.

The Court of Appeal dismissed the sentence appeal, finding the 12-month sentence was not demonstrably unfit given the aggravating factors, including a high blood alcohol level and a prior drinking and driving conviction.

The respondent operated a body rub parlour in the City of Brantford.

The City had passed an omnibus zoning by-law under the Planning Act that prohibited all uses except permitted ones, effectively requiring a site-specific amendment to operate a body rub parlour.

The respondent was charged with violating the by-law.

The justice of the peace and the appeal judge held the by-law was invalid as being prohibitory.

The Court of Appeal allowed the City's appeal, holding that a by-law prohibiting all uses except permitted ones is not prohibitory but a valid exercise of municipal zoning power under the Planning Act.

The respondent was convicted.

The appellant appealed his conviction for sexual interference, arguing the trial judge failed to resolve inconsistencies in the complainant's evidence and misused prior consistent statements.

The Court of Appeal dismissed the appeal, finding the trial judge properly scrutinized the evidence, resolved inconsistencies using a common sense approach, and correctly used the prior consistent statements to explain delayed disclosure and rebut a motive to fabricate.

The appellant was convicted of multiple counts of sexual assault and indecent assault involving young boys over a 12-year period.

The trial judge imposed a sentence of 7 years, considering the serious breach of trust, the appellant's prior convictions for similar offences, and victim impact statements.

The Court of Appeal dismissed the sentence appeal, finding the sentence was within the appropriate range and revealing no basis to interfere.

The appellant, now 43 years old, was charged with historical sexual offences against his sister, allegedly committed when he was between 14 and 18 years old.

The Crown successfully applied to transfer the charges from youth court to ordinary court under the Young Offenders Act.

The appellant applied for a review of the transfer order.

The Court of Appeal dismissed the application, finding that the youth court system is ill-suited to meet the rehabilitative needs of a mature offender and that placing a 43-year-old in a youth facility would pose a risk to other young offenders.

The young offender appellant pleaded guilty to robbery and sexual assault and was sentenced to time served plus 16 months secure custody and 8 months open custody.

He appealed the sentence, arguing it was excessive and failed to account for his difficult upbringing, pre-trial custody, and progress in rehabilitation.

The Court of Appeal dismissed the appeal, finding the sentence at the upper end of the range but appropriate, and noted that the appellant's progress would be better assessed during a Youth Court sentence review.

The appellant was convicted of sexual assault and sexual interference against his step-daughter.

He appealed, arguing the trial judge misdirected the jury on reasonable doubt and seeking to introduce fresh evidence of post-trial statements by the complainant and her mother.

The Court of Appeal dismissed the appeal, finding the jury instructions complied with W.(D.) and Lifchus, and the proposed fresh evidence was not credible, reliable, or capable of affecting the verdict.

The appellant appealed a decision of the Ontario Review Board ordering his transfer from a medium security facility to a maximum security facility (Oak Ridge).

The appellant conceded he posed a significant threat to public safety but argued the Board unreasonably assessed issues of risk and trust.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonably supported by uncontradicted expert evidence regarding the appellant's lack of progress, risk level, and need for a highly structured environment.

The appellant was convicted of first degree murder and offering an indignity to human remains.

He appealed his conviction, arguing that the trial judge violated his right to be present at his trial under s. 650 of the Criminal Code by holding an in camera meeting with the federal Crown and an investigating officer to determine an informer privilege claim over RCMP records.

The appellant also challenged the trial judge's jury instructions regarding the 'other suspect' defence, Vetrovec warnings for unsavoury witnesses, and the fact-finding process.

The Court of Appeal dismissed the appeal, holding that the in camera meeting was part of a separate proceeding under s. 37 of the Canada Evidence Act, not the trial itself, and that the appellant had expressly consented to the procedure.

The Court also found no reversible error in the jury instructions.

The appellant was convicted of robbery and related offences following a second trial for a home invasion.

He appealed his convictions and his eight-year sentence, arguing that the trial judge provided inadequate jury instructions regarding his alibi defence, failed to give a sufficient Vetrovec warning for an accomplice and a perjured witness, and erred in instructions on identification and prior bad acts.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate, fair, and balanced, and that the sentence was fit given the circumstances of the offence and the appellant's record.

The appellant pleaded guilty to trafficking in heroin and improper storage of a firearm, receiving an 18-month custodial sentence.

The trial judge emphasized general deterrence and held that a conditional sentence was inappropriate for heroin trafficking.

On appeal, the Court of Appeal found the trial judge erred by applying a presumption against conditional sentences for drug trafficking and failing to adequately consider the appellant's significant rehabilitative progress.

The appeal was allowed and the sentence was converted to an 18-month conditional sentence with strict terms.

The Crown appealed a sentence imposed for five offences arising from a single incident involving the respondent's estranged spouse and children.

The court held that a 12-month sentence, in addition to pre-trial custody, was manifestly unfit given the night-time armed break-in, death threats, aggravated assault on the spouse in the children's presence, and assault on a child who intervened.

While noting the respondent was a 53-year-old first offender, the court concluded a substantial penitentiary term was required and substituted a sentence of 3.5 years after applying the same pre-trial custody credit.

The court also held that the sentencing judge erred by failing to impose the mandatory s. 109 prohibition order and added a 10-year prohibition.

The appellant appealed convictions for conspiring to traffic in a narcotic and possession of a narcotic for the purpose of trafficking arising from a heroin shipment from Thailand to Canada.

He argued the verdicts were unreasonable and that intercepted private communications in Chinese were admitted contrary to s. 189(5)(a) of the Criminal Code because he was not served with a written transcript in the original language.

The court held the trial judge was entitled to reject the appellant's exculpatory explanation and that the findings of guilt were fully supported by the evidence.

It further held that s. 189(5)(a) is an evidentiary provision to be interpreted liberally, and that where the Crown proved the communications viva voce through a translator, service of the transcribed English translations constituted a statement setting out full particulars of the private communications.

The conviction appeal was dismissed.

The appellant appealed a conviction for criminal harassment arising from sexually explicit comments to a 14-year-old complainant, a subsequent sexual telephone call, and several hang-up calls after the complainant told him not to contact her again and called police.

The court applied the five-element framework for criminal harassment under s. 264 and held that the full factual context, not the hang-up calls in isolation, established harassment, knowledge, fear for safety, and the reasonableness of that fear.

The complainant's age, the sexually charged nature of the prior interactions, and the explicit warning to stop contacting her supported the conviction.

The appeal was dismissed.

The Crown appealed a sentence imposed after convictions for two counts of sexual assault, arguing that the trial judge unlawfully combined an intermittent custodial term with a conditional sentence.

The Court of Appeal held that s. 732(1) permits intermittent imprisonment only for sentences of 90 days or less, and that s. 742.1 requires the sentence to be served in the community rather than partly in custody and partly in the community.

Relying on the statutory wording and appellate authority, the court concluded that the blended sentence was illegal.

Leave to appeal was granted, the appeal allowed, and the weekend jail condition deleted.