Criminal and Quasi-Criminal Law - ONCA

The appellant, a traditional Chinese medicine practitioner, appealed his sexual assault conviction.

The appeal centered on whether the trial judge erred by introducing a new theory of liability (removal of a towel exposing genitals) late in the trial, which differed from the Crown's primary theory (vaginal examination).

The Court of Appeal found that the trial judge's introduction of this new theory, and subsequent conviction based on it, was unfair to the appellant as it constituted a drastic change made too suddenly and too late, prejudicing the defence.

The court held that while judges are not confined to parties' theories, trial fairness considerations may preclude new bases of liability inconsistent with how the case was litigated.

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

The appellant, Roseanne Whalen, appealed her conviction for second-degree murder, where she was found guilty of failing in her parental duty to protect her two-year-old daughter from fatal assaults by her girlfriend.

The appeal raised four main issues: the fairness of the Crown's closing argument, the trial judge's instructions on the mens rea required for murder under s. 229(a)(ii) of the Criminal Code, the adequacy of the trial judge's review of evidence relating to mens rea (specifically text messages), and the instruction on after-the-fact conduct.

The Court of Appeal dismissed the appeal, finding that the Crown's closing did not risk an unfair trial, the trial judge's mens rea instructions were ultimately correct despite an initial misstatement, and the review of evidence and after-the-fact conduct instructions were adequate and did not prejudice the appellant.

The appellant, who pleaded guilty to bank robbery, appealed the four-year sentence imposed by the trial judge, seeking a three-year sentence.

The appellant argued the sentencing hearing was fundamentally unfair due to the lack of an adjournment for a presentence report, despite his strong objection to any delay.

The Court of Appeal found no unfairness, noting the appellant's desire for immediate sentencing, his criminal record including prior bank robberies, and the trial judge's consideration of mitigating factors such as an early guilty plea and mental health issues.

The court concluded the four-year sentence was fit and dismissed the appeal.

The appellant was arrested on a surety warrant that had been rescinded by an administrative judge over a month prior to the arrest, but the rescission was not recorded on CPIC.

A pat-down search incident to arrest and a subsequent strip search yielded cocaine and marijuana.

The trial judge found the arrest lawful and the searches reasonable.

On appeal, the court found the arrest was unlawful because: (1) the surety warrant had been validly rescinded by the administrative judge; (2) the arresting officer lacked reasonable grounds for the arrest; and (3) the police failed to make reasonable inquiries when the appellant informed them the warrant had been dealt with in court.

The court also found the strip search violated section 8 of the Charter.

The evidence was excluded under section 24(2) and verdicts of acquittal were substituted.

The appellant, found NCR in 2007, appealed an Ontario Review Board order transferring him from a general forensic unit to a secure forensic unit.

The hospital recommended the transfer because the appellant's repeated breaches of the anti-smoking policy and drug use resulted in the suspension of his indirectly supervised passes, making his detention on the general unit more restrictive due to staffing limitations.

The secure unit offered better access to necessary substance abuse programming.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable as it would enhance the appellant's rehabilitation and reintegration into society.

The appellant appealed his convictions for trafficking a person and receiving a financial benefit, arguing the trial judge failed to give an appropriate Vetrovec warning regarding the complainant and failed to adequately identify the defence's position in the jury charge.

The Court of Appeal dismissed the appeal, finding the trial judge's Vetrovec warning functionally sufficient and noting that the trial judge had properly incorporated the defence's written position into the charge.

The Crown appealed acquittals on sexual assault and indecent assault charges arising from historical child abuse allegations.

The Court of Appeal held that the trial judge erred in law by treating mere opportunity for indirect contact as giving rise to an air of reality to collusion, and by misanalyzing the probative value and prejudicial effect of the proposed similar fact evidence.

Applying the similar fact evidence framework, the court held the judge adopted an impermissibly formulaic comparison of similarities and dissimilarities and overstated reasoning prejudice in a judge-alone trial.

The errors materially affected the acquittal, and a new trial was ordered.

The appellant appealed his convictions for sexual interference and sexual exploitation of his stepdaughter.

He sought to introduce fresh evidence of an audio tape and alleged ineffective assistance of trial counsel, inadequate interpretation services breaching his s. 14 Charter rights, insufficient reasons, and errors in the trial judge's credibility assessment.

The Court of Appeal dismissed the appeal, finding the fresh evidence did not meet the Palmer test, trial counsel's performance did not result in a miscarriage of justice, and the trial judge made no errors in assessing credibility or providing reasons.

The appellant's private prosecution was stayed by the Attorney General prior to a pre-enquete hearing.

The appellant's application for mandamus was dismissed based on binding precedent.

Seeking to challenge that precedent, the appellant requested a five-judge panel, which was denied by the Associate Chief Justice.

A motion to review that denial was dismissed by a single judge of the Court of Appeal.

The appellant then moved to review and set aside the single judge's order.

The Court of Appeal dismissed the motion, holding that there is no statutory authority or rule permitting an appeal or review of a decision by the Chief Justice or Associate Chief Justice regarding the assignment of judicial duties, including the refusal to strike a five-judge panel.

The appellant appealed the Ontario Review Board's disposition ordering that he continue to be subject to a Conditional Discharge.

The Court of Appeal found that the Board made serious errors of law, as there was no positive evidence that the appellant continued to pose a significant threat to public safety.

The appellant had been living in the community for almost five years, adhered to his medication, and had the support of his treatment team for an absolute discharge.

The appeal was allowed, and the appellant was granted an absolute discharge.

The appellant, an aboriginal first offender, pleaded guilty to fraud over $5,000 for her participation in a large-scale welfare fraud scheme on the Fort William First Nation.

She was sentenced to 16 months' incarceration and ordered to pay $96,000 in restitution.

On appeal, the Court of Appeal found that the sentencing judge erred in his application of the Gladue principles by requiring the appellant to establish a causal link between systemic background factors and the commission of the offence.

The Court allowed the appeal, reducing the sentence to 10 months' incarceration followed by two years' probation, noting the appellant's lesser role, her gambling addiction, and her responsibilities as a caregiver to a disabled child.

The appellant appealed the long term supervision order imposed by the sentencing judge.

The trial judge had found that the appellant was not a dangerous offender, but still imposed a long term supervision order.

Based on R. v. Johnson, both parties agreed the long term offender designation could only stand if the appellant met the dangerous offender criteria.

The Crown argued the trial judge's finding that the appellant was not a dangerous offender was unreasonable.

The Court of Appeal disagreed, noting the trial judge reasonably relied on the Crown's expert, Dr. Woodside, whose opinion supported the finding.

The appeal was allowed, the long term offender designation was set aside, and a three-year probation order was imposed.

The appellant, a federal inmate, appealed the dismissal of his habeas corpus application regarding his classification as a medium security risk.

While the appeal was pending, the appellant was placed on day parole.

The Court of Appeal dismissed the appeal, finding the issue of his security classification moot.

The Court also noted that correctional authorities retain discretion under the Corrections and Conditional Release Regulations to consider factors beyond the custody rating score when determining security classifications.

The appellant appealed his convictions for possession of a firearm, assault with intent to resist arrest, and failing to comply with a recognizance.

He argued that the verdicts were inconsistent because he was acquitted of a related cocaine possession charge, that the trial judge failed to give a proper W.(D.) instruction on reasonable doubt, and that evidence should have been excluded due to an unlawful detention.

The Court of Appeal dismissed the appeal, finding the verdicts were not inconsistent, the jury was properly instructed on the burden of proof, and the police had reasonable grounds to pursue and detain the appellant when he fled.

The Crown appealed a conditional sentence of two years less a day imposed on an offender with 14 prior convictions for drinking and driving.

The Court of Appeal held that a conditional sentence is not statutorily foreclosed where the Crown fails to serve notice of increased penalty under s. 727 of the Criminal Code.

However, the trial judge erred in imposing a conditional sentence given the offender's extensive record.

The Court found a fit sentence would be 12 months in custody, but given the pre-trial custody and the 14 months of the conditional sentence already served under strict conditions, the sentence was varied to time served, plus a lifetime driving prohibition and three years' probation.

The appellant appealed a decision of the summary conviction appeal court.

The Crown conceded that the summary conviction appeal court acted upon the wrong set of rules in dismissing the appellant's appeal.

The Court of Appeal allowed the appeal and remitted the case to the summary conviction appeal court to be determined on its merits.

No costs were awarded.

The appellant was convicted of importing cocaine after two bottles of rum containing the drug were found in her possession at airport customs.

She appealed her conviction, arguing the trial judge failed to appreciate that her fingerprints were not on the bottles containing cocaine.

She also sought leave to appeal her three-year sentence, requesting a conditional sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's conclusion was supported by the totality of the evidence.

The sentence appeal was also dismissed, as the three-year term was within the recognized range for first-time drug couriers and was not demonstrably unfit.

The appellant pleaded guilty to criminal negligence causing death, failing to comply with a recognizance, impaired driving, and driving while suspended after striking and killing two pedestrians while highly intoxicated.

The trial judge imposed a total sentence of 12 years, reduced by 18 months for pre-trial custody.

On appeal, the Court of Appeal upheld the nine-year sentence for criminal negligence causing death as fit given the severe aggravating factors.

However, the Court found the total sentence of 12 years was a marked departure from customary sentences and varied the total sentence to 10 years.

The Court also held that the sentence for impaired driving should be served concurrently, not consecutively, with the criminal negligence sentence.

The appellant was convicted of sexual assault and sexual exploitation following a jury trial.

He appealed on the basis that the trial judge's charge to the jury on reasonable doubt was inadequate, as it failed to distance reasonable doubt from a balance of probabilities and referred to it as an expression used in ordinary speech.

The Crown argued that defence counsel's closing address cured any defect in the charge.

The Court of Appeal allowed the appeal, finding the charge deficient and concluding that the jury's expressed exasperation with defence counsel made it dangerous to assume they accepted her instructions on the law.

A new trial was ordered.

The appellant appealed an order of committal for surrender pursuant to the Extradition Act and sought judicial review of the Minister of Justice's order of surrender.

The Court of Appeal dismissed the appeal, finding no error in the extradition judge's conclusions that the alleged conduct would constitute an offence in Canada, that the record was sufficient, and that he lacked jurisdiction to entertain the Charter application.

The Court also dismissed the application for judicial review, finding no error in the Minister's exercise of discretion.