Criminal and Quasi-Criminal Law - ONCA

On appeal from a sentence imposed by the Ontario Court of Justice, the appellant sought a variation of the sentence.

On consent, the Court of Appeal allowed the appeal and varied the sentence to 133 days.

The appeal was heard on the same date as the decision was rendered.

The appellant, a 54-year-old man with schizophrenia and a history of violence and harassment, appealed the Ontario Review Board's decision to order his continued detention at a forensic psychiatric facility rather than grant a conditional discharge.

The appellant had been found not criminally responsible in 2008 and lived in the community until December 2015, when he decompensated after stopping his antipsychotic medication.

The Board found he posed a significant threat to public safety due to his lack of insight into his mental illness, likelihood of discontinuing medication if discharged, and history of assaultive behavior.

The Court of Appeal upheld the detention order, finding it was the least onerous and least restrictive alternative available.

The applicant sought judicial review of the Minister of Justice's surrender order for extradition.

The applicant argued the Minister erred in refusing disclosure of correspondence related to the termination of his Ontario prosecution and in assessing the Cotroni factors.

The Court of Appeal dismissed the application, finding no air of reality to the disclosure claim and concluding the Minister's Cotroni assessment was reasonable.

The appellant appealed his conviction for sexual assault, arguing the verdict was unreasonable and that the trial judge presumed guilt while glossing over inconsistencies in the complainant's evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly addressed the issues and assessed the evidence, and that the appellant was merely attempting to retry the case.

The applicant sought leave to appeal under s. 839 of the Criminal Code from a summary conviction appeal judge's decision overturning a stay of proceedings.

The Court of Appeal refused leave, finding that the 10 months of institutional delay was within the Morin guidelines for a two-day impaired driving trial and did not warrant granting leave.

The appellant appealed her conviction, arguing claims of self-defence or accident.

The Court of Appeal dismissed the appeal, finding that the objective medical evidence provided a sufficient basis for the trial judge to reject the appellant's testimony, and noting no other evidence supported her claims.

Following the release of its judgment regarding a sealing order on search warrant materials, the Court of Appeal was informed that the redacted names were not the subjects of the search warrants, but rather two other individuals mentioned in the materials.

The Attorney General of Canada requested a revised judgment, while the appellant media organization requested an addendum.

The Court agreed with the appellant, releasing an addendum to note the new information and varying the formal order to permit media access to the redacted names.

The appellants, a media organization and a reporter, sought access to the names of individuals whose premises were searched under warrants related to a national security investigation.

The initial judge maintained a sealing order over the names to protect the privacy of innocent persons.

The reviewing judge dismissed an application for certiorari.

On appeal, the Court of Appeal found an error of law on the face of the record because the initial judge failed to consider reasonably alternative measures, specifically allowing media access to the names while imposing a publication ban.

The appeal was allowed, and an order was made granting media access to the names subject to a non-publication order.

The appellant, an aboriginal offender, appealed his 9-year sentence for a brutal and planned sexual assault involving a home invasion and stabbing.

He argued the trial judge failed to give due consideration to s. 718.2(e) of the Criminal Code.

The Court of Appeal dismissed the appeal, noting the trial judge properly applied Gladue principles and found that for such a violent and serious offence, the sentence for an aboriginal offender would be similar to that of a non-aboriginal offender.

The appellant was convicted of unlawful confinement, assault causing bodily harm, sexual assault, anal intercourse, and uttering a death threat against his girlfriend.

At trial, the judge admitted similar fact evidence from a previous girlfriend detailing physical abuse.

On appeal, the Court of Appeal found that the trial judge erred in admitting the similar fact evidence by framing the issue too broadly as credibility, failing to appreciate the relative cogency of connecting factors, and failing to consider the significant potential prejudice.

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

The appellant appealed a finding that he was a dangerous offender and the resulting indeterminate sentence.

He had pleaded guilty to twenty sexual offences against young boys.

Due to a procedural error, two informations covering the same conduct were before the court, and the trial judge mistakenly referred to '39 convictions'.

The Court of Appeal held that this procedural irregularity did not vitiate the process and that the trial judge's reference was an inadvertent error.

The court found that the dangerous offender designation and the indeterminate sentence were reasonably supported by the evidence.

The appeal was allowed only to set aside the convictions on the first information, but the appeal regarding the dangerous offender application was dismissed.

The appellant appealed his convictions for conspiracy to commit possession of stolen property and fraud.

He argued the trial judge erred by reading an unconstitutional evidentiary presumption from s. 354(2) of the Criminal Code to the jury, failing to adequately caution the jury on post-offence conduct of a co-accused, and that Crown counsel improperly cross-examined him.

The Court of Appeal dismissed the appeal, finding that while the trial judge erred in reading the full text of s. 354(2), it caused no substantial wrong or miscarriage of justice.

The court also found the jury charge as a whole was adequate and the cross-examination did not render the trial unfair.

The appellant appealed his convictions for two counts of first-degree murder and two counts of second-degree murder.

He argued that his Charter rights under ss. 8 and 10(b) were violated during police questioning and the taking of bodily samples, that the jury instructions on reasonable doubt were inadequate, and that he received ineffective assistance of counsel at trial.

The Court of Appeal dismissed the appeal, finding that the appellant made an informed choice to cooperate with police, the jury instructions substantially complied with the required standards, and trial counsel's tactical decisions were reasonable and did not result in a miscarriage of justice.

The appellant appealed convictions for historical sexual offences involving two complainants and a custodial sentence of three years.

He argued that the trial judge reversed the burden of proof in assessing credibility, misapprehended evidence on key factual conflicts, improperly treated character and conduct evidence, and erred in entering a gross indecency conviction on one count.

The court held that the trial judge correctly applied the criminal standard of proof, adequately addressed the material evidentiary conflicts, and properly treated both the former-student evidence and the Crown’s reply evidence as being of little assistance.

The gross indecency conviction was upheld on the evidence, and the conviction appeal was dismissed.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because the contingent basis for sentence reduction did not arise.

The appellant appealed his conviction for abduction, his designation as a dangerous offender, and the indeterminate sentence imposed.

The court rejected arguments that the trial judge applied the wrong mens rea test under s. 281 of the Criminal Code or that the actus reus was incomplete because the child had not yet been taken to a location of control.

The court also upheld the dismissal of an abuse of process stay application in the dangerous offender proceeding and found the predicate offence qualified as a serious personal injury offence under s. 752(a)(ii).

Given the record of actual and attempted sexual incidents with young girls and medical evidence concerning treatment prospects, the dangerous offender designation and indeterminate sentence were affirmed.

The appellant appealed a sexual assault conviction, arguing that the trial judge misapprehended material evidence and that the finding of guilt was unreasonable.

The appeal focused on the complainant's post-incident police statement, conflicting evidence from another witness about a prior incident, and an alleged motive to fabricate arising from employment circumstances.

The Court of Appeal held that the trial judge considered each point, was entitled to accept and reject portions of the evidence as he did, and gave clear and persuasive reasons.

The conviction appeal was dismissed.

The appellant appealed drug trafficking and proceeds convictions on the ground that he was wrongly denied a jury trial after failing to attend on the scheduled trial date.

The court held that under s.598(1) of the Criminal Code the onus rested on the accused to establish a legitimate excuse, and the pre-trial judge was entitled to reject the illness explanation as not credible.

The court further held that the trial judge did not err in refusing to reconsider the pre-trial s.598(1) ruling on the basis that only the trial judge had jurisdiction.

The appeal from conviction was dismissed.

The appellant appealed jury convictions on multiple sexual offence counts and, in the alternative, sentence.

The Court of Appeal held that the trial was undermined by multiple charge errors, including inadequate instructions on prior inconsistent statements, prior consistent statements, consent, position of trust, similar fact evidence, reasonable doubt, and unanimity, together with an incomplete readback and problematic prosecutorial comments.

Although some individual errors might have been curable, their cumulative effect prevented application of the proviso.

The convictions on counts 3 to 6 were set aside and a new trial was ordered on those counts.

The appellant challenged arson-related convictions arising from a house fire prosecuted entirely on circumstantial evidence, arguing among other things that the trial judge reversed the burden of proof by using the Hodge's case formulation to test the defence explanation for the fire.

The court held that the trial judge improperly required the accused to provide a reasonable explanation based on proven facts, rather than asking whether the Crown had proved guilt beyond a reasonable doubt.

That error required the convictions to be set aside and a new trial ordered.

Fresh evidence relating to the trial judge's earlier involvement in family proceedings was admitted but found insufficient to establish a reasonable apprehension of bias.

The appellant sought leave to appeal a one-year sentence imposed for serious offences committed against his ex-spouse while on probation for prior violence toward the same victim.

The court noted the appellant's lengthy criminal record dating back to 1972, including numerous violent offences, and his untreated long-standing alcohol problem.

Although the panel observed that more extensive reasons from the sentencing judge would have been preferable, it was not persuaded that the sentence was unfit.

Leave to appeal sentence was granted, but the appeal was dismissed.