Criminal and Quasi-Criminal Law - ONCA

The Court of Appeal for Ontario allowed Adam Chiarelli’s appeal from his conviction for possession of cocaine for the purpose of trafficking.

The court found that the trial judge erred by failing to provide a limiting instruction regarding inadmissible opinion evidence given by police officers about items found in the vehicle being “consistent with drug trafficking.” The court dismissed other grounds of appeal, including the lack of a Vetrovec caution and the reasonableness of the verdict, but concluded the error was not minor and the curative proviso did not apply.

A new trial was ordered.

The Crown appealed a sentence, specifically challenging the trial judge's finding that fine in lieu of forfeiture provisions were unconstitutional.

This decision addresses two issues: the Court of Appeal's jurisdiction to remit a sentence to the trial court and the terms of a fine in lieu of forfeiture.

The court confirmed it lacks jurisdiction to remit sentencing to the trial court on a sentence appeal under s. 687 of the Criminal Code, and, based on joint submissions, imposed a fine in lieu of forfeiture of $74,560 with a default imprisonment term of 18 months and a ten-year payment period.

The appellant, found not criminally responsible for a violent assault due to schizophrenia, appealed the Ontario Review Board's decision to maintain his detention at Waypoint Centre for Mental Health Care (a high-security facility) rather than transferring him to St. Joseph's Healthcare Hamilton (a medium-security facility closer to his family).

The Court of Appeal applied a reasonableness standard of review to the Board's disposition.

Given the appellant's history of violent and volatile behavior, fluctuating medication compliance, and St. Joseph's stated inability to manage him, the court found the Board's decision to keep him at Waypoint reasonable and dismissed the appeal.

The appellant appealed a disposition of the Ontario Review Board, arguing the conditions imposed were not the least onerous and restrictive and seeking supervised accommodation.

The Court of Appeal dismissed the appeal, finding the Board properly applied the criterion and its decision was not unreasonable given the medical evidence, noting the conditions were less restrictive than the previous disposition.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board erred by failing to explain its rejection of a conditional discharge in its reasons.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that the appellant remained a significant threat to public safety was reasonable.

The Court held that while it would have been better for the Board to explicitly explain its rejection of a conditional discharge, the omission was not a reversible error as there was no air of reality to such a disposition on the evidence.

The appellant appealed his conviction for first degree murder, arguing that the finding of murder during forcible confinement under s. 231(5) of the Criminal Code was unreasonable.

The appellant contended that the act of killing was not discrete from the act of confinement.

The Court of Appeal dismissed the appeal, finding ample evidence from which the jury could reasonably infer that the appellant confined the victim by tying him up, beat him, and subsequently strangled him, taking advantage of the dominance gained through the confinement.

The appellant appealed her conviction, arguing her s. 10(b) Charter rights were breached.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the appellant understood her rights and therefore no breach occurred.

The court further noted that even if a breach had occurred, the breathalyzer results would have been admissible under s. 24(2) of the Charter.

The Crown brought a motion for directions regarding an appeal where the unrepresented appellant intended to allege ineffective assistance of counsel.

The appellant had been denied legal aid and sought time to retain counsel upon his release from custody.

The Court of Appeal adjourned the matter to allow the appellant time to retain counsel and directed the Crown to obtain specific transcripts and produce the appeal book in the interim.

The appellants appealed their convictions for fraud and the resulting sentences, including a restitution order.

The Court of Appeal found no misapprehension of evidence by the trial judge regarding the identity of the vehicles involved, nor any inconsistency in the verdicts.

The court held that misrepresentations in insurance documents justified the fraud conviction and upheld the restitution order as a proper exercise of discretion.

The appeal was dismissed.

The young person appealed his conviction for sexual assault and the resulting sentence of one year in secure custody.

The trial judge had rejected the young person's exculpatory evidence based on an alleged lack of detail during examination-in-chief.

The Court of Appeal found that the trial judge's credibility assessment was flawed and unsupported by the record, as the young person had simply answered the questions put to him by his counsel.

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

The appellant appealed his assault conviction, arguing that the trial judge's reasons were inadequate, reversed the onus of proof, misapprehended evidence, and resulted in an unreasonable verdict.

The Court of Appeal found that the trial judge laid out a clear evidentiary path to the verdict based on identification evidence linking the appellant to the assault.

The court concluded there was no misapprehension of evidence or reversal of the burden of proof.

Although the Crown's case was not overwhelming, the verdict was not unreasonable.

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

The appellant appealed his conviction, arguing the trial judge erred in assessing the identification evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly examined the identification evidence, which was supported by circumstantial evidence, and did not misapprehend the evidence or fail to address discrepancies in witness descriptions.

The appellant pleaded guilty to indecent act, sexual assault, and sexual interference.

The Crown sought a sentence of 6 to 9 months, but the trial judge imposed 18 months without providing reasons for substantially exceeding the Crown's position.

The Court of Appeal held that the failure to give reasons in these circumstances amounted to an error in principle.

The appellant had served seven months, and the sentence was varied to time served.

In a youth criminal appeal involving a historical sexual offence allegation within a blended family, the appellant challenged both conviction and sentence.

The Court of Appeal held that evidence of earlier sexualized conduct between the parties was improperly admitted as similar fact evidence because the prior incidents were materially dissimilar, temporally remote, and did not support the complainant’s delayed disclosure.

The court found the impugned evidence was central to the trial and the curative proviso could not apply.

The conviction and related conditional stay were set aside and a new trial was ordered.

The Crown appealed the acquittal of a young person charged with a sexual offence.

The trial judge had found the evidence of non-consensual sex overwhelming, except for the complainant's muted response and her accompanying the respondent behind a building.

The Court of Appeal held that the trial judge erred in law by relying on the muted response to raise a reasonable doubt about consent.

The appeal was allowed and a new trial ordered.

The Crown appealed a conditional sentence imposed on the respondent for aggravated assault.

The trial judge had determined that a 42-month sentence was appropriate but credited the respondent with 18 months for pre-sentence custody, reducing the sentence to under two years and imposing a conditional sentence.

Applying the Supreme Court of Canada's subsequent decision in R. v. Fice, the Court of Appeal held that pre-sentence custody cannot be used to reduce a penitentiary sentence to make a conditional sentence available.

The appeal was allowed, and the conditional sentence was varied to a custodial sentence of nine months, accounting for time served.

The appellant appealed his convictions for dangerous driving, failing to comply with an undertaking, and threatening to damage property.

The Court of Appeal found that the trial judge erred by assessing the complainant's credibility based solely on demeanour, failing to analyze significant inconsistencies in her evidence, and inappropriately considering the evidence globally across all counts.

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

The Crown appealed a sentence imposed after convictions for impaired driving causing death and impaired driving causing bodily harm.

The Crown argued that the offences required a penitentiary sentence and that the sentencing judge erred by placing excessive weight on the offender's exemplary character and the wishes of the victims' families opposing custody.

The court held that the sentencing judge carefully considered the evidence, sentencing principles, and relevant case law, and did not overemphasize those factors.

Finding no error in the imposition of a conditional sentence and no basis for appellate intervention, the court dismissed the appeal.

The appellant appealed a sexual assault conviction and a nine-month custodial sentence arising from brief acts of sexual intercourse where consent was the sole live issue.

The court held that the trial judge's findings, including the appellant's own admissions, confirmed a lack of consent in relation to the second sexual act.

The conviction appeal was dismissed.

However, given the appellant's youth, lack of record, family support, the short duration of the acts, and the absence of a need for probation, the sentence was found excessive and reduced to six months.

The appellant, a young offender, appealed conviction and sentence, arguing that a videotaped police statement was inadmissible because it was a continuation of earlier inadmissible statements.

The Court of Appeal held that the governing authority did not establish hard and fast rules on admissibility where the statutory criteria had been met, and upheld the trial judge’s findings that the statement was not tainted and that the appellant wanted to acknowledge responsibility.

The court found no error in admitting the videotaped statement.

Leave to appeal sentence was granted, but the sentence of four months open custody and community service was not demonstrably unfit.