Criminal and Quasi-Criminal Law - ONCA

Three appellants were convicted of first-degree murder in the 2018 shooting death of Nnamdi Ogba.

The appellants appealed on seven grounds, including challenges to jury instructions on modes of participation, admissibility of expert gang evidence, after-the-fact conduct evidence, firearm videos, W.(D.) instructions, Browne v. Dunn breaches, and jury roll compilation errors.

The Court of Appeal found that the jury instructions on modes of participation under sections 21(1)(b) and 21(2) of the Criminal Code were deficient and that there was no air of reality to section 21(2) liability.

The court allowed the appeals, set aside the convictions, and ordered a new trial.

The court upheld the admissibility of expert gang evidence and other evidentiary rulings.

The appellant appealed his conviction for sexual assault contrary to section 271 of the Criminal Code and his sentence.

The appellant was charged in September 2019 with sexual assault and administering a noxious substance.

The latter charge was withdrawn.

Following a hung jury in June 2022, the appellant was tried before a judge alone, who found that he sexually assaulted the complainant twice.

The appellant raised three grounds of appeal: (1) the trial judge erred in finding no breach of section 8 of the Charter regarding an overbroad search of his cell phone; (2) the trial judge erred in finding no breach of section 7 of the Charter based on non-disclosure of the information to obtain the search warrant and minimized the materiality of the hotel video in the conviction; and (3) the trial judge erred in failing to grant sufficient sentencing credit for harsh conditions in pre-sentence custody.

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

This document serves as a formal header for an appeal decision, primarily noting the imposition and continuation of a publication ban under section 539 of the Criminal Code.

It explicitly states that the full judgment is subject to a statutory non-publication order, pending the outcome of the underlying trial, and is therefore not publicly accessible.

The document outlines the specific provisions of section 539 regarding the restriction of evidence publication from preliminary inquiries.

The appellant was convicted in a judge-alone trial of two counts of sexual assault and one count of choking, receiving a three-year sentence.

He appealed his convictions, arguing errors in the assessment of corroborative evidence, conflation of credibility and reliability, and reliance on stereotypes regarding witness reticence.

He also sought leave to appeal his sentence.

The Court of Appeal dismissed the appeal from conviction, finding the trial judge's assessment of evidence, including an audio recording, was sound and that any comment on witness reticence was not material to the decision.

Leave to appeal sentence was granted, but the sentence appeal was also dismissed, as the sentence was deemed entirely fit given the serious nature of the assaults, breach of trust, and attempts to subvert justice.

This is an appeal from a summary conviction appeal judge's decision that overturned an acquittal in a sexual assault case and ordered a new trial.

The trial judge had acquitted the appellant, finding reasonable doubt regarding consent and the alleged initial assault, partly due to an inconsistency in the complainant's evidence and the public nature of the alleged act.

The summary conviction appeal judge (SCAJ) allowed the Crown's appeal, concluding the trial judge engaged in "myth-based reasoning" and erred in finding consent.

The Court of Appeal for Ontario allowed the appellant's appeal, restoring the acquittal.

The Court found the SCAJ erred by substituting its own factual conclusions, mischaracterizing the trial judge's reasoning as "myth-based," and failing to distinguish between a finding of lack of consent and a finding of reasonable doubt about consent.

The Court also noted the SCAJ's failure to apply the material error test required for Crown appeals from acquittal.

The appellant, Tesean Alvarez, appealed his convictions for aggravated assault and possession of a weapon dangerous to the public peace, arguing the trial judge erred in jury instructions regarding eyewitness identification reliability, Vetrovec warnings, exculpatory evidence, and cross-racial identification, and that the verdict was unreasonable.

The Court of Appeal found that the trial judge's instructions on eyewitness identification were inadequate, particularly concerning flaws in the police identification process and the distinction between inculpatory and exculpatory evidence.

While other grounds of appeal were dismissed, the court concluded that the jury was not properly equipped to assess the identification evidence, which was central to the Crown's case.

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

The appellant was convicted of two counts of sexual assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's similar fact evidence ruling or credibility assessment.

The court also dismissed the sentence appeal, deeming the 14-month concurrent sentence fit given the serious nature of the crimes against very young victims.

The appellant appealed his conviction on identity evidence grounds.

The trial judge had found the complainant's identification of the appellant to be reliable despite a minor discrepancy regarding facial hair.

The Court of Appeal upheld the conviction, finding no error in the trial judge's treatment of identity evidence.

The trial judge had properly considered corroborative evidence, including a witness who confirmed details of the assailant's clothing, and had not placed undue weight on the complainant's confidence in her identification.

The appellant appealed his conviction for first degree murder in the death of Ernesto Agsaulio.

The appellant had planned and deliberated the murder of his ex-wife Maria Ching.

When attempting to carry out this plan, Agsaulio intervened to prevent the appellant's entry into the house, and during the ensuing struggle, the appellant mortally wounded Agsaulio.

The trial judge instructed the jury that planning and deliberation regarding the murder of the intended victim (Ching) could elevate an unintended victim's murder (Agsaulio) to first degree murder if committed in the course of carrying out the plan.

The Court of Appeal found this instruction erroneous and substituted a conviction for second degree murder.

An appeal under Part XX.1 of the Criminal Code concerning the disposition of an individual found not criminally responsible on account of mental disorder.

The appellant challenged the Ontario Review Board's decision to maintain a detention order rather than grant a conditional discharge.

The appellant argued his risk could be managed safely in the community with a conditional discharge and resort to the Mental Health Act.

The Court of Appeal upheld the Board's decision, finding it was not unreasonable given the evidence of the appellant's lack of insight into his mental illness, continued cannabis use, limited protective effect of anti-psychotic medication, and risk factors including occasional violence.

The appellant appealed a sentence of 12 years imposed following conviction on 25 of 34 counts of sexual offences against four complainants.

The trial judge had determined a fit sentence of 13 years and reduced it by one year to account for the appellant's advanced age and health challenges.

The appellant argued that age should be more substantially factored into the sentencing principles of denunciation and deterrence, and that a shorter sentence could achieve these objectives for an elderly offender.

The Court of Appeal found no error in principle and dismissed the appeal, holding that the sentence fell comfortably within the appropriate range and that the weight assigned to age did not reflect error.

Appeal from conviction and sentence.

The appellant challenged the trial judge's treatment of hearsay evidence, application of the W.D. test for assessing credibility, and delay in giving reasons.

The Court of Appeal found that the trial judge properly acknowledged hearsay limitations, correctly applied the W.D. test by considering the totality of evidence and burden of proof, and that any delay in reasons was justified by efforts to accommodate the parties.

The appeal was dismissed.

The applicants sought leave to appeal a decision upholding a sending order under the Mutual Legal Assistance in Criminal Matters Act.

The applicants argued that because a British Columbia court of coordinate jurisdiction had denied a similar sending order involving the same parties and investigation, the Ontario court should be bound by principles of res judicata and issue estoppel.

The motion judge dismissed the application for leave to appeal, finding no jurisdiction to hear the appeal and rejecting the res judicata and issue estoppel arguments on their merits.

An appeal of an Ontario Review Board disposition order that continued the detention of an NCRMD accused with a term permitting community living in approved accommodation.

The appellant challenged both the Board's finding that she remained a significant threat to public safety and the appropriateness of the detention order as opposed to a conditional discharge.

The Court of Appeal dismissed the appeal but criticized the Board's brevity in addressing key issues, particularly the lack of rigorous analysis regarding the significant threat finding and the failure to explain why detention was necessary and appropriate rather than a conditional discharge.

The court noted that while the Board's decision was not unreasonable on the evidence, it failed to meet standards of transparency and intelligibility in its reasoning.

The appellant appealed his conviction on three counts of fraud over $5,000 and his sentence.

The appellant challenged the lawfulness of his detention by police and raised Charter breaches under sections 8, 9, 10(a), and 10(b).

The Court of Appeal upheld the trial judge's finding that the police detention was lawful, as officers had authority to investigate a vehicle parked in an empty community centre parking lot at 3:00 a.m. with its motor running and lights on.

The court declined to address the section 10 Charter issues as they were not raised at trial.

The court affirmed the conviction for fraud, finding the trial judge properly applied the elements of fraud and that the evidence supported guilt on all counts.

The court also found no error in principle in the sentencing decision and declined to interfere with the sentence imposed.

The appellant appealed his conviction entered on October 17, 2013 by Justice Hugh McLean of the Superior Court of Justice, sitting with a jury.

The appellant made brief submissions on the conviction appeal and tendered fresh evidence.

The Court of Appeal found that the appellant's submissions did not call into question the validity of the convictions and that the fresh evidence was inadmissible.

The conviction appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board dated February 6, 2017, challenging the Board's addition of a "24-hour-a-day" supervision requirement to a community accommodation condition.

The appellant contended this requirement was not part of the joint submission made at the hearing.

The Court of Appeal found no merit in the appeal, determining that the hearing transcript clearly showed counsel for the Centre for Addiction and Mental Health had proposed a housing clause specifically including 24-hour staff supervision, which the appellant's counsel had supported.

The Board's disposition therefore accepted the parties' joint submission rather than departing from it.

The appeal was dismissed.

The appellant appealed a 12-month prison sentence imposed for fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code.

The appellant, an accountant and real estate agent, had prepared 292 false tax returns using clients' personal information without consent between 2009 and 2012, obtaining $35,321 through fraudulent tax refunds while attempting to obtain $343,840.

The sentencing judge rejected a conditional sentence, emphasizing general deterrence and denunciation as paramount in fraud cases involving breaches of trust.

The appellant argued the sentencing judge erred by failing to consider his offer of restitution.

The Court of Appeal found the failure to consider restitution was an error in principle but held it did not impact the sentence imposed, as restitution must take a secondary role to deterrence and denunciation in large-scale fraud cases involving breaches of trust.

The appellant appealed his convictions for two counts of fraud over $5,000 and two counts of uttering a forged document, arising from his cashing of two stolen bank drafts totalling $847,000 at Ontario casinos in October 2012.

The appellant claimed he received the drafts from a gambler named "Pasquale" as repayment of a loan and did not know they were stolen.

The trial judge rejected this explanation as incapable of belief and applied the doctrine of recent possession to find the appellant guilty.

The Court of Appeal upheld the convictions, rejecting three grounds of appeal: that the trial judge erred in rejecting the defence of honest but mistaken belief, that the trial judge misapprehended the doctrine of recent possession, and that the trial judge improperly relied on the appellant's exculpatory police statement.

The appellant appealed his sentence imposed by the Ontario Court of Justice.

The trial judge had misunderstood the position of defence counsel regarding the appropriate sentence, resulting in a sentence longer than that requested by either Crown or defence.

The Court of Appeal received fresh evidence on consent to clarify defence counsel's position and adjusted the sentence to an effective three years, with credit for 533 days of presentence custody.

The sentence was varied to consist of 562 days for possession of a loaded prohibited firearm, with concurrent sentences on related drug and firearm offences.

The appellant was entitled to a reformatory sentence (less than two years) and arrangements were made to transfer him from the penitentiary in British Columbia to the reformatory system in Ontario.