Criminal and Quasi-Criminal Law - ONCA

The appellant, convicted of sexual interference and sexual assault against his niece, appealed both convictions and the global 9-year sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's restrictions on cross-examination regarding delay in reporting or avoidant behaviour, nor in the refusal to order production of psychiatric records, and no Kienapple error as distinct delicts were found.

The Court also dismissed the sentence appeal, upholding the proportionality and fitness of the sentence, distinguishing it from a lower comparable sentence based on the severity and duration of the abuse.

The applicant, Emmanuel Pinard, sought bail pending his conviction and sentence appeals for possessing a firearm contrary to a prohibition order.

The Court of Appeal for Ontario, through Lauwers J.A., applied the three-part test under s. 679(3) of the Criminal Code, focusing on the public interest component, specifically public confidence in the administration of justice.

The court weighed the enforceability interest (seriousness of gun crime) against the reviewability interest (strength of appeal grounds).

The court found the conviction and sentence appeal grounds to be arguable but not clearly surpassing the 'not frivolous' criterion.

Consequently, the application for bail pending appeal was dismissed, as releasing the applicant would undermine public confidence given the seriousness of the crime and the weakness of the appeal.

The appellant, Darryl Rusaw, appealed his conviction for sexual assault.

The trial judge had convicted him of sexually assaulting the complainant S.S. after acquitting him on another charge.

Rusaw argued the trial judge misapprehended evidence regarding his post-incident conversation with a witness and erred in rejecting the defence of honest but mistaken belief in consent.

The Court of Appeal found no fault with the trial judge's assessment of the witness's evidence and upheld the rejection of the mistaken belief defence, citing the trial judge's finding that the appellant took no reasonable steps to ascertain consent from the sleeping complainant.

The appeal was dismissed.

The applicant, convicted of two counts of indecent assault and sentenced to four years concurrent, sought bail pending appeal.

The Court of Appeal for Ontario considered the three elements under s. 679(3) of the Criminal Code: whether the appeal was frivolous, whether the applicant would surrender, and whether detention was necessary in the public interest.

While the appeal was deemed not frivolous and the applicant was likely to surrender, the court found that his detention was necessary in the public interest.

Balancing the strong interest in enforceability due to the seriousness of the sexual offences against children against the weak interest in reviewability given the weakness of the appeal grounds, the court dismissed the application for bail pending appeal.

The appellant, convicted of sexual assault, appealed on the grounds that the trial judge relied on impermissible stereotypical inferences and ungrounded common-sense assumptions in assessing credibility.

The Court of Appeal found that the trial judge erred by relying on stereotypical reasoning regarding the complainant's willingness to engage in public sexual activity and sexual activity during menstruation, which materially influenced the credibility assessment.

The court emphasized that such reasoning violates the rule against stereotypical inferences and impermissible character reasoning.

The appeal was allowed, the conviction set aside, and a new trial ordered, as the curative proviso could not be applied due to the lack of overwhelming evidence.

The appellant, A.B., appealed a disposition order from the Ontario Review Board that did not permit him to work unsupervised in the community.

The Court of Appeal found no error in the Board's decision, noting that the Board's conclusion was justified by the psychiatric evidence and the appellant's changed circumstances, including a subsequent criminal conviction while under a Board order.

The appeal was dismissed.

The appellant was convicted of child luring, invitation to sexual touching, possession of child pornography, accessing child pornography, and weapons dangerous, receiving a global sentence of 34 months.

On appeal, the appellant argued the sentence was unfit for a first offender with mitigating factors, and that the trial judge failed to resolve disputed aggravating factors.

The Court of Appeal agreed, finding the sentence unsupported due to unresolved aggravating factors.

The court substituted the sentence to 28 months (time served).

Additionally, the appellant successfully appealed overly broad terms of a s. 161 order regarding internet access, which the court directed the parties to amend by consent or the court would amend after two weeks.

The appellants, 1085638 Ontario Limited and Meadow Valley Garden Centre Ltd., appealed convictions under the Building Code Act and Planning Act related to the operation of a garden centre without proper permits and in violation of zoning.

The appeal focused on two issues: legal non-conforming use under s. 34(9) of the Planning Act and delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed the appeal, affirming that for a legal non-conforming use, the activity must be in active operation on the day the zoning by-law was passed.

Regarding the s. 11(b) claim, the court found no error in the lower court's conclusion that the corporate appellant failed to demonstrate prejudice, applying the pre-Jordan test.

The appellant, Chad Noureddine, appealed his conviction for second-degree murder following a jury trial.

The appeal raised four grounds concerning the trial judge's jury instructions: the limited use of a witness's criminal record, the sufficiency of the Vetrovec instruction, the failure to adequately present the defence's position on intent and motive, and the inclusion of an alternate path to conviction not explicitly raised in the Crown's closing.

The Court of Appeal dismissed the appeal, finding that the trial judge's charge, when considered holistically, was comprehensive and balanced, adequately addressing the issues of witness credibility and all routes to liability.

The appellant was convicted of sexual assault and sexual interference against two young sisters.

He appealed his conviction, arguing the trial judge erred in dismissing his application for third-party records from the Children's Aid Society (CAS) and in making credibility determinations.

He also sought leave to appeal his sentence.

The majority of the Court of Appeal set aside the convictions and ordered a new trial, finding that the CAS records were likely relevant to credibility and motive to fabricate and should have been reviewed by the trial judge.

The sentence appeal was dismissed.

The appellant, who was previously found not criminally responsible for assault causing bodily harm, appealed a decision of the Ontario Review Board maintaining his conditional discharge.

He argued that the Board's finding that he continued to pose a significant risk to the public was unreasonable and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding that the Board reasonably relied on expert psychiatric testimony indicating that the appellant's impending transition to a less structured living environment would increase his risk to public safety.

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

The parties agreed that the appeal should be allowed to correct the credit given for pre-trial custody.

The appellant had served eight months pre-trial, and the parties agreed the credit should have been 12 months at a 1:5.1 ratio.

With the correct allocation for pre-trial custody, the sentence imposed (suspended sentence with 12 months probation) remained unchanged, as did the other ancillary orders.

The appeal was allowed to reflect the proper credit for time served.

The appellant brought an appeal in the Court of Appeal for Ontario against a decision of the Ontario Court of Justice.

On consent of the Crown, the appeal was allowed and a new trial was ordered.

The appellant was directed to appear on December 10, 2018 to set a trial date.

The appellant Crown appealed the sentence imposed by the trial judge on the respondent who pled guilty to importing hashish contrary to s. 6(1) of the Controlled Drugs and Substances Act.

The trial judge had found s. 6(3)(a) of the CDSA and its combined effect with Criminal Code s. 742.1(c) to be unconstitutionally overbroad under s. 7 of the Charter, rendering the respondent eligible for a conditional sentence.

The trial judge imposed a conditional sentence of two years less a day and 18 months' probation.

On appeal, the Crown conceded that given the respondent's changed circumstances, time already served, and community service completed, reincarceration was not warranted, and requested the sentence be stayed.

The Court of Appeal allowed the appeal and varied the sentence to time served, with the probation order remaining in effect.

The appellant appealed his conviction and sentence from the Superior Court of Justice.

The Court of Appeal found that the trial Crown improperly invited the jury to use prior consistent statements of the complainant for the truth of their content in closing address.

The trial judge failed to correct this submission and provided no instructions to the jury on the limited use of prior consistent statements.

This error in law tainted the conviction, particularly as the evidence concerning one complainant was used as similar fact evidence in relation to another complainant.

Additionally, the trial judge failed to provide a meaningful review of the evidence at trial beyond a cursory review of similar fact evidence.

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

The appellant appealed his sentence for manslaughter imposed following a guilty plea.

The appellant did not challenge the length of the sentence itself but argued that the trial judge erred in calculating the credit ratio for time spent in custody in the penitentiary following his initial murder conviction, before this court allowed his appeal and ordered a new trial.

The appellant sought 1.5:1 credit for this time.

The Court of Appeal found that even if an error occurred in the credit calculation, it did not impact the fitness of the sentence ultimately imposed.

The sentencing judge had determined that a net additional sentence of one year was appropriate to reflect proportionality and applicable sentencing objectives.

The appeal was dismissed.

The appellant appealed his conviction for assault relating to events on December 25, 2014.

The appellant had been acquitted of a separate assault charge relating to events in summer 2013.

The appellant and complainant were co-parenting their child and maintained a non-intimate relationship at the time of the alleged assault.

The appellant raised two grounds of appeal: first, that the trial judge materially misapprehended evidence regarding who invited the complainant to stay overnight, and second, that the trial judge improperly relied on a police officer's opinion regarding the complainant's expectations about police involvement.

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

The appellant appealed his conviction for sexual assault following a jury trial.

The sole ground of appeal was that the trial judge erred by refusing to instruct the jury on the defence of honest but mistaken belief in consent.

The charge related to anal penetration that followed consensual oral and vaginal intercourse.

The complainant testified she repeatedly and unequivocally told the appellant to stop and resisted his attempts at anal penetration.

The appellant testified he asked for consent after partial insertion and the complainant agreed.

The court found no air of reality to the mistaken belief in consent defence, as the two accounts were fundamentally conflicting and could not be reconciled to support that defence.

The appeal was dismissed.

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

The Court of Appeal found no error in the trial judge's sentencing decision and characterized the sentence as lenient in the extreme.

While acknowledging the appellant's efforts to remain drug-free for ten months, the court dismissed the appeal.

The appellant appealed a conviction entered by Justice Chapin of the Ontario Court of Justice on July 15, 2014.

The appeal was allowed on consent.

The conviction was quashed and an acquittal was entered.