Criminal and Quasi-Criminal Law - ONCA

The appellant, D.B., appealed his convictions for three historical sexual offences against his niece.

The appeal raised three grounds: improper use of evidence regarding the appellant's reaction/inaction when confronted with allegations, improper Crown submissions inviting the jury to infer the appellant lied to secure an acquittal, and failure to caution the jury on extrinsic misconduct evidence.

The Court of Appeal found that the jury was not sufficiently instructed on the lack of probative value of the reaction evidence and on the impermissible reasoning regarding the appellant's motive to lie.

These errors undermined the presumption of innocence and left the jury unequipped to fairly decide the case.

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

This endorsement from the Court of Appeal for Ontario addresses a non-publication order under s. 517 of the Criminal Code that was imposed at a bail hearing in the court below.

The endorsement states that the full decision, which contains information covered by this order, will not be published online until the non-publication order ceases to be in effect.

In the interim, a physical copy of the decision is available at the Court of Appeal Registry.

The underlying matter is an application to set aside a detention order.

The appellant, convicted of two counts of break and enter, appealed his 3-year sentence, arguing the trial judge erred by incorrectly applying Gladue principles.

Specifically, the appellant contended the trial judge failed in her duty to fill evidentiary gaps regarding rehabilitation options.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach.

The court held that the trial judge was not obligated to grant further adjournments, as defence counsel had provided significant information about the appellant's Indigenous background, and the judge had inquired about rehabilitation programs, which the appellant declined.

The appellant, R.G., appealed his convictions for sexual abuse of his daughter, arguing the trial judge erred in dismissing his application to reopen the trial based on new cell phone evidence.

The Court of Appeal found that the trial judge misapplied the legal test for cogency and placed excessive weight on due diligence.

The new evidence, consisting of cell phone records, significantly undermined the complainant's credibility regarding a key incident and an uncharged incident, despite the defense's lack of due diligence in obtaining it earlier.

The Court concluded that the interests of justice required the convictions to be set aside and a new trial ordered.

Stuart Murray, convicted of fraud, sought an extension of time to appeal his conviction, arguing his guilty plea was involuntary and uninformed due to his mental state and unexpected collateral consequences from Law Society proceedings.

The Crown opposed, citing delay and lack of merit.

The motion judge granted the extension, finding that psychiatric evidence raised sufficient doubt about Murray's cognitive functionality at the time of the plea and adequately explained the delay, thus warranting an appeal on the validity of the guilty plea.

The appellant, a pharmacist, was convicted of trafficking in fentanyl, fraud, and public mischief, and sentenced to 14 years' incarceration.

He appealed both his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's Charter rulings (s. 11(b), s. 7, s. 8) or assessment of evidence, including the handling of a Vetrovec witness.

However, the court granted leave to appeal the sentence, finding that the trial judge erred by failing to sufficiently apply the principle of restraint for a first-time offender with health issues.

The sentence was reduced from 14 years to 12 years imprisonment.

The appellant appealed his conviction for robbery and wearing a disguise with intent, and his four-year sentence.

The primary issue was the reliability of identification evidence provided by the appellant's sister, who recognized him from surveillance videos.

The Court of Appeal found no error in the trial judge's assessment of the identification evidence, noting the judge's careful analysis and caution regarding frailties.

The court also rejected the admission of fresh evidence and found the sentence to be fit.

The appeal was dismissed.

The appellant appealed a conviction for sexual assault, arguing the trial judge misapprehended evidence regarding the timing and location of the assaults.

The complainant testified about assaults occurring between 1995 and 1999, when she was 11-13 years old.

A key inconsistency involved a distinctive tattoo on the appellant, which the complainant claimed to have seen throughout the assaults, but which the trial judge found was acquired after the appellant moved out and the abuse allegedly stopped.

The Court of Appeal found that the trial judge was entitled to reconcile inconsistencies in the complainant's memory regarding precise timing and location, while still accepting the essential nature of the sexual assaults.

The appeal was dismissed.

The appellant was convicted of sexual contact and inciting sexual contact with a person under 14.

He appealed his convictions and sought leave to appeal his 30-month sentence.

The Court of Appeal dismissed the appeal against conviction, finding no error in the trial judge's assessment of the complainant's credibility, particularly regarding inconsistent statements about childhood events.

The court also granted leave to appeal the sentence but dismissed the appeal, affirming the trial judge's consideration of the appellant's age and health, and finding no exceptional circumstances due to the COVID-19 pandemic to warrant a reduced sentence.

The appellant, Matthew Moreira, sought leave to appeal his sentence for manslaughter and robbery.

The Court of Appeal for Ontario granted leave, finding that the sentencing judge erred in determining the factual basis for the manslaughter conviction and in assessing the appellant's degree of fault, and also materially misapprehended evidence regarding pre-sentence custody conditions (Duncan credit).

The Court set aside the 12-year manslaughter sentence, substituting a 10-year sentence, while upholding the 1-year consecutive sentence for robbery.

The total global sentence was reduced from 13 years to 11 years, resulting in a net sentence of 6 years and 5 months after pre-sentence custody credit.

The Crown appealed the conditional sentence of two years less a day imposed on the respondent, Joern Scholz, for fraud over $5,000.

The Court of Appeal found that the trial judge erred in principle by imposing a sentence outside the established range for major frauds and by failing to follow the proper analytical process for conditional sentences.

The court also found that the trial judge improperly considered the conduct of an OSC investigator as a mitigating factor for the convicted offence.

The appeal was allowed, the conditional sentence was set aside, and a three-year term of imprisonment was imposed.

The appellant, R.C., appealed convictions for sexual assault, sexual interference, incest, and assault.

The primary issues on appeal were whether the trial judge's oral reasons for conviction were sufficient, and whether subsequently released "edited reasons" could be considered.

The Court of Appeal held that the edited reasons, released nearly two years after the oral reasons and after the appeal had commenced, could not be relied upon due to their substantive changes.

The court then assessed the sufficiency of the original oral reasons, finding that the trial judge adequately addressed material inconsistencies in the complainant's evidence and properly applied credibility principles, including those from R. v. W.(D.).

The appeal was dismissed, affirming the convictions.

The appellant, N.K., appealed his convictions for sexual assault, assault, criminal harassment, and uttering threats, and his global sentence of five years and 11 months incarceration.

The appeal focused on the trial judge's application of the W.(D.) principle, assessment of credibility, and calculation of pre-sentence custody credit.

The Court of Appeal dismissed the appeal from conviction, finding no error in the trial judge's credibility assessment or application of the W.(D.) principle.

However, the appeal from sentence was allowed in part; the pre-sentence custody credit was varied from five months to six months and one day, and the victim fine surcharge of $800 was set aside.

The appellant appealed his guilty pleas to dangerous driving and failure to comply with conditions of a recognizance, arising from a serious motor vehicle collision involving a police vehicle and a stolen vehicle.

The trial counsel failed to adequately advise the appellant of the immigration consequences of the guilty plea and joint submission on sentence.

The Crown conceded that the appellant demonstrated he was unaware of these consequences.

The Court of Appeal found that the appellant established a reasonable possibility that he would not have pled guilty had he known of the immigration consequences, thereby meeting the threshold for setting aside the guilty pleas.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for sexual assault.

At trial, the appellant argued he had an honest but mistaken belief that the complainant consented to the sexual activity.

The trial judge rejected this defence, finding that the complainant's obvious intoxication vitiated any consent and that the appellant's decision to engage in sexual activity was either reckless or wilfully blind.

The trial judge also found that silence, passivity, and ambiguous conduct do not constitute consent, and that the complainant's actions in the bathtub could not be said to constitute consent to vaginal penetration.

The Court of Appeal upheld the conviction.

A police officer convicted by jury of dangerous driving causing death and sentenced to eight months in prison sought bail pending appeal.

The Crown opposed release, arguing the grounds of appeal lacked merit and that public confidence in the administration of justice required incarceration pending appeal.

The motion judge granted bail, finding the grounds of appeal relating to sufficiency of focus on the dangerous driving and guidance on marked departure were not frivolous and warranted close examination.

The judge held that public interest was best served by allowing the applicant to challenge the conviction before serving the sentence.

The appellant appealed a sentence imposed on June 5, 2012 by the Ontario Court of Justice.

On consent, the Court of Appeal allowed the appeal and reduced the sentence to 6 months less one day due to potential immigration consequences that were not known during the original sentencing process.

The appellant appealed his 18-month custodial sentence for driving while disqualified.

He had an extensive criminal record but also significant mental health challenges and a history of trauma.

The Court of Appeal found the sentencing judge erred in principle by treating the appellant's lack of remorse as an aggravating factor and by concluding, without evidence, that he had breached a prior conditional sentence.

Given the appellant's positive progress on bail, his engagement in treatment, and the hardship incarceration would cause his family, the Court allowed the appeal and substituted an 18-month conditional sentence followed by 12 months of probation.

The appellant, an adjudicator with the Immigration and Refugee Board, was convicted of breach of trust for offering a positive decision to a refugee claimant in exchange for a sexual relationship.

He was sentenced to 18 months' imprisonment.

On appeal, he argued the trial judge misapprehended the evidence, the verdict was unreasonable, and the sentence should have been a conditional sentence due to his bipolar disorder.

The Court of Appeal dismissed the conviction appeal, finding the verdict reasonable and supported by the evidence.

The majority also dismissed the sentence appeal, holding that the trial judge properly weighed the appellant's mental illness against the need for denunciation and deterrence for a serious breach of trust.

Laskin J.A. dissented on sentence, finding a conditional sentence appropriate.

The appellant appealed his sexual assault conviction, arguing the trial judge erred in excluding evidence that the complainant had previously made and recanted two other allegations of sexual assault.

The Court of Appeal held that the evidence did not engage s. 276 of the Criminal Code as it did not involve sexual activity.

The court found the evidence was relevant to the complainant's credibility and was not barred by the collateral fact rule, as the recantations were allegedly made in the same conversation where the complainant reported the assault by the appellant.

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