Criminal and Quasi-Criminal Law - ONCA

Tenzin Norbu appealed a committal order for extradition to the United States on immigration fraud charges and sought judicial review of the Minister of Justice's surrender order.

The alleged scheme involved preparing and selling fraudulent documentation and false narratives to asylum seekers.

The Court of Appeal dismissed both the appeal, finding sufficient identification evidence and evidence for the broader fraudulent scheme, and the application for judicial review, upholding the Minister's decision not to seek assurances regarding potential deportation to China.

Michael LeBlanc appealed his second-degree murder conviction, arguing the trial judge erred by not giving alternative jury directions on the partial defence of provocation and a rolled-up manslaughter charge.

The Court of Appeal dismissed the appeal, finding no air of reality for either defence.

For provocation, the court determined the "sudden" element was not met as the appellant was prepared for the threat.

For manslaughter, the brutal nature of the attack indicated an intent to cause death or grievous bodily harm, leaving no realistic scope for a lesser verdict.

The appellant was convicted of second-degree murder and aggravated assault.

The central issue on appeal concerned the proper use of an accused's mixed statement (containing both inculpatory and exculpatory elements) when introduced by the Crown, and when the accused subsequently testifies consistently with the exculpatory part.

The trial judge erred by instructing the jury that the exculpatory aspect of the out-of-court statements could not be used for their truth.

The Court of Appeal clarified that such mixed statements, when led by the Crown, are admissible for the truth of their contents, regardless of whether the accused later testifies consistently.

However, the jury must be cautioned against impermissible lines of reasoning, such as inferring truth from mere repetition or using the prior statement as independent corroboration.

The appeal was allowed, and a new trial was ordered due to the trial judge's erroneous instruction and the resulting confusion and prejudice to the accused.

The appellant appealed his convictions and sentence, arguing his guilty plea was uninformed due to a lack of awareness of potential immigration consequences.

The Court of Appeal dismissed the appeal against conviction, finding it unbelievable that the appellant, given his prior immigration history, was unaware of the potential consequences.

However, the court allowed the appeal against sentence, varying it to reflect the joint submission that had been made at the time of the guilty plea.

The appellant, Lorne Clement, appealed his sexual assault conviction, alleging ineffective assistance of trial counsel.

The grounds included counsel's failure to ensure the appellant reviewed his police statement, failure to review potentially exculpatory evidence from a witness (R.D.), and failure to order witness statement transcripts.

The Court of Appeal dismissed the appeal, finding that even assuming factual shortcomings in counsel's performance, the appellant failed to establish prejudice.

The court reasoned that the appellant's own admissions to police regarding intoxication were pivotal to the trial judge's rejection of his testimony, and the witness's evidence was not clearly exculpatory.

The appellant, G.B., appealed convictions for sexual assault, sexual interference, and invitation to sexual touching against his granddaughter.

The trial judge rejected the appellant's evidence, including his attempt to manufacture a motive for the complainant to lie (a car loan dispute).

The Court of Appeal found no error in the trial judge's assessment of the appellant's evidence or her finding that the complainant had no motive to fabricate, though it cautioned against relying on an "apparent lack of motive" to bolster credibility.

The court applied the curative proviso, finding that any error did not overwhelm the trial judge's careful reasons.

The appeal was dismissed.

The appellant, Abadula Biya, appealed his conviction and sentence for charges including unauthorized possession of a firearm and ammunition, possession of a Schedule I controlled substance for trafficking, and possession of proceeds of crime.

The primary ground of appeal was that the trial judge materially misapprehended the evidence in rejecting the appellant's third-party suspect defence, specifically regarding the time available for a co-accused to hide contraband and his propensity.

The Court of Appeal agreed, finding that the trial judge's misapprehension of evidence was material, leading to a miscarriage of justice.

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

The appellant sought an order for the production of lockdown records from the Toronto South Detention Centre for use in his sentence appeal.

The respondent consented to the order under s. 683(1)(a) of the Criminal Code, reserving the right to challenge the admissibility of the records as fresh evidence.

The Court of Appeal for Ontario found that the interests of justice warranted the order and directed the production of the specified records.

The appellant appealed convictions for three offences relating to procuring and attempting to coerce a minor into prostitution.

The Crown’s case relied primarily on the complainant’s testimony and a video statement admitted under s. 715.1 of the Criminal Code.

The complainant identified photographs from a social media profile as depicting the individual who attempted to force her into escort work, and the trial judge compared those photographs with the appellant’s arrest photograph to confirm identity.

The Court of Appeal held that the trial judge was entitled to rely on both the complainant’s identification and his own comparison of the photographs.

The convictions were supported by the evidence and disclosed no legal or factual error.

The appellant pleaded guilty to assault causing bodily harm and was sentenced to six months' imprisonment.

He appealed the sentence, seeking a reduction to six months less a day because he was unaware of the significant immigration consequences at the time of his plea and sentencing.

The Crown consented to the reduction.

The Court of Appeal allowed the appeal, finding the requested reduction modest and the proposed sentence fit.

The appellant was convicted of numerous firearms offences after police found stolen guns in his storage locker.

The search warrant was based on an Information to Obtain (ITO) relying on a confidential informant.

At trial, the Crown provided a judicial summary of the redacted ITO under step six of Garofoli, which the trial judge found adequate.

On appeal, the appellant sought to challenge the constitutionality of step six of Garofoli for the first time and argued the summary was inadequate.

The Court of Appeal dismissed the conviction appeal, refusing to hear the new constitutional argument and upholding the adequacy of the summary.

The sentence appeal was allowed only to grant enhanced credit for pre-trial custody at a rate of 1.5:1, reducing the net sentence to eight years and one month.

The appellant appealed her convictions for fraud and uttering, as well as her sentence, following a trial before a judge sitting without a jury.

She argued that the trial judge erred in his findings of fact.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error or misapprehension of evidence in the trial judge's credibility assessments.

The sentence appeal seeking to delete the probation order was also dismissed, with the court noting the appellant failed to apply to the sentencing judge under s. 732.2(3) of the Criminal Code for such relief.

The appellant was convicted of possession of marijuana for the purpose of trafficking and possession of the proceeds of crime.

He appealed his convictions, arguing that evidence obtained during a search of his stash house should have been excluded under s. 24(2) of the Charter and that the search warrant was unlawfully obtained.

He also appealed his sentence of six years' imprisonment, a $500,000 fine, and delayed parole eligibility.

The Court of Appeal dismissed the conviction appeal, finding the Charter breaches were minor and the warrant was validly issued.

The sentence appeal was allowed in part: the delayed parole eligibility order was removed for the proceeds of crime conviction, and the fine was reduced to $75,000 due to a lack of evidence regarding the appellant's ability to pay.

The applicant sought judicial review of the Minister of Justice's surrender order, arguing he faced a serious risk of torture if returned to Arkansas due to solitary confinement and potential sexual assault.

The Court of Appeal dismissed the application, finding the Minister's decision to extradite without assurances was not unreasonable as the applicant presented no evidence to support his claims.

The appellant appealed his conviction, arguing that the search of his computer bag and the contents of his computer violated section 8 of the Charter.

The Court of Appeal dismissed the appeal, finding that the search of the bag was incidental to the computer search and the evidence was duplicative.

Furthermore, the search warrant for the computer was not overly broad as it was anchored in the specific conditions of the appellant's Long-Term Supervision Order, which prohibited internet access.

The respondent's bail hearing was delayed by four days due to an illegal strike by correctional officers.

The trial judge granted a stay of proceedings, finding the delay and the strike shocked the conscience of the community.

The Crown appealed.

The Court of Appeal allowed the appeal and set aside the stay, holding that the illegal strike was not state misconduct, the delay was brief, and there was no evidence of actual prejudice to the respondent.

The appellants were convicted of offences relating to the theft and sale of firearms.

They appealed their convictions, arguing that the trial judge erred in applying the W. (D.) framework to the accused's testimony, improperly treated a lack of memory as an undisclosed alibi, and failed to exercise sufficient caution when accepting the evidence of an unsavoury witness.

The Court of Appeal dismissed the appeals, finding that the trial judge properly applied the burden of proof, appropriately cautioned himself regarding the unsavoury witness, and provided adequate reasons in accordance with R. v. R.E.M.

The appellant sought to lay a private information against a police officer for an offence under the Highway Traffic Act.

The justice of the peace refused to receive the information because the appellant lacked the consent of a police officer required by s. 39.1(9) of the HTA.

The appellant's application for mandamus was dismissed.

On appeal, the Court of Appeal held that a prosecution is instituted when an information is laid, meaning the justice of the peace correctly refused to receive it without the required consent.

The Court also dismissed the appellant's Charter challenge, finding that differential treatment of informants based on occupation does not violate s. 15(1).

The appellant pleaded guilty to carrying a weapon, unlawful confinement, and assault against his former girlfriend.

He was sentenced to nine months' imprisonment and two years' probation.

He appealed the sentence, arguing he should have been permitted to serve it in the community.

The Court of Appeal found that while the sentencing judge erred in assigning sole responsibility for delay to the appellant and in treating his initial minimization of the offence as an aggravating factor, the refusal of a conditional sentence was ultimately correct given the planned nature of the offence, the use of a weapon, and the significant psychological harm to the victim.

The appeal was dismissed.

The appellant appealed from an order upholding a committal order made by a preliminary hearing judge.

The Court of Appeal dismissed the appeal for the reasons given by the reviewing judge, while endorsing the reviewing judge's remark that the extent of the preliminary hearing judge's questioning of witnesses was difficult to understand or condone.