Criminal and Quasi-Criminal Law - ONCA

The Court of Appeal for Ontario dismissed Doug Lloyd’s appeal from the Superior Court’s refusal to extend time for judicial review of the Crown’s decision to stay his private prosecution against Bell Canada.

The court held that prosecutorial discretion is only reviewable for abuse of process, which requires egregious conduct.

The application judge made no error in law or fact, and the Crown’s decision not to consider expert evidence or to stay the prosecution on public interest grounds did not amount to an abuse of process.

The appellants, Gavin MacMillan and Enzo De Jesus Carrasco, appealed their convictions for sexual assault and administering a stupefying substance, and their nine-year sentences.

They argued the trial judge erred in admitting expert evidence, excluding evidence of the complainant's prior sexual activity, instructing the jury on consent (specifically regarding orgasms), and demonstrating a reasonable apprehension of bias.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions and sentences.

The court affirmed the trial judge's rulings on expert evidence necessity and impartiality, the proper application of s. 276 of the Criminal Code regarding consent and prior sexual activity, and found no reasonable apprehension of bias.

The sentences were deemed fit and not demonstrably unfit.

The appellant, S.M., appealed convictions on eight counts related to human trafficking for sex work and assault causing bodily harm, as well as the imposed sentence.

The Court of Appeal dismissed both the conviction and sentence appeals.

Key issues included the application of the s. 276 screening procedure to sex trafficking offences and the trial judge's credibility findings.

The court also addressed the appellant's argument regarding the trial judge's failure to consider systemic anti-Black racism in sentencing, finding no error as the issue was not raised at trial and no foundation was laid.

The young person appellant appealed a finding of guilt for sexual assault.

The appellant argued the verdict was unreasonable, the trial judge erred in assessing the defence of honest but mistaken belief in consent, and the trial judge misapprehended evidence from other witnesses.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility assessments, no air of reality to the mistaken belief defence, and no misapprehension of the evidence.

The appellant was convicted of aggravated assault and uttering a threat to cause death.

The appeal centered on the alleged ineffective assistance of trial counsel, specifically the unauthorized disclosure of the appellant's statement to the Crown and its subsequent use in cross-examination, which impacted the trial judge's assessment of his credibility.

The Court of Appeal admitted fresh evidence and found that trial counsel's conduct fell below the standard of a reasonable professional, leading to a miscarriage of justice due to both trial unfairness (unilateral waiver of the right to silence) and an unreliable verdict.

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

The appellant, who was found not criminally responsible, appealed a disposition of the Ontario Review Board continuing his detention and a decision that a temporary hold on his indirectly supervised community passes did not constitute a significant restriction of liberty requiring a mandatory hearing.

The Court of Appeal dismissed the appeal, finding that the Board reasonably concluded the appellant's continued detention was the least onerous and least restrictive disposition given his recent decompensation.

The Court also upheld the Board's application of the Campbell framework, agreeing that the temporary restriction on privileges was a day-to-day clinical management decision that did not meet the threshold of a significant increase in liberty restrictions.

An appeal from a sentence imposed by the Ontario Court of Justice.

The Court of Appeal issued an addendum clarifying that the appellant was to be freed on November 4, 2019, and that the sentences imposed were concurrent and therefore complete as ordered.

The applicant sought appointment of counsel on appeal pursuant to section 684(1) of the Criminal Code following his conviction for second-degree murder and life sentence.

The initial application was dismissed on the basis that the applicant had not established insufficient means to retain counsel.

On renewal, the applicant provided comprehensive financial disclosure including tax returns, property assessment, and pension information, along with evidence of a separation agreement executed prior to trial.

The court found the applicant had insufficient means and appointed counsel, conditional upon the applicant entering into a contribution agreement to pay $500 per month toward legal expenses commencing April 1, 2018.

The appellant sought leave to appeal a decision of the summary conviction appeal court, arguing that the judge erred in inferring an agreement under s. 786(2) of the Criminal Code to regularize proceedings instituted beyond the limitation period.

The Court of Appeal refused leave to appeal, finding that the judge had an adequate evidentiary foundation to infer the agreement.

The court held that the correctness of this conclusion raised a question of mixed fact and law, which cannot be appealed under s. 839(1)(a) of the Criminal Code.

The appellant appealed his conviction under ss. 153(3) and 160 of the Customs Act for defrauding Canada Customs by retaining rather than remitting duties and taxes.

He argued that the trial judge's reasons were insufficient, applied the wrong burden of proof, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons were sufficient and clearly demonstrated the appellant's knowledge of the fraudulent activity as the directing mind of the company.

The court also found no error in the application of the burden of proof and concluded that the verdict was reasonable based on ample evidence.

The appellant challenged convictions arising from sexual activity with a complainant under the age of consent and sought leave to appeal sentence.

The court held that, given the significant age difference, the complainant's youth, and the circumstances of the first meeting, a reasonable person would have taken significant steps to ascertain age, and the appellant took none.

The conviction appeal was therefore dismissed.

Leave to appeal sentence was granted, but the consecutive penitentiary sentences, including for possession of child pornography, were upheld under the totality principle.

The applicant, convicted of second-degree murder following a fatal altercation at a bar, applied for judicial interim release pending his appeal.

The central issue on appeal was causation, with the applicant seeking to introduce fresh expert evidence suggesting the deceased died from alcohol concussion syndrome triggered by a co-accused's subsequent punch, rather than the applicant's initial assault.

The Court of Appeal found that the proposed fresh evidence raised an arguable ground of appeal, satisfying the requirement that the appeal not be frivolous.

Concluding that the applicant's detention was not necessary in the public interest, the court granted release pending appeal on strict conditions.

The appellant, who was found not criminally responsible on account of mental disorder, was living in the community subject to a reporting condition.

After failing to report, he was apprehended and detained in a secure hospital unit.

The hospital and the Review Board failed to hold a restriction of liberty hearing 'as soon as practicable' as required by the Criminal Code, resulting in a delay of several months and a breach of the appellant's s. 7 Charter rights.

The Board eventually ordered his return to the community but allowed the hospital up to 60 days to release him, increased his reporting to weekly, and refused to grant an absolute discharge.

On appeal, the Court of Appeal upheld the refusal of an absolute discharge and the increased reporting requirement, but set aside the 60-day delay and the Board's guideline that hearings should generally be held within 30 days, finding no evidentiary basis for those timeframes.

The appellant appealed his conviction for aggravated assault arising from a fist fight at a football game.

He argued the trial judge erred in denying an adjournment to obtain a transcript for a section 11(b) Charter application, and in failing to apply the principles of R. v. W.(D.) when assessing credibility.

The Court of Appeal found no error in the denial of the adjournment.

However, the Court allowed the appeal and ordered a new trial because the trial judge's reasons suggested she believed the Crown witnesses simply because she disbelieved the defence witnesses, contrary to the W.(D.) principles.

The appellant appealed an order directing that electronic images of the hard drives of two computers seized from her be sent to France pursuant to warrants issued under the Mutual Legal Assistance in Criminal Matters Act.

The appellant argued the warrants lacked reasonable and probable grounds.

The Court of Appeal dismissed the appeal, finding sufficient evidence to support the issuing judge's conclusion that the appellant's common-law spouse was likely communicating with other members of a terrorist plot using the seized computers.

The appellant appealed his conviction for sexual assault, arguing that the trial judge's reasons were inadequate and the verdict was unreasonable.

The Court of Appeal found that the trial judge properly grappled with the central issue of the complainant's lack of consent and reasonably accepted expert evidence regarding forced sexual intercourse.

The court concluded the reasons were sufficient and the verdict was supported by ample evidence.

The appeal was dismissed.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred in refusing a mistrial, making improper rulings on character evidence and cross-examination on criminal records, failing to leave the defence of provocation with the jury, and giving improper jury instructions on intent and a rolled-up charge.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion regarding the mistrial, struck an appropriate balance on character evidence, correctly concluded provocation had no air of reality, and adequately instructed the jury on intent and intoxication.

The appellant appealed his convictions on the basis of inconsistent verdicts.

He had admitted participation in all charged offences but relied on the defences of duress and necessity, which applied equally to all crimes as part of a single transaction.

The Court of Appeal found that the jury must have reached an unjustifiable compromise, allowed the appeal, set aside the convictions, and entered acquittals.

The young person appealed a conviction for sexual assault, arguing the trial judge misapplied the W.(D.) principles regarding credibility and reasonable doubt.

The trial judge had convicted the appellant on the basis that the complainant withdrew her initial consent to sexual intercourse, but the appellant continued the sexual activity.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the entirety of the evidence, including inconsistencies and corroborating evidence such as bruising, and made a credibility assessment that was open to him.

The appellant appealed his convictions for kidnapping, extortion, assault, and uttering a death threat.

The charges arose from an incident where the appellant and co-accused kidnapped the victim, forced him into a car, and assaulted him.

The appellant argued the trial judge erred in admitting a 911 call under the principled exception to the hearsay rule, in his jury instructions regarding conceded facts and identity, and in allowing prior consistent statements to enhance a witness's credibility.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's rulings or jury instructions, and noting the overwhelming strength of the Crown's case.