Alan J. Risen

The accused brought an application seeking increased legal aid funding for defence counsel to cover the full estimated budget for a constitutional challenge.

The court dismissed the application, finding that while the state has a constitutional obligation to ensure fair trials for indigent accused, the accused's right to a fair trial (not a perfect trial) was not imperiled by the shortfall of approximately $3,000 between the legal aid budget and the defence budget.

The court acknowledged the financial burden on defence counsel accepting legal aid certificates but held that absent evidence that no competent counsel would accept the certificate, the application must fail.

The Crown appealed the acquittal of the respondent, Dhanbir Shergill, on a charge of careless driving under the Highway Traffic Act, following a fatal collision involving a TTC bus he was driving.

The trial judge had dismissed the charge, relying on an inapplicable legal principle and misapprehending critical evidence regarding pedestrian right-of-way and the bus's movement.

The Superior Court found that the trial judge erred in relying on the Globocki principle and in failing to consider key evidence from witnesses and accident reconstruction.

The appeal was allowed, the acquittal set aside, and a new trial ordered, as the appellate court deemed it inappropriate to enter a conviction without a proper assessment of evidence by a trier of fact.

The accused was charged with one count of sexual assault.

The complainant had a "blackout" regarding the sexual encounter and could not recall if she consented.

The accused testified the encounter was consensual, involving touching and masturbation, but denied intercourse.

DNA evidence confirmed the accused's semen in the complainant's vagina, consistent with penile or digital penetration.

The court applied the W.D. test, finding insufficient evidence to prove lack of consent beyond a reasonable doubt, leading to an acquittal.

The defendant brought an application to quash a replacement information for alleged non-compliance with section 504 of the Criminal Code, specifically challenging the sufficiency of information provided to the intake Justice of the Peace and the failure to verbally administer an oath when laying the information.

The defendant was originally charged with one count of "Over 80" but the Crown sought replacement charges of Impaired Causing Bodily Harm and Exceed Causing Bodily Harm.

The court dismissed the application, finding that the presumption of regularity applied and that the defendant failed to establish an evidentiary attack on the validity of the information on a balance of probabilities.

The accused brought an application to question potential jurors for cause, arguing that the "Me Too" Movement had potentially affected juror impartiality, making them more likely to convict in sexual assault cases.

The Crown opposed, asserting this constituted an impermissible offence-based challenge.

The court dismissed the application, reaffirming that strong public opinions or views about a type of crime do not automatically translate into juror partiality against an accused.

The court emphasized that the trial process, including juror oaths and judicial instructions, is designed to ensure impartiality, and that the "Me Too" Movement, by raising awareness, reinforces the seriousness of such offences rather than undermining the rule of law.

The accused was charged with two counts of impaired driving causing bodily harm and two counts of over 80 causing bodily harm following a motor vehicle collision.

The Crown and defence presented an agreed statement of facts.

The accused challenged the admissibility of breath samples on Charter grounds, alleging breaches of Sections 8, 9, and 10.

The court found that while the arresting officer failed to make a formal breath demand (breaching Section 9), the evidence was admissible under the Grant analysis.

The court convicted on both counts of over 80 causing bodily harm but acquitted on the impaired causing bodily harm counts, finding insufficient evidence of impairment beyond the BAC reading.

The accused was charged with being in care and control of a motor vehicle while impaired by alcohol and having a blood alcohol level exceeding 80 mgs. per 100 mls. of blood, contrary to section 253(1)(a) and (b) of the Criminal Code.

The accused was found asleep behind the wheel of his van with the engine running and keys in the ignition.

The Crown relied on the rebuttable presumption in section 258(1)(a) and alternatively on establishing de facto care and control by demonstrating a realistic risk of danger.

The defence argued the accused entered the vehicle solely to charge his dead cell phone and had no intention to drive.

The court found the accused rebutted the presumption and that the Crown failed to establish de facto care and control on a realistic risk analysis.

The accused was acquitted of both charges.

The appellant appealed his conviction for sexual assault, arguing the trial judge reversed the burden of proof on consent, failed to adequately scrutinize the complainant's evidence, and erred in assessing his police statement.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error.

The trial judge correctly applied the burden of proof, reasonably assessed credibility, and properly concluded the complainant was asleep during the sexual encounter.

At a preliminary inquiry, the accused bus driver was charged with dangerous driving causing death and failing to stop after an accident with intent to escape civil or criminal liability, following the death of a 14-year-old passenger struck by his bus at the intersection of Finch Avenue East and Neilson Road in Toronto on December 19, 2014.

The Crown sought committal to trial.

The court found that the evidence did not establish a marked departure from the standard of care required for dangerous driving, and there was no evidence the accused was aware of the accident.

The accused was discharged and not committed to trial.

The accused was convicted after trial of sexual assault for engaging in sexual intercourse with a sleeping friend following a night of drinking.

The court considered aggravating factors including the seriousness of the offence and the breach of trust between friends, and mitigating factors including the offender’s lack of prior criminal record, good character, supportive family, and prospects for rehabilitation.

The court reviewed sentencing principles under ss. 718 and 718.1 of the Criminal Code and authorities establishing the typical custodial range for sexual intercourse with an unconscious victim.

Finding the case fell within the upper reformatory range but did not require a penitentiary sentence, the court imposed a custodial term followed by probation and ancillary orders.

The accused was tried for sexual assault arising from sexual intercourse with his best friend after an office Christmas party involving heavy drinking and marihuana use.

The central issue was consent, with the Crown alleging the complainant was asleep during the intercourse.

The court accepted the complainant's evidence as credible and reliable, found no evidentiary basis to infer that she awoke and consented, and applied the requirement that consent be a conscious, active agreement throughout the sexual activity.

Although the court was cautious about admissions potentially grounded in false memories, it found the remaining circumstantial evidence proved lack of consent beyond a reasonable doubt.

The accused was found guilty.

In a judge-alone sexual assault trial, the defence sought to call expert opinion evidence on memory to challenge the reliability of the accused's apparently inculpatory police statement and apology letter.

Applying the Mohan and Abbey framework, the court held that the proposed evidence was logically and legally relevant, necessary to assist the trier of fact on technical concepts concerning false and illusory memory, and not barred by any exclusionary rule.

The court also found that the benefits of admission outweighed any minimal litigation costs or risk of confusion.

The defence expert was therefore permitted to testify in specified memory-related areas, though not in the broader fields of cognitive psychology and memory generally.

In this pre-trial admissibility ruling in a sexual assault prosecution, the court considered whether the accused's police statement, apology letter, and consensual buccal swab should be excluded.

Applying the confessions rule, the court held the statement was voluntary, rejecting arguments that the interviewing officer used subtle compulsion, inducements, or implied leniency.

The court also found no breach of ss. 8 or 10(b) of the Charter, holding that the letter and DNA sample were provided with valid consent and that the accused was properly informed of his right to counsel but never asserted it.

The Charter application was dismissed and the statement was ruled admissible at trial.

The defendant was charged with failing to stop at an accident scene, being in care or control of a motor vehicle while impaired, and having a blood alcohol level exceeding 80 mg per 100 mL of blood.

The defendant collided with a parked vehicle in Oshawa and left the scene.

Police observed signs of impairment and arrested the defendant.

The defendant challenged the arrest on Charter grounds, arguing the police lacked reasonable and probable grounds and violated his right to counsel.

The court found the police had proper grounds for arrest and that the defendant's right to counsel was properly respected.

The defendant was found guilty on all charges.

The accused was charged with four counts: sexual assault and sexual touching (s. 151) of his daughter, and sexual assault and sexual touching of another young complainant.

The defence brought a s. 540(9) application seeking permission to cross-examine the two young complainants regarding evidence the Crown intended to tender under s. 540(7) at the preliminary inquiry.

The Crown opposed cross-examination on grounds that it would cause trauma to the young witnesses.

The court granted the application, permitting cross-examination on specific areas of inquiry deemed relevant to the defence's preparation and the discovery function of the preliminary inquiry, while implementing protective measures including closed-circuit television testimony to minimize trauma.

A youth was convicted of four counts of sexual assault, sexual interference, invitation to sexual touching, and exposing his genital organs against a young male victim.

The trial spanned nine days and involved testimony from the victim, the accused, and five other witnesses.

The court found the accused guilty of all charges relating to the victim but acquitted him of charges relating to a second complainant due to insufficient proof of force.

At sentencing, the Crown sought custody followed by probation, while the defence opposed custody.

The court imposed a custodial sentence of four months in closed custody followed by two months of community supervision, with an additional year of probation, a DNA order, and an 18-month weapons prohibition.

A motion for a new trial brought after a finding of guilt and before sentencing in a youth criminal justice matter involving sexual assault charges.

The defendant sought to adduce fresh evidence based on a letter from the victim's grandfather that suggested the victim had disclosed additional incidents of sexual abuse not mentioned at trial.

The defendant also argued the letter created a reasonable apprehension of bias.

The court dismissed both the application to adduce fresh evidence and the motion for mistrial, finding that the fresh evidence did not meet the Palmer criteria and that the grandfather's letter did not undermine the court's impartiality.

The appellant, a 19-year-old first offender, pleaded guilty to aggravated sexual assault against a young child and was sentenced to a penitentiary term with a lifetime section 161 prohibition order.

On appeal, the Court of Appeal upheld the custodial sentence and pre-sentence custody credit, emphasizing deterrence and denunciation.

However, the Court found the lifetime section 161 prohibition order unfit and reduced it to 10 years.

The appellant appealed his convictions for unlawful confinement and assault causing bodily harm.

He argued the trial judge applied unequal scrutiny to the evidence and erred in admitting his statement.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed the evidence, including the complainant's injuries and the improbability of the appellant's version of events.

The court also noted that the appellant's statement was exculpatory and its admission did not affect the outcome.

The appellant was charged with impaired driving and 'over 80'.

Her trial was held 14.5 months after her arrest, with the delay caused solely by limits on institutional resources.

The trial judge dismissed her motion for a stay under s. 11(b) of the Charter.

The summary conviction appeal court allowed her appeal and entered a stay, but the Court of Appeal restored the conviction.

The Supreme Court of Canada dismissed the appeal, holding that the delay was not unreasonable given the strain on institutional resources and the absence of any significant prejudice to the appellant.

The Court established guidelines for acceptable institutional delay in Provincial Courts.