Alison R. Mackay

The Ontario Court of Justice dismissed Morgan Lindo’s application for a stay of proceedings under s. 11(b) of the Charter, finding that although the total delay from the swearing of the Information to the last scheduled trial date exceeded the Jordan presumptive ceiling of 18 months for provincial court trials, the net delay after deducting defence delay was just under the ceiling.

The defence failed to demonstrate meaningful and sustained efforts to expedite the trial, including delays in correcting contact information, scheduling trial conferences, and filing the 11(b) application.

The Court emphasized the need for defence counsel to act reasonably and proactively to avoid unreasonable delay and held that the delay was not markedly longer than reasonably necessary given the case complexity and local backlog.

The defendant, Georges Sarrouh, was charged with sexually assaulting his former employee, LM.

The case hinged on the credibility and reliability of the witnesses, LM, her brother CM, and the defendant.

The defence alleged that LM and CM were attempting to extort money from Sarrouh.

The court found LM and CM to be credible and reliable witnesses, while finding Sarrouh's account of extortion wanting.

The court was satisfied beyond a reasonable doubt that Sarrouh sexually assaulted LM as described and found him guilty.

The defendant, Avardeep Soni, brought an application to stay proceedings for two counts of assault and two counts of sexual assault, alleging unreasonable delay under s. 11(b) of the Charter.

The court applied the framework from R. v. Jordan, deducting defence-attributable delay (18 days for delaying JPT to pursue resolution) and exceptional circumstances delay (30 days for COVID-19 backlog and new scheduling procedures).

The net delay was calculated at 16.56 months, which is below the presumptive ceiling for provincial court.

The court found the applicant failed to demonstrate sustained efforts to expedite proceedings and that the case markedly exceeded what was reasonably required.

The application was dismissed.

Nimal Ranatunga was found guilty of sexually assaulting MF by removing a condom during consensual intercourse without her permission ("stealthing").

The victim suffered severe trauma, depression, and anxiety.

The court considered sentencing principles, including denunciation, deterrence, and rehabilitation, and the evolving legal landscape regarding non-consensual condom removal as sexual assault (referencing Kirkpatrick and Hutchinson).

While the Crown sought a 3-year penitentiary sentence, and the defence sought a 2-year conditional sentence, the court imposed a conditional sentence of two years less a day, with the first 10 months under house arrest, followed by 8 months of curfew, and 6 months of statutory terms.

Ancillary orders included a DNA order, a 10-year weapons prohibition (life for prohibited firearms), and a 20-year SOIRA order.

The court found the conditional sentence appropriate given the specific circumstances of the offence and the offender, noting the qualitative difference from sexual assaults involving physical restraint, and the offender's good rehabilitative prospects and remorse.

The defendant, Nimal Ranatunga, was charged with sexual assault.

The complainant, M.F., testified that she consented to sexual intercourse only on the condition that a condom be used.

The defendant initially complied but then removed the condom during intercourse without M.F.'s knowledge or consent.

The court applied the principles from R. v. Kirkpatrick regarding non-consensual condom removal.

The central issue was the credibility and reliability of the complainant and the defendant, and whether the defendant had an honest but mistaken belief in consent.

The court found M.F. to be a credible and reliable witness and rejected the defendant's claim that he informed M.F. or that her subsequent actions implied consent.

The court concluded that the defendant failed to take reasonable steps to ascertain consent for unprotected sex, finding him guilty of sexual assault.

The accused, Ameen Jazei, was found guilty of kidnapping and assault.

This decision outlines the reasons for the sentence imposed.

The court considered aggravating factors, including the use of an imitation firearm and a group attack, and mitigating factors such as his youth at the time of the offence and significant family support.

The judgment also addressed pre-sentence custody credits (Summers and Duncan credits).

The Crown sought 3.5 years in penitentiary, while the defence argued for a conditional sentence or a three-month jail term.

The court determined that a conditional sentence was inappropriate given a bail breach and subsequent serious offence.

A 12-month custodial sentence for kidnapping and a concurrent 5-month sentence for assault were imposed, followed by 2 years of probation.

The applicant, charged with sexual assault, brought an application under s. 11(b) of the Charter for a stay of proceedings due to unreasonable delay.

The total delay from the swearing of the information to the scheduled trial date was 26.35 months, exceeding the 18-month presumptive ceiling established in R. v. Jordan.

The court deducted 194 days of defence delay, including time for not promptly scheduling pre-trials and a trial scheduling conference, and 101 days for the delay in notifying the Crown of the 11(b) application.

Despite the remaining net delay of 19.98 months still exceeding the ceiling, the court found the Crown could not rely on the pandemic backlog as an exceptional circumstance because it failed to take steps to mitigate the delay once notified of the 11(b) issue.

The application was granted, and the charge was stayed.

The accused, S.C., brought an application for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to a trial within a reasonable time.

The court calculated the total delay, subtracted defence-caused delay (including failure to follow up on disclosure and counsel unavailability for earlier trial dates), and accounted for exceptional circumstances due to the COVID-19 pandemic.

The net delay fell below the presumptive ceiling.

The court dismissed the application, finding that the defence failed to demonstrate meaningful steps to expedite the proceedings and did not establish that the case took markedly longer than it reasonably should have, especially considering the pandemic's impact on the justice system.

The accused, Mr. Singh, was charged with possession of stolen property and dangerous driving.

The court considered two main issues: identification for the dangerous driving charge and knowledge/control for the possession charge.

The Crown had to prove guilt beyond a reasonable doubt.

The court found the identification evidence for dangerous driving unreliable due to its generic nature, the fleeting opportunity for observation, and the delay in the officer's note-taking, leading to an acquittal on that count.

For the possession charge, despite the doctrine of recent possession and the accused providing a false name, the court found no evidence that Mr. Singh had control over the stolen vehicle, as he was merely a passenger.

Consequently, Mr. Singh was acquitted on both counts.

The accused, Robert Stack, brought a Charter challenge to a search warrant issued for his Samsung tablet, alleging misleading statements in the Information to Obtain (ITO) and overreaching in the request to search cloud-based storage.

The charges against him included communicating with a person under 16 for sexual assault and interference, arising from an undercover police operation on the Grindr app.

The court found that while some statements in the ITO were misleading and were excised, they were not deliberately so.

The court also found that the request to search cloud storage was not overreaching given common technological practices.

Ultimately, the court upheld the warrant, concluding that there were reasonable and probable grounds for its issuance and that the police conduct did not subvert the pre-authorization process.

The defendant brought a motion to exclude evidence obtained pursuant to a search warrant executed on his home and personal computer, arguing that there were no reasonable grounds for the warrant's issuance and that the search violated his Charter rights under section 8.

The defendant raised three grounds: typographical errors in the Information to Obtain, staleness of information due to a two-month delay, and insufficient corroboration of the evidence.

The court found that the errors were inadvertent and correctable, that the delay was not fatal given the nature of digital evidence and forensic retrieval capabilities, and that sufficient corroboration existed.

The motion was dismissed and the warrant was upheld as valid.

The applicants challenged the constitutional validity of step six of the Garofoli procedure, arguing it violates section 7 of the Charter by preventing them from making full answer and defence.

The applicants contended that judicial summaries of redacted information in an Information to Obtain (ITO) do not provide sufficient disclosure to know the case they must meet.

The court rejected the constitutional challenge, finding that step six does not breach section 7 rights because it is a pre-trial evidentiary hearing on admissibility, not a trial on guilt or innocence, and the procedure appropriately balances the accused's right to make full answer and defence against the near-absolute privilege of confidential informants.

The defendants brought a preliminary motion seeking to excise from an Information to Obtain (ITO) a search warrant references to the unlawful search of a third party's vehicle in which cocaine was found.

The search had been previously determined to be unlawful by another justice.

The Crown opposed the excision, arguing the defendants lacked standing to challenge a third party's search.

The court held that while the defendants could not challenge the lawfulness of the third party search itself, they could seek excision of evidence obtained through a judicially determined Charter breach to prevent the state from benefiting from illegal police conduct.

The court granted the motion and excised all references to the stop, arrest, and seizure from the third party's vehicle.

The defendant was charged with driving in excess of 80 milligrams.

The information was sworn on January 11, 2016, and the trial was scheduled to commence on November 2, 2017—approximately 22 months later.

The trial was the third scheduled trial date.

The first trial date was not reached.

The second trial date commenced but was abandoned when defence counsel requested a mistrial after an incident with a police witness.

The defendant brought a Charter section 11(b) application alleging a breach of the right to trial within a reasonable time.

The court found the delay exceeded the presumptive ceiling of 18 months established in R. v. Jordan and that the Crown failed to take reasonable steps to mitigate delay arising from exceptional circumstances.

The charge was stayed.

This is a preliminary inquiry ruling on committal following a shooting incident on November 17, 2016, in which two defendants were jointly charged with multiple offences including attempt murder and aggravated assault.

The Crown sought committal on all charges; the defence conceded committal on most counts but contested the attempt murder charges and one aggravated assault count.

The court applied the well-settled test for committal, requiring assessment of whether sufficient evidence exists to permit a properly instructed jury to convict.

The court found sufficient circumstantial evidence to commit both defendants on attempt murder, based on the nature and location of gunshot wounds to vital areas, the number of shots fired, evidence of planning and coordination, and the circumstances of the shooting.

The court also committed both defendants on aggravated assault and various firearm-related offences.

The accused was charged with failing to comply with an approved screening device (ASD) demand under section 254(5) of the Criminal Code.

The Crown alleged the accused was feigning to blow and did not provide a suitable sample despite being given seven opportunities.

The accused brought Charter arguments under sections 8 and 9 to exclude evidence of his refusal.

The court found violations of both sections 8 and 9 but admitted the evidence under section 24(2) after balancing the Grant factors.

On the substantive charge, the court found the accused intentionally failed to provide a suitable sample and convicted him as charged.

The accused was convicted of sexual assault following a trial.

The Crown sought a custodial sentence of 9 to 12 months, while the defence sought a conditional sentence.

The court imposed a custodial sentence of 90 days to be served intermittently, followed by one year of probation with conditions including no contact with the victim, attendance at sexual offender treatment, and a 500-meter exclusion zone.

The court found that while the conditions for a conditional sentence were technically met, the gravity of the offence and the need for denunciation and deterrence required incarceration.

The accused brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that his right to be tried within a reasonable time had been infringed.

The charge was laid on December 12, 2015, with trial scheduled for January 15-16, 2017, resulting in a total delay of approximately 12 months and 4 days.

The court applied the new framework established in R. v. Jordan, 2016 SCC 27.

Although the Crown failed to provide timely disclosure of the breath video (a critical piece of evidence in a refuse breath sample case), and defence counsel did not proactively pursue pre-trial procedures, the net delay fell well below the 18-month presumptive ceiling for provincial court trials.

The court found that the defence failed to establish that the case took markedly longer than it reasonably should have, and dismissed the application.

The applicant brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that his right to be tried within a reasonable time had been breached.

The applicant was charged with two drunk driving offences on May 18, 2015, with trial scheduled for October 24-26, 2016, resulting in a total delay of 17 months and 8 days.

The court applied the framework established in R. v. Jordan, 2016 SCC 27, which sets an 18-month presumptive ceiling for Ontario Court of Justice matters.

The court found that while the delay fell below the ceiling, the applicant failed to meet the onus of establishing that the case took markedly longer than reasonable.

The court dismissed the application, finding that the applicant did not take meaningful steps to expedite proceedings, particularly by failing to pursue Crown pre-trials or judicial pre-trials, and that both parties had limited availability for trial dates.