P. Andras Schreck

B.H., charged with sexual assault and other offences, brought a motion for directions to determine if voicemail messages left by the complainant for him were "records" under s. 278.1 of the Criminal Code.

The court analyzed whether the complainant had a reasonable expectation of privacy in these messages, considering the nature of the information and the context of their creation.

The court concluded that the complainant did not have a reasonable expectation of privacy, and therefore the messages were not "records" requiring an application under ss. 278.93 and 278.94 for admission at trial.

S.A., charged with second-degree murder, applied for judicial interim release.

The Crown opposed release on secondary and tertiary grounds.

The court found a substantial likelihood that S.A. would commit further offences if released, citing strong evidence of involvement in the murder, a prior bail breach, and other outstanding charges.

The proposed release plan, including electronic monitoring and sureties, was deemed insufficient given S.A.'s apparent disregard for consequences.

The COVID-19 pandemic's relevance to the secondary ground was considered but not found to be a significant deterrent for the applicant.

The application for release was dismissed.

S.H., a 19-year-old with a lengthy youth record, was detained on secondary and tertiary grounds for firearm possession offences after a loaded handgun was found on him while being treated for gunshot wounds.

He applied for a bail review, arguing that the COVID-19 pandemic constituted a material change in circumstances, increasing his risk in custody and providing a strong incentive to comply with bail conditions, especially with electronic monitoring.

The court considered the strong Crown case, gravity of the offence, and circumstances of the offence, which favored detention.

However, it also weighed the public health imperative of reducing inmate populations during the pandemic, supported by expert epidemiological evidence, and the anticipated trial delays.

The court found that with strict conditions, including electronic monitoring via Recovery Science Corporation (RSC) for GPS tracking, the applicant could be safely released, thereby enhancing public confidence in the administration of justice by contributing to public health efforts.

Z.A., in custody for 11 months awaiting trial on criminal harassment and probation breach charges, sought a review of his detention under s. 525 of the Criminal Code.

The Crown opposed release on secondary grounds, citing Z.A.'s history of harassing conduct and related convictions.

The court considered the COVID-19 pandemic and the passage of time but found a substantial likelihood of Z.A. committing further offences, given his persistent pattern of harassment despite warnings and previous convictions.

The application for release was dismissed.

The applicant, J.R., charged with serious firearms and drug offences, sought a bail review under s. 525 of the Criminal Code after being detained for over 90 days.

The court considered the secondary and tertiary grounds for detention, particularly in light of the COVID-19 pandemic and the passage of time.

The court found no substantial likelihood of the applicant committing further offences given the proposed electronic monitoring and sureties.

On the tertiary ground, the court emphasized the public health implications of incarceration during the pandemic, relying on expert evidence, and noted the Crown's unreasonable delay in disclosure.

The court concluded that continued detention was not justified and ordered the applicant's release on strict conditions.

The accused, D.B., was charged with multiple counts of sexual assault, robbery, and other offenses involving two complainants, L.G. and E.H., on a single indictment.

D.B. applied to sever the charges relating to L.G. from those relating to E.H. and also sought to admit evidence under s. 276 of the Criminal Code regarding L.G.'s past willing sexual services for drug debts.

The court granted the severance application, finding insufficient factual nexus between the incidents and a significant risk of propensity reasoning by the jury.

It also determined that the Crown's similar fact evidence application was unlikely to succeed.

The s. 276 application was dismissed, as the proposed evidence was deemed inadmissible under s. 276(1) and (2) of the Criminal Code, serving no purpose other than to support an inference of past consent, which is prohibited.

The appellant, M.R., appealed his convictions for sexual assault, arguing that his right to an interpreter under s. 14 of the Charter was infringed.

His Swahili interpreter was only partially accredited and made several significant errors during his testimony, which M.R., who had some English proficiency, corrected.

The trial judge declined a renewed objection to the interpreter, relying on M.R.'s ability to self-correct.

The Superior Court of Justice found that the trial judge erred by relying on the appellant to safeguard his own constitutional right to a competent interpreter and by failing to conduct a further inquiry into the interpreter's competence despite clear indications of inaccuracies.

The court emphasized that the right to a competent interpreter is unqualified and a denial of this right is inherently prejudicial.

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

The appellant appealed convictions for accessing child pornography, arguing an infringement of his s. 11(b) Charter right to a trial within a reasonable time.

The appeal court applied the R. v. Jordan framework, finding that the net delay, after deducting defence-caused delay and exceptional circumstances (judicial scheduling conflict, judge's unilateral shortening of trial), fell below the 18-month ceiling for the Ontario Court of Justice.

The court also determined that the one-month period for deliberation was defence delay due to counsel's scheduling conflict.

Consequently, the transitional exceptional circumstance was not applicable, and the appeal was dismissed.

Jeffrey Persad pleaded guilty to firearms and drug trafficking offences.

The parties jointly submitted a nine-year imprisonment sentence, with standard credit for presentence custody.

The dispute centered on enhanced credit for harsh conditions at the Toronto South Detention Centre (TSDC), where the offender experienced frequent lockdowns due to staff shortages.

The Crown proposed an additional 0.5:1 credit for lockdown days, while the offender sought 2.5:1.

The court, acknowledging the inhumane and persistent conditions at the TSDC as deliberate state misconduct, awarded an enhanced credit of 1.5:1 for each of the 475 lockdown days, in addition to the standard 1.5:1 credit for 1010 days in custody.

The final sentence was nine years, effectively reduced to 33 months after all credits.

The appellant, unrepresented at trial, was convicted of impaired care or control and refusing a breath sample.

The appeal court found that the trial judge failed to adequately assist the unrepresented accused by not explaining the essential elements of the offences, particularly regarding the evidentiary shortcut for care or control and the reverse onus for reasonable excuse in refusing a breath sample.

This failure resulted in an unfair trial, constituting a miscarriage of justice.

The curative proviso was deemed inapplicable.

The appeal was allowed, convictions set aside, and a new trial ordered on both counts.

The appellant, a police officer, appealed his conviction for assault and the conditional discharge imposed after he forcibly removed a motorist from a car.

The appellant claimed the motorist assaulted him by slamming a car door on his knee, justifying the arrest.

The trial judge rejected this account, finding no lawful authority for the appellant's actions and no assault by the motorist.

The appeal court dismissed the appeal, affirming the trial judge's factual findings and credibility assessment, and finding no legal errors or misapprehension of evidence in the conviction or sentence.

Samantha Brown pleaded guilty to impaired driving causing death, failing to comply with a recognizance, and possession of cocaine.

The court considered aggravating factors including a prior impaired driving conviction, driving without a license while on bail, and an ongoing pattern of dangerous driving.

Mitigating factors included a guilty plea, sincere remorse, motivation for treatment, and family support.

The court balanced deterrence, denunciation, and rehabilitation, imposing a sentence of six and a half years imprisonment (five years and three months after pre-sentence custody credit) for impaired driving causing death, with concurrent sentences for the other charges, and a five-year driving prohibition commencing at the end of imprisonment.

The appellant, Ashwin Senthamilselvan, appealed his convictions for two counts of sexual assault and his sentence, which arose from incidents at a "haunted house" event.

The trial judge had found him guilty, relying in part on adverse inferences drawn from the appellant's failure to apologize to one complainant and his failure to question family members about the second alleged assault.

The Superior Court of Justice allowed the appeal, finding that the trial judge erred by impermissibly relying on assumptions and generalizations about how an innocent person would behave.

Such reasoning, particularly when based on misapprehensions of evidence, was deemed unsound and unsafe.

The court emphasized the need for caution in applying "common sense" to unusual or stressful circumstances and in drawing inferences from an accused's post-allegation conduct or silence.

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

The defendant was charged with dangerous driving causing death after making an illegal U-turn that resulted in a fatal collision with a motorcycle.

The court found that the defendant's driving was objectively dangerous, thus establishing the actus reus of the offence.

However, the court acquitted the defendant, concluding that while the driving constituted a departure from the standard of care, it did not amount to a "marked departure" required for criminal fault, but rather a single, momentary error in judgment.

The decision emphasized the distinction between civil negligence and criminal conduct, relying on Supreme Court of Canada jurisprudence.

The Ontario Review Board recommended an inquiry to determine if criminal proceedings against Ms. McDonald, who was found unfit to stand trial for arson, should be stayed.

Following a joint recommendation from counsel and an assessment confirming permanent unfitness and low public threat, the court ordered a stay of proceedings.

The decision considered the seriousness of the offence, the salutary effects of the stay (focus on treatment, judicial resource savings), and public confidence in the administration of justice, concluding that reasonable, well-informed persons would not expect indefinite proceedings for a permanently unfit individual.

The accused, Yaas Abdillahi, was charged with possession of controlled substances for trafficking and possession of proceeds of crime.

During his arrest, police officers used excessive force, striking him on the head with loaded firearms, which was found to be a violation of his s. 7 Charter rights.

The accused sought a stay of proceedings or, alternatively, exclusion of evidence under s. 24(1) and s. 24(2) of the Charter.

The court found that while some force was justified, striking the accused with loaded firearms was unreasonable.

However, the court denied a stay of proceedings, finding the police conduct, though serious, not egregious enough for such a drastic remedy.

The court also denied the exclusion of evidence, balancing the moderate seriousness of the breach and its impact against society's interest in an adjudication on the merits, noting no causal connection between the breach and the evidence.

The accused was found guilty on the trafficking charge and not guilty on the proceeds of crime charge due to lack of evidence.

The Charter breach's impact on sentencing was reserved for a later hearing.

Manuel Franco appealed his convictions for two counts of sexual assault and two counts of assault.

The appellant argued that the trial judge failed to reconcile adverse credibility findings regarding the complainant with the acceptance of other parts of her testimony, that the verdicts were unreasonable, and that the reasons were insufficient.

He also submitted that the trial judge erred in relying on a prior consistent statement.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly considered the complainant's credibility issues, that the verdicts were reasonable, and that the reasons were sufficient for appellate review.

The court also found no consequential error in the use of prior consistent statements.

Following a trial, Kenneth Ignacio was convicted of sexual assault involving non-consensual intercourse.

The court considered aggravating factors, including penetration and the absence of a condom, and mitigating factors, such as the offender being a youthful first offender with family support.

A significant aspect of the sentencing was the consideration of collateral immigration consequences, as Mr. Ignacio, a permanent resident, faced deportation due to any sentence of six months or more.

The court emphasized that while immigration consequences do not diminish moral blameworthiness, they must be accounted for under the principle of parity, requiring an adjustment to the sentencing range.

The Crown sought a sentence of two to three years, while the defence proposed 18 months.

The court imposed a sentence of 20 months imprisonment, along with a 20-year SOIRA order, a DNA sample order, and a no-contact order with the victim during custody.

The accused, Andrew Knight, was charged with possessing cocaine and heroin for the purpose of trafficking, found hidden in a car registered to him but also used by his paramour.

The Crown relied on circumstantial evidence to prove knowledge of the drugs.

The court found Mr. Knight's testimony regarding car ownership and his relationship suspicious but accepted that his paramour also used the car.

Applying principles of circumstantial evidence, the court determined that while an inference of guilt was strong, it was not the *only* reasonable inference, as there remained a reasonable possibility that the paramour placed the drugs without Mr. Knight's knowledge.

Consequently, Mr. Knight was found not guilty.

Siobhan O’Shea, suffering from mental illness, was arrested for impaired driving and refusing a breath sample.

The trial judge acquitted her, finding Charter breaches (s. 10(b)) for police failing to facilitate counsel contact.

The Crown appealed.

The Superior Court found the police erred in not advising O'Shea of her right to contact another lawyer after her chosen counsel was unreachable, especially given her vulnerable mental state.

This constituted a s. 10(b) breach.

The court excluded the evidence of refusal under s. 24(2) but found roadside observations were not obtained in a manner infringing the Charter.

The appeal for impaired driving was allowed, and a new trial ordered.

The appeal for refusing a breath sample was dismissed.