Andrea VanderHeyden

The court sentenced Ibrahim Khiar for manslaughter and aggravated assault after he fired eight shots at Marcel Teme, killing him, and injuring three bystanders.

The Crown sought a life sentence or, alternatively, 20 years’ incarceration with delayed parole eligibility.

The defence sought 15 years.

The court imposed 18 years, to be served concurrently with a prior sentence, and declined to delay parole eligibility.

The decision reviews the facts, aggravating and mitigating factors, the impact of systemic racism, and relevant case law on sentencing for manslaughter with a firearm.

The appellant, Cody Cuthbertson, appealed his conviction, arguing that the trial judge erred in not classifying a Charter breach as more serious.

The Court of Appeal found no error in the trial judge’s assessment of the seriousness of the breach or in the balancing of factors under R. v. Grant.

The appeal was dismissed.

This decision addresses three mid-trial applications in a first-degree murder case.

The Crown's application to read in preliminary hearing evidence of an evading witness under s. 715(1) of the Criminal Code was granted, with the court finding that evasion of service constitutes refusal to testify.

The defence's application for a directed verdict on first-degree murder was dismissed, as the court found sufficient circumstantial evidence of planning and deliberation for the jury to consider.

Finally, the defence's application to have self-defence left to the jury was granted, with the court determining there was an air of reality to the defence, even though the accused did not testify, based on the evolving circumstances of a second encounter with the victim.

The Crown appealed a stay of proceedings granted to the respondent, Christopher Musclow, for possession of fentanyl for the purpose of trafficking.

The stay was based on an alleged breach of his s. 11(b) Charter right to a trial within a reasonable time.

The total delay was 59.5 months, with 18.5 months attributed to defence delay and 21 months to exceptional circumstances (illness of a key police witness), leaving a net delay of 20 months, which is below the 30-month presumptive ceiling.

The application judge, however, found the delay unreasonable by considering the total delay, including the exceptional circumstances, when assessing if the case took "markedly longer than it reasonably should have." The Court of Appeal found this approach erroneous, clarifying that exceptional circumstances, once deducted, should not be reconsidered in the below-ceiling analysis.

The appeal was allowed, and the stay was set aside.

The applicants, Mahmoud Al-Ramahi and Atour Paul, sought a stay of proceedings or exclusion of evidence under ss. 24(1) and 24(2) of the Charter, alleging improper interception and handling of solicitor-client privileged communications during a wiretap investigation ("Project Siphon").

Al-Ramahi claimed widespread violations of his ss. 7 and 8 Charter rights due to intercepted audio calls and text messages with his lawyers.

Paul joined the application, arguing the overbroad search and "unfair advantage" to police affected him.

The court found that Al-Ramahi failed to prove improper interception or handling of audio calls but succeeded in demonstrating that his privileged text messages were improperly accessed and handled, breaching his ss. 7 and 8 rights.

The court dismissed the request for a stay of proceedings, finding it too drastic, but ordered the exclusion of all of Al-Ramahi's text messages intercepted after May 29, 2020.

Paul's application was dismissed as he did not suffer a breach of his own Charter rights and lacked standing to claim a remedy based on breaches of another's rights.

The offender pleaded guilty to manslaughter for his role in a planned drug robbery that resulted in a shooting death.

The court considered aggravating factors, including the planned nature of the robbery and its impact on the victim's family, and mitigating factors, such as the early guilty plea, remorse, community support, educational achievements, and difficult upbringing.

A key distinguishing factor from a co-accused's sentence was the offender's lack of knowledge regarding the presence of a gun.

The court also heavily weighed the onerous pre-sentence custody conditions.

The offender was sentenced to 5.5 years imprisonment before statutory credit.

Patrick Williams pleaded guilty to one count of conspiracy to commit robbery and one count of impaired driving.

The court considered the serious nature of the uncommitted robberies (including planned home invasions), the offender's related criminal record, and the impaired driving incident as aggravating factors.

Mitigating factors included the offender's youth, guilty plea, harsh pre-sentence custody conditions during the pandemic, and a disadvantaged background marked by anti-Black racism.

The Crown sought a three-year prison sentence, while the defence sought 12 months.

The court imposed a total sentence of 30 months imprisonment, but due to pre-sentence custody credit, the effective sentence was one day in prison (time served).

Awaleh Ismail Hassan pleaded guilty to possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code, stemming from a shootout where his friend was killed and he was injured.

The Crown sought a sentence of three years and six months imprisonment, while the defence requested a suspended sentence or time served.

The court considered the paramount principles of denunciation and deterrence for gun-related crimes, alongside significant mitigating factors including the accused's guilty plea, remorse, difficult background, lack of relevant criminal record, family support, and the harsh conditions of his pre-sentence custody, including medical neglect and the impact of anti-Black racism.

The court sentenced Mr. Hassan to two years less one day imprisonment, with enhanced credit for pre-sentence custody, resulting in one additional day of imprisonment followed by two years probation.

Ancillary orders included a lifetime weapon prohibition and a DNA order.

The applicant brought a Charter application under sections 8 and 24(2) to exclude ammunition discovered during a police search of his residence.

The applicant argued the Information to Obtain (ITO) the search warrant lacked reasonable grounds to believe ammunition would be found.

The court dismissed the application, finding the ITO met the low threshold for the 'will afford evidence' requirement and that it was a reasonable inference the applicant had additional ammunition stored at his nearby residence after accidentally shooting himself with a firearm during a robbery.

The applicant sought a stay of proceedings, alleging breaches of his Canadian Charter of Rights and Freedoms sections 7, 10(b), and 12.

The court found that police officers assaulted the applicant while he was vulnerable in a hospital bed, handcuffed, and suffering from a gunshot wound, and that his right to counsel without delay was violated.

The court accepted the applicant's evidence over the officers' and found the police conduct to be offensive to societal notions of fair play and decency.

Applying the R. v. Babo test for abuse of process, the court determined that a stay of proceedings was the appropriate remedy, as no alternative remedy could adequately disassociate the justice system from such egregious misconduct.

The appellant, Adam Kaup, appealed his convictions for drug possession and trafficking, arguing two main points: that the search warrant for his home was invalid due to insufficient grounds and misleading information in the Information to Obtain (ITO), and that the trial judge erred in finding he had constructive possession of drugs found in the basement.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision.

The court found no error in the trial judge's assessment of the ITO, concluding that it provided sufficient grounds for the warrant when viewed holistically.

Regarding constructive possession, the court affirmed that the trial judge correctly applied the law, considering all circumstantial evidence beyond mere occupancy, and reasonably concluded that the appellant had knowledge and control of the drugs.

The appellants, committed to trial for second-degree murder, successfully appealed a judicial review order that had quashed their preliminary inquiry judge's decision and directed committal for first-degree murder.

The Court of Appeal found the reviewing judge erred by substituting his view of the evidence for that of the preliminary inquiry judge, incorrectly identifying jurisdictional errors.

The preliminary inquiry judge had correctly applied the law and did not commit jurisdictional error by finding insufficient evidence for first-degree murder.

The appeal was allowed, the judicial review decision quashed, and the original committal for second-degree murder reinstated.

The appellant, Michael Trought, appealed his conviction for possession of cocaine for the purpose of trafficking.

He raised two grounds: unreasonable delay under s. 11(b) of the Charter and ineffective assistance of trial counsel.

The Court of Appeal dismissed the s. 11(b) appeal, finding the transitional exceptional circumstance applied and prejudice was not sufficiently established.

However, the court allowed the appeal on the ground of ineffective assistance, concluding that trial counsel failed to properly advise the appellant on the concept of constructive possession and agreed to a "blended procedure" (where voir dire evidence applied to the trial proper) without the appellant's informed consent.

This failure undermined the appellant's fundamental right to decide whether to testify and rendered the trial unfair.

A new trial was ordered.

The appellant, Kevin Faudar, appealed his convictions for various firearms offences, alleging ineffective assistance of counsel.

His grounds included a conflict of interest due to counsel's prior representation of a key witness (X.Y.), improper advice to testify, and general incompetence.

The Court of Appeal dismissed the appeal, finding no actual conflict of interest that impaired trial fairness, that the decision for the appellant to testify was a reasonable strategic choice given the strong circumstantial evidence of constructive possession, and that counsel's overall performance did not fall below the standard of reasonableness or result in a miscarriage of justice.

The court affirmed the convictions and the sentence.

The accused challenged the admissibility of cell phone evidence, including videos and images, on the basis of a Section 8 Charter violation (unreasonable search and seizure).

The court found that all four accused had standing to bring the challenge.

While the Information to Obtain (ITO) the search warrant for the cell phones was facially insufficient, the court considered additional information from an earlier search warrant (Appendix D) during the Section 24(2) Charter exclusion analysis.

The court determined that the Section 8 violation, though present, was not very serious, and while it had a significant impact on privacy interests, the societal interest in adjudicating the case on its merits, particularly given the reliable and important nature of the evidence (videos depicting illegal handgun possession), outweighed the breach.

Consequently, the application to exclude the evidence was dismissed.

The applicants brought a motion to exclude wiretap evidence obtained during a police investigation into the manufacturing and trafficking of converted firearms.

They argued that the police failed to demonstrate the existence of a criminal organization, failed to establish investigative necessity, and engaged in a pattern of misrepresentation that subverted the pre-authorization process.

The court found that while there were insufficient grounds to establish a criminal organization and some misrepresentations existed in the affidavits, the investigative necessity requirement was met for the firearms offences.

After excising the misleading information, the court concluded that the authorizing judge could still have granted the authorizations.

The court declined to exercise its residual discretion to exclude the evidence, finding no deliberate attempt to subvert the prior authorization process.

The application was dismissed.

The applicant sought a bail review under s. 520 of the Criminal Code, challenging his detention on secondary and tertiary grounds.

The court found a material change in circumstances due to significant trial delay and the introduction of new, more vigilant sureties (the applicant's sister and grandmother).

On the secondary ground, despite the seriousness of the charges (robbery with a firearm, arson, mischief) and rising gun violence, the court was satisfied the applicant discharged his onus, considering his lack of prior violent convictions, physical disability from a self-inflicted gunshot wound, and the strict house arrest plan.

On the tertiary ground, the court weighed the applicant's positive COVID-19 diagnosis amidst an outbreak at the detention centre, along with his youth, lack of convictions, physical disability, and the prospect of pre-trial custody approaching a potential sentence, concluding that public confidence would not be undermined by his release.

Bail was granted with stringent conditions, and the court explicitly removed "keep the peace and be of good behaviour" and "follow rules of the home" conditions, citing R. v. Zora on principles of restraint and judicial oversight of bail terms.

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 applicant, facing serious drug trafficking and firearms charges, sought a bail review under s. 520 of the Criminal Code based on a material change in circumstances.

The court found that the proposal of two new sureties, a stricter release plan including GPS monitoring, and the failure of the detention centre to address the applicant's basic medical needs constituted a material change.

The court held that the strict release plan sufficiently mitigated the secondary ground risks.

Furthermore, the institution's failure to provide adequate medical care meant that the applicant's continued detention was not necessary to maintain public confidence in the administration of justice under the tertiary ground.

The bail review was granted and the applicant was released on a recognizance.

Simeon Harty was found guilty by a jury of second-degree murder and discharging a firearm with intent.

The court considered aggravating factors, including the use of a firearm, the offender's criminal record, and being on judicial interim release in violation of conditions.

Mitigating factors included his youth, pro-social behavior, community contributions, positive conduct in detention, and rehabilitation prospects.

The jury recommended 10 years parole ineligibility.

The court, comparing the case to R. v. Grant, imposed a life sentence with 14 years of parole ineligibility for murder and a concurrent 10-year sentence (7 years 7 months after pre-sentence custody credit) for discharging a firearm with intent.

Ancillary orders for DNA, weapons prohibition, and no-contact were also made.