Anne M. Molloy

The defendant/applicant brought a certiorari application to quash his committal for trial on a charge of rape contrary to the former s. 144 of the Criminal Code, alleged to have occurred between July 1980 and July 1981.

The complainant testified she had no memory of events between being at a bar and waking up during intercourse with the accused, and stated she would not have consented.

The applicant argued the preliminary inquiry judge failed to engage in the limited weighing of circumstantial evidence required by Arcuri.

The reviewing court held that the preliminary inquiry judge correctly applied the committal test, finding available circumstantial evidence sufficient to support an inference favourable to the Crown, and that the existence of competing inferences was irrelevant at this stage.

The application was dismissed.

Vernon Holder was charged with attempted murder and seven other violent crimes against the complainant, KP.

The court found Holder not guilty of attempted murder and threatening death, and not guilty of assault with a motor vehicle.

However, he was found guilty of aggravated assault (as a lesser included offense of attempted murder), assault with a beer bottle, assault with a wine bottle, assault with a cellphone, and assault causing bodily harm.

A common assault charge was stayed under Kienapple principles.

The judgment discusses the admissibility of a 911 call as res gestae and as part of the narrative, and applies the R. v. W.(D.) framework to assess the evidence, finding the accused's testimony to be untruthful.

The defendant, Nockeem Peck, was charged with possession of heroin for the purposes of trafficking.

He brought a Charter application to exclude the heroin as evidence, arguing it was obtained through an arbitrary detention in violation of his s. 9 Charter rights.

The court dismissed the application, finding that no detention occurred prior to a lawful arrest, as police merely approached the vehicle and observed a crime in progress before any interaction.

The court distinguished the facts from cases where police conduct constituted detention (e.g., physical obstruction or authoritative demands).

Alternatively, the court found the evidence would have been admissible under s. 24(2) of the Charter due to the minimal intrusion and good faith of the police.

Peck was subsequently convicted of possession of heroin for the purposes of trafficking.

This endorsement addresses pre-trial applications and rulings made during jury selection for the first-degree murder trial of Umar Zameer.

The court permitted challenges for cause based on publicity, the accused's race/ethnicity/religion, and connections to police officers.

Justice Molloy rejected the defence's request for multiple-choice questions, particularly those probing jurors' opinions on the criminal propensities of racial or religious groups, deeming them inquisitorial and ambiguous.

The judge emphasized an open-ended, conversational approach to questioning jurors to better assess impartiality.

The endorsement also details the reasoning for accepting two specific jurors despite objections from the Crown and defence, respectively, finding them capable of impartiality.

The trial ultimately resulted in a "not guilty" verdict for Mr. Zameer.

In a criminal case involving sexual assault charges against a physiotherapist, the defence brought a motion for directions regarding Crown disclosure of private records.

The central issue was whether documents disclosed by the Crown required an admissibility hearing under s. 278.92 of the Criminal Code, or if Crown disclosure implied a full waiver of privacy interests by the complainant.

The court, Molloy J., affirmed the binding nature of prior Superior Court decisions (R. v. J.K., R. v. Martiuk) which established a presumption that Crown disclosure constitutes a full waiver, negating the need for a s. 278.92 hearing.

However, the judge found that in this specific case, the Crown had failed to obtain proper, informed waivers from the complainants.

This lack of valid waivers constituted "evidence to the contrary," rebutting the presumption.

Consequently, the court ruled that admissibility hearings under s. 278.92 would indeed be required for the disclosed records.

Jason Georgopoulos was charged with dangerous driving causing bodily harm after crashing his Lamborghini while attempting to pass a streetcar at high speed, seriously injuring his administrative assistant.

The defendant brought two pre-trial applications: a stay of proceedings for delay under s. 11(b) of the Charter (Jordan motion) and, alternatively, a stay for lost evidence (Infotainment unit data).

The court dismissed both applications, finding that the delay was not unreasonable after accounting for defence-caused delay and COVID-19 related exceptional circumstances, and that the alleged lost evidence either never existed or would not have impacted the trial's outcome.

The court found the defendant's testimony not credible and concluded that his driving constituted a marked departure from the standard of care of a reasonable person.

Dwayne Vernal was arrested and charged with drug trafficking after a search incident to arrest for assault with a weapon, assault, and threats.

He brought an application under sections 8, 9, and 24(2) of the Charter to challenge the lawfulness of his warrantless arrest and to exclude the seized drugs from evidence.

The court found that the arresting officers had both subjective and objective reasonable and probable grounds for the arrest, based on the complainant's description, surveillance footage, and the accused's identical clothing and location.

Consequently, the arrest and the subsequent search incident to arrest were lawful, and the seized evidence was admissible.

The application was dismissed.

This decision addresses an evidentiary ruling made during a first-degree murder trial where the accused was ultimately acquitted.

The defence sought to admit prior consistent statements made by the accused's wife to police at the time of her husband's arrest, arguing they fell under an exception to the rule against prior consistent statements.

The court ruled these statements inadmissible for their truth, affirming that the Edgar exception, which allows for spontaneous statements of an accused upon arrest, does not extend to statements made by a witness, even if made under similar highly emotional and spontaneous circumstances.

The judge also made strong findings regarding the lack of credibility and collusion among certain police officers involved in the arrest.

This is a sentencing decision for Jayson Jeyakanthan and Janson Jeyakanthan, who were found guilty of multiple firearm-related offences.

Jayson was convicted of carrying a concealed weapon, possession of a loaded firearm, and careless storage of two firearms, while Janson was convicted of joint possession, carrying a concealed weapon as a party, careless storage of two firearms, and two counts of breach of recognizance.

The court emphasized denunciation and deterrence as primary sentencing principles due to the public danger posed by the firearms.

Aggravating factors for Jayson included his criminal record, displaying a firearm in a crowded public place, and the impact on the victim.

For Janson, aggravating factors included being on bail and breaching its terms.

The court found minimal mitigating factors.

Jayson received a global sentence of six years, and Janson received a global sentence of three years, with specific allocations for each offence.

The decision also addressed pre-trial custody credits (Summers, Duncan, Downes), granting some enhanced credits for harsh detention conditions but limiting others due to the offenders' conduct, particularly egregious bail breaches.

Ancillary orders included DNA, lifetime weapons prohibitions, and forfeiture.

This decision addresses the admissibility of three exculpatory statements made by the accused, Umar Zameer, who is charged with first-degree murder.

The court ruled that two spontaneous statements made at the scene of the arrest were admissible under the *Edgar* exception to the rule against prior consistent statements, but only if the accused testifies and is subject to cross-examination, and not for their truth.

A third statement made 12 hours later at the police station was deemed inadmissible due to lack of spontaneity and failure to meet any hearsay exception.

The court also clarified the distinction between *res gestae* and the *Edgar* exception, explicitly declining to follow a previous inconsistent decision (*R. v. Tavares*).

This decision concerns a 90-day review of a detention order under s. 525 of the Criminal Code.

The accused, Mohammad Khodadad, previously denied bail, sought release.

The court, applying R. v. Myers, confirmed that the onus is not on the accused at this stage, even if a reverse onus applied initially.

Despite this, the court found the accused's continued detention justified on both secondary (public safety due to substantial likelihood of re-offending, strong Crown case, and unreliable surety) and tertiary grounds (maintaining confidence in the administration of justice given the gravity of the firearm-related charges, strong Crown case, and significant criminal record).

The application for release was dismissed.

This decision addresses a pre-trial application by two accused, Nicole Fife and Leonida Pilliatis, seeking to exclude evidence obtained by police, alleging breaches of their Canadian Charter of Rights and Freedoms rights.

The court found that while the initial detention of both accused was lawful, Ms. Fife's Charter rights were breached by the police failing to promptly inform her of the reason for detention and her right to counsel, and by interrogating her after she invoked her right to counsel.

Mr. Pilliatis's Charter rights were not breached.

Applying the R. v. Grant test, the court excluded the evidence (drugs and statements) against Ms. Fife due to the seriousness and impact of the Charter breaches, but found the evidence admissible against Mr. Pilliatis.

The defendant, an Uber driver, was charged with three counts of sexual assault.

He pleaded guilty to two counts but denied the third.

The Crown sought to admit evidence from the admitted assaults as similar fact evidence for the remaining charge.

The court ruled the similar fact evidence admissible, finding its probative value outweighed its prejudicial impact, particularly given the striking similarities in the circumstances of the assaults and the unlikelihood of coincidence.

The defendant was found guilty of the remaining sexual assault charge.

The defendant, Sasikaran Thanapalasingam, was charged with first-degree murder of his estranged wife, Tharshika Jeganathan.

The murder involved a brutal machete attack, captured on video, following a history of domestic violence, bail breaches, and explicit threats.

The defence argued for a conviction of second-degree murder, asserting that the defendant's capacity to form the requisite intent was impaired by alcohol intoxication.

The court found the murder to be planned and deliberate, rejecting the intoxication defence by concluding that the defendant was not incapacitated to an appreciable degree at the time of the offence, despite later showing signs of severe intoxication.

The court emphasized the defendant's clear intent, planning, and physical coordination during the attack, finding him guilty of first-degree murder.

The defendants applied to exclude evidence (a gun and their clothing) obtained following their detention and arrest, alleging breaches of their Charter rights under ss. 8, 9, 10(a), and 10(b).

The court found the initial investigative detention lawful, but identified breaches of s. 10(b) due to the police's failure to promptly advise of the right to counsel upon detention and for subsequent delays in facilitating access to counsel at the police station.

However, the court found no s. 8 breach regarding the gun seizure, concluding the accused had no privacy expectation, had abandoned the gun, and the search was conducted with valid consent.

Applying the s. 24(2) Grant test, the court weighed the moderate seriousness of the Charter breaches against their minimal impact on the accused's rights and society's strong interest in adjudicating serious armed robbery cases on their merits.

The application to exclude the evidence was dismissed, and all evidence was found admissible.

Shaqueme Martin applied to dismiss human trafficking and sexual services charges under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay from charges to the original trial date was 1028 days, exceeding the Jordan ceiling.

The court found that the delay after September 19, 2022, was attributable to the defence's refusal of an available trial date, which would have brought the total delay within the presumptive ceiling.

Consequently, the presumption of unreasonable delay did not arise.

The court also found that the case was not a "clear case" warranting a stay below the presumptive ceiling, as the overall delay was not "markedly" longer than it should have been.

The application was dismissed.

The defendant, charged with domestic assault and having breached a prior non-contact bail order, applied to vary his current bail conditions to permit contact with his wife and child and to reside with them.

The court dismissed the application, finding no material change in circumstances that would warrant a variation.

Despite the complainant's recantation of her initial allegations, the court found her current testimony unreliable due to a clear power imbalance, potential coercion by the accused, and inconsistencies with her initial statements and corroborating evidence.

The court emphasized the public interest in protecting vulnerable individuals from domestic violence and the substantial risk of the accused reoffending given his history of violence across multiple domestic relationships and his disregard for court orders.

The defendant, Faisal Fareed, brought an application to exclude a loaded handgun from evidence, alleging breaches of his Charter rights under sections 8, 9, 10(a), and 10(b).

The court found that while the initial detention and seizure of the gun were lawful, there were breaches related to the delay in informing Fareed of the grounds for detention (s. 10(a)), and significant delays in implementing his right to counsel of choice (s. 10(b)).

Additionally, the police failed to file a report to a justice of the peace regarding the seized items, constituting a breach of section 8.

Applying the R. v. Grant factors, the court determined that admitting the evidence would not bring the administration of justice into disrepute, particularly as the breaches occurred after the lawful seizure and did not impact the reliability of the evidence.

The application to exclude the evidence was dismissed.

Bismark Addo-Binney applied to terminate a 20-year Sex Offender Information Registration Act (SOIRA) order imposed after his 2011 sexual assault conviction.

The Crown opposed the application.

The court considered the test under s. 490.016(1) of the Criminal Code, which requires the applicant to show that the impact of continuing the order is grossly disproportionate to the public interest in protecting society.

Relying on the Supreme Court of Canada's decision in R. v. Ndhlovu, the court found that the significant anxiety and interference with the applicant's career and personal life, coupled with a low risk of reoffending and limited utility of registration for this type of offence, made the continued order grossly disproportionate.

The application was granted, and the SOIRA order terminated.

The accused, Tal Amdurski, brought a Charter application to exclude text messages found on a 13-year-old complainant's phone, arguing a breach of his s. 8 Charter rights (unreasonable search and seizure).

The complainant's mother discovered the messages, photographed them, and voluntarily provided them to the police, along with the phone, with the complainant's consent.

The court dismissed the application, finding no s. 8 Charter breach because the evidence was voluntarily provided by a private citizen (the mother) and the complainant, not seized by state action.

Alternatively, even if s. 8 was engaged, the accused had no reasonable expectation of privacy in the messages, particularly given the complainant's age and vulnerability.

Further, even if there was a breach, the evidence would be admissible under s. 24(2) of the Charter due to the minor nature of the state conduct, minimal impact on the accused's rights, and society's strong interest in adjudicating serious charges involving child sexual exploitation on their merits.