Anthony F. Leitch

This decision addresses an application by the defendant for the appointment of a case management judge in a sexual assault proceeding.

The defendant sought the appointment after a judicial pre-trial judge directed that Charter motions, specifically a stay of proceedings related to alleged bail delay, be heard after the trial evidence on the merits.

The defence argued that the pre-trial judge lacked jurisdiction to set such a schedule over their objection and that a case management judge held exclusive authority for scheduling.

The court denied the application, affirming the judicial pre-trial judge's jurisdiction to set trial and motion schedules for efficiency, noting that decisions on stays of proceedings are typically deferred until trial evidence is complete to assess prejudice.

The court also clarified that the powers of a case management judge are not exclusive for scheduling and that the trial judge retains ultimate discretion to modify the schedule.

A young person, M.W., was charged with murder, aggravated assault, and assault with a weapon following a group attack.

The Crown's case relied heavily on video identification, comparing high-quality surveillance footage of the accused from his residence with a low-quality cellphone video of the attack.

The court found that while the accused was clearly identifiable in the surveillance video, the clothing in the cellphone video only resembled, but could not definitively be identified as, the clothing worn by the accused.

Other circumstantial evidence, such as phone calls and post-attack behaviour, was deemed insufficient to corroborate participation beyond a reasonable doubt.

The court acquitted the accused of all charges due to the Crown's failure to prove identification beyond a reasonable doubt.

The accused brought an application to stay the proceedings, alleging a violation of his section 11(b) Charter right to be tried within a reasonable time.

The court analyzed the delay, including a 'gap period' where the Crown had temporarily stayed the charges under section 579 of the Criminal Code to protect a larger ongoing investigation.

The court found that the Jordan clock did not run during this gap period, as the stay was not an illegitimate end-run around the presumptive ceiling.

After deducting 90 days for the exceptional discrete event of the COVID-19 pandemic, the net delay was calculated at 13 months and 7 days, well below the 18-month presumptive ceiling.

The application was dismissed.

The accused brought an application for a stay of proceedings under s. 11(b) of the Charter, citing a delay of over 20 months.

The Crown argued the delay was justified by the COVID-19 pandemic and the exceptional complexity of the case, which involved a large-scale drug investigation with multiple co-accused, wiretaps, and voluminous disclosure.

The court adopted a conservative approach, attributing three months of delay to the COVID-19 backlog as a discrete exceptional event, bringing the net delay below the presumptive ceiling.

Furthermore, the court found the case was particularly complex, justifying the overall delay.

The application for a stay of proceedings was denied.

The defendant, a young person identified as M.W., applied for a stay of proceedings under section 11(b) of the Charter of Rights and Freedoms, alleging an unreasonable delay in bringing the case to trial.

The total delay from charge to anticipated trial completion was 20.8 months, exceeding the 18-month presumptive ceiling established by R. v. Jordan.

The court analyzed the delay, specifically identifying periods attributable to the defence.

It found that the defence's rejection of earlier trial dates without providing alternative availability constituted defence-caused delay.

After subtracting 9 months and 16 days of defence-caused delay, the net delay was calculated at 11 months and 3 days, which is well below the Jordan ceiling.

The court further determined that the defence failed to demonstrate a sustained effort to expedite proceedings or that the case markedly exceeded its reasonable time requirements, as required for delays below the presumptive ceiling.

Consequently, the application for a stay of proceedings was denied.

The defendant, Jason Mercuri, was charged with possession of a loaded restricted firearm and being an occupant of a motor vehicle knowing there was a firearm in it.

The Crown relied on circumstantial evidence, including the defendant being the driver and alleged owner of the vehicle where the gun was found in the trunk, and evasive driving.

The court found the evidence of vehicle ownership unreliable and determined that the circumstantial evidence, including the location of the gun in a satchel in the trunk and the presence of a passenger with other contraband, did not prove knowledge and control beyond a reasonable doubt.

The defendant was acquitted of both charges.

The defendants, Jason Mercuri and Justin Silva, brought a Charter application to exclude evidence (drugs and a loaded handgun) found in a vehicle following a traffic stop and subsequent searches.

They alleged violations of sections 8 (unreasonable search), 9 (arbitrary detention), and 10 (right to counsel) of the Charter.

The court found the initial traffic stop was lawful, being for a legitimate dual purpose (regulatory and criminal suspicion), and the subsequent searches were justified under the Liquor Licence Act due to the observation of open alcohol.

While an admitted breach of section 10 (delayed right to counsel) occurred, the court determined it was not causally linked to the discovery of the evidence and, applying the Grant analysis under section 24(2), found that the seriousness of the breach and its impact on the defendants' rights did not outweigh society's interest in the adjudication of serious offences on their merits.

The application to exclude the evidence was denied.

The accused, Adriel Cyrus, was convicted of two sexual assaults.

The Crown brought a dangerous offender application seeking an indeterminate sentence.

The court found that Cyrus met all three statutory pathways for dangerous offender designation under the Criminal Code, based on his extensive criminal history, escalating violence, intractable psychiatric disorders (antisocial personality disorder, schizophrenia, cannabis use disorder), and poor prognosis for treatment.

The court concluded that an indeterminate sentence was the only adequate measure to protect the public, rejecting the defence's argument for a fixed sentence with a long-term supervision order.

The defendant brought a motion for severance of two counts of sexual assault, seeking separate trials.

The Crown alleged sexual assaults occurred during chiropractic treatment of two employees of a restaurant where the defendant was a patron.

The court applied the test from R. v. Last, considering nine factors including general prejudice, legal and factual nexus, complexity, testimony intentions, inconsistent verdicts, multiplicity of proceedings, similar fact evidence, trial length, and reasonable trial timing.

The court found the defendant failed to establish that the interests of justice required separate trials and ordered trial on the information as framed.

The Crown applied to vacate preliminary inquiries scheduled for thirteen accused persons, seeking to apply amendments to section 535 of the Criminal Code (Bill C-75) retrospectively.

These amendments, which came into force on September 19, 2019, restricted the availability of preliminary inquiries to a reduced class of offences.

The accused had elected to proceed to trial in the Superior Court with a request for a preliminary inquiry prior to the amendments coming into force.

The court considered whether the amendments applied retrospectively to strip the accused of their vested right to a preliminary inquiry.

The court dismissed the Crown's application, finding that the amendments do not apply retrospectively to accused persons who had already requested a preliminary inquiry before the amendments came into force.

The defendant was charged with refusing to provide a breath sample contrary to section 254(5) of the Criminal Code and with care or control of a motor vehicle while impaired by alcohol.

The Crown alleged the defendant was found in the driver's seat of a vehicle with a beer can in hand.

The central issues were whether the police had reasonable and probable grounds to demand a breath sample, and whether the defendant was impaired.

The court found the police had reasonable and probable grounds based on the totality of circumstances including a citizen report, admission of drinking, strong odour of alcohol, glossy eyes, and a stumble exiting the vehicle.

The defendant was convicted of refusing to provide a breath sample but acquitted of impaired care or control, as the court found insufficient evidence beyond a reasonable doubt of impairment.

The defendant applied under sections 7 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence of his refusal to provide a breath sample.

The defendant claimed he was assaulted when police attempted to forcibly remove his wedding ring at the police station before the breathalyzer test.

The court found that while the attempt to remove the ring constituted an unreasonable assault, the use of force was minimal and momentary.

The court held that the words of the refusal constitute the actus reus of the offence and cannot be excluded under section 24(2).

The motion was dismissed.

The accused was charged with Theft under $5000 and Possession of Property Obtained by Crime for items stolen from two vehicles in a parking garage.

While the Crown established all elements of the offences except identity through surveillance video evidence, the court found that the identification evidence was insufficient to meet the criminal standard of proof beyond a reasonable doubt.

The surveillance video lacked sufficient clarity to identify the accused, and the constable's recognition evidence, based on limited prior contact, was unreliable.

The charges were dismissed and an acquittal was entered.