Ariel Herscovitch

The accused, charged with armed robbery and related offences, brought a second application to review his detention order, alleging material changes in circumstances due to the COVID-19 pandemic and potential unreasonable delay under s. 11(b) of the Charter.

The court found that the detention centre had effectively managed the virus and the accused failed to show an increased risk of contracting COVID-19.

Furthermore, the court held that the potential delay was largely attributable to the defence and did not constitute a material change that would have affected the initial bail decision.

The application was dismissed, and the accused remained detained on the secondary and tertiary grounds.

The Crown applied for certiorari and mandamus to quash a preliminary inquiry judge's decision committing the accused to stand trial for second-degree murder rather than first-degree murder.

The Crown argued that the act of pointing a gun at the victim's head during an attempted robbery constituted unlawful confinement, thereby elevating the offence to first-degree murder.

The reviewing court agreed, finding that the preliminary inquiry judge committed jurisdictional error by misunderstanding the elements of unlawful confinement and failing to consider the inference most favourable to the Crown.

The application was granted, the discharge was quashed, and the matter was remitted with a direction to commit the accused for first-degree murder.

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 defendant, Waqar Ali, was sentenced after being found guilty of sexually assaulting two young women and assault causing bodily harm to one.

The court considered aggravating factors including the victims' extreme intoxication and vulnerability, the defendant's predatory behavior as an Uber driver constituting a breach of trust, and the significant impact on the victims.

Mitigating factors included the defendant's lack of prior record, family support, and efforts to address mental health and addiction issues.

The court emphasized general deterrence and denunciation, imposing a total sentence of 18 months and 20 days of incarceration, along with a three-year probation order and other ancillary orders.

The applicant, charged with first-degree murder, applied for bail under s. 469 of the Criminal Code.

The Crown opposed release on the secondary and tertiary grounds, citing the applicant's serious criminal record and the gravity of the offence.

The court found that the Crown's case was weak, relying entirely on recanted statements from an unsavoury witness obtained during a 'Mr. Big' operation, which contradicted objective evidence.

The court concluded the applicant met his onus on both grounds and granted release on strict house arrest conditions with sureties.

The offender was convicted of attempted murder and possession of a weapon for a dangerous purpose following an unprovoked stabbing attack on his sleeping fiancée.

The Crown sought a sentence of 10 to 12 years, while the defence proposed 7 years less a day.

The court weighed the severe aggravating factor of domestic violence and the profound impact on the victim against the offender's lack of a prior record, genuine remorse, and mental health struggles.

The court imposed a penitentiary sentence of 9 years, less 5 years of enhanced credit for pre-sentence custody and harsh detention conditions, leaving 4 years to serve, along with ancillary orders.

The accused was charged with attempted murder, aggravated assault, assault with a weapon, and possession of a weapon for a dangerous purpose after stabbing his sleeping fiancé multiple times.

The accused admitted to the stabbing but raised a defence of not criminally responsible (NCR) under s. 16 of the Criminal Code, arguing he suffered a transient psychotic episode.

The court rejected the NCR defence, finding the expert's opinion relied on facts inconsistent with the evidence, and concluded the attack was driven by jealousy rather than psychosis.

The court found the accused had the specific intent to kill and convicted him of attempted murder and possession of a weapon for a dangerous purpose.

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.

The offender, H.A., was sentenced for multiple criminal offences, including possession of stolen property, disguise with intent, attempted robbery with an imitation firearm, and robbery with an imitation firearm.

These convictions stemmed from a trial for incidents in Burlington, Brampton, and Mississauga, and guilty pleas for a bank robbery in Sarnia.

The Sarnia offences were committed while the offender was on bail for the earlier charges.

The court considered aggravating factors such as the commission of offences while on bail, planning, the use of imitation firearms, and the impact on victims, including the confinement of bank employees and customers.

Mitigating factors included the offender's youth, lack of prior record, early guilty pleas for the Sarnia charges, and substance abuse issues.

The court applied principles of individual deterrence, rehabilitation, denunciation, and general deterrence, ultimately imposing a global sentence of 4.5 years imprisonment, with credit for presentence custody.

The Crown appealed the respondent's sentence for sexual interference, arguing it was demonstrably unfit.

The respondent was convicted of sexual interference and sexual assault (conditionally stayed) following a jury trial.

The offences involved sexual contact with a 15-year-old complainant who was severely intoxicated.

The trial judge imposed a sentence of six months' imprisonment, reduced to 90 days intermittent upon credit for pre-sentence custody.

The Court of Appeal found the sentence too lenient and substituted an 18-month sentence, but stayed execution of the remaining custodial portion based on the respondent's rehabilitation efforts and time served in the community without reoffence.

The accused was charged with multiple counts of robbery, disguise with intent, and firearms offences relating to a string of armed robberies in Peel and Halton Regions.

The Crown sought to apply similar act evidence across the counts to prove identity.

The court admitted the similar act evidence for the January 2017 robberies but excluded the December 2016 incident.

The accused was found guilty of possessing a stolen licence plate and the three robberies committed on January 7, 2017, based on DNA and circumstantial evidence.

He was acquitted of the other robberies due to reasonable doubt regarding his identity as the unarmed robber.

In a criminal trial for armed robbery, the Crown applied to cross-examine a key witness, A.M., at large, alleging hostility.

A.M. had admitted his involvement in the robbery but refused to identify the co-accused, H.A., or provide details of the event.

The court found A.M.'s testimony to be absurd, incredible, and cagey, demonstrating a clear reluctance to tell the whole truth despite being polite and respectful.

Applying common law principles, the court granted the Crown's application, allowing cross-examination at large to prod A.M.'s memory and address his disingenuousness, noting the high probative value of the accomplice's identity and the lack of prejudice to the accused.

The accused, I.M., brought an application for a court order to cross-examine a Crown witness on their previous conviction under the Youth Criminal Justice Act (YCJA), despite the statutory access period having expired.

The Crown opposed, arguing for the YCJA's emphasis on rehabilitation and privacy for young persons.

The court considered the competing interests of youth rehabilitation and the accused's right to make full answer and defence, ultimately allowing the application.

The judge found that the proper administration of justice, especially given the serious charge and the witness's importance, justified allowing the cross-examination, distinguishing prior case law based on jurisdictional and public policy considerations.

The Crown brought a pre-trial application to admit text messages between the accused and a co-conspirator sent days before a fatal robbery.

The Crown argued the messages, which discussed purchasing a firearm, were probative of the accused's knowledge that the robbery's purpose was to obtain firearms.

The accused opposed, arguing the messages constituted highly prejudicial propensity evidence.

The court held the messages were admissible as specific propensity evidence, finding their probative value outweighed the moral and reasoning prejudice, provided certain inflammatory portions were redacted and a limiting instruction was given to the jury.

The applicant, a young person charged with first degree murder, brought an application to sit at counsel table during his trial instead of the prisoner's box.

The Crown opposed the application but raised no security concerns.

The court granted the application, noting the seriousness of the charge, the potential for prejudice against racialized persons, the lack of evidence disproving potential prejudice from sitting in the dock, and the facilitation of communication with counsel.

At a preliminary inquiry, the Crown sought to establish sufficient evidence to commit the accused to trial on charges of possession of controlled substances for the purpose of trafficking.

The evidence included a three-day surveillance of a residence in Pickering, culminating in the execution of a search warrant that yielded significant quantities of cocaine, crystal methamphetamine, cutting agent, and a replica firearm from a basement bedroom nightstand, as well as cocaine from a Mercedes registered to the accused.

The defence challenged committal on the basis that the Crown had failed to establish constructive possession of either the drugs in the residence or the vehicle.

The court found that while the accused had a clear connection to the residence and was the registered owner of the vehicle, the evidence did not establish knowledge of or control over the drugs.

The court rejected the Crown's inferences as speculative and unsupported by an adequate evidentiary foundation, particularly the process of elimination argument regarding bedroom occupancy.

The accused was discharged on all counts.

The Crown brought an application during a first-degree murder trial to admit the preliminary inquiry evidence of two unavailable witnesses under s. 715(1) of the Criminal Code.

One witness was too ill to testify, which the defence conceded.

The other witness had left Canada and was evading his subpoena.

The court found that the witness was absent from Canada and that it was not feasible to take his evidence via video link.

Balancing the probative value of the evidence against potential trial unfairness, the court admitted the preliminary inquiry evidence, noting the defence could lead evidence regarding the witness's credibility.

During a first-degree murder trial, the accused brought an application under s. 24(1) of the Charter to exclude the evidence of a Crown witness, arguing that the police's failure to properly record and preserve evidence from group meetings with witnesses breached his rights under ss. 7 and 11(d).

The court dismissed the application, finding that the police did not deliberately fail to make a record to avoid production, and that the imperfect note-taking and group interviews did not render the trial unfair given the extensive disclosure available to the defence for cross-examination.

During a trial for first degree murder, the Crown brought an application to admit several ante-mortem hearsay statements made by the deceased to his mother and cousin.

The statements detailed a history of animosity and fear of the accused.

The court applied the principled exception to the hearsay rule, assessing the threshold reliability of each statement.

The court admitted several statements that possessed sufficient circumstantial guarantees of trustworthiness, such as those made shortly after traumatic events or expressing present fear.

However, the court excluded other statements that were made under circumstances of suspicion or were inextricably intertwined with double hearsay.

The court also declined the defence's request to cross-examine the deceased's mother on the voir dire, finding that her preliminary inquiry transcripts were sufficient to assess threshold reliability and that her credibility was not so deficient as to rob the statements of all probative value.

The appellant was convicted of ten counts relating to possession of a prohibited firearm and ammunition following a search warrant execution at a boarding house where a shotgun and ammunition were found in his basement apartment.

A partial palm print was found on a plastic bag containing shotgun shells.

The Crown called expert evidence on friction ridge analysis to connect the print to the appellant.

The trial judge permitted the Crown to recall a witness to provide additional expert opinion on the same issue after the first expert's testimony was deemed unsatisfactory.

The appellant appealed on two grounds: (1) that the trial judge erred in allowing the Crown to recall the witness, and (2) that the trial judge misapprehended the expert evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to permit the witness recall and no misapprehension of the expert evidence regarding the friction ridge analysis.