Ariel Herscovitch

The accused brought a Charter application seeking exclusion of evidence obtained pursuant to a search warrant.

The applicant argued the search violated s. 8 of the Canadian Charter of Rights and Freedoms and sought exclusion of the evidence under s. 24(2).

After considering the evidentiary record, including cross‑examination of the investigating detective and submissions from both parties, the court found no basis to exclude the evidence.

The application to exclude the fruits of the search warrant was dismissed.

The accused had pleaded guilty to luring a child, sexual interference, and making child pornography.

The Crown intended to pursue a dangerous offender application, and a lengthy hearing had been scheduled.

Due to the presiding judge becoming unavailable because of commitments to a lengthy homicide trial, the issue arose whether the sentencing and dangerous offender proceedings should be adjourned or continued before another judge.

Interpreting s. 669.2(1) of the Criminal Code broadly, the court held that another judge may continue proceedings where the original judge is unable to proceed within a reasonable time.

Given the substantial delay that would otherwise result and the interests of justice for both the accused and the complainant, the matter was directed to proceed before another assigned judge.

The Crown brought a combined application under ss. 486.1, 486.2, and 715.1 of the Criminal Code in a prosecution for alleged sexual offences against a minor.

The Crown sought to permit the complainant to testify by videolink and to introduce the complainant’s videotaped police statement as evidence in chief.

The court permitted testimony by videolink but required cross‑examination to occur from the courtroom rather than in the witness room to avoid intimidation and logistical concerns.

The court dismissed the Crown’s application under s. 715.1, finding that the videotaped statement—recorded approximately three and a half years after the first alleged offence—was not made within a reasonable time.

The court held that the Crown bears the burden on a balance of probabilities to establish the timing requirement under s. 715.1.

The applicant sought to exclude evidence obtained during the execution of a search warrant at his residence, arguing a breach of his s. 8 Charter rights.

The warrant was based on a tip from a confidential informant regarding marijuana trafficking.

The court applied the Debot framework to assess whether the informant's tip was compelling, credible, and corroborated.

The court found that while the informant's credibility was unascertainable, the compelling nature of the tip, combined with police corroboration of biographical details and the applicant's criminal record, provided sufficient reasonable and probable grounds for the warrant.

The application was dismissed.

The accused was charged with drug trafficking, proceeds of crime, and firearms offences after police executed a search warrant at a residence suspected to be a stash house.

The accused conceded guilt on the drug trafficking and proceeds of crime charges.

The central issue at trial was whether the accused had constructive possession of a loaded firearm found in a hall closet.

The court found that the circumstantial evidence, including the accused's use of the residence to store drugs and his frequent visits, was insufficient to prove beyond a reasonable doubt that he had knowledge and control of the firearm, as other individuals also had access to the residence.

The applicants applied to exclude evidence under s. 24(2) of the Charter, alleging breaches of their s. 8 and s. 9 rights during an arrest and the execution of a search warrant at a residence.

The Crown conceded the Charter breaches due to a heavily redacted Information to Obtain (ITO) that failed to show reasonable grounds.

Applying the Grant framework, the court found the police conduct regarding the arrest was not at the serious end of the continuum and admitted the evidence found on the first applicant.

However, the court found the no-knock dynamic entry into the second applicant's home with children present was a profound incursion on her privacy rights, outweighing the reliability of the evidence, and excluded the evidence found in the residence.

The Crown appealed a trial judge's decision to stay 17 charges, including human trafficking, against the respondent.

The trial judge found that police had fabricated evidence by planting false identification in the respondent's wallet and that an officer lied about it in testimony, constituting an abuse of process and a violation of section 7 of the Charter.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings or his conclusion that the egregious police conduct warranted a stay of proceedings to preserve the integrity of the judicial system.

The appellants were convicted of first degree murder.

During the investigation, an undercover police officer posed as an Obeah spiritual advisor and obtained incriminating statements from two of the appellants.

The appellants appealed, arguing that the undercover operation violated their Charter rights to freedom of religion and equality, constituted a 'dirty trick', and that the statements were protected by common law religious privilege.

The Court of Appeal dismissed the appeals, finding that the appellants' participation was motivated by a desire to obstruct the justice system rather than sincere religious belief, and that the police conduct did not shock the conscience of the community.

The court also upheld the trial judge's decisions regarding an in camera hearing and the refusal to sever the trial of the third co-accused.

The accused applied for disclosure of contact information for several civilian witnesses who had been interviewed during a homicide investigation but whom the Crown did not intend to call at the preliminary inquiry.

The defence argued that the information was necessary to conduct its own investigation and to prepare full answer and defence under the principles established in Stinchcombe.

The Crown refused disclosure citing specific safety concerns and evidence of intimidation, gang affiliation, and repeated breaches of non‑communication orders by the accused while in custody.

The court held that while witness contact information is generally relevant and normally disclosed, the Crown had established specific and credible security risks justifying withholding the information in this case.

Instead, the court adopted a structured procedure allowing defence counsel to interview willing witnesses at the courthouse while protecting witness safety and confidentiality.

The offender was convicted after trial as a party to robbery while armed with a handgun contrary to s. 344 of the Criminal Code.

The court considered the mandatory minimum sentence, parity with co‑accused, and whether the sentence should run concurrently or consecutively to an existing sentence for a separate robbery.

The court held that the minimum sentence was five years because the Crown had not provided notice under s. 727 to rely on a prior conviction for enhanced punishment.

Applying parity with co‑offenders and the totality principle, the court concluded a concurrent sentence was appropriate.

A six‑year custodial sentence was imposed, concurrent with an existing sentence, resulting in an effective total sentence of approximately eight years and four months.

The accused was convicted of 13 firearms and drug-related offences, including possession of a loaded restricted firearm and possession of cocaine for the purpose of trafficking.

At sentencing, the court ruled that the accused's compelled testimony from an unrelated proceeding was inadmissible under s. 13 of the Charter.

The court also found that the increased mandatory minimum sentence did not apply because the Crown failed to provide proper notice.

The court imposed an effective sentence of 7 years imprisonment, but granted enhanced credit of 30 months for 27 months of pre-sentence custody due to exceptional custodial hardships, resulting in a net sentence of 4.5 years.

The Crown sought to admit utterances allegedly made by the accused while in police custody after being advised of multiple robbery-related charges.

The accused argued the statements should be excluded because the exchange was not audio‑ or video‑recorded and the police account of a nine‑minute conversation was implausible.

The court reviewed the circumstances under which the statements were made, including that the police had not intended to conduct an investigative interview and that the statements were spontaneous responses to the reading of charges.

Applying the voluntariness rule and jurisprudence on non‑recorded statements, the court held that the absence of recording did not render the evidence inherently unreliable.

The Crown established voluntariness beyond a reasonable doubt, leaving issues of accuracy and weight for trial.

The accused brought a pre‑trial application alleging that police conducted an unlawful warrantless search of a cell phone recovered after a robbery suspect discarded it while fleeing police.

The accused argued the search violated s. 8 of the Charter and sought to challenge the seizure of contact and text message information retrieved from the phone.

The court held that although individuals generally have a reasonable expectation of privacy in cell phone contents, the accused bears the burden of establishing a personal reasonable expectation of privacy in the specific device searched.

Applying the factors from Edwards, the court found no evidence that the accused owned, possessed, controlled, or had the ability to regulate access to the phone, nor evidence of a subjective expectation of privacy.

The accused therefore lacked standing to challenge the search under s. 8.

The defendant brought a Garofoli motion to exclude evidence obtained pursuant to the execution of a search warrant at his mother's residence, alleging a violation of section 8 of the Charter of Rights and Freedoms.

The defendant challenged both his standing to bring the motion and the sufficiency of grounds in the Information to Obtain the warrant.

The court found that the defendant had a reasonable expectation of privacy in the residence and therefore had standing.

The court also found that while the Information contained some deficiencies in disclosure, there was sufficient reliable evidence to support the issuance of the warrant.

Even if the warrant was issued without reasonable and probable grounds, the court would have admitted the evidence under section 24(2) of the Charter, as the administration of justice would not be brought into disrepute.

The offender pleaded guilty to possession of cocaine for the purpose of trafficking after being caught transporting 253 grams of cocaine, along with marijuana and oxycodone.

He was acting as a courier for financial gain and had no prior criminal record.

The court emphasized general deterrence and denunciation but also considered the offender's rehabilitative prospects.

The offender was sentenced to 14 months in custody, less credit for pre-sentence custody, followed by two years of probation.

The offender pleaded guilty to possession of cocaine for the purpose of trafficking after being arrested with approximately 253 grams of cocaine, additional controlled substances, and cash.

The court considered aggravating factors including the significant quantity of cocaine and the offender’s role as a courier in a commercial trafficking operation.

Mitigating factors included the offender’s guilty plea, lack of prior criminal record, cooperation with police, and rehabilitative prospects.

Balancing denunciation and general deterrence against the offender’s youth and rehabilitation potential, the court imposed a custodial sentence followed by probation.

Additional ancillary orders included forfeiture of seized items and a firearms prohibition, while a DNA order was declined.

The accused was charged with multiple firearms and drug-related offences after police executed a search warrant at an apartment.

As police entered, a bag containing a loaded handgun and cocaine was thrown from a balcony.

The accused and the apartment's resident were found in the bedroom adjoining the balcony.

The Crown relied on the testimony of the resident and his sister, who were also charged with the offences, to prove the accused possessed the bag.

The court applied Vetrovec principles to carefully scrutinize their testimony, ultimately finding them credible.

The court found the accused guilty of all charges, including amending one count of the indictment to conform to the evidence that the firearm was restricted rather than prohibited.

The appellant appealed his conviction for sexual assault, arguing the trial judge improperly took judicial notice of male/female strength disparities, misapprehended evidence, and shifted the burden of proof.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.(D.) principles to assess credibility.

The Court noted that text messages and emails between the parties strongly corroborated the complainant's version of events and were tantamount to an acknowledgement of guilt.

The accused brought a pretrial application seeking a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay of approximately 22¾ months between arrest and the start of trial.

The court applied the framework from R. v. Morin and assessed the length of delay, waiver, reasons for delay, and prejudice to the accused.

Much of the delay was attributed to neutral intake periods, inherent time requirements of the case, and systemic delay within accepted administrative guidelines.

Although the accused remained in pretrial custody for nearly 22 months, the court found the delays adequately explained and largely unavoidable.

Balancing the accused’s liberty interests against the strong societal interest in adjudicating serious firearms and drug trafficking charges, the court held that the right to be tried within a reasonable time was not breached.

The four accused were charged with aggravated assault following an altercation with another inmate at a correctional centre.

The incident began as a consensual fight between one accused and the victim, but moved behind a partition out of view of surveillance cameras, where the victim sustained severe, life-threatening head injuries.

The Crown relied on surveillance video and the testimony of another inmate, but did not call the victim or other eyewitnesses.

The court found the inmate witness unreliable and the video insufficient to identify two of the accused.

Furthermore, the Crown failed to prove who inflicted the injuries or that there was a common intention to assault the victim.

All four accused were found not guilty.