Ari Linds

The Ontario Court of Justice declared a mistrial in a criminal proceeding against the accused, who had been found guilty of aggravated assault.

The mistrial was initiated by the court prior to sentencing due to a finding of ineffective assistance of counsel.

Defence counsel had failed to call a qualified expert to support the accused's automatism defence, which was based on an epileptic seizure, due to a fundamental misunderstanding of the legal requirement for expert evidence in such defences.

The court found that this error rendered the trial fundamentally unfair and constituted a miscarriage of justice, as the defence could not have succeeded without the required expert testimony.

The accused, Vally Mawanga, was charged with one count of sexual assault.

The complainant, O.T., reported a memory blackout during which the alleged assault occurred, with only fragmented recollections.

The accused admitted to sexual intercourse but testified it was consensual, detailing a progression of interaction from meeting at Caribana to sexual activity at his apartment.

The court found the complainant's recollection unreliable due to inconsistencies and memory gaps, and accepted the accused's internally consistent and plausible account.

The Crown failed to prove lack of consent or lack of capacity to consent beyond a reasonable doubt, leading to an acquittal.

The Crown sought committal to trial of the accused on 17 charges, including dangerous driving causing bodily harm and attempted murder, following an incident where the accused repeatedly rammed his vehicle into a car driven by his sister-in-law.

The accused conceded committal on most charges but contested one count of dangerous driving causing bodily harm and four counts of attempted murder.

The preliminary inquiry judge discharged the accused on the dangerous driving count relating to his wife, finding no evidence her injuries resulted from the collision.

The judge committed the accused to trial for the attempted murder of his sister-in-law, finding sufficient evidence of specific intent to kill, but discharged him on the attempted murder counts relating to the other three passengers due to a lack of evidence of concurrent intent.

The accused was charged with refusing to provide a breath sample contrary to section 254(5) of the Criminal Code.

Following a traffic stop and failed approved screening device test, the accused was arrested and advised of his right to counsel.

He requested to speak with his lawyer, Daniel Kayfetz.

After waiting only 20 minutes without reaching the lawyer, police contacted duty counsel without consulting the accused.

The accused was placed in a privacy room where police believed he spoke with duty counsel, but the accused testified he did not speak to anyone.

When asked to provide a breath sample, the accused refused, stating he had not spoken to a lawyer.

The court found that police breached the accused's right to counsel under section 10(b) of the Charter by failing to provide a reasonable opportunity to consult with counsel of choice, and excluded the evidence of refusal under section 24(2).

The court also found that even without exclusion, the Crown had not proven an unequivocal refusal beyond a reasonable doubt.

The accused was acquitted.

The accused, charged with criminal harassment, brought a motion for a directed verdict of acquittal.

The charge arose from an incident where the accused allegedly followed and watched a 13-year-old girl on her way to school, having previously followed her and a friend weeks earlier.

The court amended the indictment to conform to the evidence regarding the date of the offence.

The court dismissed the motion for a directed verdict, finding that there was sufficient evidence of 'watching' under s. 264(2)(c) of the Criminal Code upon which a properly instructed jury could reasonably convict.

During a criminal trial, the Crown applied under s. 714.1 of the Criminal Code to allow a witness to testify via Skype.

The witness was unable to attend court due to a high-risk pregnancy.

The defence objected, arguing the anticipated evidence was vague and bordered on bad character evidence.

The court found the evidence relevant to the issue of opportunity and held that trial fairness would not be undermined by the use of technology.

The application was granted, permitting the witness to testify remotely.

The Crown brought a motion to admit a 911 call placed by a complainant into evidence for the truth of its contents, arguing it fell under the res gestae exception to the hearsay rule or the principled approach.

The court found the call inherently reliable but excluded it because its admission was not necessary, as the complainant was available to testify and had given a police statement containing the same facts.

The court also noted the recording's highly emotional tone would be overly prejudicial to the accused.

The accused, charged with multiple counts of sexual assault, sexual interference, and criminal harassment involving six different complainants, applied to sever counts 7 and 8 from the indictment.

The Crown applied to admit similar act evidence across the counts to assist in identifying the perpetrator.

The court held that the similar act evidence application was premature and should be decided during the trial.

The court dismissed the severance application, finding a strong factual nexus between the incidents and concluding that the benefits of a single trial outweighed the risk of prejudice to the accused.

The Crown sought to admit a statement made by the accused to police following his arrest for sexual assault.

The accused argued his rights under ss. 7, 10(a), and 10(b) of the Charter were violated because he was not fully informed of the reasons for his detention, including that he was a suspect in several other similar sexual assaults and that the complainant was a minor.

The court found that the police failed to inform the accused of the full extent of his jeopardy, depriving him of the ability to make an informed choice about whether to speak to police or to obtain meaningful legal advice.

The statement was excluded under s. 24(2) of the Charter.

The accused was charged with operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml of blood.

The Crown's case relied on breath test results obtained at a RIDE (Reduce Impaired Driving Everywhere) checkpoint.

The accused challenged the admissibility of the breath evidence on Charter grounds, alleging violations of sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms.

The central issue was whether the presence of a media cameraman recording the breath testing procedure and the subsequent broadcast of the footage violated the accused's constitutional rights.

The court found that both a section 10(b) breach (right to counsel in private) and a section 8 breach (unreasonable search and seizure) had occurred.

The breath evidence was excluded under section 24(2) of the Charter, and the accused was acquitted.

The accused was charged with driving while disqualified contrary to s. 259(4) of the Criminal Code and several highway traffic offences following a motor vehicle crash on the 407 at the 400 ramp.

The Crown proved the accused was prohibited from driving at the time of the crash.

The sole issue was identification—whether the Crown proved the accused drove the vehicle and fled the scene.

Two Crown witnesses provided descriptions of the driver, but neither participated in a photo lineup.

The court found the in-dock identification, based on general observations and not tested by a photo lineup, could not be given much weight.

The charge was dismissed as the Crown failed to prove the identity of the driver beyond a reasonable doubt.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol level exceeding 80 mg%.

Following a traffic stop for speeding in a parking lot, the officer observed signs of impairment including erratic driving, slurred speech, and the odour of alcohol.

The accused refused to comply with police directions and demanded a supervisor.

After arrest, the officer failed to read the Approved Instrument demand at the scene, but the breath technician made a timely demand at the station.

The court found the officer had reasonable grounds for the arrest and demand, and that the Crown proved both offences beyond a reasonable doubt despite the accused's argument that the impairment was only slight.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg/100 mL following a motor vehicle collision on September 8, 2012.

The Crown withdrew the Over 80 charge after brief evidence.

At trial, the Crown's case rested primarily on the observations of Sergeant Crane, who noted glossy eyes and a scent of alcohol, combined with Intoxilyzer readings.

The court found the evidence insufficient to prove impairment beyond a reasonable doubt, noting the absence of contemporaneous notes regarding key observations, the lack of observable signs of impairment at the scene, and the absence of expert evidence relating the BAC readings to the accused's driving ability.

The charge was dismissed.