Arish Khoorshed

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching against an 11-year-old complainant.

The sole ground of appeal was ineffective assistance of trial counsel, alleging that counsel focused excessively on the complainant's gender identification, failed to cross-examine on lack of opportunity, failed to bring a section 276 application, and failed to obtain an updated psychological report.

The Superior Court of Justice dismissed the appeal, finding that trial counsel's tactical decisions were reasonable and professional, and that the appellant failed to establish incompetence or a miscarriage of justice.

The Crown sought a ruling permitting use, in direct examination of the complainant, of materials disclosed by the defence during an in camera application for directions under the Criminal Code s. 278.93 framework.

The court held the materials were not “records” under s. 278.1 and had already been ruled outside the s. 278.93 regime.

It rejected the Crown’s reliance on R. v. J.J., finding that decision did not create a general disclosure obligation requiring advance defence disclosure of such material for trial use by the Crown.

The court emphasized that criminal disclosure obligations are not symmetrical and that penalizing defence counsel for responsibly seeking directions would be imprudent.

The Crown was prohibited from using the disclosed materials in direct examination, without affecting Crown re-examination at trial.

Three accused persons charged with first-degree murder and attempted murder brought a joint defence application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms.

The application arose from events at Maplehurst Correctional Complex in late December 2023, where an Institutional Crisis Intervention Team (ICIT) deployment occurred on Unit 8 following an assault on a correctional officer.

The accused were not involved in the assault but were subjected to the ICIT operation, which involved strip-searches, physical restraints, extraction from cells, and deprivation of clothing for approximately 24-48 hours.

The court found that the ICIT deployment was undertaken solely for purposes of vengeance and punishment, not for any legitimate correctional purpose.

The court found multiple Charter violations under sections 7, 8, and 12, including deprivation of security of the person not in accordance with fundamental justice, unreasonable searches, and cruel and unusual treatment.

The court also found evidence of cover-up, collusion among witnesses, destruction or withholding of evidence, and false testimony by correctional staff.

The court granted a stay of proceedings on all charges, finding this to be an exceptional case where the integrity of the justice system would be better served by staying the proceedings than by proceeding to trial.

The accused pleaded guilty to robbery and possession of Fentanyl for the purpose of trafficking arising from a home invasion on December 5, 2022.

The Crown sought a global sentence of 4.5 years imprisonment.

The defence sought a conditional sentence of 2 years less a day.

The court imposed a conditional sentence of 2 years less a day followed by 3 years probation, with conditions including house arrest (with limited exceptions), electronic supervision for the first year, 50 hours of community service, and participation in counselling and rehabilitative programs.

The court considered the accused's youth (19 at time of offence), lack of prior criminal record, 981 days on strict bail conditions with GPS monitoring, systemic racism and anti-Black racism, prospects for rehabilitation, and the seriousness of the offences including the presence and discharge of a firearm and the significant quantity of Fentanyl.

The court sentenced DD to eleven years’ imprisonment for two counts of sexual interference and one count of forcible confinement, conditionally staying two counts of sexual assault.

The offences involved the repeated sexual abuse of DD’s stepdaughter, L, over more than three years, beginning when she was twelve.

The decision reviews the legal principles of sentencing, the factual foundation, aggravating and mitigating factors, and comparable case law.

The court found the gravity, duration, and breach of trust to be highly aggravating, and determined that a sentence greater than that proposed by either party was necessary to reflect denunciation, deterrence, and the harm caused.

The accused, a 20-year-old first-time offender, pleaded guilty to possessing a loaded prohibited firearm.

The court considered the serious nature of the offence, emphasizing denunciation and general deterrence, but also significant mitigating factors including the accused's youth, lack of criminal history, guilty plea, and particularly the "egregious" and "intolerable" conditions endured during 477 days of pre-sentence custody.

Accepting a joint submission, the court sentenced the accused to time served (credited as 30 months) followed by a three-year probation order, a secondary DNA order, forfeiture, and a firearms prohibition.

The Crown sought a ruling on the admissibility of a recorded telephone conversation between the accused and the complainant in a criminal trial involving charges of domestic violence and sexual assault.

The defence opposed its admission, arguing high prejudice due to evidence of other discreditable conduct and other sexual activity.

The court ruled the recording admissible, finding its probative value, particularly the accused's admissions regarding the alleged assaults and his state of mind concerning consent, outweighed its prejudicial effect.

The court emphasized the necessity of precise jury instructions to prevent misuse of the evidence for propensity reasoning or misapplication of consent law.

The Crown brought two applications in a criminal case involving sexual assault and sexual interference charges against the accused, J.A., concerning his step-daughter.

The applications sought a testimonial aid (CCTV testimony) for the complainant and admission of her audio-video recorded police statement.

The Crown abandoned the portion of the testimonial aid application related to another witness.

The application for admission of the recorded police statement was granted by consent.

However, the application for CCTV testimony for the complainant was dismissed.

The court found that the Crown failed to meet its burden to demonstrate that CCTV would facilitate the complainant's testimony, citing a lack of evidence and failure to consider alternative testimonial aids like privacy screens, despite previous judicial guidance on the matter.

The accused was convicted by a jury of criminal harassment after sending 131 unwanted and increasingly threatening text messages to a former intimate partner over a two-week period.

The Crown sought a sentence of time served, which would have equated to penitentiary time given the accused's 22 months in pre-trial custody on an unrelated charge.

The court weighed the aggravating factors of the complainant's age and the accused's attempt to control her against mitigating factors including his youth, learning disabilities, and family support.

The court imposed a suspended sentence followed by 24 months of probation.

The accused sought a mistrial or adjournment of his jury trial after the jury panel inadvertently overheard discussions about his pre-trial incarceration.

The defence argued this created a risk of moral prejudice, while the Crown contended a pre-trial instruction would suffice.

The court granted the adjournment, finding it was in the interests of justice given the risk of moral prejudice, the inability to ascertain what jurors heard without further prejudice, and the fact that the trial had not yet commenced, distinguishing it from cases where mid-trial instructions cured similar disclosures.

The Crown applied for an order under s. 486.2(2) of the Criminal Code to permit the complainant (A.I.) to testify remotely via closed-circuit television (CCTV) in a sexual assault trial.

The complainant, an adult, reported anxiety and PTSD symptoms.

The court dismissed the application, finding the Crown did not establish on a balance of probabilities that CCTV would facilitate a full and candid account or be in the interests of justice.

The judge noted the evidence was dated, lacked sufficient foundation, and the application was premature, emphasizing that CCTV orders are not "automatic" and require proper evidentiary support and witness preparation.

The appellant, Robert Rak, appealed his conviction for impaired driving, which resulted from a trial where the verdict was determined by a Charter application.

Rak argued that the impaired driving charge should be quashed because the Crown improperly directed the police to lay the charge, the special constable lacked grounds to lay the charge, and the justice of the peace erred in issuing process without a prima facie case.

The appeal court upheld the trial judge's findings that the Crown's communication was a recommendation, not a direction, and that the special constable had the requisite grounds.

While agreeing that the justice of the peace erred in issuing process without a prima facie case, the appeal court found no error in the trial judge's discretionary decision to deny the remedy of quashing the charge, especially since the merits of the impaired driving offence were conceded.

The appeal was dismissed.

Her Majesty the Queen appealed the acquittal of Nicholas Bennett on a charge of driving with over 80 milligrams of alcohol.

The trial judge had excluded breath test results, finding a breach of the respondent's s. 10(b) Charter rights due to the police's failure to provide a Prosper warning.

The respondent had initially invoked his right to counsel, but police conduct led him to believe further attempts to contact a lawyer would be futile.

The appeal court upheld the trial judge's finding of a Charter breach and the exclusion of evidence under s. 24(2), concluding that the seriousness of the police conduct, which effectively rendered the right to counsel meaningless, outweighed other factors, notwithstanding the minimally intrusive nature of breath samples.

The appeal was dismissed, and the acquittal was affirmed.

The appellant appealed his convictions for dangerous driving and failing to stop for police, arguing the trial judge misapprehended evidence regarding his identification as the driver.

The Crown conceded that the trial judge mistakenly attributed evidence to an independent witness who had not actually identified the driver, but argued there was no substantial wrong.

The Summary Conviction Appeal Court found that the remaining identification evidence was not overwhelming and, given the frailties of eye-witness identification, the error was significant.

The appeal was granted and a new trial was ordered.

The appellant, an unlicensed practitioner of Traditional Chinese Medicine, appealed his conviction for sexual assault against a patient.

He argued the trial judge misapprehended text message evidence regarding the evolution of their relationship and applied uneven scrutiny to his testimony compared to the complainant's.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's credibility assessments were supported by the evidence, any misapprehension was not central to the conviction, and the scrutiny of the evidence was balanced and fair.

The Crown appealed an acquittal for sexual assault, arguing the trial judge erred by limiting his analysis to the complainant's capacity to consent, rather than her direct assertion of non-consent.

The Superior Court of Justice found the trial judge misapplied the two-step consent analysis from R. v. Hutchinson, failing to address the subjective element of consent.

The appeal was allowed, the acquittal set aside, and a new trial ordered, as the factual findings necessary for a substituted conviction were not made.

The accused pleaded guilty to one count of fraud over $5,000 and one count of fraud under $5,000, committed between June 2017 and May 2018.

Working as a part-time receptionist, she created a company credit card and used it for personal expenses totalling $37,834.18, and also misappropriated company funds for personal bills totalling $6,440.

The Crown sought six months imprisonment followed by three years probation.

Defence counsel sought a suspended sentence with probation.

The court imposed a conditional sentence of six months imprisonment to be served in the community, followed by three years probation, with restitution orders and a DNA order.

The appellant appealed his summary conviction for indecent exposure under s. 173(2) of the Criminal Code.

The charge arose from an incident where the appellant exposed his penis to a minor in a public parking lot.

The appellant argued the trial judge failed to consider the defence of accident and reversed the burden of proof when assessing his testimony.

The Superior Court of Justice dismissed the appeal, finding that while the trial judge did not explicitly mention the defence of accident, the reasons as a whole demonstrated he was alive to the issue.

The court also found that although the trial judge erred in commenting on the appellant's failure to explain why witnesses would lie, the error was harmless and the curative proviso applied given the formidable Crown case.

The appellant appealed his summary convictions for assaulting a peace officer and attempting to disarm a peace officer.

The charges arose after police forcibly entered his home without a warrant in response to a 911 call regarding a domestic dispute.

The summary conviction appeal court found that the trial judge erred in law by failing to consider whether the police had reasonable alternatives to a forced entry, as required by the Godoy framework.

The court concluded the police were not acting in the lawful execution of their duties, quashed the convictions, and entered acquittals.

The applicant challenged the legality of the process by which he was charged with impaired driving.

The Crown had reviewed the initial "Over 80" charge during case management and recommended that an impaired driving charge also be laid.

The applicant argued that the Crown's direction to police violated police independence and principles of fundamental justice under section 7 of the Charter.

The applicant also argued that the officer who swore the new information lacked subjective grounds and that the Justice of the Peace failed to establish a prima facie case before issuing process.

The court found that the Crown's email constituted a recommendation rather than a direction, and that police independence was not violated.

However, the court found that insufficient grounds were presented to the Justice of the Peace to establish a prima facie case of impaired driving, constituting a Charter violation.

The court declined to quash the information as a remedy, finding the liberty intrusion to be minimal.