Ashley Dresser

This decision addresses the admissibility of evidence of other sexual activity under section 276 of the Criminal Code in a sexual assault prosecution.

The court allowed evidence that the complainant propositioned the Applicant and his girlfriend, C.E., for a threesome, finding it relevant to impeach the complainant’s credibility and establish a motive to fabricate.

The court further permitted limited questioning about the complainant’s sexual interest in C.E., concluding that this evidence had significant probative value not substantially outweighed by prejudice, particularly in a judge-alone trial.

The ruling clarifies the scope of permissible cross-examination regarding sexual interest as it relates to motive to fabricate allegations.

The applicant sought a stay of criminal proceedings under s. 24(1) of the Charter due to a breach of his s. 11(b) right to be tried within a reasonable time.

The court applied the Jordan framework, calculating a total delay of 649 days, which was 102 days over the 18-month (547-day) ceiling for provincial court cases.

After subtracting 15 days of defence-attributable delay for scheduling a Crown pretrial, the net delay remained 87 days above the ceiling.

Finding no exceptional circumstances or case complexity to justify the delay, the court granted the s. 11(b) application and stayed the proceedings.

The defendant, Zakariye Yousuf, pleaded guilty to extortion with a restricted firearm and intentional discharge of a restricted firearm at a law office.

These offences were directed by Yousuf to intimidate a civil litigation lawyer, Lisa Carr, and her associate, Alycia Rose, due to Carr's legal work against tow truck companies.

The court considered aggravating factors, including the targeted nature of the crimes, the use of firearms, and the impact on the justice system, alongside mitigating factors such as Yousuf's guilty plea, difficult background, and rehabilitative potential.

The judge imposed consecutive sentences of five years for each count, with credit for pre-sentence custody, resulting in a total remaining sentence of five years and three months.

The defendant/applicant brought a multi-faceted application to exclude evidence obtained via a search warrant, arguing a Section 8 Charter breach.

The primary argument involved challenging the sufficiency of the Information to Obtain (ITO) and seeking to cross-examine the affiant.

A secondary, stand-alone argument contended that the police's retention and use of the applicant's youth records, which were referenced in the ITO (and later excised by consent), constituted a breach of the Youth Criminal Justice Act (YCJA) and a Section 8 Charter violation.

The court dismissed the application, finding no basis for cross-examination and that the ITO, after excisions, provided sufficient grounds for the warrant.

The court further held that the YCJA does not require the destruction of all internal police records related to youth interactions, and that consulting such records does not amount to a "search" under Section 8 of the Charter.

Even if there was negligence in including the references, it did not constitute bad faith warranting exclusion of evidence under Section 24(2) of the Charter.

The applicants sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay, arguing their trial, scheduled for May 2023, exceeded the 30-month presumptive ceiling for Superior Court matters established in R. v. Jordan.

The court found a 5-day period of defence delay but noted the total delay still exceeded the ceiling by at least two months.

The Crown argued the COVID-19 pandemic constituted an exceptional circumstance, and they had taken reasonable steps to mitigate the delay, including offering earlier trial dates through a "Jordan court." The court agreed that the pandemic was an unforeseen and unavoidable discrete event causing delay and that the Crown and court administration had made reasonable mitigation efforts.

The application for a stay was dismissed.

The defendant, Jordan Cann, brought an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings due to unreasonable delay.

The total delay from arrest to projected trial end was 36 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court analyzed periods of delay, attributing significant portions to exceptional circumstances, specifically the COVID-19 pandemic (204 days in 2020 and 109 days in 2021) and the unforeseen unavailability of a complainant for the preliminary inquiry (66 days in 2021).

The court found that these exceptional circumstances, when deducted, brought the net delay well within the Jordan framework.

Consequently, the application was dismissed.

The accused was charged with robbery and unauthorized use of a stolen credit card arising from a home invasion.

Following a voir dire on the admissibility of a video-recorded statement, the court found the statement was involuntary and excluded it from evidence.

The court also found a breach of the accused's section 10(b) Charter rights due to police denigration of defence counsel's advice.

The court applied the Grant test and determined that exclusion of the statement was necessary to preserve the integrity of the criminal justice system.

The defendant was charged with two counts under section 126 of the Immigration and Refugee Protection Act for counselling and aiding or abetting individuals to misrepresent material facts to Canadian immigration authorities.

The defendant purchased plane tickets for two individuals from Barbados and instructed them to misrepresent their relationship to him upon arrival in Canada.

Both individuals subsequently made successful refugee claims.

After the Crown closed its case, the defendant moved for a directed verdict.

The court granted the motion and dismissed all charges, finding that the Crown failed to establish that the misrepresentations could have induced an error in the administration of the Act.

The court held that the misrepresentation regarding the nature of the relationship was immaterial to admissibility as either a visitor or refugee claimant, and that the Crown's evidence did not support a connection between the misrepresentation and any error in the administration of the Act.

A young person charged with sexual assault, sexual interference, and invitation to sexual touching brought a motion for a stay of proceedings under section 24(2) of the Charter based on an alleged infringement of the right to a speedy trial under section 11(b).

The applicant argued that the total delay of 18 months and 7 days exceeded the presumptive ceiling established in R. v. Jordan.

The court found that while the net delay fell slightly below the 18-month ceiling when defence delay was deducted, the case warranted a stay because: (1) a reduced presumptive ceiling of 12 months should apply to youth cases; (2) even applying the 18-month ceiling, the delay was unreasonable as a clear case falling below the ceiling; and (3) the defence demonstrated sustained efforts to expedite proceedings while the Crown and trial coordination system failed to provide timely disclosure and trial dates.

The court emphasized that young persons should be tried within a markedly shorter timeframe than adults.

The accused was charged with possession of cocaine for the purposes of trafficking contrary to section 5(3)(a) of the Controlled Drugs and Substances Act, and possession of a prohibited weapon.

The weapons charge was withdrawn during trial.

The Crown alleged that the accused possessed cocaine for trafficking purposes based on surveillance evidence showing him driving a rental vehicle in suspicious circumstances, his tenancy of an apartment where drugs and paraphernalia were found, and the presence of a scale in his bedroom.

The defence argued that the Crown had not proven the requisite knowledge and control for constructive possession, and that other occupants of the apartment could have been responsible for the drugs.

The court found that while the Crown established a drug trafficking operation existed at the apartment, the circumstantial evidence permitted reasonable exculpatory inferences regarding the accused's knowledge and control of the drugs, particularly given the possibility that drugs were recently deposited by another occupant and the limited visibility of drugs from the accused's bedroom.

The applicant brought a Charter application challenging the validity of a search warrant executed on his apartment on the grounds that the Information to Obtain (ITO) lacked reasonable and probable grounds.

The applicant was charged with possession of cocaine for the purposes of trafficking and possession of a prohibited weapon following the seizure of 156.5 grams of cocaine and brass knuckles from his apartment.

The court examined the sufficiency of the ITO content, considering the credibility and reliability of three confidential informants, the degree of corroboration by police surveillance, and the quality of the investigation.

Despite identifying deficiencies in the ITO including incomplete criminal record disclosure and reliance on unproven informants, the court found that the totality of the circumstances provided sufficient reasonable and probable grounds for the warrant's issuance.

Tristen Mignot brought an application to exclude evidence (gun, ammunition, and drugs) obtained during a search, alleging violations of his s. 8 Charter rights due to a lack of reasonable and probable grounds for the search warrant and improper execution.

The court found that the Information to Obtain a Warrant (ITO) contained significant errors and omissions, failing to establish reasonable grounds for the search of the residence at 1 Celestial Crescent.

Consequently, a s. 8 Charter violation occurred.

While the execution of the warrant itself was deemed reasonable, the court balanced the seriousness of the Charter-infringing state conduct against the impact on the accused's privacy interests and society's interest in adjudication on the merits.

The court concluded that the administration of justice would be brought into disrepute by admitting the evidence, thus excluding it.

The accused was charged with possession of cocaine for the purpose of trafficking, possession of marijuana, possession of proceeds of crime, and failing to comply with a recognizance.

The accused brought an application to exclude evidence on the basis of alleged breaches of sections 8, 9, and 10(b) of the Charter.

The court found that the initial investigative detention was lawful, the search of the vehicle was a proper search incident to arrest, and the asking of the accused's name did not constitute a breach.

However, the court found a breach of section 10(b) when police failed to facilitate the accused's right to counsel for approximately one hour after securing the apartment.

Applying the section 24(2) test from R. v. Grant, the court admitted the evidence, finding that while the breach was significant, its impact was minimal and society's interest in adjudication on the merits was strong.