B. McCallum

The accused was arrested at the airport for sexual assault and making child pornography.

During a lengthy police interview, the accused repeatedly asserted his right to silence and expressed confusion about his rights, but the interviewing officer continued questioning, minimized the allegations, and induced the accused to provide his cell phone password.

The court found the statement was involuntary and obtained in breach of the accused's rights under ss. 7 and 10(b) of the Charter.

The statement and the contents of the cell phone were excluded from evidence under s. 24(2).

The offender was convicted of ten counts of fraud and one count of defrauding the public, involving the sale of fictitious shares in gold mining companies to unsophisticated investors.

The total fraud exceeded $1.1 million.

The court sentenced the offender to five years' imprisonment, finding that the principles of denunciation and deterrence required a significant penitentiary term given the magnitude, duration, and devastating impact of the fraud on vulnerable victims.

The court also ordered full restitution of $1,100,799 and imposed a fine in lieu of forfeiture in the same amount.

Following his conviction for multiple counts of fraud, the accused applied to reopen his trial prior to sentencing to introduce new evidence.

The proposed evidence was his passport, which contained a visa stamp he claimed supported his alibi that he was in St. Kitts when some of the fraudulent transactions occurred.

The court applied the Palmer test for the admission of fresh evidence and dismissed the application.

The court found that the evidence failed to meet the due diligence requirement and, more importantly, lacked sufficient importance, as the visa stamp did not prove the accused's physical presence in St. Kitts at the relevant times and would not have affected the trial's outcome or the court's adverse credibility findings against him.