B. Moodie

The Crown appealed a stay of proceedings granted by the trial judge under s. 11(b) of the Charter for unreasonable delay.

The respondent conceded that the trial judge committed a palpable and overriding error by misapprehending the evidence regarding the attribution of delay.

The summary conviction appeal court found that the trial judge erred in failing to attribute the delay from a contested adjournment to the defence, as the respondent had changed counsel days before trial and requested the adjournment while the Crown was ready to proceed.

The appeal was allowed and the matter remitted for a new trial.

The applicant, charged with several offences including sexual assault, sought a stay of proceedings under s. 11(b) of the Charter for unreasonable delay.

The total delay was 41 months.

The court deducted three months for defence delay due to counsel's unavailability.

The court also deducted three months as a discrete exceptional circumstance due to the unavailability of the trial judge who was seized with a first-degree murder trial, and nine months due to the COVID-19 pandemic suspending jury trials.

The net delay of 26 months fell below the 30-month presumptive ceiling.

The court found the applicant did not demonstrate meaningful steps to expedite the proceedings, and dismissed the application.

The offender was convicted by a jury of sexual interference and incest against his daughter.

The offences occurred over a five-year period starting when the victim was eight years old, involving approximately 50 incidents of sexual intercourse accompanied by violence and threats.

The court emphasized denunciation and deterrence, noting the profound breach of trust and severe psychological impact on the victim.

The offender was sentenced to 8 years' imprisonment, reduced to 93 months after credit for pre-trial custody, along with ancillary orders including a life weapons prohibition and SOIRA registration.

The accused pleaded guilty to obstructing justice by destroying evidence of a crime.

The Crown and defence presented a joint submission, supported by the victim's family, proposing a sentence of one day in custody after accounting for pre-trial custody and house arrest.

The court accepted the joint submission, noting the guilty plea as a significant mitigating factor and applying credit for four months of pre-trial custody and 2.3 years of house arrest.

A DNA order was also imposed.

The accused applied to quash search warrants issued on May 11 and May 12, 2013 and to exclude evidence under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

The court reviewed whether the Information to Obtain provided reasonable grounds and whether police conduct during searches of multiple properties was constitutional.

The court found that a warrantless search of the accused’s aircraft hangar violated s. 8 and that evidence seized from the hangar should be excluded.

However, the court upheld the validity of the search of the accused’s residence and admitted evidence relating to an incineration device and associated forensic evidence discovered on rural property.

Applying the Grant framework, the court concluded that admission of the latter evidence would not bring the administration of justice into disrepute.

The applicants, facing three separate first-degree murder trials, sought an unprecedented publication ban on all evidence to be adduced at their first trial (the Bosma murder) until the completion of their subsequent trials, arguing that pre-trial publicity would prejudice future juries.

Alternatively, they sought to extend the statutory publication ban on pre-trial motions.

The court dismissed the request for a blanket ban on trial evidence, finding that the applicants failed to demonstrate a serious risk to trial fairness and that jury safeguards would be sufficient.

However, the court granted the alternative request, extending the publication ban on pre-trial motions until the conclusion of the subsequent Babcock trial due to the high risk of prejudice from overlapping inadmissible evidence.

The accused brought an application to exclude evidence obtained through a telewarrant authorizing the search of his vehicle, arguing the police improperly relied on the telewarrant procedure contrary to s. 487.1 of the Criminal Code and thereby violated s. 8 of the Charter.

The accused submitted the Information to Obtain did not adequately establish impracticability for personal attendance before a justice and that the delay between seizure, issuance, and execution of the warrant undermined the justification for a telewarrant.

The court held that the impracticability threshold under s. 487.1 is relatively low and that the circumstances of a complex and urgent missing person investigation with limited resources justified use of the telewarrant procedure.

The court concluded that the issuing justice had sufficient grounds to issue the telewarrant and that no Charter breach occurred.

In any event, the court held the evidence would be admissible under s. 24(2) of the Charter.

The accused applied to exclude cellular phone subscriber and tower location records obtained by police from a telecommunications provider through an emergency disclosure request without a warrant.

The court held that police had sufficient grounds earlier in the day to obtain a production order and that exigent circumstances under s. 487.11 of the Criminal Code were not established, resulting in a breach of s. 8 of the Charter.

However, applying the framework in Grant, the breach was characterized as technical and conducted in good faith, with minimal impact on the accused’s privacy interests given the narrow scope of the records sought.

Considering the seriousness of the offence and the reliability and importance of the evidence, the court concluded that exclusion would bring the administration of justice into greater disrepute.

The cellular records were therefore admitted pursuant to s. 24(2) of the Charter.

The accused brought an application to exclude statements made to police and observations obtained during a police visit to his aviation business hangar during a missing-person investigation.

The court considered alleged breaches of ss. 7, 8, and 10 of the Canadian Charter of Rights and Freedoms arising from police questioning and a warrantless walk-through of the hangar.

The court held that the accused was not detained while speaking with police in the public reception area and that statements made there were admissible.

However, once police moved into the secure hangar area, the accused was psychologically detained and the police conducted a warrantless search without valid consent.

The resulting observations and related utterances were obtained in breach of the accused’s Charter rights and were excluded under s. 24(2).

The applicant brought a pre-trial motion to exclude both sworn and unsworn jurors from the courtroom during the 'rotating triers' challenge for cause process.

The Crown and co-accused supported the application.

The court considered conflicting jurisprudence on whether the 2008 amendments to section 640 of the Criminal Code ousted the court's inherent jurisdiction to exclude jurors absent a specific application for 'static triers' under section 640(2.1).

The court concluded that the legislative amendments did not limit its inherent jurisdiction to control its process and ensure an impartial jury under section 11(d) of the Charter.

The application was granted, and all jurors were ordered excluded during the challenge process.

A media coalition applied for an order allowing the publication of certain pre-trial motions in a high-profile first-degree murder case, arguing that the statutory publication ban under s. 648(1) of the Criminal Code should not apply to all pre-trial motions.

The Crown and the accused opposed the application, arguing that s. 648(1) provides a blanket statutory ban on all reporting of any information concerning pre-trial applications brought before the designated trial judge.

The court dismissed the media's application, holding that the statutory ban under s. 648(1) is mandatory and applies to all pre-trial motions adjudicated by the trial judge, whether litigated before or after a jury is selected.

The accused applied under s. 599(1) of the Criminal Code for a change of venue for a first‑degree murder trial, arguing that extensive pre‑trial publicity and community response in Hamilton had irreparably tainted the local jury pool.

The Crown and the co‑accused opposed the motion, submitting that the presumption favouring trial in the territorial jurisdiction of the alleged offence had not been displaced and that standard jury selection safeguards would ensure fairness.

The court reviewed the nature, extent, and timing of media coverage, including internet and social media discussion, and found that most reporting was factual and not highly prejudicial.

It held that the applicant failed to demonstrate a fair and reasonable probability of prejudice that could not be addressed through the jury selection process.

The motion for a change of venue was dismissed.

The applicant sought a bail review after being denied bail on secondary grounds under s. 515(10)(b) of the Criminal Code for impaired driving, driving over 80, and driving while disqualified.

The applicant argued that a materially different release plan existed, including three proposed sureties, house arrest, supervision at work, and alcohol counselling.

The court found the proposed plan largely replicated the earlier proposal and did not constitute a material change in circumstances.

Given the applicant’s prior impaired driving record, outstanding charges, breach of a driving prohibition, and extremely high blood alcohol readings, the court concluded there remained a substantial likelihood of reoffending and risk to public safety.

The detention order was therefore maintained.

The applicant brought a bail review under s. 520 of the Criminal Code following a prior unsuccessful bail review.

The court noted that the applicant failed to obtain a judicial order for his attendance and filed an unsworn affidavit.

The materials largely duplicated those from the earlier bail review and did not demonstrate a material change in circumstances.

Additionally, the applicant failed to file the required transcript of the prior detention review proceedings as mandated by the applicable rules.

The application was adjourned sine die until the record is properly perfected and scheduled before the judge who heard the initial bail review.