Boris Bytensky

Sentencing decision following convictions for two counts of incest and one count of sexual assault arising from repeated sibling sexual abuse, including conduct when the complainant was under 16.

The offender, though chronologically an adult, had accepted expert evidence establishing an intellectual disability and cognitive functioning equivalent to a child between 9 and 12, which materially reduced moral blameworthiness and made penitentiary custody uniquely harsh.

The court held that the Supreme Court’s decision in I.M. did not require prosecution or sentencing under the YCJA, but did require the offender’s developmental limitations to be fully reflected in proportional sentencing under the Criminal Code.

Applying the modern s. 12 framework from Hills and Senneville, the court found the five-year mandatory minimum in s. 155(2) for incest with a complainant under 16 grossly disproportionate both as applied and in a reasonably foreseeable scenario, declared it of no force and effect, and imposed a conditional sentence of two years less a day followed by three years’ probation.

The applicant sought a bail review under s. 520 of the Criminal Code.

The court had previously detained the applicant but issued these postscript reasons to address the validity of 'bail set not met' orders, where a release order is made but surety approval is deferred to a separate proceeding.

The court held that such orders are valid in law, including in reverse onus situations.

The court found that the prior decision in R. v. C.S., which held such orders invalid, was decided per incuriam as it failed to consider a long line of binding authority and established practice.

The court emphasized that bail procedures must remain flexible and that the ladder principle's inapplicability in reverse onus cases does not preclude bifurcated surety approval proceedings.

The applicant, an adult charged with incest and sexual assault, brought a constitutional challenge arguing that his intellectual disability gave him a mental age of 9 to 12, and therefore he should be entitled to the protections of the Youth Criminal Justice Act (YCJA).

The court held that the YCJA unambiguously applies based on chronological age, not mental age.

The court dismissed the Charter challenges, finding that while the YCJA excludes the applicant based on age, it is protected as an ameliorative program under s. 15(2) of the Charter.

The court also found no violation of s. 7, noting that the adult criminal justice system must accommodate the applicant's disability to ensure his procedural rights are protected.

This decision addresses the application of section 8 of the Canadian Charter of Rights and Freedoms concerning the police's receipt and use of an IP address linked to child sexual abuse material (CSAM).

The court distinguishes the passive receipt of an IP address from a third-party American organization (NCMEC) from an active police request, finding no breach of section 8 rights.

The decision emphasizes the legislative framework governing mandatory reporting by Internet Service Providers (ISPs) in Canada and the U.S., which reduces the reasonable expectation of privacy in IP addresses used to access or distribute CSAM.

The court also finds that police steps to confirm ISP and location information without prior judicial authorization did not violate section 8.

Even if a breach occurred, the evidence would not be excluded under section 24(2) of the Charter due to the seriousness of the offence and limited impact of the breach.

Sean Done was convicted of accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code.

The sentencing decision addresses the protracted procedural history, including Charter applications, and extensive evidentiary record including psychological and psychiatric assessments diagnosing pedophilia limited to internet offending.

The court emphasized the equivalence of accessing and possessing child sexual abuse material (CSAM), the aggravating factors such as the large quantity and nature of the material, sharing and trading of CSAM, and counselling others to avoid detection.

Mitigating factors included Mr. Done’s lack of prior record, engagement in therapy, and supportive family.

The court imposed a 22-month custodial sentence (after a 4-month reduction for Charter breaches), followed by two years probation with strict conditions, and ancillary orders including DNA, SOIRA registration for 20 years, forfeiture of the cellphone, and waiver of victim fine surcharge.

This decision addresses the constitutionality of routine strip searches of young persons in pre-trial custody, focusing on four Black adolescent female applicants charged in the high-profile homicide of Kenneth Lee.

The court found that routine strip searches, conducted without individualized grounds or prior authorization and involving complete nudity, violated sections 7 and 8 of the Charter.

The court declined to grant a stay of proceedings, instead holding that the appropriate remedy was a reduction in sentence for any applicant found guilty, to reflect the Charter breach.

The ruling provides detailed analysis of the legal and regulatory framework, the psychological impact of strip searches, and the evolving standards for custodial searches in youth justice settings.

The court considered an application to exclude evidence in a prosecution for child luring, where the evidence was obtained from electronic devices seized from the accused’s residence.

The defence alleged breaches of sections 8 and 10(b) of the Charter, including improper use of an IP address without judicial authorization (in light of R. v. Bykovets), a search that exceeded the scope of the warrant, and delay/deficiencies in access to counsel.

The court found multiple Charter breaches, including a warrantless search for luring evidence and serious s. 10(b) violations.

Balancing the Grant factors, the court excluded the evidence and acquitted the accused.

The media appellants sought full, unredacted access to youth court records concerning eight young persons accused of second-degree murder, arguing that the open court principle (Dagenais-Mentuck test) should grant them presumptive access.

The Youth Court and Superior Court granted only partial, redacted access, holding that the Youth Criminal Justice Act (YCJA) statutory scheme for record access (s. 119(1)(s)) takes precedence over the common law open court principle.

The YCJA requires applicants to demonstrate a "valid interest" and that access is "desirable in the interest of the proper administration of justice" balancing public interest with the young persons' heightened privacy rights and rehabilitation goals.

The Superior Court also declined to hear the appellants' constitutional challenge to the YCJA provisions, deeming the Youth Court the more appropriate forum.

The Court of Appeal dismissed the appeal, affirming that the YCJA's specific statutory regime for youth record access is a valid exception to the open court principle and that the media must meet its criteria via a formal application on notice.

It also upheld the discretion not to hear the constitutional challenge at the Superior Court level.

The appellant, a permanent resident, pleaded guilty to failing to remain at the scene of a fatal accident and received an 18-month imprisonment sentence, which subjected him to deportation without the right to appeal on humanitarian or compassionate grounds.

He appealed his conviction, arguing his plea was uninformed about these collateral immigration consequences and that his right to be present during his trial was violated when the trial judge conducted a post-plea inquiry with his counsel in his absence.

The Court of Appeal allowed the conviction appeal, finding a miscarriage of justice due to the appellant's improper exclusion from proceedings where his vital interests were discussed and misleading representations were made by his counsel regarding his understanding of immigration consequences.

A new trial was ordered.

This is an appeal from a conviction for sexual assault.

The appellant challenged the trial judge's findings on three grounds: inferring the complainant's non-impairment without expert evidence, alleged improper conduct by the Crown regarding the complainant's prior relationship, and uneven scrutiny of the appellant's and complainant's testimony.

The Superior Court of Justice dismissed the appeal, finding that the trial judge was entitled to accept the complainant's evidence regarding non-impairment, that the Crown's submission, while potentially improper, caused no prejudice as the prior relationship's nature was irrelevant to consent, and that the trial judge's differential treatment of argumentativeness and assessment of inconsistencies did not constitute reversible error or uneven scrutiny.

Julianna Fodor was charged with three human trafficking-related offences: exercising control for the purpose of sexual services, advertising sexual services, and receiving material benefit from sexual services.

The trial involved multiple Charter applications, including a defence application to re-open a previous Charter ruling regarding the seizure of a USB device and a new Charter argument concerning standing to challenge the seizure of the victim's bank records.

The court found Ms. Fodor guilty on all three counts, concluding that the Crown proved the essential elements beyond a reasonable doubt.

The court also dismissed a renewed s. 11(b) application for a stay of proceedings, finding that the delay was justified by the case's complexity and attributable in part to defence conduct.

The accused, charged with human trafficking offences, brought an application for a stay of proceedings under s. 11(b) of the Charter, citing a delay of 19 months and 26 days.

The Crown argued the delay beyond the 18-month ceiling was justified by exceptional circumstances, specifically the unforeseen unlocking of the deceased complainant's cell phone on the eve of trial and the overall complexity of the case.

The court agreed, finding the police made reasonable efforts to unlock the phone and that the defence's legitimate but numerous applications added complexity that justified the delay.

The application for a stay was dismissed.

The Attorney-General of Canada, on behalf of the United States, brought an application under s. 29 of the Extradition Act seeking an order to commit the respondent into custody for extradition on a charge of money laundering.

The court found sufficient admissible evidence to justify committal for trial in Canada for money laundering, including evidence of the actus reus (withdrawing proceeds of fraudulent tax refunds from various accounts) and mens rea (knowledge or willful blindness that funds were proceeds of crime, inferred from circumstantial evidence).

The court granted the order of committal.

The applicant, sought for extradition to the United States for alleged tax fraud, brought an application for the presiding judge to recuse himself.

The recusal application was based on a reasonable apprehension of bias arising after the Crown provided the court with ex parte information concerning public safety and public interest privilege.

The judge appointed amicus curiae to represent the applicant's interests during a closed hearing to determine disclosure of the information.

The judge dismissed the recusal application, finding that the procedures adopted balanced the competing interests and ensured fundamental fairness, such that an informed person would not conclude there was a reasonable apprehension of bias.

The United States requested the extradition of the respondent for an alleged false tax refund scheme.

The respondent was arrested at the airport on a provisional arrest warrant while attempting to board a flight to Russia.

The respondent applied for a stay of proceedings, arguing that the affidavit supporting the warrant contained material omissions and misrepresentations that falsely portrayed him as a flight risk, amounting to an abuse of process.

The Superior Court of Justice dismissed the application, finding that the omitted facts were not material to the issuing judge's decision and that the authorities did not attempt to mislead the court.

The court concluded that the conduct did not rise to the level of an abuse of process.

The appellant was arrested as part of a large-scale online police investigation targeting the buyer side of the juvenile sex work market.

He responded to an undercover officer's ad on an escort website, and after being told the purported escort was 15 years old, attended a hotel room where he was arrested and convicted of child luring-related offences.

He sought a stay of proceedings on the basis of entrapment, arguing the police lacked reasonable suspicion over a sufficiently precise space and that officers should be limited to offering only the exact offences they suspect, not rationally connected ones.

The Supreme Court dismissed the appeal, applying its concurrent reasons in R. v. Ramelson, 2022 SCC 44, and holding that Project Raphael was a bona fide inquiry and the appellant was not entrapped.

The offender, a 19-year-old unlicensed driver, drove a vehicle at speeds up to 170 km/h while heavily impaired by alcohol, resulting in a catastrophic collision that killed one person and seriously injured three others.

He was convicted of criminal negligence causing death and bodily harm, and impaired driving causing death and bodily harm.

The court weighed the offender's youth and lack of prior record against the extreme moral blameworthiness of his prolonged, dangerous driving.

The offender was sentenced to 9 years in prison and an 18-year driving prohibition.

The defendant was charged with criminal negligence causing death and bodily harm, and impaired driving causing death and bodily harm, following a horrific motor vehicle collision.

The central issue at trial was the identity of the driver, as the defendant claimed his friend was driving the vehicle.

The court applied the W.D. analysis and relied on circumstantial evidence, including mirror-image seatbelt injuries sustained by the occupants, to conclude beyond a reasonable doubt that the defendant was the driver.

The court also found that the defendant's ability to drive was impaired by alcohol and that his driving at excessive speeds constituted a marked and substantial departure from the standard of a reasonable person.

The defendant was found guilty on all counts.

The applicant, facing extradition to the U.S. for fraud and money laundering, sought disclosure of materials related to his provisional arrest warrant.

He alleged that the respondent (Crown) misled the issuing justice by misrepresenting his planned departure as an attempt to escape, despite his regular contact with CBSA.

The applicant argued this constituted an abuse of process, requiring a stay of proceedings.

The court applied the Larosa test for exceptional disclosure in extradition proceedings, finding that the allegations were capable of supporting the remedy, had an air of reality, and the sought documents were likely relevant.

The court granted the application for disclosure of various materials related to the provisional arrest warrant, including those from law enforcement, CBSA, Department of Justice, and the affiant's own investigation, subject to privilege and redaction.

The accused was charged with criminal negligence causing death and bodily harm, and impaired driving causing death and bodily harm, following a fatal motor vehicle collision.

The accused brought a multi-pronged Charter application seeking the exclusion of statements, medical records, blood samples, and other evidence, alleging violations of his ss. 7, 8, 9, 10(a), and 10(b) Charter rights.

The court found that the accused's ss. 10(a) and 10(b) rights were briefly violated during the initial detention prior to his arrest, and that his s. 10(b) rights were later violated when police failed to pass on a lawyer's contact information provided by his family.

However, the court held that the police had reasonable and probable grounds to arrest the accused, and that the search warrants and production order for his blood samples and medical records were validly issued.

Applying the Grant framework under s. 24(2) of the Charter, the court excluded the evidence obtained during the brief period between the initial detention and the arrest, but admitted the balance of the evidence, finding that its exclusion would bring the administration of justice into disrepute.