Boris Bytensky

The Attorney General of Ontario brought an application for a preservation order under the Civil Remedies Act, 2001, seeking to preserve $91,072 in Canadian currency and $510 in US currency seized from a suspected illegal gaming house.

The court found reasonable grounds to believe the currency constituted proceeds and/or instruments of unlawful activity, including operating a gaming house and firearm offenses.

The application was granted, and the seized funds were ordered to be preserved in an interest-bearing account until the final disposition of the application.

This is a sentencing decision by the Ontario Court of Justice for Erhard Haniffa, convicted of communicating with a person believed to be under 16 for the purpose of facilitating a sexual offence (s. 172.1(2) Criminal Code).

The matter was remitted by the Court of Appeal for sentencing on this specific count.

The Crown sought a custodial term of 2 years less 1 day, while the defence argued for a conditional sentence.

The court, acknowledging its limited jurisdiction to count 2, imposed an 18-month conditional sentence.

The decision considered the impact of R v Friesen on sentencing principles for child sexual offences, recent legal changes regarding mandatory minimums and conditional sentence restrictions, the offender's changed personal circumstances, and the ongoing COVID-19 pandemic's effect on correctional facilities.

The court balanced denunciation and general deterrence with the principle of imposing the least restrictive sentence.

The applicant, charged with child pornography offences, sought to exclude evidence seized from his residence, alleging violations of his Charter rights under sections 8 (unreasonable search) and 10(b) (right to counsel).

The court found no s. 8 violation regarding the police's use of automated systems (CPS/Shareaza LE) to identify and download files from his P2P shared folders, nor for arresting him without a Feeney warrant while lawfully executing a search warrant.

However, the court found a s. 10(b) violation because the officer-in-charge asked the applicant questions designed to elicit incriminating evidence before he had a reasonable opportunity to consult with counsel.

Despite this breach, applying the Grant factors, the court determined that admitting the evidence would not bring the administration of justice into disrepute, given the seriousness of the alleged offences and the lack of a causal connection between the breach and the discovery of the evidence.

The application to exclude evidence was dismissed.

The appellant, Erhard Haniffa, appealed his convictions for child luring and communicating to obtain sexual services from a minor, arguing entrapment, misapplication of the Kienapple principle, and s. 11(b) Charter delay.

The Court of Appeal dismissed the appeals regarding conviction, Kienapple, entrapment, and s. 11(b) applications.

However, the Court allowed the sentence appeal, setting aside the sentence imposed by the trial judge on a stayed count and remitting the matter for sentencing on the correct count.

The accused drove a rented van down a busy sidewalk in Toronto, killing 10 people and injuring 16 others.

He admitted to the acts but raised a defence of not criminally responsible (NCR) under s. 16 of the Criminal Code, arguing that his Autism Spectrum Disorder (ASD) rendered him incapable of knowing his actions were morally wrong.

The court found that while ASD qualifies as a mental disorder under s. 16, the accused did not lack the capacity to rationally evaluate his actions.

He knew his actions were legally and morally wrong but chose to commit them to achieve notoriety.

The NCR defence failed, and the accused was found guilty of 10 counts of first-degree murder and 16 counts of attempted murder.

Three appellants were convicted at trial of assault causing bodily harm, with two also convicted of unlawful confinement.

Following the trial judge's reasons, the appellants moved for a stay of proceedings on the basis that their right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was infringed.

The trial judge stayed the proceedings, but the Court of Appeal for Ontario allowed the Crown's appeal and restored the convictions, finding the net delay was below the Jordan ceiling.

The Supreme Court dismissed the appeal, agreeing with the Court of Appeal in the result and leaving several s. 11(b) legal issues — including treatment of multiple accused and post-conviction applications — to be resolved in a future case.

The defence brought a motion for a sealing order and in camera proceedings during the testimony of their key expert witness, a US-based psychiatrist.

The expert issued an ultimatum that he would withdraw from the case unless his video recordings of the accused were sealed and shielded from public broadcast, citing concerns about copycat violence, notoriety, and stigmatization of the autism community.

Applying the Dagenais/Mentuck test, the court found that while the expert's concerns did not themselves justify a sealing order, his threat to withdraw would deprive the accused of his only defence, thereby creating a substantial risk to the administration of justice.

The court reluctantly granted the motion to preserve the accused's right to a fair trial, balancing it against the open court principle by implementing limited restrictions on public access to the video exhibits.

During a trial for multiple counts of first-degree murder and attempted murder, the Crown brought an application for the disclosure of audio and video recordings made by defence psychiatric experts during their interviews with the accused and his family.

The accused had raised a defence of not criminally responsible under s. 16 of the Criminal Code.

The court held that the recordings were protected by litigation privilege, but that this privilege would be waived if the experts were called to testify or if the recordings were used by a witness to refresh their memory.

The court ordered that the recordings must be disclosed to the Crown immediately upon any of the experts being called to testify.

The respondent pleaded guilty to failing to provide the necessaries of life after her nine-year-old daughter, who had cerebral palsy, died from malnutrition and dehydration.

The sentencing judge imposed a sentence of one day in jail and three years of probation, after crediting the respondent with 17 months of pre-disposition custody.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding that the sentencing judge erred by failing to prioritize denunciation and deterrence as required by section 718.01 of the Criminal Code, improperly considering the failures of the Children's Aid Society as a mitigating factor, and imposing a demonstrably unfit sentence.

The Court substituted a sentence of three years in a penitentiary, but stayed the execution of the remaining 19 months of custody.

Following a guilty verdict for first-degree murder, the applicants sought a factual inquiry and a mistrial after discovering that a juror had cycled past the murder scene and posted about it on a fitness app during deliberations.

The court declined to conduct the inquiry, finding that the evidence was sufficiently preserved for an appeal and that questioning the juror about the impact of the visit would violate the secrecy of jury deliberations.

The court also dismissed the mistrial application, concluding that the physical layout of the scene was not central to the main issue of identity, was already well-documented in evidence, and did not result in a miscarriage of justice.

The accused was charged after responding to an online escort advertisement used in a police sting targeting persons seeking sexual services from minors, and after continuing a text exchange in which the purported sex worker stated she was 15.

Applying the Supreme Court’s framework in Morrison, the court held the Crown had to prove beyond a reasonable doubt that the accused actually believed, or was wilfully blind to, the person being underage.

The court found wilful blindness was not established because the accused asked questions directed to age, and the evidence left a reasonable doubt whether he believed the stated age or merely proceeded recklessly in the face of the risk.

Because recklessness was insufficient for luring mens rea, the accused was acquitted on all counts.

The defence applied for a publication ban on the accused's video-recorded statement to the police and a sealing order for information found on electronic devices seized during a search warrant execution.

The media opposed both orders.

The court applied the Dagenais/Mentuck test and found that the defence failed to establish a serious risk to the administration of justice that necessitated a publication ban or sealing order.

The court emphasized the presumption of open court proceedings and the importance of freedom of the press.

Both applications were dismissed, with a temporary extension granted to allow for potential appeals.

Alek Minassian, charged with multiple counts of murder and attempted murder related to the Toronto van attack, brought a motion for disclosure of data from three password-protected electronic devices seized by the police.

The Crown argued it lacked possession or control over the encrypted data and could not disclose it without prior review due to public safety concerns, including potential child pornography and incel-related threats.

The court found the defence met the relevance test and that the Crown had possession and control of the data.

Balancing the accused's right to full answer and defence against public safety, the court ordered disclosure to defence counsel, subject to strict undertakings and conditions.

These conditions included counsel retaining custody, not providing raw data to Minassian, and a duty to report evidence of child pornography or future criminal acts by third parties to the police, with flexibility for anonymous reporting or seeking court directions.

The accused, charged with first degree murder, brought pre-trial applications alleging abuse of process and seeking to adduce hearsay and alternate suspect evidence.

They argued the Crown preferred a direct indictment for an oblique purpose to shield a key witness from discovery, and sought disclosure of the materials provided to the Attorney General.

The court dismissed the abuse of process application, finding no evidence of bad faith or improper motive to displace the presumption that prosecutorial discretion was exercised properly.

The court also dismissed the hearsay application and provisionally dismissed the alternate suspect application, finding the proposed evidence lacked a sufficient connection to the crime and its prejudicial effect vastly outweighed any probative value.

The applicants, charged with first-degree murder, brought a motion for a mistrial during their jury trial.

The application was based on two incidents: an altercation in the courthouse foyer where the deceased's mother verbally accosted the accused's mother in the jury's presence, and a prior CTV interview given by the deceased's mother.

The court dismissed the application, finding that neither incident created a "real danger of prejudice or a risk of a miscarriage of justice." The judge determined that the jury was intelligent and capable of impartiality, and that a strong judicial instruction would suffice to mitigate any potential impact.

Practical considerations regarding the difficulty and delay of selecting a new jury also factored into the decision.

The applicants, charged with first-degree murder, brought an application seeking a remedy for lost telecommunications records from Freedom Mobile Inc. The police failed to preserve these potentially exculpatory records due to unacceptable negligence, specifically an erroneous belief about Freedom Mobile's affiliation with Rogers and its data retention policy.

The court found a breach of the applicants' s. 7 Charter rights but determined that a stay of proceedings was not appropriate.

Instead, the court ordered a strong jury instruction (Bero instruction) as a sufficient remedy, acknowledging the high relevance of the lost evidence but its indeterminate utility.

The applicant, Lenneil Shaw, sought to redact entries from a phone download report, arguing they constituted inadmissible hearsay and lacked sufficient authentication to link certain phone calls to him.

The report associated a phone number with the contact name "Dozey," a nickname for Lenneil Shaw, and showed calls to a Crown witness's phone near the time of a homicide.

The court dismissed the application, finding that the report contained no implied assertion of who made the calls, but rather presented circumstantial facts relevant to linking the accused to the witness.

The court held that the evidence was admissible for the fact that calls were made, not their substance, and that it met the threshold for relevance, even if it admitted competing inferences.

This ruling addresses a Crown application for voluntariness of a post-arrest videotaped statement and a defence motion to exclude the statement under sections 10(a) and 24(2) of the Charter.

The court found that the Crown proved voluntariness beyond a reasonable doubt and that the defence failed to establish a section 10(a) Charter violation.

The statement was deemed admissible, as the descriptions of the offences provided to the defendant were found to be unobjectionable and sufficient to convey the nature of his jeopardy, despite his claims of misunderstanding.

The appellant was convicted of impaired driving causing bodily harm and operating a motor vehicle with excess alcohol causing bodily harm following a multi-vehicle accident on Dixie Road in Mississauga on October 19, 2013.

The appellant appealed his convictions and sought leave to introduce fresh evidence suggesting that another individual, "Volodya," was the actual driver of the van.

The Court of Appeal dismissed both the motion to admit fresh evidence and the appeal, finding that the fresh evidence failed to meet the cogency component of the test for admission and that the verdict was not unreasonable.

The appellant appealed his conviction and sentence from the Superior Court of Justice.

The Court of Appeal allowed the appeal in part, setting aside convictions on counts 2, 3, and 4 and ordering a new trial on those counts.

The sentence was reduced from 18 months to 6 months imprisonment, and the lifetime weapons prohibition order was set aside.

Upon further consideration, the court addressed whether it had jurisdiction to correct an omission regarding the weapons prohibition order, which should have been reduced to 10 years rather than entirely set aside, as the remaining conviction for criminal harassment is a designated offence under the Criminal Code.