Boris Bytensky

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 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 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.

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 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.

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.

The defendant was arrested for aggravated assault and detained by police.

Despite having sufficient evidence to charge him by 9:45 a.m., the police failed to bring him before a bail court before it closed at 12:43 p.m., instead interviewing him at 1:01 p.m. where he confessed.

The defendant brought an application to exclude the confession, arguing his detention violated s. 503(1) of the Criminal Code and s. 9 of the Charter.

The court found a serious, systemic breach of the defendant's Charter rights and excluded the confession under s. 24(2) of the Charter.

The appellant was convicted of accessing and possessing child pornography contrary to sections 163.1(4.1) and 163.1(4) of the Criminal Code.

The appellant claimed the defence under section 163.1(6), arguing he accessed and possessed the material as research for a book he was writing.

The trial judge found that while the appellant may have initially had a legitimate purpose related to art, he subsequently accessed and possessed the material to satisfy his fascination and morbid curiosity.

The trial judge also found no objectively verifiable connection between the appellant's conduct and his stated purpose.

The Court of Appeal dismissed the appeal, upholding the convictions and rejecting the appellant's arguments regarding dual purpose, credibility findings, and objective connection.

The appellant was convicted of criminal harassment, mischief under $5,000, possession of a weapon for a purpose dangerous to the public peace, and using an imitation firearm in the commission of an offence.

He was sentenced to 18 months' imprisonment.

The Court of Appeal allowed the appeal in part, setting aside the convictions for the weapons and mischief offences and ordering a new trial on those counts.

The court found that the trial judge failed to conduct a voluntariness voir dire regarding statements made by the self-represented accused to police and failed to inquire into potential Charter breaches.

The sentence was reduced to six months' imprisonment for the criminal harassment conviction, which was upheld.

The accused was convicted at trial of communicating via telecommunication to facilitate child prostitution and communicating for the purpose of obtaining sexual services of a person under 18 years old.

The accused responded to an online prostitution advertisement, was informed the girl was 15 years old, engaged in graphic sexual discussions, negotiated price, and attended a hotel to complete the transaction where he was met by police.

The court imposed a global sentence of 12 months imprisonment followed by two years probation with strict conditions, rejecting the defence submission for an intermittent sentence and conditional sentence based on exceptional family circumstances.

The court found that denunciation and general deterrence were paramount in child abuse cases and that the accused's moral blameworthiness was high given his knowledge of the victim's age.

This is a second section 11(b) Charter application challenging delay in criminal proceedings.

The defendant was charged with three offences arising from a focused fact situation.

Following conviction at trial in June 2017, numerous post-verdict applications were brought, including entrapment, Kienapple, and constitutional challenges.

The court found that while the overall timeline extended from March 2016 to August 2018, the case moved expeditiously at every stage, with all parties taking active steps to minimize delay.

The court dismissed the application, finding no breach of the right to trial within a reasonable time.

The defendant brought two applications to re-open trial proceedings following conviction.

The first application sought to challenge the admissibility of text messages on the basis that they were intercepted without authorization under Part VI of the Criminal Code.

This argument had been rejected by multiple appellate courts and trial courts.

The second application sought to re-open the entrapment hearing based on newly disclosed production order data showing the volume of responses to undercover police advertisements.

The court found that neither application met the legal test for re-opening and dismissed both applications.

The Crown sought to introduce evidence of the accused's post-offence conduct, including cutting his hair, removing identification from his apartment, and asking his girlfriend to change her police statement, as circumstantial evidence of consciousness of guilt in a first-degree murder trial.

The defence argued the evidence lacked probative value and was highly prejudicial.

The court held that the evidence was highly probative, not inherently prejudicial, and admissible, leaving it to the jury to determine what reasonable inferences could be drawn.

The accused, charged with first degree murder, sought to introduce evidence of two alternate sets of suspects at trial: a man known as 'Ammo' with an alleged jealousy motive, and associates of a man with a grudge against one of the accused who allegedly framed them.

The court applied the 'air of reality' test and found no evidential foundation for either theory.

The evidence regarding the alternate suspects lacked sufficient connection to the crime, including motive, opportunity, and propensity, and was therefore ruled inadmissible.

The accused, charged with first degree murder, brought a pre-trial application to exclude evidence seized during a police search of a motel room where he was arrested.

The accused was a casual visitor in the room, which was occupied by an acquaintance.

The court held that the accused lacked a reasonable expectation of privacy in the motel room and therefore had no standing to challenge the search under s. 8 of the Charter.

In the alternative, the court found no breach of s. 8, as there were no material misrepresentations in the Information to Obtain, the seizure of clothing was authorized, and an 18-day delay in reporting the seizure to a justice did not violate the Criminal Code.

The court further held that even if a breach had occurred, the evidence would be admissible under s. 24(2) of the Charter.

The application was dismissed.

The Crown applied to determine whether a provincial court has jurisdiction to revisit the constitutionality of a law after a Superior Court has issued a declaration of invalidity pursuant to section 52 of the Charter of Rights and Freedoms.

The Crown argued that despite prior declarations finding mandatory minimum sentences unconstitutional, courts of coordinate jurisdiction may continue to consider the same issue constrained by principles of comity.

The court held that a section 52 declaration is a unique constitutional remedy that renders a law of no force and effect in the province and is binding on all parties and courts.

The Crown's application was dismissed.