Boris Bytensky

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.

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.

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 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 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 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.

The accused was charged with impaired care or control of a motor vehicle under section 253(1)(a) of the Criminal Code.

The Crown alleged that the accused drove a Honda Odyssey van to his wife's workplace while impaired by alcohol.

The defence argued that the accused did not drive the vehicle; rather, his cousin drove it while the accused sat in the passenger seat.

The trial judge found that the Crown's evidence was internally inconsistent and contradictory regarding whether the accused was in the driver's seat or had care or control of the vehicle.

The Crown witnesses gave conflicting accounts of the accused's position when first observed by police.

The trial judge preferred the credible testimony of the accused's wife and the defence witnesses, which established that the accused's cousin drove the vehicle.

The trial judge found reasonable doubt on the issue of care or control and acquitted the accused.

The accused was convicted of offences contrary to sections 172 and 286.1(2) of the Criminal Code.

Following conviction, the accused brought a section 11(b) Charter application alleging a breach of the right to trial within a reasonable time.

The court considered whether the Jordan presumptive ceiling applies to post-verdict entrapment applications and whether the overall delay breached section 11(b).

The court held that the Jordan ceiling applies only to the end of trial and does not extend to post-trial proceedings.

The court further found no breach of section 11(b) rights after verdict, as the accused retains the right to have post-trial applications heard within a reasonable time.

The application was dismissed.

The accused was charged with communicating via telecommunication with a person he believed to be under 16 for the purpose of facilitating an invitation to sexual touching, and communicating for the purpose of obtaining sexual services of a person under 18.

The charges arose from Project Raphael, an undercover police investigation targeting purchasers of sexual services from minors.

The accused applied for a stay of proceedings on the basis of entrapment, arguing the police engaged in random virtue testing.

The court dismissed the entrapment application, finding the investigation was a bona fide investigation conducted at a location where juvenile prostitution was active and reasonably suspected to be ongoing, and that the accused was not induced to commit the offence.

The defendant was charged with five Criminal Code offences involving sexual misconduct against his stepson (A.B.) and biological son (C.D.) over a period spanning 1995-2010.

The Crown alleged sexual interference and sexual assault against both complainants.

The trial proceeded on credibility and reliability of the two complainants' evidence, as the defendant did not testify.

The court found the defendant guilty of sexual assault against A.B. (Count 3) but acquitted on the sexual interference charges against both complainants.

The court found the defendant guilty of simple assault (not sexual assault) against C.D., finding reasonable doubt as to the sexual nature of the contact.

The court rejected the Crown's similar fact evidence application and found no collusion between the complainants despite opportunity for such.

The accused was charged with three offences arising from his communication via text message with an undercover police officer posing as a 15-year-old girl offering sexual services.

The charges were: communicating with a person believed to be under 18 to facilitate obtaining sexual services for consideration; communicating with a person believed to be under 16 to facilitate invitation to sexual touching; and communicating to obtain sexual services from a person under 18.

The central issue was whether the Crown proved beyond a reasonable doubt that the accused believed he was communicating with a minor.

The court found the accused's testimony unreliable and contradicted by the text message record.

The court concluded the accused made a detailed agreement to purchase sexual services from a person he believed was 15 years old and acted upon that agreement until arrested.

The court found the accused guilty on all three counts.

The appellant was convicted of impaired care or control and over 80.

He appealed the conviction, arguing the trial judge erred in finding that a "realistic risk of danger" is not a required element where the Crown relies on the presumption of care or control, in unreasonably finding a realistic risk of danger in obiter, and in assessing his evidence.

The appeal court dismissed the appeal, finding no legal error in the trial judge's analysis of de facto care or control and that the findings were not unreasonable.

The court also upheld the trial judge's credibility assessment.

The appellant appealed a conviction for assault against his wife, arguing that the trial judge erred in failing to provide meaningful reasons, misapprehended evidence, inappropriately took judicial notice of injuries, and misapplied the burden of proof.

The Superior Court found that the trial judge materially misapprehended evidence by conflating two separate incidents (the alleged morning assault and a later computer struggle) and by accepting an explanation for inconsistencies in the complainant's testimony that was not in evidence.

This misapprehension undermined the credibility assessment, which was central to the case.

The appeal was allowed, the finding of guilt quashed, and a new trial ordered.

The appellant appealed his convictions for impaired operation of a motor vehicle causing death and driving while disqualified following a fatal snowmobile accident.

The sole issue at trial was the identity of the driver.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's treatment of the appellant's statements, application of the burden of proof, or admission of reply evidence.

This decision concerns a reconsideration hearing in an extradition proceeding, specifically addressing the effect of police failure to report to a warrant-issuing justice under section 489.1 of the Criminal Code, as clarified by R. v. Garcia-Machado.

The applicant, Yvette Mathurin, sought broader disclosure and challenged her committal for extradition.

The court reaffirmed its earlier denial of the disclosure request and upheld the committal, finding that while a section 8 Charter breach was established due to the reporting failure, it would not lead to the exclusion of evidence under section 24(2) of the Charter.

The court emphasized that the impugned evidence was not relied upon for extradition and the applicant's Charter-protected interests were minimally impaired.

The appellant appealed her conviction and 18-month sentence for procuring a young person to become a prostitute.

She argued the trial judge erred in instructing the jury that her belief about the complainant's prior involvement in prostitution had to be reasonable, that the verdict was unreasonable, and that the trial judge improperly commented on her failure to testify.

The Court of Appeal found the jury instruction error was harmless, there was sufficient evidence to support the conviction, and the trial judge's comment was not an improper reference.

The sentence appeal was also dismissed, as the trial judge appropriately emphasized deterrence and denunciation.