Boris Bytensky

The applicants, charged with bookmaking and criminal organization offences, brought a pre-trial application challenging the constitutional validity of the gaming and criminal organization provisions of the Criminal Code and related regulations.

They argued that the gaming provisions were ultra vires Parliament's criminal law power, that the regulation deeming gaming offences as 'serious offences' violated section 7 of the Charter due to overbreadth and gross disproportionality, and that the bookmaking prohibition violated freedom of expression and association under section 2 of the Charter.

The court dismissed the application, finding the provisions were a valid exercise of the criminal law power, did not violate the Charter, and in any event, would be saved under section 1.

The applicant challenged the validity of two search warrants executed at his residence on Charter section 8 grounds.

The applicant was originally convicted of possession of child pornography following a nine-day trial.

Upon reopening the trial, the court examined whether the police exceeded the scope of the first warrant by seizing CDs and DVDs that the issuing justice had expressly prohibited.

The court found that the issuing justice's oral directions limiting the search to digital cameras and memory cards were binding on the police, and that the seizure of the Montreal CD and other storage devices constituted over-seizure in violation of section 8 of the Charter.

The court further found that the second warrant could not have been issued without the information derived from the unlawfully seized Montreal CD.

The court excluded the evidence and dismissed the charge.

The United States sought the appellant's extradition for fraud-related charges.

Canadian authorities conducted a parallel investigation, obtaining a production order and search warrant under the Criminal Code, and shared the information with American authorities without filing a report to a justice under s. 489.1.

The appellant sought disclosure of the Canadian evidence to pursue Charter claims, which the extradition judge denied.

On appeal, the Court of Appeal upheld the extradition judge's findings that the Canadian investigation was valid and information sharing was lawful, but referred the matter back to reconsider the effect of the failure to report under s. 489.1 in light of recent jurisprudence.

The accused was charged with impaired care or control and over 80 care or control of a motor vehicle on September 22, 2013.

The vehicle, a silver BMW, was stuck on a tree on a boulevard after being driven by another person.

The accused attended the scene and attempted to move the vehicle by pushing it with another car.

The Crown relied on both the statutory presumption under section 258(1)(a) and de facto care or control.

The court found the accused guilty on both bases, rejecting his testimony that he only entered the vehicle to look for keys and finding instead that he was attempting to put the vehicle into reverse.

The court also found de facto care or control based on the accused's actions in attempting to move the vehicle while impaired.

On a pre-trial s. 276 application in a sexual assault prosecution, the applicants sought leave to cross-examine the complainant on prior police occurrence reports concerning earlier allegations of sexual assault against other individuals.

The court applied the twin-myth exclusion in s. 276 and the admissibility framework in Darrach, together with the Court of Appeal’s rule in Riley permitting such cross-examination only where earlier allegations were recanted or demonstrably false.

Three prior occurrence reports met that threshold and were admitted solely for the limited purpose of challenging general credibility.

The court prohibited any questioning directed to pattern reasoning, similar-fact reasoning, or escalation theories, and barred inquiry into the factual sexual details of the prior incidents.

In a judge-alone sexual assault trial involving two accused, the central issue was whether the complainant's uncontradicted evidence established absence of consent beyond a reasonable doubt.

The court found that although sexual activity occurred, the complainant's evidence was undermined by major inconsistencies, changes in memory over time, intoxication-related uncertainty, and evidence of prior demonstrably false or recanted reports.

On a pre-trial s. 276 application, the court permitted limited cross-examination on certain prior occurrence reports for credibility purposes, finding they did not engage the prohibited inferences.

The Crown failed to prove lack of consent beyond a reasonable doubt, and both accused were acquitted on all counts.

The accused brought a pre‑trial application under s. 24(2) of the Charter seeking a stay of proceedings for alleged violation of the right to be tried within a reasonable time under s. 11(b).

The charges arose from a search warrant execution that resulted in drug trafficking and proceeds of crime allegations.

The total delay from arrest to the scheduled trial date was approximately 23 months.

The court held that most delay prior to committal was inherent or attributable to co‑accused difficulties in retaining counsel and scheduling pre‑trial proceedings, which was neutral delay.

The institutional delay of approximately 10 months in the Superior Court was within acceptable guidelines and the alleged prejudice from the death of a potential defence witness was not causally connected to any Crown or institutional delay.

The accused applied to exclude evidence obtained from extensive computer searches conducted during a child pornography investigation arising from purchases linked to the AZOV website.

The court held that although the search warrant was validly issued and police were entitled to investigate, the method of execution violated s. 8 of the Canadian Charter of Rights and Freedoms.

Police conducted a sweeping file‑by‑file search of approximately 40 terabytes of digital storage without first using targeted search parameters tied to the specific information known to them.

The court found the search overly intrusive given the narrow investigative grounds and concluded that police failed to pursue the least intrusive means available.

Applying the framework in R. v. Grant, the court excluded most of the discovered child pornography evidence under s. 24(2), admitting only evidence directly tied to the specific AZOV downloads known to investigators.

The appellant appealed his conviction for trafficking in cocaine, arguing the trial judge erred in assessing the eyewitness identification evidence of undercover police officers.

The Court of Appeal dismissed the appeal, finding the trial judge was not required to explicitly mention the frailties of eyewitness identification and properly relied on the officers' close-proximity observations of the appellant's distinctive facial scar and voice pattern.

The requesting state sought the committal of the person sought for extradition to the United States to face prosecution for fraud arising from a large-scale fraudulent debt collection scheme targeting U.S. law firms.

The court considered whether the certified Record of the Case and Supplemental Records disclosed evidence sufficient to justify committal under the Extradition Act.

Although the case against the person sought was largely circumstantial, the court held that the evidence linking email accounts, IP addresses, and communications with co-conspirators created reasonable inferences that the person sought directly participated in verifying counterfeit cheques during the scheme.

Applying the low committal threshold for extradition proceedings, the court concluded that a properly instructed jury could convict on the Canadian equivalent offence of fraud.

The court therefore ordered committal for extradition.

The appellant appealed his summary convictions and sentence for impaired driving, failing to remain at the scene of an accident, and refusing to provide breath samples following a multi-vehicle collision on the Gardiner Expressway.

The appellant argued the trial judge misapprehended evidence, improperly relied on an out-of-court statement, and rendered unreasonable verdicts.

The Superior Court of Justice dismissed the conviction appeals for those offences, finding the verdicts reasonable and supported by evidence, including the appellant's feigned attempts to provide breath samples.

The court allowed the appeal solely to enter an acquittal on a stayed dangerous driving charge.

The appeal against the sentence of four months' imprisonment and a $1,000 fine was dismissed as fit.

This is a preliminary inquiry into charges of indecent assault and gross indecency arising from alleged sexual conduct between the accused, a 27-year-old adult, and the complainant, a 15-year-old boy, in the summer of 1970.

The Crown sought committal on two counts of indecent assault and two counts of gross indecency.

The court found insufficient evidence of non-consent for indecent assault, as the complainant's participation, though hesitant and reluctant, was voluntary with no threats, coercion, or abuse of authority.

However, the court found evidence sufficient for committal on gross indecency charges, considering the acts themselves (anal intercourse and fondling between males) were per se grossly indecent under 1970 law, and the significant age difference and power imbalance between the parties constituted additional relevant circumstances.

The appellant appealed convictions for care or control of a motor vehicle while impaired and with blood alcohol exceeding the legal limit under the Criminal Code.

He was found asleep in the driver’s seat of his parked vehicle with the keys in the ignition after a night of drinking and argued that he had no intention of driving and had planned to obtain a ride home.

The trial judge found that although the presumption of care or control had been rebutted and there was no risk of accidental movement, there remained a real risk that the appellant might change his mind and drive while still impaired.

On appeal, the court held that the trial judge’s inference of a realistic risk of a change of mind was supported by circumstantial evidence including the appellant’s level of impairment, inconsistent plans, and access to the vehicle’s controls.

The appellate court further found no error in the application of the burden of proof under W.D. and concluded that the trial judge’s reasons were adequate.

This is a ruling on an application by the accused in a sexual assault trial for production of the complainant's school records pursuant to section 278.1 of the Criminal Code.

The complainant alleged that the accused had sexual intercourse with her without consent while she was in a paralytic state induced by alcohol consumption.

The trial had commenced and the Crown had concluded examination in chief.

The accused sought production of the complainant's Ontario Student Record, attendance records, and school social worker records.

The court applied the two-stage test under sections 278.3-278.5 of the Criminal Code, considering likely relevance and whether production was necessary in the interests of justice, while balancing the accused's right to make full answer and defence against the complainant's privacy and equality rights.

The accused was charged with first-degree murder and faced three previous trials.

The first trial resulted in a conviction that was overturned on appeal due to a Charter breach.

The second and third trials resulted in hung juries.

The accused brought an application for a stay of proceedings to prevent a fourth trial.

The court considered factors including the length of time elapsed, the time the accused spent in custody, the strength of the Crown's case, and the presumption of innocence.

The court concluded that requiring a fourth trial would stretch the community's sense of fair play and decency beyond the breaking point, constituting an abuse of process under section 7 of the Charter.

A stay of proceedings was granted.

The Crown appealed a Superior Court decision dismissing its certiorari application.

The application sought to quash a preliminary inquiry judge's decision to discharge the respondent on a charge of manslaughter.

The Court of Appeal dismissed the appeal, finding no jurisdictional error and agreeing that a reasonable jury properly instructed could not draw a reasonable inference that the respondent committed the offence.

The appellant appealed from a sentence of 18 months' custody and two years' probation for criminal negligence causing bodily harm and failing to provide the necessaries of life to infant victims.

The appellant argued the trial judge erred by rejecting a joint submission of 90 days intermittent custody and an 18-month conditional sentence.

The Court of Appeal dismissed the appeal, finding the trial judge followed the proper process and was entitled to impose a more substantial custodial sentence given the extremely serious circumstances of the offences, which involved horrible injuries to virtually newborn children and a failure to seek medical treatment.

The appellant appealed his convictions and sentence for fraud and possession of credit card data.

The Court of Appeal found that the trial judge's conclusion that data was misappropriated by modifying point of sale equipment was unreasonable, leading to the quashing of two counts.

The court rejected the argument that possession of blocked credit card data could not support a conviction under s. 342(3) of the Criminal Code.

Fresh evidence was not admitted.

The sentence was reduced from 3.5 years to 2 years.

The appellant appealed his committal for extradition on charges of receiving secret commissions and fraud, and sought judicial review of the Minister of Justice's decision to surrender him to Hong Kong.

The appellant argued there was insufficient evidence that he failed to disclose the commissions to his employer or that they were paid in consideration for any act.

He also argued that the delay in commencing extradition proceedings prejudiced his right to a fair trial and constituted an abuse of process.

The Court of Appeal dismissed the appeal and the application for judicial review, finding sufficient evidence to support the committal and concluding that the Minister's decision was reasonable.

The appellant appealed his convictions for robbery and possession of a firearm.

The Court of Appeal found that the trial judge's response to a jury question regarding party liability as an aider could have left the jury with the erroneous impression that the appellant could be convicted for merely standing by.

This concern was heightened by irreconcilable verdicts on the firearm counts.

The appeal was allowed, a new trial was ordered for the robbery count, and an acquittal was entered for the firearm count due to a lack of evidence.