Brendan L. Gluckman

The Court of Appeal for Ontario considered whether a search warrant was validly issued in a drug trafficking case.

The appellant argued that the Information to Obtain (ITO) was misleading and incomplete, and that the reviewing judge improperly relied on evidence not before the issuing judge.

The Court found a breach of section 8 of the Charter but held that the evidence should not be excluded under section 24(2), as the breach was not serious, the police acted in good faith, and the evidence was critical to the Crown's case.

The appeal was dismissed.

The appellants were convicted of various drug-related offences following a large-scale police investigation involving wiretaps, tracking warrants, and search warrants.

They appealed their convictions, arguing the application judge erred in dismissing their pre-trial Garofoli applications challenging the constitutionality of the searches and interceptions.

The Court of Appeal dismissed the appeals, finding no errors in the application judge's assessment of the wiretap authorizations, the reliance on confidential informants, the refusal to excise certain information from the warrants, and the determinations regarding reasonable expectations of privacy in condominium units and common areas.

This is an appeal from conviction where the appellant argued the Crown breached confidential informant privilege by disclosing information to a co-accused.

The Court of Appeal found the trial judge erred by applying an overly narrow standard for determining a privilege breach, emphasizing that any information that *might tend* to identify an informant is protected.

The Crown's failure to protect this near-absolute privilege, despite repeated warnings, constituted an abuse of process.

The convictions were set aside, and a stay of proceedings was entered.

The appellant, an immigration consultant, was convicted of forgery and use of a forged document after filing a non-authentic employment letter with an immigration application.

On appeal, the appellant argued the trial judge's jury charge was inadequate for failing to highlight evidence suggesting the appellant knew the application was stale-dated, which would negate the intent elements of forgery.

The Court of Appeal dismissed the appeal, finding the trial judge's charge was adequate and noting that the appellant's counsel did not present this alternative theory at trial.

The accused, charged with drug trafficking and conspiracy to commit murder, brought an application to exclude evidence seized during multiple warrantless searches.

The court found the warrantless entry at 10 York Street was justified by exigent circumstances to prevent a planned shooting.

The warrantless entry at 88 Harbour Street and the seizure of a vehicle breached section 8 of the Charter, but the evidence was admitted under section 24(2).

However, the search of a bedroom at 15 Danum Road involved egregious Charter breaches, including a violation of the right to counsel and an invalid consent, leading the court to exclude the drugs and cash found there.

The appellant, Ricardo Francis, appealed his convictions for possessing a loaded firearm and possession of drugs for trafficking, and his seven-year sentence.

The convictions arose from vehicle and strip searches conducted after his arrest on an outstanding warrant.

The Court of Appeal dismissed the conviction appeal, finding the searches lawful under s. 8 of the Charter.

However, the Court granted leave to appeal the sentence, finding that the trial judge erred in principle by failing to adequately consider the principle of restraint for a youthful, first-time offender.

The sentence was varied from seven years to five years imprisonment.

The appellant appealed his conviction, primarily challenging the lawfulness of a strip search conducted in the presence of a female officer, arguing it violated his Charter rights.

The Court of Appeal upheld the trial judge's finding that exigent circumstances justified the female officer's continued involvement during the appellant's violent resistance, and that the evidence obtained from the search was admissible.

The appeal was dismissed.

The applicant, charged with offences under the Security of Information Act for allegedly attempting to communicate safeguarded information to a foreign entity, brought an application to stay the proceedings due to unreasonable delay under s. 11(b) of the Charter.

The prosecution had been ongoing for over eight years, complicated by extensive litigation over national security privilege under s. 38 of the Canada Evidence Act regarding a CSIS warrant.

The court applied the Jordan framework, calculating the total delay and subtracting defence delay and discrete exceptional events, including the time taken for the national security litigation and the COVID-19 pandemic.

The court found that the remaining delay of over 40 months significantly exceeded the 30-month presumptive ceiling and that the case was not particularly complex.

Consequently, the court held that the applicant's s. 11(b) rights were breached and ordered a stay of proceedings.

The applicant, charged under the Security of Information Act, brought a motion to exclude evidence obtained from an undercover operation pursuant to s. 24(2) of the Charter.

The applicant argued that the evidence was derived from a CSIS wiretap warrant that violated his s. 8 Charter rights due to a lack of candour by the affiant.

The court assumed a s. 8 breach had occurred but applied the Grant factors and concluded that the breach was not at the most serious end of the scale, the impact on the applicant's rights was diminished by several factors, and society's interest in adjudicating the serious national security charges on their merits was exceptionally high.

The motion to exclude the evidence was dismissed.

The appellant, Dwayne Brown, appealed his conviction for drug trafficking offences, challenging the validity of a general warrant that authorized covert entries into a storage locker.

Police discovered cocaine, marijuana, oxycodone, alprazolam, and Canadian currency in the locker.

Brown argued that the warrant violated his s. 8 Charter rights, contending that the reviewing judge applied an incorrect standard for reasonable grounds and that the requirements of s. 487.01 of the Criminal Code were not met.

The Court of Appeal dismissed the appeal, affirming that the reviewing judge correctly applied the "reasonable probability" standard for issuing the warrant and that all statutory preconditions for a general warrant, including the "best interests of the administration of justice" and "no other provision" elements, were satisfied.

The applicant, charged under the Security of Information Act, brought an application for a stay of proceedings under s. 38.14 of the Canada Evidence Act.

He argued that his right to a fair trial was compromised because relevant information in a CSIS wiretap affidavit was withheld from him due to an Attorney General's certificate, preventing him from making full answer and defence on a s. 24(2) Charter application.

The court found that while the judicial editing process was fair, the Attorney General's unreviewable redactions of relevant information adversely affected trial fairness by precluding a subfacial challenge to the warrant.

Instead of a stay, the court fashioned a lesser remedy, declaring a s. 8 Charter breach and directing that the reviewing judge assume the affidavit contained false or misleading information.

The Crown brought an application for a sealing order and to hold part of the proceedings in camera regarding charges under the Security of Information Act.

The charges stemmed from intercepted telephone calls to a foreign embassy.

The Crown sought to prevent public disclosure of a redacted CSIS affidavit and warrant, arguing it would injure Canada's international relations.

Applying the Dagenais/Mentuck test, the court found that the orders were necessary to prevent a serious risk to the proper administration of justice and that the salutary effects outweighed the deleterious effects on the open court principle.

The application was granted.

Volkswagen Aktiengesellschaft pleaded guilty to 60 charges under the Canadian Environmental Protection Act, 1999, including 58 counts of unlawfully importing vehicles that did not conform to prescribed vehicle emissions standards and two counts of providing misleading information.

The company admitted to installing defeat devices in approximately 128,000 diesel vehicles imported into Canada between 2008 and 2015, which allowed the vehicles to pass emissions testing while emitting substantially higher nitrogen oxide levels during normal driving conditions.

The court imposed a fine of $196,500,000, the largest environmental fine in Canadian history at that time, reflecting the severity of the deliberate deception, the environmental and health risks created, and the need for deterrence and denunciation.

The appellant appealed his conviction for trafficking methadone after a fellow resident at a transition home fatally overdosed on methadone supplied by the appellant.

The appellant argued the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay and misapprehended DNA expert evidence regarding the transfer of the deceased's DNA to the appellant's methadone bottle.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the Jordan framework, properly excluded verdict deliberation time, and reasonably concluded that a mistaken trial estimate constituted an exceptional circumstance.

The Court also found no misapprehension of the expert evidence, as the trial judge's findings were supported by the totality of the evidence.

The appellants, Desiree McNeill and John Waechter, appealed their convictions for jointly possessing heroin and crystal methamphetamine for the purpose of trafficking.

A central issue was whether police required a second warrant to examine a seized cellphone belonging to an individual not initially targeted by the investigation, given the broad authorization in the initial search warrant for electronic devices found in a suspected drug trafficking hub.

The Court of Appeal held that the initial warrant, supported by a comprehensive Information to Obtain (ITO), provided sufficient reasonable grounds to authorize the examination of any electronic device found in the premises, including those of unknown individuals, without requiring a second warrant.

The court also found no basis to challenge the reasonableness of the convictions, concluding that the trial judge's finding of joint constructive possession was reasonable based on the totality of the evidence.

Both appeals were dismissed.

The applicant, charged with conspiracy to commit murder, drug trafficking, and firearm possession, applied for judicial interim release.

The Crown opposed release on the secondary and tertiary grounds.

The court found that the strict release plan, which included house arrest, electronic monitoring, and supervision by the applicant's parents, adequately addressed the secondary ground concerns.

On the tertiary ground, although the charges were extremely serious and the Crown's case appeared strong, the court held that the applicant's Type 1 diabetes placed him at higher risk of severe complications from COVID-19 in a congregate setting.

Balancing the strict release plan, the health risks, and the need to flatten the curve, the court granted the application for release.

The three accused, charged with conspiracy to import cocaine and breach of trust, brought applications under s. 24(2) of the Charter to exclude intercepted private communications.

They alleged their s. 8 rights were violated because the police affiant deliberately misled the authorizing judge regarding the investigative plan to establish reasonable and probable grounds for the wiretap.

The court found the affidavit was materially misleading, though not deliberately so, and that without the misleading information, the authorization lacked reasonable and probable grounds.

The court concluded the wiretap violated s. 8 of the Charter and excluded the evidence under s. 24(2), finding the serious police carelessness and subsequent false testimony by the affiant outweighed society's interest in a trial on the merits.

The court dismissed an application by three individuals (two environmentalists and a former Volkswagen vehicle owner) seeking to participate as parties in the criminal prosecution of Volkswagen Aktiengesellschaft for violations of the Canadian Environmental Protection Act.

The applicants sought to present victim impact statements and make submissions regarding restitution, fines, and sentencing.

The court held that the applicants lacked standing to participate as parties, as the Public Prosecution Service of Canada has carriage of the prosecution and speaks on behalf of the public.

The court noted that while victim impact statements are permitted under the Criminal Code, there is no statutory foundation for victims to become quasi-parties to criminal proceedings.

The accused, charged with drug importation offences, brought a pre-trial Charter application challenging five successive wiretap authorizations.

The Crown objected to his standing to challenge the first authorization, as he was not named and his communications were not intercepted under it.

The court held that the accused lacked standing to challenge the first authorization directly because he had no reasonable expectation of privacy.

However, the court ruled he had standing to challenge the subsequent authorizations that did intercept his communications, and in doing so, he could seek to excise information from their supporting ITOs that was allegedly obtained in violation of his co-accused's Charter rights under the first authorization.

The defendant brought a pre-trial Charter application seeking to exclude evidence obtained from searches of his condominium pursuant to a general warrant and a search warrant.

The defendant challenged the validity of the warrants on facial and sub-facial grounds, arguing the affiant made misleading statements and omissions.

The court found that while there were some minor errors in the Information to Obtain (ITO), the affiant acted in good faith and the errors did not invalidate the warrants.

Applying the Debot test, the court found the confidential informant information was compelling, credible, and corroborated.

The court concluded the warrants were valid and there was no s. 8 Charter breach.

Even if there had been a breach, the court held the evidence would not be excluded under s. 24(2) of the Charter.

The application was dismissed.