Brian D. White

The accused, charged with being an accessory after the fact to murder and aggravated assault, brought a Charter application alleging breaches of her ss. 7, 8, 9, 10(a), and 10(b) rights during multiple arrests and detentions, seeking the exclusion of a seized firearm, cellphones, and statements.

The Crown brought a blended application seeking a finding that five statements made by the accused to police were voluntary.

The court found that the police had reasonable suspicion to conduct a high-risk vehicle takedown and reasonable and probable grounds to arrest the accused after observing a firearm in plain view.

The court dismissed the Charter application, finding no breaches.

Furthermore, the court found that all five statements were made voluntarily, rejecting the accused's claim that her final statement was induced by an 'under the table' deal brokered by her former counsel.

The Ontario Ministry of the Attorney General and the Public Prosecution Services of Canada jointly applied for the appointment of a computer forensic analyst to seize and seal inadvertently recorded audio-video communications made by the Woodstock Police Services.

These recordings included privileged solicitor-client communications and court proceedings.

The court found it had inherent jurisdiction to intervene to protect Charter rights and solicitor-client privilege.

While declining to appoint the analyst directly as requested, the court ordered the appointment of a referee (a member of the Ontario Bar) to select an analyst, oversee the segregation of privileged communications from court recordings, notify affected counsel, and manage the destruction of recordings as appropriate.

The costs of the referee and analyst are to be borne by the Crown.

The accused was convicted of five criminal offences, including possession of a stolen van, stolen firearms, and driving offences following a police chase.

During arrest, the accused was shot and sustained severe, unhealed injuries leading to significant disability.

The court considered the appropriate sentence, including the impact of the COVID-19 pandemic on incarceration risk and the accused's serious injuries and chaotic childhood.

The court ultimately imposed a suspended sentence and two years' probation, giving credit for pre-trial custody and the severe injury sustained during arrest, finding no further benefit in incarceration.

The accused operated an escort service employing adult women and were charged with receiving material benefits from sexual services, procuring, and advertising sexual services.

The accused challenged the constitutionality of Criminal Code sections 286.2, 286.3, and 286.4 under the Canadian Charter of Rights and Freedoms.

The court found that all three provisions violated the Charter and were not justified under section 1.

The court determined that the provisions were arbitrary, overbroad, and grossly disproportionate in their effects on the liberty and security of the person, particularly as they prevented sex workers from accessing safety-enhancing measures and third-party support services.

The Crown applied under s.752.1(1) of the Criminal Code for a psychiatric assessment of an offender, prior to sentencing for aggravated assault.

The purpose was to determine if there were reasonable grounds to believe the offender might be found a dangerous or long-term offender.

The court, performing its independent gatekeeper function, found that the aggravated assault constituted a "serious personal injury offence" and that the offender's extensive criminal history and violent behaviour provided reasonable grounds to believe they might be found a dangerous or long-term offender under various pathways of ss.753(1)(a) and 753.1(1) of the Code.

The application was unopposed by the defence.

The court granted the order for a psychiatric assessment.

The Crown sought to have Brian Morgan-Baylis declared a dangerous offender following his conviction for aggravated assault, assault with a weapon, uttering threats, and counselling to commit suicide.

The court found Morgan-Baylis to be a dangerous offender under all three subsections of s. 753(1)(a) of the Criminal Code, citing a pattern of repetitive and persistent aggressive behaviour, a failure to restrain his conduct, and the brutal nature of the predicate offences.

Despite the Crown's request for an indeterminate sentence, the court imposed a determinate sentence of 6 years 4 months (after enhanced pre-sentence custody credit) followed by a 10-year Long-Term Supervision Order, concluding that this composite sentence, coupled with robust programming and strict conditions, offered a reasonable expectation of public protection.

The Crown brought a motion to summarily dismiss the applicant's request for a stay of proceedings or, alternatively, permission to rescind his delay waiver.

The applicant alleged violations of ss. 7, 10(b), 11(b), and 11(d) of the Charter due to a non-private call with counsel and disorganized disclosure.

The court, applying Rule 34.02 of the Criminal Proceedings Rules, found no reasonable prospect of success for the applicant's stay application, noting that disclosure issues were rectified and the police conduct, while ill-advised, did not warrant a stay.

The motion to dismiss was granted.

The Crown applied to have Justin Primmer declared a dangerous offender and sentenced to an indeterminate period of detention.

Primmer sought dismissal or a determinate sentence with long-term supervision.

The court found Primmer met the criteria for a dangerous offender designation under two pathways, based on a pattern of repetitive violent behaviour, failure to restrain behaviour, likelihood of future violence, and persistent aggressive behaviour showing substantial indifference to consequences.

The court rejected arguments for a lesser sentence, including religious conversion, pro-social behaviour in custody, treatability, and the "burnout theory" citing his history of manipulation, lack of genuine remorse, and chronic dishonesty.

An indeterminate sentence was imposed to protect the public.

The applicant, convicted of first-degree murder, sought a reduction in his 25-year parole ineligibility period under s. 745.6 of the Criminal Code.

The court, acting as a screening judge, applied the "substantial likelihood of success" test, considering the applicant's character, conduct during incarceration, the nature of the offence, and victim information.

While acknowledging significant rehabilitation efforts and positive changes, the court found these were insufficient to outweigh the extreme violence of the murder, the applicant's ongoing substance abuse issues, extensive institutional misconduct, and evolving, inconsistent accounts of the crime.

The application was dismissed, but the applicant was permitted to reapply after five years.

The Crown appealed an acquittal on a charge of operating a motor vehicle while impaired by a drug contrary to s. 253(1)(a) of the Criminal Code.

The trial judge had excluded both lay opinion evidence and expert evidence from police officers trained as Drug Recognition Experts (DREs), as well as a toxicology report, concluding that such evidence was inadmissible or failed to meet the Mohan criteria for expert evidence.

The appeal court held that lay witnesses, including police officers, may provide opinion evidence about impairment, and that trained DRE officers may give expert opinion evidence concerning drug impairment.

The court found that the trial judge erred in law by excluding the officers’ expert evidence and failing to consider the toxicology report.

As a result, the acquittal was set aside and a new trial was ordered.

The Crown applied under s. 37 of the Canada Evidence Act to prohibit disclosure of counselling notes and patient records seized from the accused during a search warrant execution, arguing disclosure would encroach on the privacy interests of complainants who had shared intimate personal information.

The accused opposed the application, asserting the records were his own work product necessary for the operation of his practice and for making full answer and defence.

The court held that s. 37 was intended to apply to information generated by the state or third parties, not to materials created and owned by the accused.

Relying on principles concerning ownership of medical records articulated by the Supreme Court of Canada, the court concluded the physical records belonged to the creator.

The application to prohibit disclosure was dismissed and the accused was entitled to the return of the seized materials.

The appellant appealed a conviction for care and control of a motor vehicle with blood alcohol exceeding the legal limit and a sentence of six months’ imprisonment with a four-year driving prohibition.

The appellant argued the roadside screening demand was not made “forthwith” under s. 254(2) of the Criminal Code and alleged Charter breaches under ss. 8, 9, and 10.

The court held the demand was made promptly in the circumstances, noting the officer acted reasonably in securing the scene of a collision and arranging for an approved screening device.

However, the sentencing judge improperly treated the appellant as the cause of the collision using a balance of probabilities standard rather than proof beyond a reasonable doubt for an aggravating factor.

The conviction appeal was dismissed but the sentence appeal was allowed and the custodial term and driving prohibition were reduced.