Brigid McCallum

Following a jury trial, the sentencing court addressed convictions for human trafficking and procuring a complainant under 18, with acquittals on sexual interference and assault-with-a-weapon counts.

The court held that denunciation and deterrence required substantial penitentiary terms given the complainant's youth, vulnerability, coercive exploitation, and enduring harm, while also weighing mitigation including limited or absent records and subordinate roles in a joint enterprise.

The court rejected a 12-year Crown position and a conditional-sentence defence position, finding both inconsistent with proportionality and parity.

The court imposed six-year custodial sentences on each offender, less pre-sentence custody credit, and granted ancillary non-communication, DNA, weapons prohibition, and 20-year SOIRA orders, while declining requested s. 161 orders.

The accused was charged with eight counts including human trafficking, receiving a financial benefit from human trafficking, procuring, receiving a material benefit from sexual services, advertising sexual services, uttering threats, assault, and assault by choking.

The Crown alleged the accused violently trafficked the complainant into the sex trade over approximately three weeks in April-May 2023, controlling her movements, finances, and communications while directing her to provide sexual services at hotels across the GTA and Barrie.

The court found the complainant's core evidence credible and reliable, corroborated by hotel records, Uber records, bank records, surveillance footage, and cryptocurrency purchase records.

The court was satisfied beyond a reasonable doubt that the accused was the person the complainant knew as "Troubles" and that he recruited, transported, harboured, and exploited the complainant for the purpose of providing sexual services.

The accused was found guilty on all eight counts.

The applicant, Marcus Bryan, facing charges including human trafficking, sought a Stage 2 ruling under s. 276 of the Criminal Code regarding the admissibility of evidence concerning the complainant's prior sexual activity.

The court granted the application in part, allowing limited questioning on the complainant's prior and ongoing involvement in sex work, her use of advertising websites, earnings, and work for other individuals, as well as the nature and conclusion of her relationship with the applicant.

The court found this evidence relevant to the defence narrative and to challenge the complainant's credibility, provided it did not engage the "twin myths" and had significant probative value.

The applicant, found guilty of human trafficking related offences, challenged the constitutionality of the mandatory minimum sentence of two years for receiving a material benefit from trafficking a person under 18 years of age, contrary to s. 279.02(2) of the Criminal Code.

The applicant argued that the mandatory minimum violated sections 7 and 12 of the Charter, constituting cruel and unusual punishment and an arbitrary deprivation of liberty due to the unavailability of a conditional sentence.

The Crown argued the constitutional issues were unnecessary as the overall sentence would exceed the minimum.

The court found that the broad range of hypothetical situations captured by the offence, and the fact that similar mandatory minimums for human trafficking offences had been struck down, led to the conclusion that the provision contravened sections 7 and 12 of the Charter and could not be saved by section 1.

The mandatory minimum sentence was struck down.

The accused applied for the production of private records relating to the complainant, specifically data extracted from the complainant's phone.

Following a Stage One order where the records were produced to the court for review, the court conducted a Stage Two analysis to determine if production to the defence was necessary in the interests of justice.

Balancing the accused's right to make full answer and defence against the complainant's privacy rights, the court ordered some records produced, some produced with redactions, and others withheld.

This pre-trial ruling addresses the applicability of the s. 276 regime of the Criminal Code to charges including human trafficking, firearm offences, kidnapping, and uttering threats.

The defence sought an order that s. 276 does not apply or, alternatively, to permit cross-examination on the complainant's past sexual history.

Following the guidance from R. v. A.M., the court determined that while the charges are not explicitly listed in s. 276, the Crown's allegations of violence and threats compelling sexual services implicate sexual assault, thereby engaging the s. 276 regime.

The court directed the parties to proceed to a Stage 1 / Stage 2 s. 276 hearing to determine the scope and admissibility of evidence related to the complainant’s sexual activities.

The applicant sought a stay of proceedings for human trafficking charges due to alleged unreasonable delay under s. 11(b) of the Charter.

The total delay from arrest to anticipated trial conclusion was 33.3 months.

The court applied the Jordan framework, deducting defence-attributable delay, which included time for prioritizing other matters, unavailability for earlier judicial pre-trials, and unavailability for court-offered summer 2024 trial dates.

The net delay was calculated to be approximately 28.3 months, falling below the Jordan ceiling.

The court found that the case, involving human trafficking, did not take "markedly longer than it reasonably should have" and was not a "clear case" warranting a stay.

The application for a stay was dismissed.

The Crown brought a pre-trial motion to admit statements made by the defendant, Moesha Woodley, during police interactions on February 25, 2021, and following her arrest on March 25, 2021, in a human trafficking investigation.

The court applied the voluntariness rule, considering factors such as threats, promises, oppression, operating mind, and police trickery.

The court found that the statements from both dates were made voluntarily and were admissible, dismissing the defence's arguments regarding inadequate caution, alleged trickery, inducements, and the defendant's health concerns.

This decision addresses three pre-trial applications in a criminal proceeding involving charges of human trafficking, firearm offences, and kidnapping.

The court granted the Crown's application for the complainant to testify via CCTV, finding it would facilitate a full and candid account given the nature of the offences and the complainant's expressed anxiety.

The court also ruled that the complainant's 911 call was admissible under the res gestae exception, the principled approach to hearsay, and as narrative circumstantial evidence.

However, the admissibility of the complainant's statements to her aunt was deemed premature.

The Defence's application regarding the applicability of the s. 276 regime to human trafficking was deferred pending a Court of Appeal decision.

Nahom Mussie pleaded guilty to human trafficking, possession of fentanyl for trafficking, and obstruct justice.

The human trafficking involved the exploitation of a vulnerable, drug-addicted young woman (S.M.) over several months, with the accused controlling her activities and providing her with fentanyl.

S.M. later died of a fentanyl overdose.

The obstruction of justice charge stemmed from Mussie providing a fraudulent employment letter for a bail variation, obtained by exploiting another drug user.

The Crown and defence presented a joint submission for a six-year global sentence.

The court considered aggravating factors, including the victim's extreme vulnerability and the accused's misconduct while on bail, and mitigating factors such as the guilty plea and lack of prior criminal record.

The court imposed the jointly recommended six-year global sentence, granting credit for pre-sentence custody and restrictive bail conditions.

This ruling addresses Crown applications in a human trafficking trial for two complainants, aged 15 and 16 at the time of the alleged offences, to testify from outside the courtroom.

The applications were brought under section 486.2(2) of the Criminal Code, which permits such orders to facilitate a full and candid account or in the interest of the proper administration of justice.

The court considered the complainants' anxiety and fear, particularly one who experienced panic attacks during the preliminary hearing.

The court noted the lowered threshold for such orders following a 2015 amendment to the Criminal Code.

Both applications were granted, subject to technical transmission quality, with instructions to the jury not to draw adverse inferences from the use of testimonial aids.

The applicant, Nahom Mussie, facing human trafficking and fentanyl possession charges, brought an application alleging breaches of his Charter rights related to his arrest, search warrants, strip search, and right to counsel, and sought a remedy for lost police notes.

The court found that the police had reasonable grounds for arrest and that the search warrants, despite significant errors in the Informations to Obtain, were valid after amplification and redaction, as the errors were inadvertent.

The strip search was also found justified.

A minor breach of the right to counsel was found, but the remedy was limited to excluding the applicant's answer to a single question.

The application for a stay due to lost notes was deemed premature.

Ultimately, the evidence seized from the search warrants was deemed admissible.

In a sexual assault trial, the defence sought an order compelling the complainant to provide contact information for her partner and mother, arguing it was necessary to investigate the complainant's truthfulness regarding her disclosures to them.

The Crown argued the evidence was irrelevant under the collateral facts rule.

The court dismissed the application, finding the information collateral to the main issue of the sexual assault and primarily related to credibility on a minor point.

The court also noted the defence had ample opportunity for a pre-trial motion for third-party disclosure.

Kyle Marier pleaded guilty to possession of a loaded prohibited firearm.

The Crown sought 34 months imprisonment, while the defence sought an 18-month conditional sentence.

The court considered aggravating factors, including the public possession of a loaded firearm, flight from police, discarding the weapon, and being on bail for another offence.

Mitigating factors included Marier's youth (19 at the time of offence, 23 at sentencing), lack of prior criminal record, guilty plea, strong family and community support, and significant rehabilitative efforts while on house arrest bail for over four years.

The court also considered social context evidence of systemic anti-Black racism and its impact on the offender, which mitigated his moral culpability.

The judge found the appropriate sentence to be in the range of two years and, applying the principles from R. v. Morris, determined that a conditional sentence was appropriate given Marier's rehabilitative potential and the systemic factors.

Marier was sentenced to a two-year conditional sentence (less 46 days credit for pre-trial custody), with the first 12 months under house arrest and the remainder under curfew, followed by one year of probation.

Ancillary orders included a DNA order, a 10-year/lifetime firearms prohibition, and forfeiture of seized items.

The Crown applied for an order to produce the complainant's private medical and cell phone records to the defence prior to a trial for human trafficking offences.

The complainant was uncooperative and opposed the use of her records.

The court adjourned the application, ruling that the complainant must first be fully informed of her statutory rights to attend, participate, and obtain funded counsel before the common law O'Connor procedure could be applied.

The Crown sought to admit similar fact evidence from a prior sexual assault allegation (F.J.) against the accused (J.R.) in his current trial for sexual assault (D.F-H.).

The defence argued the evidence was inadmissible due to issue estoppel, abuse of process, or failure to meet the orthodox test for similar fact evidence.

The court found that a prior stay of proceedings for delay (s. 11(b) Charter) on the F.J. charges did not constitute a determination on the merits, thus issue estoppel and abuse of process did not apply.

The court further found that the F.J. evidence met the test for admissibility as similar fact evidence, demonstrating sufficient similarities in context and method, and that any prejudice was minimized in a judge-alone trial.

The Crown's application was allowed.

The offender was convicted of serious sexual offences in both the Superior Court of Justice and the Ontario Court of Justice.

The Crown sought Dangerous Offender (DO) and Long Term Offender (LTO) designations in both proceedings.

The offender brought a motion for directions, arguing that issue estoppel should prevent the Crown from litigating the same DO/LTO issues twice based on similar factual records.

The Superior Court dismissed the motion, holding that issue estoppel does not apply to individual sentencing decisions and that the Criminal Code explicitly contemplates an offender being subject to multiple LTO designations.

The accused was charged with sexual assault, sexual interference, and choking to assist in the commission of a sexual assault involving a 15-year-old complainant.

The court found the complainant's testimony, despite inconsistencies regarding intoxication and memory, to be credible on the core facts of non-consensual sexual activity and choking, corroborated by physical injuries and DNA evidence.

The accused's testimony was disbelieved due to contradictions with physical evidence.

The defense of mistake of age was rejected, as the accused did not take reasonable steps to ascertain the complainant's age and was found to be reckless as to her underage status, having ignored "red flags" regarding her appearance and circumstances.

The accused was found guilty on all three counts.

Mark Moore pleaded guilty to possession and distribution of child pornography and arranging a sexual assault on a child.

The court determined a fit sentence, considering aggravating factors such as the extreme nature of the child pornography, grooming behavior, sexual thoughts about his own daughter, and breach of recognizance.

Mitigating factors included an early guilty plea, remorse, no prior criminal record, community support, and engagement in counseling.

The court also addressed the necessity of a judge viewing child pornography material and the application of "COVID credit" for time served during the pandemic.

A global sentence of 25 months imprisonment was imposed.

A defendant was charged with sexual assault with a weapon, robbery, and other associated offences.

The case relied on overwhelming circumstantial evidence, including CCTV footage, DNA evidence, and the defendant's statement to police.

The court found the defendant's denial and an eyewitness's testimony unreliable due to intoxication and inconsistencies with video evidence.

The judge concluded that the circumstantial evidence, including matching clothing, items, and physical characteristics, left no reasonable doubt as to the defendant's guilt, dismissing the innocent explanation as an implausible coincidence.

A similar act application by the Crown was dismissed due to lack of probative value and inconsistencies.