Brigid McCallum

The applicant, facing robbery and firearms charges, sought an adjournment of his trial scheduled for January 4, 2021.

Due to the COVID-19 pandemic and a provincial lockdown, the Chief Justice directed that non-jury matters proceed virtually unless an in-person hearing was absolutely necessary.

The applicant opposed a virtual trial, citing difficulties with his living situation, his counsel's childcare issues, and potential custody issues, and offered to waive his s. 11(b) Charter rights.

The court granted the adjournment, finding that in the specific circumstances, the applicant's right to a fair trial warranted an in-person hearing.

The defendant, Nelson Niyongabo, was convicted of sexual assault.

The court considered aggravating factors, including the complainant's extreme intoxication and vulnerability, the unprotected intercourse, and the significant impact on the complainant.

Mitigating factors included the defendant's youth, difficult upbringing, expressed remorse, and efforts towards rehabilitation while in custody.

The Crown sought a three-year custodial sentence, while the Defence sought a time-served sentence of two years less one day, arguing for enhanced pre-sentence custody credit due to harsh lockdown conditions and the COVID-19 pandemic.

The court applied a sentencing range of three to five years for serious sexual assault, found a three-year sentence appropriate, and granted pre-sentence custody credit, including an enhanced "Duncan credit" for lockdowns and a small additional credit for limited programming due to COVID-19.

The final sentence was three years in custody, reduced by two years and five months of pre-sentence credit, leaving seven months to serve, followed by two years of probation and several ancillary orders.

The defendant, Nelson Niyongabo, convicted of sexual assault, applied for interim release pending his sentencing hearing under s. 523(2)(a) of the Criminal Code.

The application was brought after a prior detention order and in light of the COVID-19 pandemic, which was accepted as a material change in circumstances.

The court dismissed the application, finding a substantial likelihood that the defendant would reoffend, particularly by breaching curfew and committing further serious offences against vulnerable women, given his history of alcohol-related breaches and the nature of his convictions.

The court acknowledged the importance of out-of-custody assessments for sentencing but prioritized public safety.

The accused, Tyler Carter, pleaded guilty to two counts of sexual interference involving two 14-year-old complainants.

A joint submission for a sentence of two years less one day imprisonment followed by three years probation was presented.

The court considered aggravating factors, including the complainants' age and the multiple acts of sexual interference, and mitigating factors, such as the accused's guilty plea, youthfulness at the time of the offence, lack of prior criminal record for these types of offences, and motivation for treatment for complex mental health challenges.

The defence sought additional credit for pre-sentence custody due to COVID-19 risks in prison, which the court denied, finding the joint submission already lenient and further reduction disproportionate.

The court accepted the joint submission and imposed the recommended sentence, along with various ancillary orders including a DNA order, SOIRA registration, and communication/proximity prohibitions.

The defence brought a motion for a directed verdict on a charge of making child pornography, arguing that the Crown lacked sufficient evidence for the actus reus without direct documentary proof of the alleged video.

The court dismissed the motion, holding that the complainant's testimony, if believed, provided a sufficient evidentiary basis for a reasonable jury to infer that a video depicting explicit sexual activity by a person under 18 was made.

The decision clarified that direct documentary evidence is not an absolute requirement for conviction, as circumstantial evidence can be sufficient.

The offender pleaded guilty to assault causing bodily harm and failing to comply with a term of a recognizance.

The assault involved striking a vulnerable 66-year-old woman with an extremely low IQ in the face, causing significant bruising and swelling.

Days after release on bail, the offender breached a no-contact condition by approaching the victim.

The court imposed a sentence of 21 months imprisonment followed by 3 years probation, with credit for 305 days of pre-sentence custody at the 1.5:1 ratio plus an additional 5 months credit for harsh detention conditions at Toronto South Detention Centre, resulting in 1 month remaining to serve.

Ancillary orders included a 10-year weapons prohibition, a DNA order, and a non-communication order.

The accused was charged with sexually assaulting the complainant in a parking garage stairwell.

The complainant had consumed alcohol and prescription medication and had no memory of the assault, but awoke to find the accused having non-consensual intercourse with her.

The court found that the complainant was in a state of extreme intoxication and lacked the capacity to consent.

The accused was found guilty of sexual assault.

Patrick Walsh was found guilty by a jury of sexual assault involving forced oral sex and forced vaginal intercourse.

The Crown sought a three-year custodial sentence, while the defence sought 12 months.

The court, making its own factual findings under section 724 of the Criminal Code, confirmed both acts of sexual violence and found the defendant's post-offence conduct (FaceTiming friends and laughing about the victim) to be a serious aggravating factor.

Mitigating factors included the defendant's youth (22 years old, 20 at the time of offence) and lack of prior criminal record, along with strong family support.

The court dismissed the argument that media coverage constituted a mitigating factor due to insufficient evidence of exceptional public shaming.

Balancing denunciation, deterrence, and rehabilitation, the court imposed a sentence of two years in a penitentiary, along with several ancillary orders.

The defendant was charged with operating a motor vehicle while the quantity of alcohol in her blood was over the legal limit contrary to section 253(1)(b) of the Criminal Code.

The defendant brought a Charter application alleging violations of sections 8, 9, and 10(b).

The court found that while there was a minor technical breach of section 8 regarding the requirement to exit the vehicle, the more serious breaches involved violations of section 10(b) rights to counsel.

The police failed to provide timely notice of rights to counsel at the roadside and failed to exercise adequate diligence in facilitating access to counsel of choice at the police station, instead channelling the defendant to duty counsel.

The court excluded all evidence obtained as a result of these breaches under section 24(2) of the Charter.

The applicant, charged with 11 counts of fraud, sought a stay of proceedings under s. 11(b) of the Charter for unreasonable delay.

The total delay exceeded the 30-month presumptive ceiling established in R. v. Jordan.

The Crown argued the delay was justified due to the case's complexity and transitional exceptional circumstances.

The court agreed, finding the volume of disclosure, number of witnesses, and nature of the fraud allegations made the case particularly complex.

Alternatively, the court found transitional exceptional circumstances applied, as the Crown reasonably relied on the previous law and the applicant's actions contributed to the delay.

The application for a stay was dismissed.

The accused, Jigme Yeshi and Yeshi Wang Chuk, were jointly charged with aggravated assault and assault with a weapon following a bar altercation.

The critical issues were identity and party liability.

The court found that Jamal Graham instigated an initial exchange, after which Yeshi Wang Chuk produced a knife and, with Jigme Yeshi, pursued and attacked Graham and Sheanna Williams, causing serious stab wounds.

The court relied on eyewitness testimony and photo array identifications, despite witness intoxication and memory discrepancies.

Both accused were convicted of aggravated assault, with other charges stayed under the Kienapple principle.

The Crown applied for a voir dire to determine the admissibility of a 911 call made by the complainant and a statement given by the accused to police.

The court found the 911 call admissible under the res gestae and principled exceptions to the hearsay rule, noting its necessity due to challenges in domestic violence cases and high reliability.

The accused's statement was found voluntary and admissible, as the accused possessed an operating mind despite mistaken beliefs about the law, and there was no evidence of threats, inducements, oppression, or police trickery.

Both Crown applications were allowed.

The accused was charged with impaired driving and over 80 following a traffic stop at approximately 5:05 a.m. on April 12, 2015.

Police received a radio call about a possible impaired driver who appeared to be asleep at the wheel.

Upon stopping the vehicle, the officer observed signs of impairment and arrested the accused.

A Charter application was brought challenging the lawfulness of the arrest and the seizure of breath samples.

The trial judge found reasonable and probable grounds for the arrest existed based on the totality of circumstances.

However, the trial judge found a violation of section 8 of the Charter because the officer gave an approved screening device demand rather than the required approved instrument demand.

Despite this violation, the evidence was admitted under section 24(2) of the Charter.

The accused was found guilty of impaired driving, and the over 80 charge was stayed pursuant to the Kienapple principle.

The accused was charged with firearms offences after police found a handgun in a plastic bag during a "wellness check" in a residential building stairwell.

The accused brought a Charter application to exclude the evidence, arguing the search violated his s. 8 rights.

The court found the accused had a reasonable expectation of privacy in the bag and that the police lacked reasonable suspicion for an investigative detention or grounds for an arrest under the Trespass to Property Act.

Finding that the officers fabricated an after-the-fact justification for the search and were not forthright with the court, the judge excluded the firearm under s. 24(2) of the Charter, leading to the dismissal of the charges.

During a trial for offences related to a stabbing outside a bar, a miscommunication arose between the Crown, defence counsel, and the trial judge regarding whether the accused had admitted identity and presence at the scene.

After the Crown closed its case without calling identification evidence, the misunderstanding became apparent.

The Crown brought an application to enforce pre-trial admissions made by defence counsel.

The court allowed the Crown to re-open its case, held one accused to his pre-trial admission of presence, but released the other accused from an admission regarding the voluntariness of a statement because the Crown had changed its position on how the statement would be used.

The accused was charged with operating a motor vehicle with excess alcohol in the blood following a roadside stop.

The court conducted a Charter voir dire to determine whether breath sample evidence should be excluded.

The court found that the police failed to make a proper and timely demand for an approved screening device sample at the roadside, violating sections 8, 9, and 10(b) of the Charter.

Additionally, the police failed to provide the accused with a reasonable opportunity to contact counsel of choice, instead putting him on the phone to duty counsel after only 13 minutes and then dismissing his subsequent request for further assistance.

The court excluded the breath sample evidence pursuant to section 24(2) of the Charter and dismissed the charge.

The applicant brought a motion under s. 24(1) of the Canadian Charter of Rights and Freedoms alleging that her right to trial within a reasonable time under s. 11(b) had been infringed in a charge of operating a motor vehicle with a blood alcohol level over the legal limit.

The court examined the length of delay, waiver, reasons for delay, prejudice, and societal interests.

The court found that the operative institutional delay of approximately 8 months and 21 days fell within the Morin guidelines, that actual prejudice to the applicant was minor, and that the applicant failed to discharge the onus of proving a violation.

The motion was dismissed.