Carla Andrea Agatiello

This is a defence bail review under Section 520 of the Criminal Code, appealing a decision to detain the applicant on secondary and tertiary bail grounds.

The applicant proposed a new surety (grandmother), increased surety amount, more stringent house arrest, and GPS electronic monitoring as material changes in circumstances.

The court found a material change based on the new surety, applying a flexible approach to due diligence in bail reviews as per R. v. St. Cloud.

However, the court ultimately found the proposed plan and sureties insufficient to mitigate the significant public safety risk posed by the serious firearms and dangerous driving charges, dismissing the bail review application on secondary grounds.

The applicant, Samer Dagher, sought a bail review under s. 520 of the Criminal Code after being detained due to an inability to provide a surety following an assault charge.

The reviewing judge found a material change in circumstances, including the applicant's 22 days in custody (equivalent to a non-custodial sentence if convicted), new disclosure clarifying the domestic history and mental health claims, and the impact of the COVID-19 pandemic on trial timeliness.

The court determined that the original decision was inappropriate and erred in law by not considering the potential for pre-trial custody to exceed a likely sentence.

The applicant was released on his own recognizance with conditions, including supervision by the John Howard Society Bail Program, as the Crown failed to demonstrate a substantial likelihood of further offense or interference with justice on secondary grounds.

The offender was convicted of sexual assault and assault against his spouse.

The Crown sought three years imprisonment; the offender sought 21-24 months.

The court imposed 27 months for sexual assault (reflecting a 90-day reduction from 30 months for pre-sentence custody and Downes credit) and 4 months concurrent for assault.

The court rejected the offender's argument for a lower sentence despite it being a single incident, finding the violence surrounding and during the assault, combined with significant victim impact, warranted a penitentiary sentence to fulfill denunciation and deterrence objectives.

Immigration consequences were not considered as a mitigating factor.

Ancillary orders included DNA, SOIRA registration for 20 years, weapons prohibition, and contact prohibition.

The defendant was charged with sexual assault following an encounter with the complainant on February 12, 2017.

The complainant alleged that she initially consented to protected sexual intercourse, but withdrew her consent when the condom slipped off.

She maintained that the defendant continued with unprotected intercourse without her consent.

The defendant claimed that the complainant consented to resuming unprotected intercourse after he reminded her that he had no protection.

The case turned entirely on credibility and the question of whether the Crown proved beyond reasonable doubt that the defendant acted without the complainant's consent.

The court found that while the complainant's account was coherent, the defendant's account, when combined with concerns about the complainant's narrative, left reasonable doubt as to whether the defendant knowingly proceeded without consent.

The defendant was charged with impaired operation of a motor vehicle and failing to comply with a demand to provide breath samples.

The Crown alleged the defendant was driving erratically and displayed signs of impairment including the odour of alcohol, glossy eyes, and a dazed appearance.

The defendant refused to provide breath samples when demanded by police.

The court found that the arresting officer lacked reasonable grounds to believe the defendant was impaired, rendering the approved instrument demand unlawful.

The court also found insufficient evidence of impairment beyond reasonable doubt.

The defendant was acquitted of both charges.

The accused was charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

The sole issue was whether the arresting officer had the required reasonable suspicion to demand a breath sample into an approved screening device.

The defence brought a Charter application alleging a breach of section 8 rights.

The court found that despite credibility issues with the officer's testimony regarding the odour of alcohol on the accused's breath, the totality of circumstances—including the time of day, vehicle lighting issues, physical observations, and the presence of intoxicated passengers—provided sufficient reasonable suspicion to justify the demand.

The court rejected the Charter application and found the accused guilty as charged.