Carson Hurley

The appellant challenged convictions based on admission and use of surreptitious recordings, alleging errors under ss. 31.1 and 31.2 of the Canada Evidence Act and in probative-prejudice analysis.

The court rejected those arguments and dismissed the appeal.

The accused was charged with failing to provide a breath sample into an approved screening device contrary to section 320.15 of the Criminal Code.

The Crown relied on video evidence and police testimony to establish that the accused was lawfully arrested for unauthorized license plates, detected an odour of alcohol, and refused to provide a breath sample.

The defence raised three Charter breaches: an unreasonable search when officers opened the vehicle door; an arbitrary detention when officers arrested the accused without reasonable grounds for the provincial offence; and a breach of the right to counsel when the accused was held for nearly two hours at the roadside without access to legal counsel.

The court found all three Charter breaches established and dismissed the charge.

The Ontario Court of Justice sentenced Ross Flight for accessing and possessing child pornography, following his guilty plea.

The case involved over 3,000 unique images and 27 videos, including highly exploitative and gruesome material depicting children ranging from nudity to sadistic abuse.

The court considered aggravating factors such as the volume and nature of the material and Flight’s role as both consumer and uploader.

Mitigating factors included Flight’s advanced age (82), serious health issues, lack of prior record, and demonstrated remorse and insight.

The court imposed a 15-month custodial sentence, a 10-year s. 161 order, a 20-year SOIRA order (rejecting the Crown’s request for a lifetime SOIRA), and a DNA order.

The decision carefully balanced denunciation and deterrence with Flight’s personal circumstances, relying heavily on recent appellate guidance on sentencing for child pornography offences.

The Ontario Court of Justice considered whether a defendant who initially failed or refused to provide a breath sample for Intoxilizer testing but subsequently offered to try again was within the "same transaction" window permitting a change of mind under R v Domik and R v Khandakar.

The court found the defendant's offer to try again was timely and part of the same transaction, entitling him to dismissal of the charge.

The decision also addressed the mens rea requirement, emphasizing that bona fide attempts to provide a sample may negate intent to refuse.

The ruling clarifies the application of the "same transaction" doctrine and the importance of assessing sincerity in breath sample refusals.

The appellant was convicted of drug trafficking and possession for the purpose of trafficking after police, without a warrant, used an arrested drug dealer's seized cellphone to impersonate him and continue a text message conversation with the appellant, luring him to deliver heroin laced with fentanyl.

The majority of the Supreme Court dismissed the appeal, holding that while the appellant had a reasonable expectation of privacy in the text message conversation, the warrantless search was justified by exigent circumstances under s. 11(7) of the Controlled Drugs and Substances Act because the police faced an urgent situation calling for immediate action to prevent the imminent trafficking of fentanyl to protect public safety and it was impracticable to obtain a warrant.

Karakatsanis, Martin and Moreau JJ. dissented, finding no exigent circumstances and that the evidence should have been excluded under s. 24(2) of the Charter.

The applicant sought a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms due to an alleged infringement of his s. 11(b) right to a speedy trial.

The total delay from the information to the anticipated trial conclusion was 1,120 days.

The court deducted 349 days for defence-caused delay and 140 days for COVID-19 related exceptional circumstances.

The resulting net delay of 631 days (20.74 months) exceeded the 18-month presumptive ceiling for Ontario Court matters.

The Crown failed to demonstrate sufficient mitigation efforts for the post-COVID reopening delay.

Consequently, the court granted a stay of proceedings.

The applicants, charged with human trafficking offences, applied under s. 462.34(1) of the Criminal Code to access approximately $133,000 in restrained funds held in their corporation's bank account to pay for living and legal expenses.

The court found the applicants had an interest in the funds and lacked sufficient other means to pay their legal fees, though they did not need the funds for living expenses.

However, because the corporation owed approximately $67,000 in unremitted HST, which is deemed to be held in trust for the Crown under the Excise Tax Act, the court only released the remaining $66,000 to the applicants' counsel to fund their defence.

The Crown, supported by the defence, applied to vary the respondent's undertaking conditions to facilitate his participation in a Partner Assault Response (PAR) program.

A Justice of the Peace had previously declined similar variations, citing *R. v. Valentine*.

The court, disagreeing with *Valentine*, found the proposed consent bail conditions necessary, reasonable, and sufficiently linked to public protection under s. 515(10) of the *Criminal Code*, particularly in domestic violence cases.

The application was granted, varying the bail terms to allow PAR program participation and conditional contact with the complainant.

The defendant was arrested for impaired driving and care and control while over 80 following a police response to a domestic dispute call at a school.

The defendant challenged the arrest and breath sample seizure on Charter grounds, arguing lack of reasonable grounds, failure to comply with the "as soon as practicable" requirement, and violations of the right to counsel.

The court found breaches of sections 8 and 9 of the Charter due to insufficient reasonable grounds for arrest, but found no breach of section 10(b).

Under the section 24(2) analysis, the evidence was admitted despite the Charter breach.

The defendant was convicted on both counts.

The appellant appealed her conviction for driving a motor vehicle while using a hand-held device, arguing that her section 11(b) Charter rights were violated due to delay of 10 months and 24 days between charge and trial.

The trial judge dismissed the 11(b) application.

On appeal, the court considered whether the Jordan framework for presumptive delay ceilings applies to provincial offences under Part I of the Provincial Offences Act.

The court held that while the Jordan framework applies to Part I proceedings, the presumptive ceiling for such offences should be lower than the 18-month ceiling for criminal matters, likely in the 12-15 month range, given the simpler nature of provincial offences and minimal intake requirements.

Since the delay was well under 12 months, no 11(b) violation was found and the appeal was dismissed.