Carson M. Coughlin

Daniel Fagan pleaded guilty to possessing a loaded restricted firearm.

The sentencing hearing addressed the appropriate sentence, considering aggravating factors (discharging the firearm in public) and significant mitigating factors (youth, first offender, guilty plea, remorse, and the impact of anti-Black racism on his life).

The Crown sought 3-3.5 years imprisonment, while the defence sought a conditional sentence of two years less a day.

The court rejected a conditional sentence due to the gravity of discharging a firearm in public, imposing a custodial sentence of two years less a day (509 days after credit for pre-sentence custody and restrictive bail terms), followed by two years of probation.

Tremar Thorpe pleaded guilty to possession of a loaded and prohibited firearm.

The offence involved pointing the gun at a victim and making racist remarks.

The court considered aggravating factors, including the nature of the firearm, its loaded and defaced state, its accessibility, and the offender's use of it.

Mitigating factors included the offender's youth, early guilty plea, remorse, strong community support, prosocial goals, and time spent on strict bail conditions.

The Crown sought a 3-4 year penitentiary sentence, while the Defence sought a conditional sentence.

The court emphasized deterrence and denunciation as paramount objectives for gun crimes, ultimately imposing a 28-month penitentiary sentence, reduced to 22 months after credit for pre-trial custody and stringent bail conditions, along with a 10-year firearms prohibition and a DNA order.

The accused, M.W., charged with sexual assault and sexual interference, brought an application for a stay of proceedings under s. 11(b) of the Charter due to alleged unreasonable delay.

The total delay from information sworn to anticipated trial end was 1334 days.

The court analyzed various periods of delay, attributing portions to defence conduct (e.g., change of counsel, failure to attend court, late notice of s. 11(b) concerns) and exceptional circumstances (COVID-19 pandemic).

After deducting defence and pandemic-related delays, the net delay was calculated to be 514 days (approximately 16.9 months), which falls below the 18-month presumptive ceiling for provincial court cases established in R. v. Jordan.

The court found the defence failed to demonstrate meaningful steps to expedite proceedings, and therefore dismissed the application for a stay.

This decision concerns the sentencing of Brandon Drakes-Simon and Jason Williams for attempt murder, following their conviction for first-degree murder of the same victim.

The attempt murder involved a planned shooting on a highway.

The court identified several aggravating factors, including the use of a firearm, possession of multiple illegal guns, Drakes-Simon's prior gun convictions, extreme recklessness endangering others, and a judicial finding that the crime was a contract killing.

Mitigating factors for Williams included his lack of a prior criminal record and strong family support.

The court imposed concurrent sentences of 16 years for Drakes-Simon and 11 years for Williams, both running concurrently with their life sentences for first-degree murder.

The offender, Ramez Cheema, pleaded guilty to possessing two prohibited sawed-off shotguns with readily accessible ammunition.

The firearms were found in his bedroom within his parents' home, exposing younger siblings to risk.

The court considered aggravating factors such as the dangerous nature and unsafe storage of the firearms, and mitigating factors including the offender's youth, first offender status, late guilty plea, employment, and family support.

The Crown sought 24 months imprisonment, while the defence sought a conditional sentence.

The court rejected a conditional sentence, emphasizing the need for denunciation and general deterrence due to the serious nature of the offence and rising gun crime.

The offender was sentenced to 18 months less one day in a provincial reformatory, with credit for pre-trial custody and restrictive bail conditions.

The Crown applied to admit three categories of discreditable conduct evidence against the accused, Brandon Drakes-Simon and Justin Malcolm, in a first-degree murder trial: Drakes-Simon's acquisition of a firearm, his expressed intention to deal with legal bills, and evidence that he was seeking additional "contract killing" work.

The court dismissed the Crown's application, ruling all three categories of evidence inadmissible.

The judge found the evidence to have negligible probative value due to its general nature and to be overwhelmingly prejudicial, particularly as it amounted to forbidden bad character reasoning.

The defendants, jointly charged with firearms offences, brought a Garofoli application to quash a search warrant and exclude seized firearms.

The court found that the Information to Obtain (ITO) lacked reasonable grounds to search the specific condominium unit where the firearms were found, thus quashing the warrant and finding a Section 8 Charter breach.

However, applying the Grant test, the court determined that admitting the evidence would not bring the administration of justice into disrepute, considering the seriousness of the offences, the police's good faith, and the reliability of the evidence.

The application to exclude the evidence was dismissed.

The defendant brought a Charter application under s. 24(1) alleging violations of ss. 7, 9, and 11(e) due to an adjournment of his bail hearing, which resulted in two additional nights in custody.

The court found that while it was unfortunate the bail hearing could not be accommodated on the initial date, no constitutional rights were abrogated or violated.

The court considered factors such as the lack of evidence that the court could have otherwise accommodated the hearing, the fact that the prosecution did not request the adjournment, the parties' efforts to accommodate, the defendant's prior adjournment requests, his choice to forego an earlier alternative date, and the absence of breaches of ss. 503 or 516 of the Criminal Code.

The application was dismissed.

Defence counsel for Mr. Fitzpatrick and Mr. Wright brought a motion for a mistrial, alleging that Crown counsel adduced impermissible bad character evidence ("snitches get stitches") during re-examination of a witness, thereby wounding trial fairness.

The Crown argued the re-examination was appropriate given the cross-examination.

The court denied the motion, finding that while the defence was prejudiced by a prior ruling limiting cross-examination on a witness's inconsistent statements, this could be remedied by allowing further cross-examination.

The court concluded that the "snitches get stitches" evidence, while potentially prejudicial, did not rise to the level requiring a mistrial, especially with proper jury instructions, and did not constitute a "catastrophic" defect to trial fairness.

In a murder trial, the defendants brought motions regarding the admissibility of evidence.

Philip Fitzpatrick sought to admit antemortem statements by the deceased concerning a dispute over counterfeit money and guns, arguing relevance to witness credibility and narrative.

Evan Wright sought to cross-examine a witness on the deceased's drug trafficking activities, also arguing narrative.

The Crown opposed both.

The court dismissed the application for antemortem statements under the state of mind exception, finding them not relevant and highly prejudicial, though allowing limited questioning on the deceased being ripped off and taking guns.

The court also dismissed the application to admit evidence of the deceased's drug trafficking, finding it irrelevant and highly prejudicial, noting the jury already had sufficient information about the deceased's background.

In a first-degree murder trial, the defence brought a motion for a mistrial, alleging numerous instances of prosecutorial misconduct during the Crown's closing address to the jury.

The alleged errors included misstating evidence, introducing unelicited evidence, mocking defence counsel and witnesses, and improperly commenting on the burden of proof.

The court reviewed each alleged impropriety, finding some instances of improper conduct but concluding that, individually or cumulatively, they did not fatally wound the trial process or deprive the accused of a fair trial to the extent that a mistrial was warranted.

The motion was dismissed, with the court indicating that corrective instructions would be given to the jury.

Philip Fitzpatrick, jointly charged with murder, brought a K.G.B. application to admit two police statements made by his mother, Cheryl Hall, for the truth of their contents regarding the shooter's identity.

The Crown was not opposed if the statements were edited and Ms. Hall could be cross-examined.

The court applied the principled exception to the hearsay rule, finding necessity due to Ms. Hall's recantation/unwillingness to adopt her prior statements, and threshold reliability due to procedural safeguards (availability for cross-examination, videotaping) and circumstantial guarantees (statements made hours after shooting, no influence, no leading questions, no motive to lie).

The court ruled the statements admissible for their truth, to be shown to the jury in their entirety with appropriate edits, and permitted the Crown to cross-examine Ms. Hall on the identification and her state of mind.

The accused, Evan Wright, charged with first-degree murder, brought a Corbett application to exclude his criminal record from evidence at trial, arguing its prejudicial effect outweighed its probative value.

The court ruled that convictions post-dating the offence are admissible.

It refused to "read down" an aggravated assault conviction but decided to limit cross-examination to only the aggravated assault conviction, excluding two weapon possession convictions.

This decision was based on concerns about propensity reasoning and the potential for imbalance, given the nature of the current charges and the lack of a criminal record for the Crown's main witness.

Philip Fitzpatrick brought a pre-trial application seeking leave to lead evidence and cross-examine witnesses regarding a Crown witness, Marquis Grant-Mentis, and his alleged involvement in the murder of Brandon Hall, or alternatively, to argue that one of the perpetrators was a black man other than Mr. Fitzpatrick.

The Crown opposed, arguing no air of reality to the defence.

The court applied the 'air of reality' test, considering whether the evidence could support the inference of an alternate suspect and establish a sufficient connection and opportunity.

The court found that the circumstantial evidence, including eyewitness testimony, surveillance video interpretation, shoe exchange, and the third party's knowledge of intimate details, met the 'opportunity threshold' and provided an air of reality to the third-party suspect defence.

The application was allowed.

The applicant, Cyprian Osei, sought a stay of proceedings under s. 24(1) of the Charter due to a violation of his s. 11(b) right to trial within a reasonable time.

The total delay was 1,227 days (approx. 40 months), exceeding the 30-month Jordan ceiling for Superior Courts.

The court deducted 76 days for defence delay, resulting in a net delay of 1,151 days (38.35 months).

While the COVID-19 pandemic was an exceptional circumstance, the court found the Crown was responsible for 15 days of delay within this period.

After deducting the exceptional circumstance period (283 days minus 15 days of Crown delay), the remaining delay was 938 days (31.2 months), still exceeding the Jordan ceiling.

The court found the delay unreasonable and granted a stay of proceedings.

The applicant sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay.

The court applied the Jordan framework, subtracting periods of defence-instigated delay and exceptional delay caused by the COVID-19 pandemic.

The net delay of 20.5 months was found to be well within the 30-month ceiling for Superior Court cases, leading to the dismissal of the application.

The defendant brought a Garofoli application to quash a search warrant for firearms, alleging deficiencies in the Information to Obtain (ITO) and lack of reasonable grounds.

The Crown cross-applied to rely on redacted confidential informant (CI) information under the Garofoli step six procedure.

The court reviewed the ITO, including the judicially summarized redacted material, and found sufficient grounds for the warrant's issuance.

The application was dismissed, and the evidence was deemed admissible.

The applicant, charged with first-degree murder alongside a co-accused, applied for severance under s. 591(3)(b) of the Criminal Code.

He argued that a joint trial would violate his s. 11(b) Charter right to a trial within a reasonable time, as the co-accused's counsel was unavailable until six months past the Jordan ceiling.

The court dismissed the application, finding that the strong public interest in joint trials for co-accused alleged to have acted in concert outweighed the anticipated delay, which was partially justified by the complexity of a multi-accused trial and the impact of the COVID-19 pandemic.

In a first-degree murder trial, the court ruled on the admissibility of three wiretap excerpts, balancing their probative value against their prejudicial effect.

Two excerpts were excluded: one lacked sufficient link to the killing and carried significant prejudice by associating the accused with incarcerated individuals, and the other lacked probative value regarding a potential getaway vehicle or the shooting itself.

The third excerpt, which involved the accused discussing a homicide and police inquiries with his girlfriend, was admitted as highly probative of post-incident conduct related to his involvement in the shooting.

The Crown brought a motion to admit "recognition" evidence from the accused's former girlfriend, Dejaunte Blake, to identify the accused in surveillance video related to a first-degree murder charge.

The defence opposed, arguing the relationship was not significant enough and the video quality was poor.

The court, applying the principles from R. v. Leaney, found the witness was in a better position than the jury to identify the accused due to her intimate and regular contact with him.

The court admitted the evidence, ruling that concerns about video quality and prior inconsistent statements went to weight, not admissibility.