R. Cary Boswell

The defendant, Gianmarco Di Luciano, brought a motion to re-open a pre-trial Charter application, seeking to exclude evidence of his refusal to provide a breath sample.

The basis for the motion was an alleged material change in circumstances, specifically that the arresting officer, PC Shannon Swiderski, had embellished her testimony at trial regarding the odour of alcohol, thereby undermining her credibility and the lawfulness of the initial arrest and subsequent breath demand.

The court found that while the officer's trial testimony was indeed an embellishment, it did not constitute a material change that would have likely altered the original finding that she had honest, subjective, and objectively reasonable grounds for the arrest and breath demand.

Consequently, the motion to re-open the Charter application was dismissed.

Giedrius Kesminas was tried on two counts: conspiracy to import cocaine (Count 7) and conspiracy to utter forged documents (Count 11), stemming from "Project Southam." The Crown's case relied heavily on wiretap evidence.

Kesminas denied participation, claiming he only pretended to agree to the cocaine importation scheme.

The court applied the two-step Carter analysis for conspiracy membership, rejecting Kesminas's "pretence" defence and finding him an enthusiastic participant.

Kesminas was convicted beyond a reasonable doubt on Count 7.

However, the court reserved its decision on Count 11 due to a material discrepancy between the indictment's particularization (registering a property in Helen Lauro's name) and the evidence presented (obtaining a mortgage for Hans Lauro), citing the principle from R. v. Saunders that the offence as particularized must be proved.

The appellant appealed his conviction for sexual assault, challenging the trial judge's credibility findings and a mid-trial ruling allowing cross-examination on text messages.

The appellant argued the trial judge failed to take a holistic view of evidence, ignored an alleged motive to fabricate, and applied uneven scrutiny.

He also contended the text messages were undisclosed, subject to a Crown undertaking not to use them, and their use constituted case-splitting.

The court dismissed the appeal, upholding the trial judge's credibility assessments and finding no error in the admission of the text messages for impeachment and reply evidence, or in the handling of the "recent fabrication" argument.

The offender, L.R., was sentenced following convictions for sexual interference, invitation to sexual touching, and sexual exploitation involving a 15-16 year old elite hockey player he coached between 2009 and 2010.

The Crown sought an 8-year global sentence, while the defence proposed 2-3 years.

The court emphasized denunciation and deterrence as primary sentencing objectives for child sexual abuse cases, guided by the Supreme Court of Canada's decision in Friesen.

Aggravating factors included the significant age gap, abuse of a position of trust and vulnerability, multiple instances of sexual touching over an extended period, and the profound emotional trauma suffered by the victim.

Mitigating factors included L.R. being a first-time offender, having family support, and leading a pro-social life, along with the impact of stringent pre-sentence release conditions that prevented him from working.

The court imposed a global sentence of 57 months (4 years and 9 months) imprisonment, with concurrent sentences for each count, along with various ancillary orders including DNA, lifelong weapons prohibition, SOIRA registration, and a Section 161 prohibition.

The defendant, Gianmarco Di Luciano, on trial for dangerous and impaired operation of a motor vehicle causing bodily harm and death, applied for a directed verdict on the counts alleging bodily harm to two victims.

The Crown's case was in, and the defence argued that the evidence of soft tissue injuries and psychological sequelae was insufficient to establish 'bodily harm' as defined in the Criminal Code, and that objective foreseeability of injury was required.

The court dismissed the motion, finding that objective foreseeability of bodily harm is not an essential element for dangerous or impaired driving causing bodily harm offences, citing R. v. Creighton and R. v. K.L. While agreeing with the Crown that psychological injuries would not be considered for this ruling, the court found sufficient evidence from the victims' self-reports of physical injuries to allow the jury to consider the bodily harm counts.

The defendant, Kyle Hughes, was convicted of possession of child pornography and making child pornography available.

The Crown sought a three-year prison sentence, while the defence proposed a one-year conditional sentence.

The court emphasized that denunciation and deterrence are paramount in child pornography cases, especially following the Supreme Court's directive in Friesen for increased sentences in child sexual abuse cases.

The court found no exceptional circumstances to warrant a conditional sentence.

Considering aggravating factors such as the large and disturbing collection (over 1,700 images and 22 videos, many depicting prepubescent females and infants in explicit acts) and the defendant's active role as a downloader/uploader on the BitTorrent network, balanced against mitigating factors like being a first-time offender, showing remorse, having no prior record, and a supportive family, the court imposed a global sentence of 30 months.

This was reduced by one month to 29 months due to stringent bail conditions, particularly during the pandemic.

Ancillary orders included a DNA order, a 20-year Sex Offender Information Registration Act order, and a 10-year s. 161 Criminal Code prohibition order, but a s. 109 weapons prohibition was not imposed as the actus reus of the offences did not involve violence.

A victim surcharge of $200 was also ordered.

The applicant, convicted of first-degree murder, sought a reduction in his parole ineligibility period under the "faint hope" provision (s. 745.6 Criminal Code).

The application required a preliminary judicial screening to determine if it had a "reasonable prospect of success" before a jury could be empanelled.

The applicant also brought a Charter application to quash his conviction, which the court dismissed for lack of jurisdiction, noting it was an attempt to relitigate a previously exhausted appeal.

The court found that the applicant fundamentally misunderstood the purpose of the faint hope application, focusing on re-litigating his conviction rather than demonstrating transformative changes in his character or conduct in custody.

Given his lack of responsibility for the offence, history of violence in custody, antisocial personality traits, and lack of future plans, the court concluded there was no reasonable prospect that a jury would unanimously agree to truncate his parole ineligibility.

The application was dismissed, with a directive that no new application could be brought for five years.

The defendants brought a Rule 21 motion to dismiss the plaintiff's claim for theft and conversion as statute-barred under the Limitations Act, 2002.

The plaintiff argued the limitation period was suspended until the conclusion of a related criminal investigation, believing a restitution order would be an appropriate remedy.

The court found that the plaintiff had actual or constructive knowledge of the material facts by July 2019.

It held that an ongoing criminal investigation or the mere prospect of a restitution order does not constitute an "appropriate means" to remedy a civil loss, nor does it suspend the limitation period, unless the civil claim is directly against the Crown or police.

The court dismissed the plaintiff's claim as out-of-time.

The defendant was charged with multiple drug and driving offences following a police pursuit.

The court determined the defendant was the driver of the vehicle.

The defendant was convicted of possession of fentanyl, possession of fentanyl for the purpose of trafficking, dangerous driving, and flight from police.

Acquittals were entered for public mischief, possession of cocaine, heroin, and oxycodone, and possession of cocaine and heroin for the purpose of trafficking, primarily due to insufficient evidence of the defendant's knowledge and control over substances found in other locations or misidentification of the substance.

This criminal trial concerned George Brazier, who faced charges of manslaughter and three counts of trafficking in controlled substances (fentanyl, heroin, and cocaine).

The Crown alleged that Brazier sold fentanyl and cocaine to James Glover, who subsequently died from a fentanyl overdose.

The court found Brazier guilty of trafficking fentanyl and cocaine, and of unlawful act manslaughter, concluding that his conduct in supplying the fentanyl significantly contributed to Glover's death and was objectively dangerous.

The charge of trafficking heroin was acquitted due to insufficient evidence.

The accused, Justice Snache, was charged with second-degree murder.

The trial proceeded in two stages: first, to determine guilt based on an Agreed Statement of Facts, and second, to determine criminal responsibility due to mental disorder.

The court found that the Crown proved the elements of murder beyond a reasonable doubt, including the actus reus and mens rea, based on the agreed facts and the accused's admission.

However, the court then considered the Not Criminally Responsible on Account of Mental Disorder (NCRMD) defence under Section 16 of the Criminal Code.

Relying on expert psychiatric evidence, particularly from Dr. Naidoo, the court found that the accused was suffering from schizophrenia at the time of the offence, which rendered him incapable of appreciating the moral and legal wrongfulness of his actions.

Consequently, the accused was found not criminally responsible for the murder and remanded to the jurisdiction of the Ontario Review Board for disposition.

The offender, Eric Wolfe Riedl, pleaded guilty to possession of cocaine for the purpose of trafficking and unauthorized possession of a loaded, restricted handgun.

The offences occurred during a traffic stop where police found cocaine and a loaded .22 calibre pistol with a tampered serial number in his rental vehicle.

The Crown sought a global sentence of four years.

The court considered aggravating factors, including the serious nature of the offences, the combination of drugs and guns, and the tampered firearm.

Mitigating factors included the offender's relative youth, first-offender status (apart from a bail breach), guilty plea, and significant rehabilitation efforts since the offences.

The court imposed a global sentence of 45 months imprisonment, comprising three years for the firearm offence and one year consecutive for the drug offence, with credit for pre-sentence custody and stringent bail conditions.

Ryan James Ruznisky pleaded guilty to operating a motor vehicle while impaired by alcohol, his fourth such conviction.

The court considered aggravating factors including a high blood alcohol content (207-242 mg/100mL), high speed, and collision with a residence, and mitigating factors such as his genuine remorse, significant efforts at rehabilitation for long-standing substance abuse, and a history of childhood sexual abuse.

The Crown sought six months imprisonment, while the defence sought the mandatory minimum of 120 days.

The court imposed a sentence of 120 days imprisonment, a three-year driving prohibition, and 18 months probation with a counselling requirement, emphasizing the principle of restraint and the offender's rehabilitative progress.

The defendant, Kyle Hughes, was charged with two counts of possession of child pornography and one count of making child pornography available to others.

He pleaded not guilty but chose not to contest the Crown's case, a procedure functionally equivalent to a nolo contendere plea, to preserve his right to appeal a prior Charter ruling.

The court found Hughes guilty on both counts, concluding that the circumstantial evidence established beyond a reasonable doubt his knowledge and control of the child pornography and his intent to make it available through the BitTorrent network.

The defendant, Abad Abdi Shire, was convicted by a jury of second-degree murder.

The court was tasked with determining the period of parole ineligibility, which can range from 10 to 25 years.

The Crown sought 18-20 years, while the defence sought 12-14 years.

The court considered the egregious circumstances of the offence, including the frenzied and prolonged attack on a defenseless victim, evidence of planning, and the devastating impact on the victim's family.

Mitigating factors included the defendant's difficult childhood marked by poverty and bullying, and the harsh conditions of his pre-sentence custody due to the COVID-19 pandemic.

The court found the aggravating circumstances strongly outweighed the mitigating ones and imposed a parole ineligibility period of 17 years.

This ruling addresses the admissibility of graffiti found on the exterior walls of a building where a murder occurred.

The accused, charged with second-degree murder, sought to exclude these writings from evidence, arguing they were irrelevant and highly prejudicial.

The Crown contended the writings were relevant to the accused's state of mind, either as a principal or an aider, by demonstrating animus towards the deceased or knowledge of a co-accused's intent.

The court found that the evidence, primarily a security camera video, was insufficient to connect the writings to the accused or his co-accused, rendering them logically irrelevant.

Furthermore, even if relevant, their probative value was extremely slight and significantly outweighed by the risk of moral and reasoning prejudice, given their discreditable and potentially confusing nature.

The court excluded the evidence, noting the ruling was provisional and could be revisited if the evidentiary record changed.

Matthew Albert Valley pleaded guilty to sexual assault, unlawful confinement, and breach of probation.

The court imposed a global sentence of five years imprisonment, reduced by pre-sentence custody credit to a net 23 months, along with ancillary orders including DNA orders, a lifetime weapons prohibition, a communication ban with the complainant, and a 20-year SOIRA order.

A three-year probation term was also imposed.

The court emphasized denunciation and deterrence given the egregious nature of the sexual assault, the offender's extensive criminal record, and the vulnerability of the victim, while also considering the offender's youth and substance abuse issues.

The defendant, a Type-1 diabetic, was charged with two counts of dangerous driving causing bodily harm after a head-on collision.

The defense argued that the defendant lacked the capacity to appreciate the risk due to severe hypoglycemia (neuroglycopenia) and was in a state of automatism.

The court found that the defendant was in a state of neuroglycopenia when he began driving erratically and lacked the capacity to appreciate the risk, distinguishing the case from R. v. Elson where the driver was aware of dropping blood sugar.

The court concluded that the Crown failed to prove the requisite mens rea beyond a reasonable doubt, leading to the defendant's acquittal.

The automatism defense was not fully analyzed but the court was not satisfied it was proven on a balance of probabilities.

Jerome Derby pleaded guilty to four firearm-related offences, including discharging a firearm with intent to endanger life, unauthorized possession of a prohibited firearm, occupying a vehicle with a prohibited firearm, and breach of a weapons prohibition order.

The sentencing judge considered aggravating factors such as the seriousness of the offences, the public setting of the shooting, and the offender's significant criminal record, including a prior manslaughter conviction.

Mitigating factors included the guilty plea, the offender's lived experience with anti-Black racism and poverty, and harsh pre-sentence custody conditions.

The court imposed a global sentence of 9.5 years, which, after credit for pre-sentence custody, resulted in a net sentence of 5 years and 3 months.

The defendant, Kyle Hughes, brought a disclosure application in a criminal case involving child pornography charges, seeking technical information about automated law enforcement software (Torrential Downpour and Torrential Downpour Receptor) used to investigate his IP address.

The application sought operational copies, source codes, user manuals, training materials, and changelogs to challenge software functionality, potential Charter breaches (s. 8), and the sufficiency of grounds for a search warrant.

The Crown resisted, arguing irrelevance, lack of possession/control, and privilege.

The court ruled that user manuals and changelogs for the software are "obviously relevant" first-party disclosure, subject to privilege claims.

Operational copies of the software were deemed third-party disclosure, meeting the "likely relevant" threshold for a second-stage privilege assessment.

However, the court dismissed requests for source codes and training materials, finding them not "likely relevant" or "obviously relevant" respectively, and clarified that foreign agencies providing investigative leads are not part of the "investigating police force" for disclosure purposes.