Charles Shortt

Hussein Harb was found guilty by a jury of kidnapping and attempted extortion of Mohammad Algunaid, related to a scheme to recover money lost in a Ponzi scheme.

The court considered the facts, aggravating and mitigating factors, and the principle of parity, noting that Harb played a lesser role than his co-accused, Kozak, who inflicted the violence.

The court imposed an 18-month conditional sentence, followed by 18 months probation, with strict house arrest and ancillary orders, finding this fit and proportionate given Harb’s lesser culpability and lack of prior record.

The defendant, Milan Tosic, was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration exceeding 80 mg.

The trial included a Charter application alleging breaches of sections 8 and 10 of the Canadian Charter of Rights and Freedoms, specifically concerning police entry onto private property and the timing of detention and rights to counsel.

The court dismissed the Charter application, finding that police acted within the implied license to investigate and that detention began when the defendant voluntarily exited his residence.

Based on the admissible evidence, including civilian testimony of erratic driving, police observations of impairment, and breath test results, the court found the defendant guilty of impaired operation, staying the over 80 charge under the Kienapple principle.

The defendant, Hussein Harb, brought an application for a stay of proceedings under s. 11b of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

The total delay was agreed to be 28 months and 22 days, which falls below the presumptive *Jordan* ceiling.

The court found that the defendant failed to establish that his case took markedly longer than it reasonably should have, considering factors such as the nature of defence communications regarding pretrials and the ripple effect of the COVID-19 pandemic.

The application for a stay was dismissed.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80 milligrams.

The trial took place after the Bill C-46 amendments to the Criminal Code came into force, making it a transitional case.

The Crown relied on the testimony of a breath technician but failed to provide a certificate of an analyst or sufficient viva voce evidence regarding the certification of the alcohol standard used to calibrate the breathalyzer.

The Superior Court of Justice held that the Crown failed to meet its evidentiary burden to rely on the presumption of accuracy under s. 320.31(1) or to prove the offence at common law.

The appeal was allowed and the conviction was set aside.

The Crown appealed a stay of proceedings granted by the Ontario Court of Justice under s. 11(b) of the Charter for unreasonable delay.

The respondent was charged with refusing to provide a breath sample, and the trial was scheduled in a 'reservoir court' resulting in a total delay of 19.5 months.

The Crown argued the trial judge erred in calculating defence delay and discrete events.

The Superior Court found that while the trial judge erred in not attributing a 31-day period as defence delay, she correctly declined to deduct a 45-day period where the Crown offered earlier dates only after the Charter application was filed.

The net delay of 18.5 months exceeded the 18-month presumptive ceiling, and the appeal was dismissed.

The appellant appealed his conviction for driving with excess alcohol, arguing that his s. 10(b) Charter rights were violated because the police delayed administering an approved screening device (ASD) test, creating a reasonable opportunity to consult counsel.

The trial judge held that the appellant failed to meet his onus of establishing that there was a reasonable opportunity to consult counsel.

On appeal, the Superior Court of Justice held that the trial judge erred in placing the onus on the appellant.

The court found that once an applicant establishes a prima facie Charter violation (detention without being advised of the right to counsel), the onus shifts to the Crown to justify the breach under s. 1 by proving the demand was made 'forthwith', which includes showing there was no reasonable opportunity to consult counsel.

The appeal was allowed and a new trial ordered.

The appellant sought leave to appeal a conviction for impaired driving from the Superior Court's dismissal of his summary conviction appeal.

The Court of Appeal found no merit in the proposed appeal and dismissed the application for leave to appeal.

The court determined that the case had no significance for the general administration of justice and denied the request for costs.

The appellant appealed his conviction for driving with a blood alcohol level over 80 mg, arguing the trial judge erred by not excluding breathalyzer results due to alleged breaches of his right to privacy with counsel (s. 10(b)) and arbitrary detention (s. 9) for being held in custody for 7.5 hours until sober.

The Crown cross-appealed the trial judge's imposition of a conditional discharge, which was below the mandatory minimum fine, granted as a remedy for the s. 9 breach.

The Superior Court dismissed the conviction appeal, finding no error in the trial judge's conclusion that the appellant did not actually believe his privacy was compromised.

The court also reversed the trial judge's finding of a s. 9 breach, holding that binding appellate authority establishes that detaining an intoxicated person for their own protection does not constitute arbitrary detention.

Consequently, the Crown's cross-appeal was allowed, the conditional discharge was set aside, and the mandatory minimum $1,000 fine was imposed.

The appellant appealed his conviction for impaired operation, arguing the trial judge erred in applying the test for circumstantial evidence, particularly by requiring reasonable doubt to be based on proven facts, and that the verdict was unreasonable.

The Superior Court of Justice dismissed the appeal, finding that the trial judge correctly assessed the circumstantial evidence.

The court held that the alternative explanations for the appellant's erratic driving (weather, medical issue, searching for an item) were speculative and not reasonable inferences from the evidence, especially when combined with the indicia of alcohol consumption.

The court also clarified that while reasonable doubt can arise from a lack of evidence, the alternative explanations themselves must be reasonable, not merely hypothetical.