Christine Mainville

The applicant, charged with dangerous driving, brought a Garofoli/Charter application to exclude evidence seized from his dash-camera and EDR, alleging a violation of s. 8 of the Charter.

The challenge focused on the facial and sub-facial validity of the search warrant.

The court found that while a dash-camera may attract a reasonable expectation of privacy, the warrant was validly issued based on sufficient grounds regarding the applicant's dangerous driving preceding the collision.

The court also found no material non-disclosure or bad faith by the police.

The application to exclude evidence was dismissed.

The accused, Yonathan Debessay, was charged with possession for the purpose of trafficking crack cocaine, fentanyl, and crystal methamphetamine, and possession of the proceeds of crime over $5,000.

These charges stemmed from drugs found in a stolen car he was driving, with two other occupants, one of whom fled the scene.

Debessay testified, denying knowledge of the drugs and claiming he was temporarily driving the car for an intoxicated acquaintance.

The court found that while aspects of his testimony were implausible, it could not be entirely discounted.

The Crown failed to prove beyond a reasonable doubt that Debessay had knowledge or control of the drugs, or was involved in a joint venture.

Consequently, the accused was acquitted on all counts.

The accused, charged with dangerous driving, brought a motion seeking leave to cross-examine the affiant and sub-affiants of the Information to Obtain (ITO) a search warrant.

The warrant was used to seize and analyze dash cam and Event Data Recorder (EDR) data from his vehicle following a collision.

The accused intended to challenge the sub-facial validity of the warrant, alleging a violation of section 8 of the Charter due to material omissions and ambiguities in the ITO regarding the collision's circumstances, including the potential involvement of a third vehicle and the basis for inferring dangerous driving.

The court granted leave to cross-examine, finding a reasonable likelihood that such examination would elicit testimony tending to discredit the existence of reasonable and probable grounds for the warrant.

The accused, Mark Thompson, faced charges for possession of Schedule 1 and 3 substances for trafficking and possession of proceeds of crime.

He challenged his warrantless arrest and subsequent search, arguing violations of his s. 8 and s. 9 Charter rights.

The court found that the police lacked reasonable and probable grounds for the arrest, as the confidential informant's tip was vague and insufficiently corroborated by surveillance.

The police notes were found to be misleading, exacerbating the seriousness of the Charter breach.

Applying the Grant factors, the court determined that the seriousness of the police misconduct and the significant impact on the accused's liberty outweighed society's interest in the admission of the evidence, leading to its exclusion under s. 24(2) of the Charter.

This decision concerns an application by the accused, Kavit Shah, a registered physiotherapist charged with sexual assault, to admit the complainant's physiotherapy records at trial under sections 278.92-278.94 of the Criminal Code.

The Crown and Complainant opposed the application, primarily arguing a lack of proper evidentiary foundation for authenticity.

The court found that a hearsay affidavit from defence counsel's associate, along with the records obtained through police disclosure, provided a sufficient basis for the pre-trial admissibility assessment.

The court determined the records were relevant to the complainant's credibility and reliability, and that their significant probative value was not substantially outweighed by the danger of prejudice to the administration of justice, given the limited privacy interest in the records and the accused's right to make full answer and defence.

The application was granted, allowing the defence to use the records for cross-examination and to establish prior inconsistent statements, with authentication to be addressed at trial if the defence seeks to prove their contents for truth.

The accused, charged with drug trafficking and possession of proceeds of crime, filed a Charter application challenging the lawfulness of his warrantless arrest and search, which were based on confidential informant (CI) information.

The Crown invoked Step 6 of the Garofoli procedure to allow the court to consider redacted CI information, provided a sufficient judicial summary was disclosed to the defence.

The court assessed the sufficiency of the judicial summary, considering defence concerns regarding the recency of information, the CI's criminal record, the reliability of previous CI information, and the specificity of personal identifying information and modus operandi details.

The court found the updated judicial summary sufficient to enable the accused to challenge the grounds for his arrest while protecting the CI's identity.

In a preliminary inquiry concerning six bank robberies, the Crown sought to adduce similar fact evidence to prove identity.

The defence conceded the admissibility for the last four robberies but argued against the first two due to differences in modus operandi.

The court applied the R. v. Handy test, finding that despite some dissimilarities, the cumulative effect of numerous significant similarities across all six incidents, including proximity in time and place, suspect description, attire, and distinctive handwritten notes, established the objective improbability of coincidence.

The court granted the Crown's application, allowing the similar fact evidence for identity on all counts, noting that the preliminary inquiry context lessened potential prejudice.

The accused, Dwayne Scott, was tried for sexually assaulting the complainant, C.L., who experienced an alcohol-induced blackout and had no recollection of the events.

The sexual relations were not disputed, but the accused claimed they were consensual.

The court considered forensic toxicology evidence and video surveillance of C.L.'s state immediately prior to the alleged incident.

The judge found that the Crown failed to prove beyond a reasonable doubt that C.L. did not consent or was incapable of consenting, emphasizing that a blackout does not automatically equate to incapacity.

The accused's explanation for his post-incident conduct (lying and unsending messages) was found plausible and not indicative of consciousness of guilt.

The accused was acquitted.

The accused, R.S., was charged with sexual assault involving the complainant, A.P., a close family friend's daughter.

The complainant testified about an incident where the accused touched her breast, and earlier instances of slapping her bum.

The accused denied all allegations.

The court assessed the credibility and reliability of both witnesses, noting significant inconsistencies in the complainant's account regarding the timing and conclusion of the alleged incident, particularly concerning a phone call and her initial statement to the police.

These inconsistencies, deemed central to the complainant's narrative, undermined the reliability of her testimony.

Coupled with the accused's consistent denial, the court found that a reasonable doubt existed.

Consequently, the accused was acquitted of the sexual assault charge.

The accused was charged with assault by choking and two counts of sexual assault (anal penetration and breast touching) against a former intimate partner.

The court found the accused guilty of assault by choking and sexual assault by breast touching, but acquitted on the charge of sexual assault by anal penetration.

Key issues included the reliability of dated evidence, the application of the Browne v. Dunn rule regarding contradictory evidence, and the legal definition of consent, particularly concerning unconsciousness and bodily harm in a sexual context.

The court determined that a person cannot consent while unconscious and that repeated choking causing temporary unconsciousness constituted non-trifling bodily harm, vitiating any potential consent.

The accused, Grace Vieira, was charged with impaired driving and over 80 mg% blood alcohol after a rear-end collision.

She challenged the lawfulness of breath demands and her arrest, alleging breaches of her Charter rights under ss. 8 and 9.

The court found that the arresting officer lacked reasonable grounds for both the Approved Screening Device (ASD) demand and the subsequent arrest and breathalyzer demand, largely due to inconsistencies between the officer's testimony and body-worn camera footage, and the officer acting on a hunch rather than objective facts.

The court also found that the accused's statement identifying herself as the driver was compelled.

Applying the Grant factors under s. 24(2) of the Charter, the court determined that the serious nature of the Charter breaches and their significant impact on the accused's liberty outweighed society's interest in the admission of the reliable breath sample evidence.

Consequently, the breath samples were excluded, leading to an acquittal on both charges.

The accused, C.V., was charged with two counts of sexual interference and two counts of sexual assault against his former stepdaughter, A.T., relating to two instances of massaging in 2018 when A.T. was 14 or 15.

The court found A.T.'s testimony to have significant reliability concerns due to lack of recall and inconsistencies, particularly regarding the second massage witnessed by her mother, J.S. However, the court relied heavily on the accused's own statements, including a "confessions of sins" letter to his HR manager, which revealed his sexual purpose in performing the massages.

Despite the massages not appearing overtly sexual to an objective observer (J.S.), the accused's admitted sexual intent was sufficient to establish the sexual nature of the touching.

The accused was found guilty on all counts, with the sexual assault counts proposed to be stayed under the Kienapple principle.

The accused, Mauricio Carrillo, was charged with impaired driving and driving with a blood alcohol level over 80 mg/100 mL following a motor vehicle collision where he sustained a broken femur.

He filed a Charter application alleging violations of his s. 7, s. 8, and s. 9 rights.

The court dismissed the Charter application, finding that the police had reasonable grounds for arrest and breath demand, and that the breath sample procedure, though painful for the accused, did not violate his s. 7 right to security of the person given medical clearance and the accused's cooperation.

While the Crown proved the "Over 80" charge, the court found that impairment beyond a reasonable doubt was not established, leading to an acquittal on the impaired driving charge.

The accused, B.H., a single mother, was charged with failing to provide the necessaries of life to her two-year-old daughter, X., after the child was found unsupervised outside their apartment on two occasions on the same morning.

The court considered the elements of the offence, particularly the mens rea requiring a marked departure from the conduct of a reasonably prudent parent.

The judge found that while the child was in necessitous circumstances, the mother's actions, including taking immediate precautions after the first incident and accidentally dozing off, did not constitute a marked departure from the standard of care, especially given her recent trauma from the death of another daughter.

The accused was acquitted.

Leon Wasser applied under s. 490.015 of the Criminal Code to terminate a 20-year Sex Offender Information Registration Act (SOIRA) order, which took effect in 2010 following his conviction for criminal harassment.

The court granted the application, finding that the impact of continuing the SOIRA order on the applicant's privacy and liberty was grossly disproportionate to the public interest in maintaining the registry, given his significant rehabilitation, lack of re-offending, and full record suspension.

The accused, A.R.A., was charged with multiple counts of sexual interference, sexual exploitation, sexual assault, and invitation to sexual touching involving his two nieces.

The court assessed the credibility and reliability of the complainants and the accused, and considered the admissibility of similar fact evidence.

The court found the accused's testimony not credible and identified significant inconsistencies in the complainants' accounts, as well as potential collusion between them.

Ultimately, the court concluded that the Crown had not proven the accused's guilt beyond a reasonable doubt for any of the charges.

The accused, A.R.A., faced charges including sexual interference and sexual assault.

The defence applied for a stay of proceedings due to unreasonable delay under section 11(b) of the Charter.

The court calculated the total delay from charge to the end of evidence, deducting periods attributable to exceptional circumstances: witness illness (4 months), unexpected witness availability (3 weeks), and inaccurate trial estimates/COVID-19 backlog (1 month + 1 week).

The net delay fell below the 18-month Jordan ceiling for provincial court.

The court found the defence did not take meaningful steps to expedite proceedings.

The application for a stay of proceedings was dismissed.

The accused, Jerome Kaell, brought an application to stay proceedings for unreasonable delay, arguing that the 18-month presumptive ceiling under R. v. Jordan applied to his case.

Kaell had initially elected trial in the superior court, was committed there, and then re-elected to the provincial court without a preliminary inquiry.

The central issue was whether the 18-month or 30-month Jordan ceiling applied.

The court held that once a case is committed to the superior court and the 30-month ceiling crystallizes, it does not revert to 18 months upon re-election to the provincial court.

The court also found that the delay occasioned by the re-election was attributable to the defence.

Consequently, the application for a stay of proceedings was dismissed.

The accused, Lajos Gabor Marosi, was charged with unlawful entry into a dwelling, assault, and failure to comply with a release order.

The charges stemmed from an incident where Marosi, separated from his wife Renata Galamb and subject to a no-contact order, forcefully entered her residence to retrieve their child against her wishes.

During the incident, he struggled with Renata and her mother, took Renata's phone to prevent her from calling the police, and physically assaulted Renata.

The court found Marosi guilty on all counts, determining that he entered the dwelling without lawful excuse and with the requisite intent, that he knowingly or recklessly breached his no-contact order, and that the assault was not consensual nor justified by self-defence.

The accused was charged with operating a vehicle with a blood alcohol level over 80 mg.

At trial, he brought a Charter application alleging breaches of his rights under ss. 8, 9, and 10(b).

The court found the officer had reasonable grounds to make the roadside screening demand, dismissing the ss. 8 and 9 claims.

However, the court found a breach of s. 10(b) because the officer delayed informing the accused of his right to counsel for approximately 6 to 8 minutes after arrest, and provided confusing information about duty counsel.

Applying the Grant framework, the court excluded the breath sample evidence under s. 24(2) due to the officer's lack of understanding of the immediacy requirement and the impact on the accused.

The accused was acquitted.