Daisy E. McCabe-Lokos

The Crown appealed the acquittal of one respondent and the sentence of another, while the second respondent appealed his conviction.

Both cases involved border officers searching the respondents' digital devices under s. 99(1)(a) of the Customs Act, leading to the discovery of child pornography.

The Court of Appeal held that s. 99(1)(a) violates s. 8 of the Charter because it authorizes highly intrusive searches of digital devices without reasonable suspicion.

The law was declared unconstitutional with a six-month suspension.

However, applying the Grant framework, the Court admitted the evidence for both respondents due to the officers' good faith reliance on existing law and the serious nature of the offences.

The first respondent's acquittal was overturned and a new trial ordered.

The second respondent's conviction was upheld.

The Court also established a new sentencing range for child pornography possession, finding the second respondent's conditional sentence demonstrably unfit and stating a three-year sentence was appropriate, though it declined to incarcerate him given the time already served on house arrest.

The applicant sought an extension of time to file a Notice of Appeal against his firearms convictions, arguing his guilty plea was uninformed due to alleged non-disclosure by the Crown regarding the firearm's connection to a prior homicide.

The Court of Appeal applied the three-factor test for extensions of time (bona fide intention, explanation for delay, and merit of appeal).

The applicant conceded he did not form a bona fide intention to appeal within the period, and the court found his assertion of non-disclosure lacked substantiation, failing to meet the "not frivolous" merits threshold.

The court emphasized the public interest in the finality of guilty pleas and dismissed the motion.

Melissa Merritt and Christopher Fattore appealed their first-degree murder convictions.

Fattore's appeal, challenging the voluntariness of his confession, was dismissed as the court found no palpable and overriding error in the trial judge's decision.

Merritt's appeal, however, was allowed.

The Court of Appeal found that the trial judge erred in jury instructions regarding the use of a partially unintelligible "airport intercept statement" as an admission of guilt, and also misdirected the jury on the burden of proof concerning innocent explanations for "Walmart omissions" (after-the-fact conduct).

Consequently, Merritt's conviction was set aside, and a new trial was ordered for her.

The accused was tried for robbery, aggravated assault, and weapons offences following a violent attack on a man who had arranged to purchase sexual services from a 15-year-old girl.

The victim was stabbed and robbed in his car.

The Crown's case on identity was entirely circumstantial, relying on the accused's relationship with the girl and his presence near the scene.

The trial judge rejected the exculpatory evidence of the accused and the girl due to significant credibility concerns.

However, due to inconsistencies in the victim's evidence regarding how the assailant entered the vehicle, the court found the Crown failed to prove identity beyond a reasonable doubt.

The accused was acquitted on all counts.

The applicant, charged with aggravated assault and weapons offences, brought an application to stay the proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total time from charges to the anticipated end of trial was approximately 37.5 months.

The court deducted periods of delay caused by the applicant's change of counsel and the exceptional circumstances of the COVID-19 pandemic, bringing the net delay to 26.5 months, below the 30-month presumptive ceiling.

The court found the Crown took reasonable steps to mitigate delay and concluded the case did not take markedly longer than it reasonably should have.

The application was dismissed.

The accused pleaded guilty to multiple charges including robbery, weapons dangerous, and failing to comply with release conditions, stemming from two separate incidents involving the theft of high-value running shoes using an imitation firearm.

The Crown sought a 15-month jail sentence, while the defence argued for time served, citing enhanced pre-sentence credit due to strict bail conditions and punitive jail lockdowns during the COVID-19 pandemic.

The court considered aggravating factors such as the planned nature of the offences, the use of an imitation firearm, and the commission of new offences while on release.

Mitigating factors included the accused's youth, guilty plea, remorse, and the harsh conditions of pre-sentence custody.

The court imposed a 1-year conditional sentence, followed by 2 years of probation, a DNA order, and a 10-year weapons prohibition, finding it consistent with sentencing principles given the accused's demonstrated efforts towards rehabilitation.

The applicants, who were charged with child pornography offences following searches of their digital devices at the border, brought a constitutional challenge against s. 99(1)(a) of the Customs Act.

They argued that the provision, which allows customs officers to search imported goods without any legal threshold, violates the right to be free from unreasonable search and seizure under s. 8 of the Charter when applied to personal digital devices.

The Superior Court of Justice agreed, finding that the profound privacy interests in digital devices require a legal threshold for searches.

The court held that the provision violates s. 8 and is not saved by s. 1, declaring it of no force or effect with respect to digital devices, but suspended the declaration of invalidity.

The applicant, Jeremy Pike, brought a Charter application seeking to exclude evidence obtained from a search of his digital devices at the border.

The court found that his s. 10(b) Charter right to counsel was violated when he was asked for his password, as he was detained at that point and should have been informed of his rights.

While the s. 8 breach (unreasonable search under a provision later found unconstitutional) was in good faith, the Border Services Officer's failure to take proper notes increased its seriousness.

Considering the seriousness and significant impact of both breaches, particularly the s. 10(b) violation, the court concluded that the evidence obtained from Mr. Pike's digital devices should be excluded under s. 24(2) of the Charter.

The appellant, a registered massage therapist, appealed his conviction on two counts of sexual assault.

The appeal challenged the trial judge's assessment of complainant credibility in the absence of expert evidence and the sufficiency of reasons for rejecting the appellant's testimony.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the complainants' reactions were psychologically normal for sexual assault victims and that the reasons for conviction, based on the strength of the Crown's evidence and similar fact evidence, were sufficient.

This ruling addresses a renewed severance application brought by David Obregon Castro, who, along with co-accused Sarai Lopez-Iglesias, is charged with First Degree Murder.

Both accused intend to present "cut-throat" defences, blaming the other for the victim's death.

The application for severance was renewed after a prior ruling allowed Ms. Lopez-Iglesias to admit evidence of Mr. Obregon Castro's prior discreditable conduct.

The court dismissed the severance application, reaffirming the presumption that jointly charged accused should be tried together, especially when antagonistic defences are present.

The judge found that a single trial would promote efficiency, the truth-seeking function, and reduce the risk of inconsistent verdicts, relying on the jury's ability to follow limiting instructions regarding the use of prior discreditable conduct evidence.

This ruling addresses applications by co-accused David Obregon Castro and Sarai Lopez-Iglesias in a first-degree murder trial to adduce evidence of each other's prior discreditable conduct, given their "cutthroat" defences.

The court applies the balancing test for admissibility of co-accused bad character evidence, which is less stringent than for Crown-led evidence.

Ms. Lopez-Iglesias was permitted to introduce evidence relevant to her state of mind (fear of Obregon Castro), his propensity to commit the crime, and his credibility, including details of the "Z Bar Incident" (shooting), the assault on "Chips" (stabbing), various assaults she suffered from Obregon Castro, and his alleged gang membership (limited to her state of mind).

However, evidence of Obregon Castro's past arson/attempted murder charge (acquitted), claims of torturing "snitches" sexual assault, threats regarding Kyle Watts, a plan to shoot a pawn shop owner, and preliminary inquiry observers was deemed inadmissible due to low probative value outweighed by prejudicial effect.

Mr. Obregon Castro was also allowed to adduce evidence of Ms. Lopez-Iglesias's violence towards him, drug use, and participation in bank frauds to challenge her credibility, but not evidence of trafficking sex workers.

The judge emphasized the necessity of detailed limiting instructions to the jury regarding the use of such evidence.

David Obregon Castro and Sarai Lopez-Iglesias, accused of first-degree murder, applied to deliver an opening address to the jury immediately after the Crown.

The court dismissed the application, affirming that such a request is a matter of judicial discretion, not a constitutional right, and should only be granted in special or unusual circumstances.

The court found no such circumstances present, citing concerns about the defence's ability to commit to evidence not yet determined and the risk of the opening address straying into argument.

During a trial for first degree murder, the defence applied to exclude utterances made by one co-accused to a friend, arguing they were more prejudicial than probative to the other co-accused.

The Crown also sought to admit text messages extracted from the co-accused's phone.

The court ruled that the utterances were admissible, as their probative value outweighed the prejudicial effect, and juries are presumed to follow instructions limiting the use of such evidence against a co-accused.

The court also ruled that the text messages were admissible, finding that the Crown had met the modest threshold for authentication under s. 31.1 of the Canada Evidence Act through direct and circumstantial evidence.

The Crown brought an application during a first-degree murder trial to admit several ante mortem statements made by the deceased under the principled exception to the hearsay rule.

The statements primarily concerned the accused's anger towards the deceased and the accused allegedly stealing the deceased's apartment keys.

The court applied the framework from Bradshaw and Khelawon to assess substantive reliability, using corroborative evidence where appropriate.

The court admitted the statements made to the deceased's sister, a close friend, the building superintendent, and the property manager, finding them reliable.

However, statements made to the deceased's boyfriend and another friend were excluded due to reliability concerns and unclear declarant identity.

In a joint trial for first-degree murder, the applicant co-accused brought a pre-trial motion to adduce evidence of the respondent co-accused's prior discreditable conduct through Crown witnesses.

The applicant sought to introduce this evidence to support a cutthroat defence and explain her state of mind.

The court reviewed various proposed items of evidence, ruling some admissible (such as prior violence towards the applicant and possession of a firearm) and others inadmissible (such as drug use, out-of-court statements, and speculative intimidation) based on relevance and the balancing of probative value against prejudicial effect.

The Crown applied to adduce evidence of prior discreditable conduct against the accused in a first-degree murder trial.

The proposed evidence included the accused's prior possession of a firearm, threats made against the deceased, and participation in a prior shooting incident.

The court found that the evidence was relevant and material to the issues of identity, animus, and motive.

Applying the framework for prior discreditable conduct, the court concluded that the probative value of the evidence outweighed its prejudicial effect, and ruled the evidence admissible with certain edits.

The appellant appealed from a decision denying certiorari to quash his committal to stand trial on firearms charges.

The charges related to a handgun with a defective firing pin.

A firearms expert testified that a replacement pin could be sourced and installed relatively easily, though it was temporarily out of stock.

The Court of Appeal dismissed the appeal, finding no error in the reviewing judge's conclusion that there was sufficient evidence to infer the handgun could be adapted for use as a firearm within a reasonable time.

The Ontario Court of Appeal heard appeals from convictions and sentences related to a series of tractor-trailer thefts and robberies.

Appellants challenged the validity of cell tower production orders, the admission of evidence obtained from Charter-breaching production orders under s. 24(2), and the use of similar act evidence.

One appellant also challenged possession convictions.

The Court dismissed all conviction appeals, finding the initial production orders valid, the s. 24(2) analysis sound (due to reduced privacy expectation in public location data), and the similar act evidence properly admitted.

However, the Court allowed the sentence appeals, finding the trial judge erred by analogizing the robberies to home invasions, which led to unduly high base sentences.

The Court reduced the total sentences for the three appealing accused.

The accused, Justine Ordonio, sought to adduce expert evidence from Todd Barron regarding the tendency of certain interview techniques to produce unreliable or false information, personal characteristics increasing suggestibility, and the implications of techniques used in this case for reliability.

The court dismissed the application, finding the evidence not necessary to assist the jury, as common sense and judicial instructions were sufficient.

Furthermore, the proposed expert lacked the required objectivity and did not fully review the evidence.

The accused, Justine Ordonio, sought to adduce ante mortem hearsay statements made by the deceased, Teresa Hsin, regarding a third-party suspect, Tim Chiu, to establish motive and disposition.

The court examined three categories of statements, considering their admissibility under the state of mind exception or the principled approach to hearsay.

While necessity was established due to the deceased's unavailability, the court found the statements lacked threshold reliability.

This was attributed to the confrontational and strategic nature of one conversation, the deceased's compromised state in hospital during another, and the ambiguity and lack of specific fear of violence in statements relayed by the deceased's mother.

The motion to admit the hearsay evidence was dismissed.