Dallas Mack

This is an addendum to a sentencing decision.

The court converted the offender's sentence from months to days to properly reflect the credit for pre-trial custody on a count-by-count basis.

The total sentence before credit was calculated as 3242 days, with 1965 days of credit, leaving an actual sentence of 1277 days.

The offender pleaded guilty to six counts of sexual assault and three counts of voyeurism involving nine victims.

The offences involved surreptitiously recording and sexually touching women while they were asleep or unaware.

The Crown sought a global sentence of 12 years and 10 months and a long-term offender designation with a 10-year supervision order.

The court imposed a global sentence of 8.9 years, reduced to 42 months going forward after credit for pre-sentence custody.

The court also designated the offender as a long-term offender, imposing a 6-year supervision order, finding a substantial risk of re-offending that could eventually be controlled in the community.

The accused, B.R., was charged with sexual interference and sexual assault against his four-year-old daughter, B.A.R., involving digital stimulation and a vibrator.

The Crown's case relied heavily on B.A.R.'s evidence, including a videotaped statement and trial testimony, and sexually explicit Facebook messages between the accused and a family friend, J.T., which mentioned B.A.R. The court found B.A.R.'s evidence credible and reliable despite minor inconsistencies, applying a common-sense approach to child testimony.

The accused's denial of the allegations and authorship of the Facebook messages was rejected as not credible, particularly given the content of the messages and corroborating evidence.

The court found the accused guilty beyond a reasonable doubt on all charges.

The applicant, who was convicted of manslaughter, brought an application for a stay of proceedings under s. 24(1) of the Charter, arguing that the delay of approximately six years and seven months from the date of charge to the anticipated end of his trial was unreasonable under s. 11(b).

The court applied the Jordan framework and determined that the delay attributable to certiorari proceedings and appeals therefrom should be excluded from the calculation.

The court found that the net delay was well below the 30-month ceiling.

Alternatively, even if the appellate delay was included, deductions for defence delay and exceptional circumstances (including discrete events and case complexity) brought the delay below the ceiling.

The application was dismissed.

The accused was convicted of manslaughter for his role in a home invasion and robbery that resulted in the shooting death of a 19-year-old victim.

The accused provided information and assistance to the perpetrators but was not present during the home invasion and did not have subjective foresight of death.

The court weighed the serious aggravating factors of a planned home invasion for greed against mitigating factors including the accused's youth, lack of criminal record, and adherence to bail conditions over five years.

The accused was sentenced to 9 years' imprisonment, less 17 months' credit for pre-sentence custody.

The Crown applied for a dangerous offender/long-term offender assessment under s. 752.1 of the Criminal Code and sought to designate Dr. Philip Klassen as the assessor.

Defence counsel opposed this designation, proposing alternative psychiatrists.

The court held that while the accused has a role in the expert designation, the court should defer to the Crown's choice absent cogent and compelling reasons indicating the Crown's choice is inappropriate, such as lack of qualifications, bias, or unavailability.

The court found no such reasons to reject Dr. Klassen and rejected the defence's proposals due to potential bias (treating psychiatrist) and unavailability.

Dr. Klassen was designated.

The accused, charged with first-degree murder, brought an application for a stay of proceedings alleging a breach of his s. 11(b) Charter right to be tried within a reasonable time.

The total delay was 48 months, well above the 30-month presumptive ceiling established in Jordan.

The court found that the case was not particularly complex and that the Crown's reliance on the previous state of the law was unreasonable, particularly given the accused's continuous pre-trial custody and the Crown's failure to mitigate delay caused by its own unavailability.

The application was granted and a stay of proceedings was entered.

The accused, charged with first degree murder, brought an application to bar the Crown from calling witnesses to testify about matters that the defence had already admitted or offered to admit.

The defence argued that calling such evidence was unnecessary and irrelevant given the admissions.

The court dismissed the application, holding that the Crown has broad prosecutorial discretion to determine how to present its case, including the right to reject defence-framed admissions and to call evidence to prove elements such as planning and deliberation, negate third-party suspect theories, and provide confirmatory evidence for unsavoury witnesses.

The Crown sought to admit two statements made by the accused to police during a missing person investigation that later became a first-degree murder case.

The court found the first statement inadmissible because the police officer's notes were inadequate to prove voluntariness beyond a reasonable doubt.

The second statement, which was video-recorded, was ruled admissible because the accused attended the police station voluntarily, the interaction was conversational, and the police did not yet have reasonable grounds to suspect the accused of a crime, meaning no caution was required.

During a trial, the Crown sought to introduce intercepted telephone conversations to show the state of mind of the witnesses, rather than for the truth of their contents.

The defence objected, arguing the Crown must first attempt to refresh the witnesses' memories or establish past recollection recorded.

The court ruled that the intercepted communications were admissible as real evidence without a preliminary voir dire or the need to exhaust the witnesses' memories, allowing the Crown to play the recordings and ask the witnesses to comment.

The Crown sought to admit certain text messages for the truth of their contents in a criminal trial.

The Defence objected, citing concerns about necessity and reliability under the principled approach to hearsay.

The court ruled that two of the four contested text messages were admissible for the truth of their contents under the present intentions and co-conspirators’ exceptions to the hearsay rule, finding that they met the necessity and reliability requirements despite the declarant's availability.

The other two messages were deemed to lack probative value for their truth.

The Crown sought to admit out-of-court statements made by two accomplices who refused to testify at the accused's trial for second degree murder.

The accomplices had previously given statements to police and one had testified at his own trial.

Applying the principled approach to hearsay, the court found that the police statements met the test for threshold reliability due to corroborating evidence and circumstantial guarantees of trustworthiness.

However, the court excluded the prior trial testimony of one accomplice, finding that the leading cross-examination by the Crown at that trial undermined its reliability and admission would negatively impact trial fairness.

Sam Tsega was charged with second-degree murder.

The Crown sought to admit evidence of Tsega's marijuana use and dealing to establish opportunity, motive, context, and witness credibility.

The defense argued inadmissibility due to lack of support for inferences and prejudicial effect outweighing probative value.

The court applied the Handy/L.B. framework, finding the evidence relevant and material to central issues, and while discreditable, its probative value significantly outweighed any minimal prejudice, especially in a judge-alone trial.

The evidence was deemed admissible.

The offender pleaded guilty to second degree murder, attempted murder, and aggravated assault following a horrific, drug-fueled home invasion.

The court accepted a joint submission for a life sentence with parole ineligibility set at 18 years for the murder, along with concurrent sentences of 14 years for attempted murder and 6 years for aggravated assault.

The court weighed the extreme violence and premeditation against the offender's early guilty pleas, deep remorse, and lack of prior criminal record.

The applicants sought to vary a sealing order under s. 487.3(4) of the Criminal Code to obtain access to the Information to Obtain search warrants executed at two residences.

They argued that, as non‑accused persons affected by the search, they had a presumptive right to access the materials in order to assess potential Charter s. 8 violations.

The Crown opposed, arguing that a non‑accused must first present some evidence suggesting the authorization was obtained unlawfully before a court will review sealed materials.

The court adopted the approach from Michaud v. Quebec (Attorney General) and R. v. Schmidt, requiring a preliminary evidentiary basis before varying a sealing order.

Because the applicants filed no evidence suggesting unlawful authorization of the warrants, the application was dismissed.

The Crown appealed a decision of the Ontario Court of Justice that declared the mandatory victim surcharge under s. 737(1) of the Criminal Code unconstitutional as cruel and unusual punishment under s. 12 of the Charter.

The accused, who pleaded guilty to multiple offences and was indigent with mental health and addiction issues, argued that the mandatory surcharge imposed a crushing financial burden.

The Superior Court agreed that the surcharge constitutes punishment for Charter purposes but held that the evidentiary record was insufficient to establish that the surcharge was grossly disproportionate.

The court emphasized the high threshold for s. 12 violations and the availability of statutory mechanisms such as extensions of time to pay.

The appeal was allowed and the surcharge was ordered imposed.

The accused applied for an order requiring that his murder trial be scheduled earlier than the agreed trial date because he would have been in custody for nearly four years by the time of trial.

Granting the request would effectively require the reassignment of one of the Crown prosecutors who was unavailable on earlier court dates.

The court held that the assignment of Crown counsel is an exercise of prosecutorial discretion belonging to the Attorney General and is reviewable only for abuse of process.

As no abuse of process or improper motive was alleged or established, the court declined to interfere with prosecutorial discretion.

The application for an earlier trial date was therefore dismissed.

The applicant challenged the constitutionality of the mandatory victim surcharge (SAC) imposed under section 737 of the Criminal Code, arguing it violated his rights under sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms.

The court found that the SAC constitutes a punishment rather than an ancillary order.

Applying the test for cruel and unusual punishment under section 12, the court determined that imposing a $700 surcharge on an impoverished, mentally ill, and substance-dependent offender with a monthly income of approximately $136 would be grossly disproportionate and incompatible with human dignity.

The court declared section 737(1) of the Criminal Code to be of no force or effect under section 52 of the Charter.

A 26-year-old Inuit street person with severe alcohol and drug addiction was convicted of nine offences including assault, mischief, and breaching court orders.

He faced a mandatory victim surcharge of $900 ($100 per offence) under section 737 of the Criminal Code.

Living on social assistance with a monthly income of $250, the accused challenged the constitutionality of the victim surcharge provision, arguing it violated section 12 of the Canadian Charter of Rights and Freedoms as cruel and unusual punishment.

The court found that the victim surcharge constitutes punishment and that imposing it on an indigent offender in these circumstances would be grossly disproportionate, both as applied to the accused and in reasonable hypothetical cases.

The court declared section 737 of no force or effect.

During a jury trial for multiple robberies and a conspiracy charge, the Crown brought a similar fact application seeking permission for the jury to use evidence from several robbery counts as proof of identity across those counts.

The court analyzed similarities between four convenience store robberies occurring within a short time frame in the Ottawa area, including the method of operation, division of labour among perpetrators, use of masks and firearms, handling of store clerks, and the repeated presence of a distinctive heavy-set participant.

Applying the principles governing similar fact evidence in identity cases, the court held that the cumulative similarities were sufficiently significant to render coincidence objectively improbable.

The probative value of the evidence outweighed potential prejudice, particularly because each event was already charged in the indictment.

The court therefore permitted the jury to consider the four group robbery counts as similar act evidence for identity and allowed evidence of robberies or attempted robberies to be considered on the issue of intent regarding the conspiracy charge.