David A. Berg

This decision addresses the application to exclude evidence seized during a warrantless search conducted under s. 12(3) of the Cannabis Control Act (CCA).

The police officer stopped the accused for a traffic violation and observed a cannabis vape pen in the vehicle, which he believed constituted reasonable grounds to conduct a search.

The Court found that the vape pen is paraphernalia and not cannabis itself, and that the officer lacked objectively reasonable grounds to conduct the search without further investigation.

The Court also found a breach of the accused’s s. 10(b) Charter right due to delay in informing him of his right to counsel.

Balancing the factors under s. 24(2) of the Charter, the Court excluded the evidence due to serious Charter breaches despite the good faith of the officer.

This decision concerns the manslaughter charge against Ian Rooney for the unlawful death of Yu Kun Xie.

The Crown alleged that Rooney's disproportionate response to Ms. Xie's aggressive behavior, including a blow to her face, caused a fatal brain injury, and that his failure to seek timely medical help constituted criminal negligence.

The trial judge found Rooney's evidence unreliable but accepted that Ms. Xie assaulted him and that his response was in self-defence and reasonable under the circumstances.

The judge further found that although Rooney's cancellation of 911 calls was reckless and a marked departure from reasonable conduct, the Crown failed to prove causation between this conduct and Ms. Xie's death.

Consequently, the manslaughter charge was dismissed.

This decision addresses a Crown application under section 117.05 of the Criminal Code for the disposition of firearms seized without a warrant from Melissa Dupree, who was subject to a Form 1 Mental Health Act intervention due to concerns about suicide risk.

The Court analyzed whether it was "not desirable" in the interests of safety that Ms. Dupree possess firearms, applying the legal test focused on current risk and responsibility as a gun owner.

Despite the initial concerns, the evidence, including psychiatric and psychological assessments and credible testimony from Ms. Dupree and her husband, established that she did not pose a risk to herself or others at the time of the hearing.

The Court denied the Crown’s application for forfeiture and prohibition, ordering the return of the firearms.

The accused brought a s. 11(b) Charter application for a stay of proceedings due to unreasonable delay.

The total delay was 677 days (22.5 months), exceeding the 18-month presumptive ceiling for summary conviction cases.

The Crown argued for defence-caused delay and exceptional circumstances (JPT judge not authorizing sufficient trial time).

The court found no defence-caused delay and determined that while the JPT judge's decision was unforeseen, the Crown failed to take reasonable steps to remedy the delay by not seeking a pre-trial motion before the trial judge.

Consequently, the Crown could not rebut the presumption of unreasonable delay, and a stay of proceedings was granted.

Dolain Mwamba pleaded guilty to multiple Criminal Code offences, including discharge firearm with intent, possession of a loaded restricted firearm, and breach of a firearm prohibition, as well as possession of cocaine for the purpose of trafficking.

The incident involved Mwamba firing a handgun at a stranger's vehicle during a verbal argument at a gas station.

The court considered aggravating factors such as the gratuitous nature of the shooting and mitigating factors including an early guilty plea, remorse, pro-social tendencies, and a difficult background.

The court imposed a global sentence of six years, comprising a five-year mandatory minimum for discharging a firearm and a one-year consecutive sentence for breaching a prohibition order, with other charges running concurrently.

This case involved a criminal trial and Charter application where the accused, Omar Houssein-Hassan, challenged police conduct during an investigation into drug trafficking and possession of proceeds of crime.

The court found that police breached the accused's Charter rights under section 8 (unreasonable search) and section 10(b) (right to counsel).

Specifically, the search of a hidden compartment in the vehicle exceeded the permissible scope under the Cannabis Control Act, and there was an unjustified delay in informing the accused of his right to counsel upon arrest.

Applying the R. v. Grant framework, the court excluded the illegally obtained drug evidence under section 24(2) of the Charter.

As the Crown could not prove the possession of illegal drugs without the excluded evidence, both charges against the accused were dismissed.

The offender, Christopher Watts, pleaded guilty to breaching a Long-Term Supervision Order (LTSO) by being in the presence of female children under 18 without supervision.

This was his fourth breach of the LTSO.

The court considered sentencing principles, including denunciation, deterrence, and separation, giving primary consideration to the protection of children.

The offender's lack of insight and resistance to rehabilitation were aggravating factors.

The court imposed a sentence of three years' incarceration, less pre-sentence custody on a 1:1 basis, rejecting enhanced credit due to the need for public protection and the offender's high risk of recidivism.

The defendant was charged with operating a conveyance with a blood alcohol concentration exceeding 80 mg within two hours of ceasing to operate it, contrary to s. 320.14(1)(b) of the Criminal Code.

The defendant brought a Charter application, arguing a violation of his s. 10(b) right to counsel for being denied re-consultation after providing the first breath sample.

The court dismissed the Charter application, finding no objective change in circumstances (new procedure, change in jeopardy, or deficient initial advice) as per R. v. Sinclair and R. v. Tahmasebi.

On the merits, the defence conceded all elements except the Crown's failure to prove the time the defendant ceased operating the conveyance.

The court held that the Crown must establish, directly or indirectly, whether the first breath sample was taken within two hours of driving ceasing to satisfy s. 320.14(1)(b) or to rely on the presumption in s. 320.31(4).

As the Crown failed to prove the time of driving, the charge was dismissed.

This judgment addresses pre-trial motions concerning the voluntariness of a statement made by the accused to police and alleged breaches of the accused's Charter rights under sections 10(a) and 10(b).

The accused was initially arrested for aggravated assault, and later cautioned and 'arrested' for murder as the victim's condition worsened.

The defence argued police trickery regarding the victim's health status and failure to re-advise of the right to counsel upon change in jeopardy.

The court found the statement voluntary, concluding that the accused was aware of the extent of their jeopardy and that police conduct did not constitute trickery that would shock the community.

The court also found no breach of Charter rights, as the accused was informed of the change in jeopardy and had opportunities to consult counsel.

This criminal trial concerned an allegation of common assault against Robert Bender, an elementary school teacher, involving a student with autism spectrum disorder.

The Crown alleged that Mr. Bender used excessive force when he grabbed the student's wrist and pulled him away from another student who was approaching aggressively.

The defence invoked section 43 of the Criminal Code, arguing the force was justified as corrective.

The court assessed witness credibility, finding one Crown witness unreliable and accepting another's account of the events.

Applying the principles from Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), the court found that Mr. Bender's actions were by way of correction, not motivated by anger or frustration, and that the student was capable of benefiting from such correction.

The force used was deemed minor, transitory, trifling, and reasonable given the immediate need to prevent harm to another child.

Consequently, the court found the Crown had not proven the case beyond a reasonable doubt and dismissed the charge.

The accused, Gabriel Bogdanov, faced charges of possessing crack cocaine and powder cocaine for the purpose of trafficking, and possession of proceeds of crime.

He brought a Charter application alleging breaches of his s. 8 (unreasonable search), s. 9 (arbitrary detention), and s. 10(b) (right to counsel) rights.

The court found that the police search of his vehicle, purportedly based on the smell of cannabis, was unlawful due to contradictory and illogical police testimony regarding the odour and the presence of cannabis residue.

The detention and subsequent arrest were deemed arbitrary, and there was a significant delay in informing the accused of his right to counsel.

Applying the R. v. Grant s. 24(2) Charter exclusion analysis, the court determined that the police conduct constituted a flagrant disregard of Charter rights.

Consequently, all evidence obtained as a result of these breaches was excluded, leading to the dismissal of all charges against the accused.

The accused faced multiple Criminal Code and Provincial Offences Act charges arising from an incident during the "Rolling Thunder" event in Ottawa.

Charges included dangerous operation of a conveyance, flight from police, failing to stop after an accident, resisting arrest, refusing a breath demand, and breaching release conditions.

The court found the accused guilty of dangerous operation, flight from police, resisting arrest, refusing a breath demand, and breaching a geographical release condition.

The accused was found not guilty of failing to stop after an accident and breaching a release condition related to participating in "Freedom Convoy" events, as the court found "Rolling Thunder" to be a distinct event.

Provincial offence charges for driving without an ignition interlock device and without insurance were dismissed, while charges for failing to obey police directions and having open liquor in a vehicle resulted in convictions.

The defendant, Kyle Fisher, was charged with failing to provide a breath sample.

The trial proceeded in a blended fashion, addressing both the merits and alleged Charter breaches.

The court found the ASD demand proper and the refusal to comply established.

However, the court found a clear breach of the defendant's s. 9 Charter right against arbitrary detention due to an "overholding" period of 1 hour and 14 minutes, during which the police detained him solely to issue Highway Traffic Act tickets unrelated to the criminal investigation.

Despite the officer's good faith, this detention was deemed an unreasonable exercise of police authority.

The court determined that a stay of proceedings under s. 24(1) of the Charter was the appropriate remedy, as it was an exceptional case necessary to disassociate the justice system from the state's non-Charter compliant actions, given the lack of alternative remedies and the seriousness of the breach.

The accused, Mark Stordy, was charged with two counts of agreeing or making an arrangement to commit sexual assault with a person he believed to be under 16 years, specifically an 11-year-old and a 7-year-old, contrary to s. 172.2(1)(b) of the Criminal Code.

The Crown's case relied on telecommunications between Stordy and an FBI agent posing as a mother with two young daughters.

Stordy claimed he was conducting a private investigation to identify a parent endangering children.

The court rejected Stordy's defence, finding him not credible.

However, the court found that the Crown failed to prove beyond a reasonable doubt that Stordy had the specific intent to actually travel and meet the fictitious individuals, concluding his communications were merely fantasy roleplaying.

The charges were dismissed.

The Crown applied to have Danyiel Walker declared a dangerous offender under Part XXIV of the Criminal Code, seeking an indeterminate sentence or, alternatively, a determinate sentence of 20 years with a 10-year long-term supervision order.

Walker had pleaded guilty to numerous sexual offences against children and child pornography charges, and had a history of similar youth offences and a prior Children's Aid Society intervention.

The court considered expert psychiatric evidence, victim impact statements, and uncharged conduct.

The court found Walker to be a dangerous offender based on a pattern of repetitive behaviour, persistent aggressive behaviour, and a failure to control sexual impulses, and concluded his conduct was intractable.

The court imposed an indeterminate sentence, finding no reasonable expectation that lesser measures would adequately protect the public, citing concerns about the effectiveness of treatment and the limitations of community supervision, particularly regarding internet access.

Marvin Dubois pleaded guilty to possession of a restricted weapon.

The Crown sought 365 days imprisonment, while the defence sought a conditional sentence of 365 days.

The court considered the impact of anti-Black racism on the offender, as per R. v. Morris, and found that while the offence was serious, the moral blameworthiness was mitigated by the context of racism and alienation.

The court imposed a conditional sentence of 517 days (18 months less 23 days pre-sentence custody), followed by 12 months probation, a 5-year weapons prohibition, and a secondary DNA order.

Danyiel Walker pleaded guilty to numerous sexual offences, and the Crown sought to have him declared a dangerous offender.

This decision concerns a Gardiner hearing to determine the admissibility and proof beyond a reasonable doubt of certain uncharged conduct as facts in aggravation for sentencing.

The Crown sought to adduce five statements from a 14-year-old victim, MP: three video-taped police statements and two written statements from counselling sessions.

The court found that the three police statements were admissible under s. 723(5) of the Criminal Code, satisfying the necessity and threshold reliability tests due to video recording, cross-examination of facilitators, and lack of motive to lie.

However, the two counselling statements were deemed inadmissible due to lack of video recording and being transcribed from memory.

Regarding the ultimate reliability of the uncharged conduct, the court found that allegations concerning a second child, CL, were not proven beyond a reasonable doubt due to ambiguity in MP's testimony.

However, several specific allegations concerning MP himself were proven beyond a reasonable doubt, including exposure of genitals, showing child pornography, inserting penis into MP's mouth, and threats.

These proven facts will be admitted for the analysis of the offender's future risk in the dangerous offender application.

Moussa Jaber pleaded guilty to multiple drug trafficking and firearms offences, possession of proceeds of crime, and breach of probation.

The Crown sought an 11-year global sentence, while the defence argued for a conditional sentence, citing exceptional rehabilitation.

The court found that while the offender had made significant rehabilitative efforts and was at low risk to reoffend, these did not constitute "exceptional circumstances" sufficient to justify a non-custodial or conditional sentence given the gravity of the offences, particularly the large quantities of fentanyl/heroin, methamphetamine, cannabis, and the presence of two loaded restricted firearms and substantial cash proceeds.

The court emphasized general deterrence and denunciation.

A global sentence of 4 years imprisonment was imposed, with concurrent sentences for other counts, along with a lifetime firearms prohibition and DNA order.

The accused was convicted after trial of multiple firearm-related offences including possession of a loaded restricted firearm, possession of a handgun and ammunition for a purpose dangerous to the public peace, knowingly occupying a motor vehicle containing a restricted firearm, uttering a threat to cause death, and breaches of a section 109 firearms prohibition order and probation order.

The court imposed a global sentence of 1825 days, with 1305 days remaining to be served after crediting pre-sentence custody at an enhanced rate of 1.5:1.

The court rejected arguments for a time-served sentence and emphasized denunciation and deterrence as primary sentencing objectives for firearm offences.

The defendant pleaded guilty to possession of child pornography consisting of 6,617 images (742 unique) and 611 videos (603 unique) depicting children between ages 1 and 14 engaged in sexual acts.

The defendant had a prior criminal record consisting of sexual assaults against children in 1996 and 1997.

The court rejected the defendant's late claim of Indigenous heritage for Gladue considerations, found no credit warranted for restrictive bail conditions or rehabilitation efforts, and imposed a sentence of 26 months imprisonment with ancillary orders including lifetime SOIRA registration, lifetime section 161 prohibition, DNA order, and forfeiture of seized materials.