David E. Harris

The appellant appealed convictions for "over 80" and impaired driving.

The trial judge had found the breathalyzer certificate admissible despite the absence of direct evidence of a breathalyzer demand, ruling that the defence objection was untimely.

The Superior Court of Justice held that the trial judge erred in law by misconstruing the nature of the statutory presumptions under sections 258(1)(c) and (g) of the Criminal Code.

The court clarified that the absence of evidence of a proper breath demand meant the preconditions for these presumptions were not met, rendering the certificate's contents unusable for their truth, irrespective of a timely objection.

Consequently, the "over 80" conviction was quashed and an acquittal entered.

For the impaired driving count, while the evidence of impairment was not weak, the trial judge's reliance on the erroneously admitted breath readings constituted an error of law, necessitating a new trial.

This ruling addresses the admissibility of foot impression evidence in a first-degree murder trial.

The Crown sought to introduce expert testimony and circumstantial evidence linking the accused's shoes to an impression found at the crime scene.

The defence objected, challenging the expert's qualifications and the relevance of the evidence due to perceived weaknesses in the chain of reasoning and lack of uniqueness of the shoe tread.

The court found the forensic identification officer qualified as an expert in foot impression analysis and deemed the evidence sufficiently necessary and relevant, ruling it admissible.

This addendum to a bail review endorsement clarifies that Crown counsel cannot cross-examine sureties about admissions made by the accused regarding the alleged offence.

The court found such questioning improper as it constitutes an unfair exploitation of the bail hearing for discovery purposes, infringes upon the accused's right against self-incrimination, and is largely extraneous to the bail decision.

The practice is detrimental to the accused-surety relationship and wasteful of judicial resources.

The Crown appealed the acquittal of the respondent, who was charged with "over 80" after being stopped for cell phone use while driving.

The trial judge found racial profiling, excluded breathalyzer readings, and acquitted.

The appeal court found the trial judge erred by misapprehending evidence, failing to consider an innocent mistake as an alternative to racial profiling, and improperly drawing inferences from the police's failure to investigate the cell phone.

The trial judge's finding of "unconscious" racial profiling by an honest officer was deemed a stretch and difficult to substantiate.

The appeal was allowed, the acquittal vacated, and a new trial ordered.

The accused was charged with accessing and possession of child pornography.

The court addressed the voluntariness of the accused's statement to police and the issue of whether the Crown had proven possession of the laptop containing the illicit material.

The court also considered a variance between the indictment's specified offence period and the evidence.

The court found the accused's statement voluntary, the laptop in the accused's exclusive possession, and the time variance immaterial as time was not an essential element of the offences and no prejudice to the defence was demonstrated.

The applicant, a young person charged with three bank robberies and subsequent bail breaches, sought a review of his detention order under s. 520(1) of the Criminal Code.

The applicant argued that the proposal of two new, highly suitable sureties constituted a material change in circumstances.

The Superior Court of Justice agreed, finding that the previous judge's reliance on the unsuitability of the applicant's parents as sureties heavily influenced the initial detention order.

Upon conducting a de novo review of the secondary and tertiary grounds under the Youth Criminal Justice Act, the court concluded that the strict house arrest plan with the new sureties reduced the risk to a manageable level.

The detention order was vacated and the applicant was released on bail.

The offender was convicted of second degree murder for killing his mother.

The jury rejected his claim that he was not criminally responsible (NCR) but recommended no increase in parole ineligibility.

The court found that the offender's mental illness played a central causal role in the murder, substantially diminishing his moral blameworthiness and reducing the importance of deterrence and denunciation.

The court set the period of parole ineligibility at the statutory minimum of 10 years.

The appellant appealed a conviction for an "over 80" offence, arguing that the certificate of a qualified breath technician under Section 258(1)(g) of the Criminal Code was inadmissible because it was unsigned.

The Superior Court of Justice, sitting as a summary conviction appeal court, dismissed the appeal.

The court held that Parliament did not explicitly require a signature for such a certificate to have evidentiary value, distinguishing it from Section 258(1)(f.1) which does.

While a signature provides an evidentiary assist, continuity between breath tests and the certificate can also be established through *viva voce* evidence or other circumstantial evidence, as was done in this case.

The applicant sought a review of his detention order under s. 520 of the Criminal Code, proposing two new sureties to replace the unsuitable one from the initial hearing.

The applicant was charged with robbery, intent to commit an indictable offence while masked, and failing to stop for police.

The court found that while the new sureties were an improvement, they did not constitute a material change in circumstances because they did not address the underlying reasons for detention on the secondary and tertiary grounds, specifically the applicant's history of robberies and the seriousness of the offences.

The application was dismissed.

The appellant was convicted of sexual assault against a 17-year-old complainant.

On appeal, the court found that the trial judge committed several errors, primarily misapprehending the complainant's evidence regarding her prior inconsistent statements and deliberate falsehoods to the police.

The trial judge failed to adequately scrutinize the complainant's explanations for these inconsistencies and omissions, which were central to her credibility.

The appeal was allowed, the conviction was quashed, and a new trial was ordered.

The applicant sought a stay of proceedings due to unreasonable delay under Section 11(b) of the Charter, stemming from the Crown's late disclosure of 12,000 pages of cell phone data on the eve of trial.

This disclosure failure caused an 8-month adjournment, extending the total delay to 28 months and 10 days, just under the 30-month Jordan ceiling.

The court found the delay markedly excessive due to Crown negligence in obtaining and disclosing the evidence, and that the defence had taken reasonable steps to expedite the proceedings despite a minor misstep in not explicitly raising delay concerns at a set date.

The application was granted, and the charge was stayed.

The applicant sought a bail review under s. 520 of the Criminal Code after being detained on tertiary grounds for attempting to possess and import a firearm.

The application was based on a material change in circumstances, specifically the tendering of a new surety (applicant's brother) and electronic monitoring.

The court dismissed the application, finding that the proposed changes did not constitute a material change relevant to the original reasons for detention, which focused on the strength and seriousness of the case and the need to maintain public faith in the administration of justice.

The court delivered reasons for sentence for three co-accused, David Kawal, Tyrel Nicholson, and Devonte Rowe, involved in a botched robbery and kidnapping scheme.

Kawal was convicted of attempted murder of a police officer, robbery with a firearm, and kidnapping with a firearm.

Nicholson pleaded guilty to robbery with a firearm, kidnapping with a firearm, and breach of recognizance.

Rowe was convicted of robbery and kidnapping simpliciter.

The judge emphasized the gravity of handgun violence and offences against police officers, applying principles of general deterrence and denunciation.

Kawal received a life sentence with normal parole eligibility.

Nicholson was sentenced to 10 years (63 months actual after pre-trial credit).

Rowe received a 4-year sentence (time served) based on a joint submission.

The court declined to delay parole for Kawal, citing the parole board's superior position to assess rehabilitation.

The applicant sought a stay of proceedings for importing cocaine, alleging a violation of his Section 11(b) Charter right to be tried within a reasonable time.

The total delay was nearly four years, exceeding the 30-month Jordan ceiling.

The court found that at least 22 months of the delay were attributable to the applicant's obstructionist conduct, including failing to appear, refusing to cooperate with court processes, and difficulties retaining counsel.

Deducting this defence-generated delay brought the net delay below the Jordan ceiling.

The application for a stay was dismissed.

The Crown appealed two summary conviction acquittals for "over 80" offences, arguing that the Ontario Court of Appeal's decision in R. v. Soules was wrongly decided and per incuriam, and therefore not binding.

The Superior Court dismissed both appeals, reaffirming the principle of stare decisis and holding that R. v. Soules remains binding authority on lower courts, as confirmed by the Court of Appeal in R. v. Roberts.

The court also upheld the trial judge's rejection of the Crown's Section 1 Charter argument, agreeing that a Section 7 breach, triggered by the Crown's attempt to use statutorily compelled statements at trial, is not amenable to Section 1 justification.

The appellant appealed convictions for criminal harassment, uttering threats, and causing a disturbance.

The appeal raised grounds of abuse of process due to alleged trial delay and failure to consider a Charter s. 11(b) application.

The court dismissed the abuse of process claim, finding no evidence of malicious delay by the Crown.

The s. 11(b) argument was deemed abandoned at trial.

The court also addressed a potential error in the trial judge's application of the "only reasonable inference" standard for circumstantial evidence, concluding that while the phrasing was imperfect, it did not affect the burden of proof or the outcome given the trial judge's rejection of alternative explanations.

The accused applied for a mistrial during his second-degree murder trial following a violent outburst in the courtroom while the Crown was delivering its closing address to the jury.

The accused yelled profanities, damaged the prisoner's box, and had to be removed by security.

The court dismissed the mistrial application, finding that the outburst was likely a manifestation of mental illness rather than a calculated attempt to derail the trial, but that it did not cause irreparable prejudice.

The court relied on the strong presumption of jury integrity and concluded that the incident did not meet the high standard required for a mistrial.

The court ruled on the admissibility of various photographs in a second-degree murder trial where the accused admitted to killing his mother, and the sole issue was intent.

The court admitted scene and autopsy photographs, finding their probative value in illustrating the crime scene, supporting expert testimony, and detailing injuries outweighed their prejudicial effect.

However, a "before" photograph of the deceased and a "harrowing" "after" photograph of her severely injured face were deemed inadmissible due to their inflammatory nature and low probative value compared to the pathologist's verbal testimony, which was considered the primary source of information regarding the extent of force used.

During a criminal trial, the judge issued a ruling regarding the Crown's closing arguments.

The Crown had invited the jury to draw an adverse inference from the accused's post-arrest silence concerning the accidental nature of his mother's death.

The court found this argument to be a clear violation of the accused's right to silence, as established by a long line of judicial authority.

The judge determined that using omissions in a police statement to infer guilt directly was a serious error that jeopardized trial fairness.

Consequently, the judge crafted a curative instruction to the jury to disregard the improper Crown argument.

The Crown sought to admit a statement made by a witness regarding the deceased's ambiguous response ("Oh Nadira") to a question about the accused hitting her, arguing it constituted an adoptive admission by silence.

The court ruled the evidence inadmissible, finding that its probative value was outweighed by its prejudicial effect.

The judge reasoned that the extra inferential step required for an adoptive admission, combined with the vagueness of the statement, significantly attenuated its probative value and posed a serious risk of wide-ranging speculation by the jury.