David E. Harris

Andre Martin was convicted of attempted murder with a firearm and unauthorized firearm possession.

The Crown sought an 18-year sentence, while the defence proposed 6-10 years.

The court considered aggravating factors, including the use of a firearm, the victim's permanent paralysis, and the offender's criminal record.

Mitigating factors included provocation, a dysfunctional upbringing, and systemic anti-Black racism.

The court emphasized general deterrence, denunciation, and the importance of rehabilitation, imposing a total sentence of 12 years, accounting for pre-trial custody and future COVID-related restrictions.

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 accused, O.Y., was charged with two counts of assault and one count of sexual assault against his former partner.

The Crown faced significant obstacles in proving guilt beyond a reasonable doubt, including evidence of the complainant's motivation to fabricate, unconfirmed testimony, and the accused's denial.

The court also addressed a Crown application for the complainant to testify behind a screen, which was denied.

Ultimately, the court found a reasonable doubt and acquitted the accused on all counts.

The accused, J.S., was charged with sexual offences against two young complainants.

The trial judge dismissed the Crown's application for a similar fact ruling, finding insufficient similarity between the allegations to generate strong probative value without demonstrating general propensity.

While the complainants' evidence was found reasonably reliable and credible, and preferred over the accused's testimony on a balance of probabilities, the prosecution failed to prove the case beyond a reasonable doubt.

Consequently, J.S. was found not guilty on all six counts.

The judgment also discusses the obligations of trial judges and Crown Attorneys when an accused is self-represented.

During a criminal trial for a stabbing, the Crown applied under section 9.2 of the Canada Evidence Act to cross-examine its own witness on a prior inconsistent statement.

The witness testified at trial that one of the accused attempted to break up the fight, which contradicted his earlier police statement and preliminary inquiry testimony.

The court granted the application, finding the Crown could not have been expected to lead this evidence in-chief.

However, the court restricted the Crown from questioning the witness about post-offence phone calls with the accused, ruling that such questions would improperly suggest consciousness of guilt and be highly prejudicial.

The plaintiffs moved to strike the jury notice of the defendant Gill on the basis that the Corporation of the Town of South Bruce Peninsula, a municipality, was a party to the litigation.

Section 108(2)(1)(xii) of the Courts of Justice Act prohibits jury trials where relief is sought against a municipality.

The defendant Gill sought a "conditional" striking, arguing the jury notice should only be struck if the town remained a litigant at trial.

The court rejected this, finding no substantive reason to delay striking the notice, as the town's potential withdrawal was speculative.

The court distinguished this statutory prohibition from temporary prohibitions (e.g., during the COVID-19 pandemic) where a "wait and see" approach might be appropriate.

The court also noted that allowing the case to remain in the jury stream would cause significant delay, conferring an unfair tactical advantage.

The jury notice was struck, and the defendant Gill was ordered to pay costs to the plaintiffs.

The applicant sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay.

The court applied the Jordan framework, subtracting periods of defence-instigated delay and exceptional delay caused by the COVID-19 pandemic.

The net delay of 20.5 months was found to be well within the 30-month ceiling for Superior Court cases, leading to the dismissal of the application.

This is an appeal from a conviction for impaired driving, where the appellant argued an infringement of their Section 11(b) Charter right to a trial within a reasonable time.

The total delay was 18 months and 16 days.

The trial judge, and subsequently the appeal court, deducted 54 days for defence delay related to counsel's attempts to bypass necessary pre-trial procedures, resulting in a net delay of 17 months, which is within the 18-month Jordan ceiling.

The court affirmed the necessity of pre-trials for efficient court scheduling and found the defence's conduct contributed to the delay.

The appeal was dismissed.

The applicant defendant challenged a search of his person and vehicle under the Cannabis Control Act, 2017, arguing violations of Charter sections 8 and 9.

The court found that the police officer lacked objective and subjective reasonable grounds for the search, as the smell of marijuana and a marijuana stem were insufficient to establish current possession of unpackaged cannabis.

The officer's testimony regarding the stem and residue was found to lack veracity due to circumstantial evidence.

Applying the Grant factors, the court determined that the serious state misconduct (bad faith, deliberate disregard for rights, misleading testimony) and significant impact on the accused's Charter-protected interests outweighed society's interest in adjudication on the merits.

Consequently, the seized handgun, cannabis, and hashish were excluded from evidence, leading to an acquittal on the firearm charge.

The appellant appealed a finding of not criminally responsible on account of mental disorder (NCRMD) for charges of assault with a weapon and forcible confinement.

The appellant died before the appeal was decided, but the court exercised its discretion to hear the moot appeal due to its jurisprudential importance.

The court found that the trial judge erred in law by allowing the Crown to raise the NCRMD issue without first making a full finding of guilt, including mens rea, as required by the first precondition in Swain.

The court declined to apply the curative proviso, holding that an appellate court cannot substitute itself for the trial judge to make an initial finding of fact on mens rea.

The court also found the second Swain precondition was not met, as the appellant's evidence of delusions did not put his mental capacity for criminal intent in issue.

Had the appeal not been moot, the court would have allowed the appeal, quashed the NCR finding, and ordered a new trial.

The applicants sought broad disclosure and privileged prosecutorial communications to support an abuse of process claim after new charges were laid following a prior stay of related charges arising from the same investigation.

The court held that the tax evasion allegations were demonstrably independent of the prior stay because the investigation had been ongoing well before the original takedown and continued throughout.

However, the timing and surrounding circumstances of the later money laundering and possession of property obtained by crime charges created a sufficient threshold basis to review prosecutorial discretion and order targeted disclosure.

Applying the prosecutorial-discretion abuse standard and the innocence-at-stake framework, the court concluded solicitor-client privilege could be pierced as a last resort to test whether those charges were laid to circumvent the earlier stay.

Michael Simonelli’s application was dismissed, while Raffaele Simonelli’s application was allowed in part.

The defendant brought a pre-trial Charter challenge to the requirement in the Criminal Code, the Juries Act, and a regulation under the Administration of Justice Act that all jurors be Canadian citizens.

The court dismissed the application, finding it was bound by the Court of Appeal's decision in R. v. Church of Scientology of Toronto, which directly addressed the issue.

The self-represented accused applied for certiorari to quash an Ontario Court of Justice order that appointed counsel to cross-examine the complainant, appointed counsel for the complainant on a third-party records application, and authorized a witness to testify via Zoom.

The Superior Court dismissed the application, finding no jurisdictional error and emphasizing that extraordinary remedies should not be used to interfere with ongoing trial matters in the absence of truly exceptional circumstances.

During a trial for first degree murder, the Crown requested that the lesser included offence of manslaughter be left to the jury, relying on criminal harassment as the predicate unlawful act.

The defence opposed the request.

The court declined to put manslaughter to the jury, finding no air of reality to the predicate offence of criminal harassment.

Specifically, there was no evidence that the victim knew she was being harassed or reasonably feared for her safety, as the accused's surveillance was intended to be surreptitious.

The accused was charged with criminal negligence causing death, failing to remain at the scene, possession of stolen property, and breaching bail conditions after a stolen trailer detached from his van and fatally struck a cyclist.

The Crown relied on the testimony of the accused's girlfriend, a Vetrovec witness, which the court found was sufficiently corroborated by video and circumstantial evidence.

The court found the accused guilty of criminal negligence causing death for failing to attach safety chains, failing to remain at the scene, and breaching bail, but acquitted him of possessing the stolen van.

The appellant appealed his summary conviction for impaired driving, arguing the trial judge made a W.(D.) error in assessing credibility.

The trial judge had rejected the appellant's exculpatory evidence as 'not believable' and accepted the police officer's evidence where it conflicted with the appellant's.

The Superior Court of Justice found that the trial judge failed to apply the standard of proof beyond a reasonable doubt to the credibility contest, improperly treating it as an either/or choice between the two versions of events.

The appeal was allowed and a new trial was ordered.

The Crown and defence sought pre-trial rulings regarding the editing of police statements made by the accused, Mr. Lu and Mr. Dookhram, and an application for severance by Mr. Lu.

The court ruled on various excisions to Mr. Lu's statements, removing highly prejudicial opinions from his grandmother and questions about another witness's credibility, while retaining references to his homosexuality and the officer's interview techniques.

The court declined to edit out Mr. Dookhram's references to triads and fear, prioritizing fairness to him over minimal prejudice to Mr. Lu.

Finally, the court dismissed Mr. Lu's application for severance, finding the preference for joint trials was not rebutted.

The accused was charged with two counts of assault and four counts of sexual assault against his former wife.

The Crown's case relied heavily on the complainant's testimony.

The court found the complainant's evidence lacked credibility, noting her demeanour during cross-examination regarding a marriage fraud investigation she initiated against the accused in India.

The court concluded the complainant had an ulterior motive to force reconciliation and gave false evidence.

The accused was found not guilty on all counts.

The accused was charged with sexual assault and two counts of assault against his wife.

The complainant alleged the offences occurred on New Year's Eve 2017 but did not report them to police until October 2018, during a marital separation and concurrent family court proceedings for sole custody of their child.

The court found the timing and circumstances of the disclosure, along with inconsistencies in the complainant's accounts, provided a powerful motive to fabricate and raised a reasonable doubt.

The accused was found not guilty on all counts.