David J. Spence

The offender was convicted of sexually assaulting an intoxicated minor on January 1, 2023.

The Crown sought a three-year penitentiary sentence, while the defence sought a conditional sentence of two years less a day followed by three years of probation.

The court imposed a two-year custodial sentence, finding that while the offender was a youthful first offender of otherwise strong character with low reoffending risk and significant mitigating factors, the principles of sentencing—particularly denunciation and deterrence—required incarceration rather than a conditional sentence.

Ancillary orders included a DNA order, a ten-year firearms prohibition, and a lifetime SOIRA order.

The Ontario Court of Justice sentenced Marcial Katimaba Manigbas for sexual assault, considering aggravating factors such as the abuse of a professional relationship and the offence occurring in the victim's home.

Despite the seriousness, the court recognized mitigating factors including Manigbas' age, lack of prior criminal record, positive family and community ties, and collateral consequences suffered.

The court imposed a 5-month conditional sentence to be served in the community, a 12-month probation order with strict conditions including no contact with the victim, a DNA order, and a 5-year weapons prohibition.

The court declined to impose a SOIRA order, finding it disproportionate given the circumstances.

This decision addresses the issue of consent in a sexual assault trial involving the accused, Stelios Stratigakos, and the complainant, H.K. The court carefully evaluates the credibility and reliability of the witnesses, including the complainant, a close friend, and the accused.

The judge applies the legal standard from R. v. W.D. regarding reasonable doubt and finds the accused's testimony not credible.

The complainant's testimony, corroborated by an independent witness, is accepted as truthful.

The accused is found guilty beyond a reasonable doubt of sexual assault.

The accused, a building superintendent, was charged with sexual assault under s. 271 of the Criminal Code.

The trial involved testimony from the complainant and the accused, as well as consideration of Charter arguments.

The court assessed the credibility and reliability of the complainant's testimony, finding it unshaken despite minor inconsistencies regarding timing.

The court applied the W.D. test to the accused's denial, finding his evidence unconvincing and dismissive of the complainant's autonomy.

Ultimately, the court found the complainant's evidence credible and reliable, concluding that the Crown had proven the sexual assault beyond a reasonable doubt.

The accused was found guilty.

This ruling addresses three interpretation issues that arose at the outset of a sexual assault trial.

The court determined whether a Japanese interpreter should be provided for the complainant witness and assessed the qualifications of two proposed Japanese language interpreters.

The court ruled that the complainant required an interpreter, that one proposed interpreter (Kwang Hyuon Joo) was not qualified, and that the other proposed interpreter (Ayae Komri) was qualified to provide interpretation.

The decision emphasizes the court's truth-seeking function and provides a detailed analysis of interpreter competence criteria.

The defendant brought a s. 276 application to cross-examine the complainant on five lines of inquiry regarding her past sexual activity and non-disclosure, aiming to challenge the link between the alleged assault and pregnancy.

The court allowed inquiry into the complainant's understanding of pregnancy-causing sexual activity, her initial denial of sexual activity, and whether other sexual activities could have caused pregnancy, with limitations.

However, the court disallowed questioning on the non-disclosure of alleged assaults by the defendant's brothers and the nature and circumstances of those alleged assaults, finding them irrelevant or unduly prejudicial and offending the collateral fact rule.

The decision emphasizes balancing the accused's right to full answer and defence with the protection of the complainant under s. 276 of the Criminal Code.

The Crown sought to admit a video-recorded statement made by the accused, Jennifer Sacobie, to police.

The defence argued the statement was involuntary and obtained in violation of Sacobie's s. 10(b) Charter right to counsel.

The court found that while the statement was voluntary, the police had seriously breached Sacobie's Charter rights by failing to inform her of her right to counsel upon detention and by continuing to question her despite her repeated requests for a lawyer.

The court further found that no "fresh start" occurred to sever the link between the Charter breach and the subsequent statement.

Applying the Grant factors, the court concluded that admitting the statement would bring the administration of justice into disrepute, and therefore excluded it.

The defendant/applicant brought a multi-faceted application to exclude evidence obtained via a search warrant, arguing a Section 8 Charter breach.

The primary argument involved challenging the sufficiency of the Information to Obtain (ITO) and seeking to cross-examine the affiant.

A secondary, stand-alone argument contended that the police's retention and use of the applicant's youth records, which were referenced in the ITO (and later excised by consent), constituted a breach of the Youth Criminal Justice Act (YCJA) and a Section 8 Charter violation.

The court dismissed the application, finding no basis for cross-examination and that the ITO, after excisions, provided sufficient grounds for the warrant.

The court further held that the YCJA does not require the destruction of all internal police records related to youth interactions, and that consulting such records does not amount to a "search" under Section 8 of the Charter.

Even if there was negligence in including the references, it did not constitute bad faith warranting exclusion of evidence under Section 24(2) of the Charter.

The applicants sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay, arguing their trial, scheduled for May 2023, exceeded the 30-month presumptive ceiling for Superior Court matters established in R. v. Jordan.

The court found a 5-day period of defence delay but noted the total delay still exceeded the ceiling by at least two months.

The Crown argued the COVID-19 pandemic constituted an exceptional circumstance, and they had taken reasonable steps to mitigate the delay, including offering earlier trial dates through a "Jordan court." The court agreed that the pandemic was an unforeseen and unavoidable discrete event causing delay and that the Crown and court administration had made reasonable mitigation efforts.

The application for a stay was dismissed.

The appellant appealed convictions for accessing child pornography, arguing an infringement of his s. 11(b) Charter right to a trial within a reasonable time.

The appeal court applied the R. v. Jordan framework, finding that the net delay, after deducting defence-caused delay and exceptional circumstances (judicial scheduling conflict, judge's unilateral shortening of trial), fell below the 18-month ceiling for the Ontario Court of Justice.

The court also determined that the one-month period for deliberation was defence delay due to counsel's scheduling conflict.

Consequently, the transitional exceptional circumstance was not applicable, and the appeal was dismissed.

The defendant brought a third-party records application seeking use of force reports, training materials, and policy documents from the Ontario Provincial Police regarding the use of force and conducted energy weapons.

The Crown and police opposed the application on different grounds.

The court found that the policies governing use of force and conducted energy weapons were likely relevant to the issue of whether the arresting officer's conduct was reasonable, but training materials were not likely relevant as the officer's actions must be evaluated on their own merits.

The court ordered production of the policies to the court for determination of whether they should be disclosed to the defendant.