David M. Paciocco

The Crown sought an order for a dangerous offender/long-term offender assessment under section 752.1 of the Criminal Code.

The accused consented to the assessment but objected to the Crown's proposed expert, requesting instead that the court appoint a different expert.

The Crown argued it had the exclusive right to nominate the assessor.

The court rejected this position, holding that section 752.1 requires the court to designate the expert, not the Crown.

The court found that court appointment of the expert enhances the appearance of justice and diminishes the affront to the accused's right to silence.

The matter was adjourned to allow the parties to attempt to agree on an assessor or nominate additional candidates.

The accused was charged with 11 firearm-related offences arising from an incident on November 27, 2014, at a restaurant in Ottawa where he allegedly brandished a firearm at patrons.

The Crown's case relied on eyewitness identification by Sheyna Antoine, corroborated by vehicle registration evidence linking the accused to the suspect vehicle and Twitter messages posted by the accused describing the incident.

The court found the identification evidence reliable when considered holistically with the corroborating evidence, despite initial frailties in the eyewitness testimony.

The court also determined that the object brandished was a real firearm based on witness descriptions, the manner of use, and the accused's own admissions in his Twitter posts.

The accused was convicted on all 11 counts.

This is a preliminary inquiry decision determining whether there is sufficient evidence to commit seven accused persons to stand trial on charges of attempted murder, aggravated assault, unlawful confinement, and unlawful entry arising from a brutal attack on the victim in the early morning hours of November 17, 2013.

The Crown's theory is that the attack was undertaken in retaliation for an assault on the brother of one of the accused the previous day.

The court applies the prima facie case standard, examining whether there is evidence upon which a reasonable jury could return a verdict of guilty beyond a reasonable doubt on each element of each charge.

The decision addresses complex issues regarding the mens rea of attempted murder, the admissibility of hearsay statements, the evaluation of circumstantial identification evidence, and the requirements for party liability.

The court determined the burden of proof regarding consent in a sexual interference prosecution under section 151 of the Criminal Code where section 150.1(2.1) applies.

The accused, a 16-year-old, was charged with sexual interference and sexual assault involving a 15-year-old complainant.

The defence argued that the Crown bears the burden of disproving consent beyond a reasonable doubt, despite section 150.1 referring to consent as a "defence." The court held that section 150.1(2-2.2) operates to add consent as an element the Crown must prove, rather than imposing a burden on the accused to prove consent.

Therefore, the Crown must prove the absence of consent beyond a reasonable doubt.

The accused was convicted of impaired driving causing bodily harm after sideswiping a cyclist on a country road on October 9, 2012.

The victim suffered devastating injuries including a traumatic brain injury.

The court found the accused was so substantially intoxicated that he may not have even realized he struck the victim.

The court emphasized that general deterrence and denunciation were paramount sentencing objectives for this serious impaired driving offense.

The accused had no prior criminal record and demonstrated genuine remorse, but the severity of the victim's injuries and the degree of impairment were significant aggravating factors.

The accused was charged with three counts of robbery and three counts of unlawful confinement arising from a single incident on August 20, 2013, involving three teenage victims.

The Crown's case relied primarily on identification evidence from one victim who made tentative pre-trial identifications through internet photographs and a police photo line-up, coupled with circumstantial evidence including the accused's use of the nickname "Konvict," which matched the name used by the robber during the incident.

The court found the identification evidence credible and reliable despite its equivocal nature, and convicted the accused on all counts.

The Crown brought a section 540(7) application seeking to admit witness statements as evidence at a preliminary inquiry without requiring the witnesses to testify.

The application involved four key witnesses: Jessica Walker, Samantha Daoust, Mark Sudiacal, and Jason Klein.

The Crown sought to admit their statements under the Criminal Code provision that permits justices to receive evidence that would not otherwise be admissible if the justice considers it credible or trustworthy.

The court admitted the statements of Daoust, Sudiacal, and Klein, as well as the videotaped statements of Walker, but excluded Walker's off-camera statement recorded in police notes.

The decision provides comprehensive guidance on the interpretation and application of section 540(7).

The Crown sought reconsideration of a preliminary inquiry judge's ruling denying a section 540(7) application to file transcripts of witness statements.

The initial judge had rejected the application as inadequately presented and lacking sufficient grounding.

The Crown subsequently renewed the application with a fuller record.

The presiding judge ruled that reconsideration was permissible, finding that the initial ruling was not a final determination on the merits of section 540(7) admissibility but rather a rejection of the application as presented.

The judge held that interlocutory evidentiary rulings can be reconsidered where there is no prejudice to the defence and where the interests of justice support reconsideration, particularly in preliminary inquiries where evidentiary errors cannot be appealed.

The court issued a decision on the admissibility of electronic documents during a criminal trial.

The Crown sought to admit three distinct packages of electronic documents: Google Hangout conversations, Gmail exchanges, and additional Google Hangout chats.

The defence did not pursue arguments against admissibility.

The court admitted all three packages of documents as exhibits after conducting a blended admissibility voir dire.

The decision addresses the requirements for authenticating electronic documents under the Canada Evidence Act and establishes the evidentiary standards for proving authenticity and compliance with the best evidence rule for electronic documents.

A costs decision arising from a motion to change a child support order.

The respondent father sought to reduce his monthly child support obligation based on a decrease in income.

The parties settled the motion on March 31, 2015, with the father agreeing to maintain the original support amount until the child completed secondary school, while the mother abandoned her claim for past special expenses.

The court determined that the mother achieved greater success and awarded her partial costs of $3,000, finding divided success but favoring the applicant's position.

The accused was charged with three offences arising from a motor vehicle accident on October 9, 2012: failing to stop after being involved in an accident knowing bodily harm was caused, impaired driving causing bodily harm, and operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood while causing an accident resulting in bodily harm.

The court found that the accused's vehicle struck a cyclist, causing serious injury.

The Crown's case was significantly weakened by Charter breaches committed by police during the accused's detention, resulting in the exclusion of breath samples and statements.

The court convicted the accused of impaired driving causing bodily harm but acquitted on the other two counts, finding reasonable doubt regarding whether the accused knew or was wilfully blind to having struck a person.

The accused was charged with operating a motor vehicle with more than the legal limit of alcohol in his blood.

The Crown presented evidence of breath test results showing a blood alcohol content of 100 milligrams per 100 millilitres of blood.

The accused challenged the admissibility of the evidence on multiple grounds, including Charter violations relating to the loss or failure to preserve relevant evidence.

Specifically, the accused sought disclosure of Cobra data, simulator certification documents, and calibration and maintenance records relating to the Intoxilyzer 8000C machine used to obtain his breath samples.

The court found that certain information had been lost and that this constituted a non-disclosure breach of the accused's Charter rights.

However, the court determined that no remedy was warranted because the accused suffered no material prejudice, as the Crown presented compelling evidence that the test results were reliable regardless of the lost evidence.

The breath analysis evidence was admitted at trial.

The accused was charged with two alcohol driving offences under section 253(1) of the Criminal Code: impaired operation and operation with blood alcohol exceeding the legal limit.

The Crown alleged the accused had care and control of a motor vehicle on May 19, 2013.

The accused admitted to being too impaired to drive but contested whether he was in care and control.

The trial judge found that the accused did not occupy the driver's seat for the purpose of setting the vehicle in motion, there was no realistic risk he would change his mind and drive, and there was no realistic risk of unintentional motion creating danger.

The accused was acquitted of both charges.

The accused was tried on two counts arising from an automobile collision: refusing to provide an evidential breath sample contrary to section 254(3) of the Criminal Code, and impaired driving.

The Crown alleged the accused was impaired by alcohol following a rear-end collision.

The court found that while the officer had reasonable and probable grounds to believe the accused had committed an impaired driving offence, the evidential breath demand was not made "as soon as practicable" as required by law, rendering it unlawful.

Additionally, the court found insufficient evidence of an unequivocal refusal due to the officer's failure to record the precise words constituting the alleged refusal.

On the impaired driving charge, the court found the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol.

The accused was acquitted on both counts.

The accused was convicted of two indictable offences of possessing child pornography contrary to section 163.1(4)(a) of the Criminal Code.

The first offence involved 49 accessible child pornographic images on a computer hard drive, discovered when the computer was brought in for repairs.

The second offence involved 30 hard copy photographs of preteen or young teenage females.

The court imposed a sentence of 8 months imprisonment on each count to be served concurrently, along with a 2-year probation order, a 5-year prohibition order under section 161, and a lifetime SOIRA order.

The court rejected the Crown's argument for an inflationary floor principle and the defence's argument for the minimum sentence, finding that 8 months was a fit sentence given the gravity of the offences and the offender's degree of responsibility.

The accused was stopped for erratic driving and subsequently subjected to an Approved Screening Device (ASD) demand for suspected impaired driving.

The trial judge found multiple Charter breaches: failure to inform the accused of the reason for detention (s. 10(a)), failure to provide the ASD demand "forthwith" (s. 254(2)(b)), resulting in failure to advise of the right to counsel without delay (s. 10(b) informational breach), unlawful detention and search (s. 8 and 9), and failure to facilitate a realistic opportunity to consult counsel before the ASD test (s. 10(b) implementational breach).

The trial judge excluded the breath sample evidence and acquitted the accused.

The applicant, a 51-year-old Innu man from Cambridge Bay, Nunavut, sought an exemption from a mandatory firearm prohibition imposed following his guilty plea to sexual assault.

The applicant argued that the prohibition would constitute a virtual prohibition on his only realistic means of employment—operating an outfitting and hunting guide business—and that he would need firearms for sustenance hunting.

The court granted the exemption under section 113(1)(b) of the Criminal Code, finding that the applicant had satisfied the necessity requirement on the balance of probabilities.

The court emphasized that the necessity requirement need not be permanent and that a realistic, contextual approach must be taken when assessing employment prospects in remote communities.

The court also noted that satisfying the necessity condition is necessary but not sufficient; the court must also be satisfied that granting the exemption does not pose an undue risk to public safety.

The accused was charged with failing or refusing to comply with a demand to provide breath samples for an approved screening device (ASD) contrary to section 254(5) of the Criminal Code.

The Crown alleged the accused was observed drinking from a wine bottle in a McDonald's drive-thru and subsequently failed to provide suitable breath samples during ten attempts at roadside testing.

The accused claimed she was unable to provide samples due to anxiety and a pre-existing lung condition.

The court addressed a late challenge to the sufficiency of the charge, finding it was not a nullity but amending it to conform to the evidence presented.

On the merits, the court found the accused guilty, determining that she intentionally failed to provide samples rather than being incapable of doing so.

The court addressed a constitutional challenge to the victim surcharge provision in the Criminal Code.

The Crown argued that a prior declaration of unconstitutionality made by the judge in R. v. Michael was not available to be applied in the present case unless a new Charter application was brought.

The judge rejected the Crown's position and held that provincial court judges have the power to issue declarations of invalidity under s.52 of the Constitution Act, and that such declarations have persuasive precedential value in subsequent cases.

The judge concluded that the victim surcharge was unconstitutional as cruel and unusual punishment and declined to impose it.

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.