Debra Moskovitz

This judgment at trial addresses criminal charges against the defendant, Maxim Dorofeev, for incidents on November 7, 2022 (assault, choking, unlawful confinement) and August 25, 2022 (assault).

The court found the defendant guilty of assault and choking under s.267(c) of the Criminal Code for the November 7 incident, ordering a conditional stay for the simple assault count from the same date.

The defendant was acquitted of unlawful confinement for November 7 and assault for August 25.

The court's decision involved a detailed assessment of witness credibility and reliability, particularly concerning the complainant's and defendant's conflicting accounts, and the corroborative value of independent witness testimony and physical evidence.

The applicant sought access to police records concerning a youth (W.C.) under the Youth Criminal Justice Act (YCJA) after being struck by a pellet from a BB gun.

The police had investigated but laid no charges, opting for extrajudicial measures.

The court found that the police records constituted records of extrajudicial measures under section 119(4) of the YCJA, which prohibits access to such records for individuals like the applicant.

Even if not considered extrajudicial measures, the records were inaccessible under the YCJA's statutory framework, as section 123, which allows access after certain periods, did not apply to records where no charges were laid and thus no access period was defined.

The court emphasized the YCJA's principles of youth privacy and diminished moral blameworthiness.

The application was dismissed.

This decision addresses a voir dire to determine the admissibility of police statements made by Marcia Gittens and Horace McCalla, who are charged with failing to provide the necessaries of life and criminal negligence causing bodily harm to their son.

The Crown sought to admit the statements, arguing voluntariness and constitutional compliance.

The defence contended that the statements were involuntary and obtained in violation of ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found Ms. Gittens' statement inadmissible due to involuntariness, influenced by inducements, her emotional state, and police misrepresentations regarding the video recording and the duty to caution.

Additionally, her s. 10(b) Charter rights were breached when psychological detention crystallized during the interview, leading to exclusion under s. 24(2).

Conversely, Mr. McCalla's statement was deemed voluntary and admissible, as the police adequately informed him of his rights and potential legal jeopardy, and he was not found to be detained.

The accused was charged with offences relating to forcing two minors to work in the sex trade.

She pleaded guilty to two counts of receiving a material benefit from the sexual services of minors pursuant to section 286.2(2) of the Criminal Code.

The Crown sought the mandatory minimum sentence of two years imprisonment.

The defence argued for a suspended or conditional sentence and challenged the constitutionality of the mandatory minimum provision.

The court found that while the mandatory minimum was grossly disproportionate to the offender's circumstances, it could not be saved under section 1 of the Charter.

The court imposed a sentence of eight months incarceration, finding that the offender's own history of sexual exploitation and ongoing victimization at the time of the offences substantially reduced her moral culpability, despite the serious nature of the crimes and the harm caused to the young victims.

The offender, a 30-year-old first offender, pleaded guilty to sexual interference contrary to section 151 of the Criminal Code for sexual intercourse with a 14-year-old complainant.

The Crown sought 18 months imprisonment while the defence sought the minimum 90 days.

The court imposed the mandatory minimum sentence of 90 days to be served intermittently on weekends, followed by two years probation with stringent conditions including no contact with the victim or persons under 18, community service, and counselling.

The court balanced the seriousness of the offence against the offender's youth, first-offender status, genuine remorse, guilty plea, and employment circumstances.

The accused pleaded guilty to trafficking a person under the age of 18 for the purpose of sexual exploitation, contrary to section 279.011(1) of the Criminal Code.

The victim was a 14-year-old girl who was forced into prostitution over a six-day period.

The court found that while the mandatory minimum sentence of five years was constitutionally valid as applied to the accused's circumstances, the provision violated section 12 of the Charter when considered against reasonable hypotheticals involving less serious conduct.

The court imposed a sentence of four years, less credit for pre-trial custody.

The accused, F.C., was found guilty of sexual assault, sexual touching of a person under 14, and invitation to sexual touching in relation to a person under 14, against his four-year-old great-granddaughter.

The sexual assault conviction was conditionally stayed due to the rule against multiple convictions.

The parties disagreed on the sentence, with the defence seeking a conditional sentence based on Charter arguments (s. 12 and s. 7) due to the accused's advanced age (87) and fragile health, and the Crown seeking an upper reformatory term of actual imprisonment.

The court imposed a nine-month reformatory term of imprisonment, finding it proportionate to the gravity of the offences and the offender's responsibility, while also considering his age and health.

The court declined to rule on the constitutional validity of the mandatory minimum sentence of 45 days as the imposed sentence was significantly higher, and found that the accused's health concerns could be managed in correctional facilities, thus not violating his s. 7 Charter rights.

A three-year probation order and various ancillary orders (DNA, SOIRA, s. 161 prohibition, firearm prohibition, victim surcharge) were also imposed.

In a prosecution for historic and recent sexual offences against two young relatives, the Crown sought to admit several hearsay statements made by a four‑year‑old complainant who was later found incompetent to testify under s. 16.1(3) of the Canada Evidence Act.

The court considered the principled exception to the hearsay rule under R. v. Khan and subsequent jurisprudence, assessing necessity and threshold reliability.

The judge held that the complainant’s statements to her mother shortly after the alleged incidents and again several weeks later were reasonably necessary and sufficiently reliable, given their timing, spontaneous nature, lack of motive to fabricate, child‑like language, and corroborative circumstances including the accused’s response when confronted.

Statements made by the complainant to her brother and to a SickKids interviewer were excluded because they were not reasonably necessary, as they added little beyond the more detailed statements already admitted.

The ruling admitted the mother’s evidence of the child’s disclosures while excluding other hearsay evidence.

The accused was tried on multiple sexual offences alleged against two child complainants who were his great‑grandchildren while he and his wife provided daycare.

The court acquitted the accused on two counts relating to the older complainant, finding the delayed disclosure, reliability concerns, and possible memory contamination created reasonable doubt.

However, the court admitted and relied upon hearsay statements from the younger complainant under the principled exception established in R. v. Khan after finding threshold reliability and necessity.

The statements, corroborating surrounding evidence, and the accused’s own statements and conduct satisfied the court beyond a reasonable doubt that sexual offences occurred against the younger complainant.

The accused’s testimony was rejected as fabricated and unreliable.

The Crown applied to have the offender declared a dangerous offender and sentenced to an indeterminate period of incarceration following guilty pleas to sexual assault and sexual touching of a minor.

The offender, an Aboriginal man with a hebephilic preference and a history of substance abuse, argued for a determinate sentence followed by a long-term supervision order.

The court found that while the offender met the criteria for a dangerous offender, there was a reasonable possibility of eventual control of his risk in the community through intensive treatment, including sex-drive reducing medication.

The court designated him a long-term offender and sentenced him to an additional 2 years in a federal penitentiary, followed by a 10-year long-term supervision order.

The accused applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, arguing that a 27.5‑month delay between charge and anticipated trial violated the right to be tried within a reasonable time.

The case involved multiple sexual offence allegations by three complainants and was largely a credibility-based trial expected to last less than a week.

The court found that most of the delay resulted from Crown disclosure failures, including late disclosure of a key video statement and defective recordings of two complainant interviews.

Applying the Morin framework and guidance from cases such as R. v. Godin, the court held that the delay significantly exceeded acceptable guidelines and caused prejudice to the accused’s ability to make full answer and defence.

The accused’s Charter rights were therefore breached and a stay of proceedings was ordered.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood following a rear-end collision.

The appeal challenged the conviction on the basis of an alleged Charter s. 8 breach relating to reasonable grounds for arrest, the reliability of expert toxicology evidence estimating blood alcohol concentration at the time of driving, and an alleged misapprehension of evidence.

The court held that the proposed Charter issue could not be raised for the first time on appeal because the evidentiary record was insufficient and there was no explanation for the failure to raise it at trial.

The court also found that the expert evidence remained capable of establishing that the appellant’s blood alcohol level was well above the legal limit and that any alleged deficiencies in a police officer’s evidence were irrelevant to the trial judge’s finding of identity based on an eyewitness.

The sentence appeal was also dismissed, as the trial judge was entitled to depart from the parties’ joint sentencing position after hearing submissions.

The Crown appealed acquittals for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit after the trial judge excluded breathalyzer evidence under ss. 8 and 24(2) of the Charter.

The trial judge had concluded that the police officer should have delayed administering the roadside screening device due to the possibility of recent drinking and residual mouth alcohol.

The appellate court held that the trial judge erred in law by requiring the officer to inquire about the timing of the last drink and by finding a reliability concern where the evidence showed a delay of at least twenty minutes between the last drink and the test.

The court further held that even if a Charter breach occurred, exclusion of the breath evidence was unwarranted under the Grant framework.

The acquittals were set aside and a new trial was ordered.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The sole ground of appeal was that the trial judge failed to properly consider the objective component of the reasonable suspicion standard required for an approved screening device demand under s. 254(2) of the Criminal Code.

The appeal court held that it was not necessary for the trial judge to explicitly articulate the legal test so long as the reasons demonstrated that the relevant factors were objectively weighed.

The evidence, including the odour of alcohol from the driver’s breath, the accused being the sole occupant of the vehicle, unusual behaviour during the stop, and the officer’s experience, provided sufficient grounds to support the demand.

The conviction was upheld.

The applicant sought to quash a committal for trial on a charge of attempted murder following a preliminary inquiry.

The applicant argued the preliminary inquiry judge exceeded jurisdiction by inferring specific intent to kill from the circumstances of a violent assault involving strangulation, sexual assault, and severe beating.

The court applied the test of whether there was any evidence upon which a properly instructed jury could infer the requisite intent.

Considering the nature of the attack, the severity of the injuries, the sequence of events, and the abandonment of the complainant while unconscious and seriously injured, the court held there was sufficient evidence from which intent to kill could be inferred.

The application was dismissed and the committal for trial on attempted murder was upheld.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, alleging ineffective assistance of counsel at trial.

Trial counsel mistakenly believed roadside statements regarding alcohol consumption could be used to impeach the accused’s credibility, and therefore failed to pursue a Carter defence, obtain relevant disclosure, or retain toxicology evidence.

On appeal, expert evidence suggested the approved instrument may have lacked proper maintenance and that the accused’s blood alcohol concentration at the time of driving could have been below the legal limit.

The court held that counsel’s misunderstanding of governing appellate authority affected strategic decisions and constituted ineffective assistance.

The resulting prejudice created a reasonable possibility that the verdict would have been different.

The appellant appealed a conviction for impaired driving, arguing that the trial judge erred by applying the presumption in s. 258(1)(c) of the Criminal Code where the offence date on the Information differed from the date the breath samples were taken.

The appellant also argued that the trial judge applied the wrong legal test when determining whether language difficulties constituted special circumstances requiring an interpreter for purposes of the right to counsel under s. 10(b) of the Charter.

The court held that the discrepancy in dates could be corrected by amending the Information under s. 683(1)(g) of the Criminal Code and that the appellant was neither misled nor prejudiced.

The court further found that the appellant sufficiently understood his right to counsel and that the evidence supported the trial judge’s finding of impairment beyond a reasonable doubt.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol level over 80 mg, arguing the trial judge erred by refusing to quash the information due to non-compliance with s. 508 of the Criminal Code.

The alleged defect concerned a justice of the peace failing to correctly confirm the form of release on the information, despite the accused having been released on a promise to appear.

The court held that such non-compliance did not invalidate an otherwise properly sworn information and did not deprive the court of jurisdiction.

Relying on appellate authority and persuasive Superior Court decisions, the court concluded that defects relating to confirmation of a promise to appear are collateral to the validity of the charge.

The appeal was dismissed.

The appellant appealed convictions for impaired operation and refusing to provide a breath sample, arguing that the trial judge erred in dismissing a delay-based Charter application, in finding no prejudice from delay, in concluding that a lawful breath demand was made, and in imposing a 15‑month driving prohibition.

The court held that the impugned two‑month period was properly characterized as intake delay and that outstanding disclosure did not prevent setting trial dates.

The court further found no evidence that delay prejudiced the appellant’s liberty, security of the person, or ability to make full answer and defence.

The evidence supported the finding that the breath technician effectively made a lawful demand and that the appellant understood the requirement to provide a sample.

The sentence, including a 15‑month driving prohibition and minimum fines, was within the appropriate range and disclosed no error.