Devin Bains

The applicant sought release pending appeal from convictions for two counts of indecent assault against the daughters of his then-partner, committed approximately 50 years ago when the victims were approximately 9 and 13 years old.

The applicant received a conditional sentence.

The Crown opposed the release application, arguing the applicant failed to establish that his grounds of appeal were not frivolous and that immediate enforcement was necessary to maintain public confidence given the seriousness of the offences.

The motion judge granted the application for release, finding that the applicant's ground of appeal regarding the trial judge's admission of extraneous bad character evidence clearly surpassed the "not frivolous" criterion and that the reviewability interest outweighed the immediate enforceability interest.

The appellant, Jeffrey Mitchell, appealed his convictions for two counts of threatening death and his 90-day conditional sentence and two years probation.

The convictions stemmed from text messages sent to his former wife and her new partner, and a stick figure decal on his truck.

The appellant argued the trial judge improperly relied on propensity evidence, failed to apply the W.(D.) analysis, misapprehended evidence, and applied uneven scrutiny.

He also sought to introduce fresh evidence regarding his dyslexia and reliance on voice-to-text.

The Superior Court dismissed both the conviction and sentence appeals, finding the propensity evidence admissible for context, the W.(D.) principles correctly applied (evidenced by an acquittal on one count), no misapprehension of evidence, and no uneven scrutiny.

The fresh evidence application was denied due to lack of cogency and insufficient explanation for its late introduction.

The sentence was deemed reasonable and not manifestly unfit.

The accused was charged with publishing an intimate image without consent.

At the close of the Crown's case, the defence moved for a directed verdict of acquittal, arguing there was no direct evidence the accused posted the images online and the circumstantial evidence was insufficient.

The court found an inferential gap between the accused's possession of the images and their appearance on the internet, concluding that a properly instructed jury could not reasonably infer guilt.

The motion for a directed verdict of acquittal was granted.

The accused, Henning Jonat, faced charges related to child pornography.

A blended voir dire was held to consider applications to exclude evidence based on alleged Charter breaches, including an s. 8 breach for obtaining subscriber information without a warrant (admitted by the Crown) and an s. 10(b) breach for questioning the accused after he expressed a desire to consult counsel.

The court found the s. 8 breach was in good faith pre-Spencer, and the s. 10(b) breach had minor impact, with the Crown not seeking to use the statements.

Other alleged breaches regarding chat logs, search warrant validity, and strip search were rejected.

All applications to exclude evidence were dismissed.

The Crown sought a pre-trial ruling on the voluntariness and admissibility of two statements made by the accused in a second-degree murder trial, alleging violations of Charter rights.

The court found the statements voluntary but identified multiple serious breaches of the accused's s. 10(b) Charter rights, including delayed access to counsel, lack of privacy during a phone call with counsel, and police elicitation of statements after the right to counsel was invoked.

Applying s. 24(2) of the Charter, the court concluded that the cumulative effect of these serious breaches, coupled with the intrusive nature of the police conduct and the low reliability and high prejudicial effect of the statements, warranted their exclusion to prevent bringing the administration of justice into disrepute.

The Crown brought a motion to summarily dismiss the applicant's request for a stay of proceedings or, alternatively, permission to rescind his delay waiver.

The applicant alleged violations of ss. 7, 10(b), 11(b), and 11(d) of the Charter due to a non-private call with counsel and disorganized disclosure.

The court, applying Rule 34.02 of the Criminal Proceedings Rules, found no reasonable prospect of success for the applicant's stay application, noting that disclosure issues were rectified and the police conduct, while ill-advised, did not warrant a stay.

The motion to dismiss was granted.

The defence applied to exclude evidence of prior discreditable conduct, known as the "Austin incident," in a murder and aggravated assault trial involving Tyrone Chambers and Joshua Warner.

The Austin incident, a minor assault accompanied by a threat to shoot, occurred shortly before the main shootings.

The defence argued its prejudicial effect outweighed its probative value.

The Crown contended the incident was relevant to the accused's knowledge of each other's gun possession, their willingness to back each other up, and the overall narrative of the night's events, forming part of a continuing transaction.

Applying the R. v. Handy test for similar fact evidence, the court treated the Austin incident as prior discreditable conduct but found its high probative value, particularly concerning narrative, the accused's knowledge and state of mind, Section 21 party liability, and self-defence, greatly outweighed the limited moral and reasoning prejudice.

The court ruled the evidence admissible.

The Crown and the two accused brought several pre-trial motions ahead of a re-trial for murder and aggravated assault arising from a shooting at a house party.

The court ruled on the admissibility of various pieces of evidence, including post-offence conduct, a photograph of the deceased, a lead fragment, ammunition, and black socks with gunshot residue.

The court also dismissed a Charter application challenging a search warrant, finding the accused lacked standing as he had abandoned the apartment.

Finally, the court denied the accused's request to sit at counsel table, ordering them to remain in separate prisoner's docks with leg belts due to significant security concerns and antagonistic defences.

The accused, B.W., was charged with sexual interference under section 151 of the Criminal Code involving the complainant, S.L., who was under 16 years of age.

The alleged incidents occurred in a church basement between 2000 and 2007.

The Crown relied on S.L.'s testimony and a written 'confession' letter from B.W. The court found significant reliability issues with S.L.'s evidence due to inconsistencies in her account of the incidents and disclosures, and credibility concerns with T.S., S.L.'s mother, particularly regarding her handling of the school disclosure and the circumstances surrounding the 'confession' letter.

The court concluded that the 'confession' letter was heavily influenced by T.S. and potentially linked to a financial demand.

Ultimately, the court was not satisfied beyond a reasonable doubt that B.W. committed the offence or that S.L. was sexually touched by anyone.

B.W. was acquitted.

A youth was charged with aggravated assault by wounding contrary to section 268 of the Criminal Code following a hip check delivered during a house league hockey game that resulted in a serious leg fracture to the victim.

The Crown alleged the defendant intentionally applied force without consent.

The defence argued the defendant momentarily forgot he was playing non-contact hockey and instinctively executed a properly-trained hip check from his years of rep hockey experience.

The court found the defendant not guilty, accepting that he was in early transition from contact to non-contact hockey, had just participated in contact high school tryouts two days prior, and that the hip check, while spectacular in result, was a properly executed check that would have been acceptable in contact hockey.

The court found the Crown failed to negate implied consent beyond a reasonable doubt.

The court issued a costs endorsement following a successful motion by the respondents to stay the applicant's oppression relief application due to an arbitration clause in a Unanimous Shareholders' Agreement.

Despite the respondents' success on the stay motion, the court denied costs to both parties.

The court found both parties blameworthy for initiating litigation without invoking the arbitration clause, but deemed the respondents' conduct more blameworthy for unilaterally terminating the applicant's employment and excluding him from the business in breach of the USA before seeking protection of the arbitration clause.

The respondents brought a motion to stay the applicant's oppression relief application, arguing that an arbitration clause in their Unanimous Shareholders' Agreement (USA) applied.

The applicant contended that the arbitration clause was inapplicable due to the respondents' unilateral breach, its use as a tool of oppression, and the 'day-to-day business' exception.

The court granted the stay, finding the arbitration clause broad enough to cover the claims, including those of oppression and involving non-signatory corporations, and that the hiring/firing of key personnel was not a 'day-to-day' matter.

The court emphasized the competence-competence principle, referring the determination of the arbitration agreement's reach and jurisdiction over non-parties to the arbitrator.

This endorsement addresses a respondent's motion to stay an applicant's application, raising three key issues for which the court requires further submissions and case law.

The issues concern the impact of non-parties to a Unanimous Shareholder Agreement (USA) on the stay analysis, questions of waiver regarding the USA's dispute resolution clause, and whether claims for oppression relief under the Canada Business Corporations Act or Ontario Business Corporations Act affect the stay application, particularly in light of an arbitrator's right to determine jurisdiction.

The applicant, charged with seven counts of fraud over $5,000, brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing that the 75-month delay from the laying of charges to the anticipated end of trial was unreasonable.

The applicant also sought a stay for abuse of process under s. 7, alleging the criminal charges were used to extort civil restitution, and sought to exclude forensic accounting evidence due to alleged conflicts of interest.

The court dismissed the abuse of process and conflict of interest claims, finding the police conducted an independent investigation.

However, the court granted the s. 11(b) application, finding that the Crown's obstinate refusal to disclose 90 boxes of relevant documents caused over three years of Crown and institutional delay.

Concluding that the delay was unreasonable and caused prejudice to the applicant, the court stayed the charges.

The accused, charged with first-degree murder, sought to exclude a videotaped statement made to police, arguing it was involuntary and obtained in breach of his s. 10(b) Charter right to counsel.

The court found the statement was voluntary, as there were no threats, inducements, or oppressive circumstances.

However, the court held that the police breached the accused's s. 10(b) rights by failing to provide him with an immediate opportunity to consult counsel upon arrest, despite facilities being available.

Applying the Grant framework under s. 24(2), the court concluded that admitting the statement would bring the administration of justice into disrepute due to the seriousness of the breach and its impact on the accused's rights.

The statement was excluded.

The Crown sought to prevent the accused from re‑litigating two pre‑trial rulings made during an earlier jury trial that ended in a mistrial after the trial judge recused himself for a reasonable apprehension of bias arising from a personal tax dispute with the Canada Revenue Agency.

The Crown relied on s. 653.1 of the Criminal Code, which presumes that evidentiary and Charter rulings from a mistrial remain binding at a new trial unless the interests of justice require otherwise.

The court held that although the provision creates a presumption favouring preservation of prior rulings, the circumstances of the recusal and the trial judge’s own comments suggesting that earlier rulings might appear influenced by the conflict undermined confidence in those decisions.

Given that concern, the interests of justice required that the impugned motions be re‑litigated before the new trial judge.

The Crown’s application to bind the parties to the earlier rulings was dismissed.

The applicant, charged with tax fraud, brought an application under s. 11(b) of the Charter seeking a stay of proceedings due to unreasonable delay.

The total time from the laying of charges to the anticipated end of the trial was approximately 85 months.

The court applied the Morin framework and found that the delay was not unreasonable given the extreme complexity of the case, the voluminous electronic disclosure, the involvement of multiple co-accused, and the applicant's waiver of earlier trial dates to retain her preferred counsel.

The application was dismissed.