Ehsan Ghebrai

The court considered an application by Mustafa Elawad to exclude evidence obtained during a traffic stop and subsequent search, on the basis of breaches of sections 8, 9, and 10(a) and (b) of the Charter.

The court found that the police engaged in racial profiling, that the stop was not justified by the stated reason of obscured plates, and that the subsequent search and seizure were unlawful.

The evidence of drugs and a firearm was excluded, and Mr. Elawad was acquitted of all charges.

This endorsement addresses issues arising from a trial management conference in a criminal proceeding.

Key points included a discussion regarding the appointment of counsel for one accused, Stephen Richard Parr, who has a Legal Aid certificate but is seeking counsel on the LAO panel.

The court also directed the Crown to file its discreditable conduct application and ordered all counsel to file summaries of their intended pre-trial applications by March 29, 2024.

The judge expressed concern about the efficiency of virtual attendances and indicated a consideration for ordering future trial management conferences to be held in person.

In a pre-trial motion for a first-degree murder case, the court ruled on the admissibility of the accused's statements to police, ante-mortem statements of the deceased, and character evidence.

The court found the accused's statements were voluntary and not obtained in violation of his Charter rights.

The deceased's statement 'No, it's my brother' was admitted for state of mind but not for its truth.

The court also allowed some evidence of the deceased's prior violent acts to support the accused's self-defence claim, while permitting the Crown to lead balancing evidence of the accused's disposition for violence.

The Crown sought to commit three defendants for first-degree murder in the shooting death of Jordan Henry.

The incident occurred outside a New Year's Eve party following an altercation.

The court, after a preliminary inquiry, found sufficient circumstantial evidence to commit two defendants (Mohamed Shokri and Zakaria Hassan Adam) for first-degree murder, and one defendant (Abdikadir Abdi) for second-degree murder.

The decision analyzed the test for committal, treatment of circumstantial evidence, distinction between inference and speculation, and the elements of planned and deliberate first-degree murder and party liability.

Jovane Jolly pleaded guilty to two counts of fentanyl trafficking.

The Crown sought an 11-year sentence, while the defence proposed 6 years.

The court considered aggravating factors, including the large quantity of fentanyl trafficked (over 6 ounces), the offender's related criminal record, his disregard for human life by continuing to traffic after an overdose death, and committing offences while on bail.

Mitigating factors included his guilty plea, social context evidence regarding systemic discrimination as a Black man, presentence custody, time on restrictive bail, and rehabilitative prospects.

The court imposed a global penitentiary term of 9 years, emphasizing deterrence and denunciation while acknowledging the social context evidence's impact on moral responsibility.

The accused was sitting in a parked car when police blocked his vehicle and detained him.

After discovering loose cannabis and an outstanding committal warrant, police delayed advising the accused of the reasons for his detention and his right to counsel for nearly 30 minutes while they investigated the warrant, deliberately misleading him to maintain his compliance.

A subsequent search of the vehicle yielded a firearm.

The court found violations of sections 9, 10(a), and 10(b) of the Charter.

Although the search itself was lawful under the Cannabis Control Act, the court excluded the firearm under section 24(2) due to the serious, deliberate, and reckless nature of the police conduct in suspending the accused's rights.

The applicant, charged with assault with a weapon, brought a Charter s. 8 application to exclude evidence seized from his cell phone pursuant to a search warrant.

The applicant argued the Information to Obtain (ITO) contained deliberate falsehoods regarding a witness claiming the applicant filmed the assault.

The court found the officer made a careless error in attributing the statement to the wrong witness, which did not amount to bad faith but required excision of the impugned paragraphs.

Without those paragraphs, the ITO lacked grounds to authorize a search for photographs and videos.

Applying the Grant framework under s. 24(2), the court excluded the photograph and video evidence, finding the police's failure to provide accurate information undermined the prior authorization process.

The accused, charged with attempted murder and firearms offences, applied for a bail review following a detention order.

He argued a material change in circumstances due to a COVID-19 outbreak at the Toronto South Detention Centre.

The court found the outbreak constituted a material change, warranting a hearing de novo.

Although the Crown's case was strong and the offences serious, the court concluded the accused met his onus on the secondary and tertiary grounds.

The accused was released on strict house arrest with GPS monitoring and three sureties.

T.L. brought a bail review application after being detained on secondary and tertiary grounds following a shooting incident.

The initial bail hearing before a Justice of the Peace was flawed due to a misapprehension of evidence regarding a proposed surety.

The Superior Court conducted a *de novo* hearing, considering a new supervision plan involving house arrest with grandparents as sureties, electronic monitoring, and the unique circumstances of the COVID-19 pandemic.

The court found the accused satisfied the onus on both secondary and tertiary grounds, emphasizing the strength of the supervision plan and the elevated risks of detention during the pandemic.

T.L. was released on strict conditions.

Patricia Morgan was charged with importing cocaine.

A voir dire was held to determine the voluntariness and admissibility of statements she made to Canada Border Services Agency (CBSA) and Royal Canadian Mounted Police (RCMP) officers.

The court excluded most statements made to CBSA officers due to unreliable recording and lack of context, but admitted the audio/video recorded statement made to an RCMP officer, finding it voluntary and not induced by promises of release or passport return.

The accused was charged with human trafficking, sexual exploitation, sexual assault, and possession of stolen property arising from his involvement in a sex trafficking operation in York Region.

The Crown's case relied primarily on the testimony of the complainant, a former university student who entered the sex trade.

The court found significant credibility issues with the complainant's evidence, including numerous internal contradictions, evasive demeanor, and inconsistencies between her trial testimony and her police statement.

The accused did not testify but made a voluntary statement to police.

The court convicted the accused on one count of possession of stolen property (the complainant's cellphone) but acquitted on all other counts, finding the Crown had failed to prove the charges beyond a reasonable doubt.

The applicant, charged with possession of heroin for the purpose of trafficking, brought a Charter application seeking to exclude evidence seized during a search of his person and vehicle.

He alleged that police fabricated a narrative to justify the search after detaining him pending a search warrant for his residence.

The court rejected the applicant's version of events, finding the police officers credible.

The court held that the search of the applicant's pocket and subsequent search of his vehicle were valid searches incident to arrest, and dismissed the application to exclude the evidence under s. 24(2).

The accused was charged with sexual assault upon a young man on January 1, 2014.

The complainant alleged that while intoxicated and under the influence of drugs at a New Year's Eve party, the accused performed fellatio upon him while he lay on a futon in the living room.

The Crown relied on viva voce evidence from the complainant and DNA evidence found on the complainant's underwear.

The defence presented the accused's testimony denying the assault and evidence from the accused's daughter regarding the events of that evening.

The court found that the complainant's evidence was tainted by his extensive drug use that evening and by embellishments added to his initial police statement.

The DNA evidence was found to be inconclusive due to the possibility of secondary transfer from blankets and furniture in the accused's home.

The court applied the proper burden of proof and the W.D. framework, ultimately finding reasonable doubt and acquitting the accused.

The accused pleaded guilty to human trafficking under section 279.01 of the Criminal Code.

The offence involved the confinement and sexual exploitation of a 15-year-old girl in foster care, whom the accused compelled to work as a prostitute for financial gain.

The accused, aged 23 with a prior criminal record including robbery convictions, had been in custody since November 21, 2012.

Both Crown and defence counsel jointly submitted that a 5-year sentence was appropriate.

The court imposed a 5-year sentence with credit for time served at a 1.5:1 ratio, resulting in approximately 33.9 months remaining to be served.

Additional orders included a 20-year SOIRA order, a lifetime section 109 prohibition order, and a DNA order.

At a preliminary inquiry, the Crown sought to establish sufficient evidence to commit four accused persons to trial for armed home invasion robbery, kidnapping with intent to hold for ransom, and related offences.

The evidence included direct testimony from the complainant, extensive video surveillance from the complainant's home security system, CTV news helicopter footage of the police takedown, and mall security video.

The court found sufficient evidence upon which a properly instructed trier of fact could reasonably find guilt on charges of armed robbery, kidnapping with use of firearms, masked commission of indictable offences, and escape from lawful custody.

All four accused were committed to stand trial in Superior Court before a judge and jury.

At a preliminary inquiry, the court determined whether two accused had committed offences related to possession and storage of a firearm and ammunition found during a police response to a break and enter in progress.

The accused Robinson was the former tenant of the apartment who had been evicted that morning.

The accused Williams was not present at the scene.

The court found sufficient evidence to commit Robinson to trial on charges of unlawfully being in a dwelling and possession of the firearm and ammunition, but discharged Williams on all counts due to insufficient evidence of knowledge or control.

The accused brought an evidentiary motion in a criminal trial concerning whether statements allegedly acknowledging a nickname could be admitted as evidence of adoption.

A police officer testified that on several occasions the accused acknowledged being known by the nickname “Governor,” though the evidence was imprecise and unsupported by contemporaneous notes.

The court held that the alleged acknowledgements provided an evidential basis upon which a jury could determine whether the accused adopted the nickname, and the lack of specificity affected weight rather than admissibility.

The court also ruled that if the Crown elicited evidence of the alleged adoption, the defence would be permitted to cross‑examine on a prior denial of the nickname to avoid presenting an incomplete picture to the jury.

The accused brought an application to exclude statements made to police in Georgia following his arrest on a Canadian warrant for attempted murder and firearms offences.

The defence argued the statements were involuntary and contrary to the Charter and American law.

The court held the Crown failed to prove the voluntariness of statements made during a police station interview due to gaps in the evidentiary record concerning the accused’s treatment between arrest and questioning.

However, statements made at the time of arrest providing a false name and date of birth were admissible because they arose from routine identity questions following a lawful arrest and did not constitute investigative interrogation.

The court further confirmed that the Canadian Charter generally does not apply to foreign officials acting outside Canada, though foreign evidence may still be excluded if its admission would render the trial unfair.

The accused brought a motion to exclude evidence of an out-of-court identification arising from a 1996 police photo lineup.

The original photo array had been lost and could not be reconstructed, and the identification procedure had been conducted in a manner inconsistent with later Sophonow inquiry recommendations, including the absence of audio or video recording, use of an investigating officer who knew the suspect, and simultaneous presentation of photographs.

The court held that the procedure was fundamentally flawed and that the loss of the photo array created significant prejudice to the defence’s ability to challenge the identification.

Given the inability to assess the fairness of the lineup and the resulting prejudice, the court excluded the evidence of the photo identification.

The ruling noted that the issue could be revisited depending on developments at trial.

The accused brought an application seeking leave to cross-examine a police affiant on an affidavit supporting a wiretap authorization under sections 185 and 186 of the Criminal Code.

They argued the affidavit lacked full and frank disclosure, relied improperly on confidential informants without adequate credibility assessments, contained unsupported assertions, and failed to demonstrate investigative necessity.

The court reviewed the Garofoli framework and held that cross‑examination is only permitted where there is a reasonable likelihood that questioning would undermine a statutory precondition to the authorization.

The court found the affidavit sufficiently corroborated by independent police investigation and shipments of seized opium, and held informer privilege limited further disclosure about confidential sources.

Concluding that the applicants failed to establish any reasonable likelihood that cross‑examination would discredit the basis for the authorization, the court dismissed the application.