Elliott Willschick

The Crown appealed the seven-year sentence imposed on the respondent for attempted murder of his pregnant intimate partner.

The Court of Appeal found that the sentencing judge erred in principle by failing to adequately apply the primary sentencing objectives of denunciation and deterrence, particularly in a domestic context, by misunderstanding the aggravating impact of planning and deliberation, and by misidentifying the appropriate sentencing range.

The Court emphasized that rehabilitation should not outweigh denunciation and deterrence in such serious cases and that sentencing ranges evolve with societal understanding of domestic violence.

The Court also found an error in the application of "Duncan" credits, which were treated as a direct reduction rather than a mitigating factor.

The appeal was allowed, and a sentence of 15 years imprisonment was substituted, less credit for time served.

The appellant, Denise Henn, appealed a 12-month custodial sentence for fraud over $45,000.

The Court of Appeal found two errors in principle by the sentencing judge: erroneously treating lack of restitution as an aggravating factor and failing to consider relevant mitigating factors (diagnosed mental health issues and financial distress, not greed, as the cause of the fraud).

The appeal was allowed, and a conditional sentence of two years less a day with house arrest and a standalone restitution order was imposed, followed by three years' probation.

The Court also found a fine in lieu of forfeiture inappropriate.

The applicant, charged with human trafficking and sexual assault offences, sought a bail review under s. 520 of the Criminal Code after being detained.

The applicant proposed a new surety who worked from home and could provide 24/7 supervision without internet access.

The court found this constituted a material change in circumstances that addressed the original bail judge's concerns regarding the secondary ground.

The court also found the original judge erred by violating the presumption of innocence in assuming the applicant would not follow conditions simply because he was charged with human trafficking.

The court concluded that a strict release plan with the new surety and a GPS monitor addressed both secondary and tertiary grounds, and ordered the applicant's release.

This decision concerns the sentencing of Corey Cunningham, who was convicted of attempted murder and theft under $5000.00.

The attempted murder involved a planned attack on his former intimate partner, Christina Elgin, who was pregnant, by stabbing her in the neck.

The Crown sought a life sentence, emphasizing the cold-blooded nature and domestic context.

The defence proposed a sentence of 6 to 11 years, highlighting the offender's lack of prior record, strong family support, and rehabilitative prospects.

The court imposed a sentence of 7 years imprisonment, finding that while the crime was horrific and required denunciation and deterrence, it was out of character for the offender, and his rehabilitative prospects placed the case at the lower end of the sentencing range for attempted murder.

Credit was given for pre-sentence custody, including an additional 12 months for harsh conditions during the COVID-19 pandemic.

The accused, Corey Cunningham, was charged with attempted murder and armed robbery.

The Crown alleged he stabbed Christina Elgin and robbed her.

The court found Mr. Cunningham's testimony not credible due to contradictions with surveillance, medical, and text message evidence.

The court found Mr. Cunningham guilty of attempted murder, rejecting his self-defence claim.

He was found not guilty of robbery but guilty of the lesser included offence of theft of the phone, with reasonable doubt regarding the cash.

The accused faced charges for home invasion robberies in Oakville and Scarborough.

The Crown filed a direct indictment, vacating a scheduled trial on the Scarborough charges.

The accused brought an application for a stay of proceedings, arguing the direct indictment was an abuse of process.

The Crown brought an application to admit similar fact evidence across the counts and from a separate Toronto incident.

The court dismissed the abuse of process application, finding the Crown's conduct was a bona fide effort to preserve evidence and avoid multiple proceedings.

The court granted the similar fact evidence application for the counts on the indictment but dismissed it for the extrinsic Toronto evidence, finding its prejudicial effect outweighed its probative value despite DNA evidence.

The Crown sought to admit four statements from a deceased witness (J.T.) at a preliminary hearing under s. 540(7) of the Criminal Code.

The court applied the "prima facie air of reliability" test to determine admissibility.

It found the portions of J.T.'s statements related to the kidnapping credible and trustworthy due to corroborating evidence, despite procedural deficiencies in statement-taking.

However, the portions related to drug possession and the identification of "Z" were deemed unreliable and were excised, as J.T.'s account was inconsistent and self-serving regarding her involvement with drugs.

The court affirmed its power to excise unreliable portions of a statement.

The offender, Shamar Sealy, pleaded guilty to assault with a weapon, theft under $5000, and two counts of assault simpliciter, involving minor victims.

The court considered aggravating factors, including the vulnerability of victims, recording of an assault, use of a prohibited weapon, and threats, alongside mitigating factors such as a guilty plea, lack of adult convictions, a gap in his record, and mental health/substance abuse issues that he has since addressed.

Applying sentencing principles, including the attenuated importance of deterrence and denunciation for mentally ill offenders, and considering the impact of the COVID-19 pandemic on conditions of imprisonment, the court determined that a conditional sentence was appropriate.

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

The primary issue at trial was whether the accused had a mistaken belief about the complainant's age and whether he took all reasonable steps to ascertain her age under s. 150.1(4) of the Criminal Code.

The court found the accused's testimony regarding his belief that the complainant was 19 to be not credible and objectively unreasonable.

The court concluded the accused failed to take reasonable steps to ascertain her age.

The accused was found guilty of sexual interference, sexual assault, and one count of uttering threats, but acquitted of procuring and administering a noxious substance.

The defendant was found guilty after trial of possessing an unloaded restricted firearm in a motor vehicle and careless storage of the firearm and ammunition.

The prosecution sought a total of nine months jail (six months for possession counts concurrent, three months for careless storage consecutive), plus probation.

The defendant sought a six-month concurrent conditional sentence.

The court imposed a total sentence of nine months imprisonment (six months concurrent for possession offences, three months consecutive for careless storage of ammunition) and two years probation, along with a lifetime firearms prohibition for restricted/prohibited firearms and a 10-year prohibition for all other firearms.

The court emphasized denunciation and deterrence due to the dangerous nature and unlawful provenance of the firearm, rejecting a conditional sentence despite mitigating factors and the global pandemic.

Richard Aguilar was found guilty after trial for three child-luring related offences.

This decision outlines the reasons for his sentence.

The Crown sought a global custodial sentence of 2 years less a day, while the Defence sought a 90-day intermittent sentence, citing COVID-19 concerns.

The court imposed a global sentence of 14 months of custody, along with probation and ancillary orders, balancing sentencing objectives, aggravating and mitigating factors, and the impact of the COVID-19 pandemic on custodial sentences.

The accused was charged with importing cocaine into Canada on May 22, 2017, contrary to section 6(1) of the Controlled Drugs and Substances Act.

The Crown alleged that the accused knowingly imported 3,522 grams of liquid cocaine (85% purity) valued between $134,716 and $329,307 in a suitcase upon returning from Brazil.

The accused testified that she was unaware of the cocaine and that her boyfriend may have secretly placed it in her suitcase without her knowledge.

The court rejected the accused's credibility and found that the circumstantial evidence, including the value of the drug, the weight and condition of the suitcase, the accused's handling of the luggage, and the implausibility of the "unwilling dupe" narrative, established beyond a reasonable doubt that the accused had knowledge of the cocaine.

The court convicted the accused.

The accused was charged with possession of fentanyl and cocaine for the purpose of trafficking, along with related offences.

The Crown relied on text messages found on the accused's phone, which were admitted under the principled exception to the hearsay rule, to prove he was dealing drugs.

The court found that the drugs, located in a closet where the accused's cousin was hiding, were in the accused's constructive possession.

The accused was found guilty of possession for the purpose of trafficking, proceeds of crime, breach of probation, and possession of marijuana, but acquitted of weapons and ammunition charges.

The appellant appealed his sentence, arguing that the continuing pandemic should affect sentencing principles.

The Court of Appeal dismissed the appeal as moot because the appellant had already served his custodial sentence.

The Court declined to consider the pandemic's effect on sentencing principles, noting it had recently opined on the issue in another case.

The defendant was charged with seven firearm-related offences.

The Crown withdrew one count to proceed summarily on six remaining charges under the Criminal Code.

The defendant admitted to handling a firearm and ammunition found in his former girlfriend's vehicle but claimed he discovered them inadvertently in the glove compartment while searching for his lighter.

The Crown alleged the defendant knowingly possessed the firearm and stored it carelessly in the vehicle.

The court found the defendant's explanation incredible and rejected his testimony as contrived.

The court concluded the defendant had knowingly possessed the firearm and stored it in the vehicle while he was inside a bar.

The defendant was convicted of careless storage of a firearm, careless storage of ammunition, possession of a prohibited or restricted firearm, and possession of a prohibited or restricted firearm in a motor vehicle.

The defendant was acquitted of possession of a firearm for a dangerous purpose and possession of a firearm with readily accessible ammunition.

The applicant was charged with 20 counts including dangerous driving, drug-impaired driving, using a firearm while committing an indictable offence, and assault with a weapon.

The charges comprised two separate informations: the first laid in July 2017 relating to an incident on July 15, 2017, and the second laid in April 2018 relating to historic offences from 2016.

The charges were consolidated into a single information and tried together.

The applicant applied for a stay of proceedings on the grounds that his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been violated.

The court found that the net delay on the first set of charges exceeded the presumptive 18-month Jordan ceiling and granted a stay on those counts.

However, the court treated the second set of charges separately and found the delay was within the presumptive ceiling, dismissing the stay application for those counts.

The applicant sought a review of a detention order under s. 520 of the Criminal Code, following a charge of uttering threats.

The applicant argued the detaining justice erred in law and presented new evidence, including the COVID-19 pandemic's impact on trial delays and detention conditions, and the subsequent withdrawal of a "fail to appear" charge.

The court found no errors in law by the detaining justice regarding reverse onus or public safety grounds.

While acknowledging the impact of COVID-19 and the withdrawn charge as new evidence, the court ultimately dismissed the application, finding the applicant failed to present a particularized plan for release, which was crucial given his history of violence, harassment, and prior bail breaches.

The dismissal was without prejudice to a further application supported by an appropriate release plan.

The defendant brought an application under s. 24(1) of the Charter for a stay of proceedings, alleging that police used excessive force during his arrest in violation of ss. 7 and 12.

The defendant sustained a laceration to his head and bruising during a struggle after attempting to flee in his vehicle.

The court found that the defendant violently resisted arrest and weaponized his vehicle, and that the force used by the officers to subdue him was not unnecessary or excessive.

The application for a stay of proceedings was dismissed.

The Crown brought an application to remove counsel for the accused charged with two counts of second degree murder due to a conflict of interest.

The accused's counsel had previously represented a key Crown and defence witness in an unrelated impaired driving matter.

The court found that while a solicitor-client relationship existed, partial disqualification was a sufficient remedy to address the conflict of interest concerns while preserving the accused's right to counsel of choice.

The court ordered that counsel be prohibited from participating in the cross-examination of the witness and from being present when that witness testified.

The accused was charged with impaired care or control and over 80 care or control following a 911 call reporting an erratically driven black BMW on Highway 401.

The accused brought a Charter application alleging breaches of sections 8, 9, and 10(a).

The court found no detention occurred during the initial police encounter, no Charter breaches, and that the officer had reasonable and probable grounds to arrest.

The court rejected the accused's evidence as unreliable and incredible, finding he was the driver of the vehicle based on witness observations, admissions, and circumstantial evidence.

The accused was convicted on both charges.