Enzo Mario Battigaglia

The Court of Appeal for Ontario dismissed Noah Dunnett’s conviction and sentence appeals for two counts of child luring, and allowed the Crown’s cross-appeal only to increase the SOIRA order from 10 to 20 years.

The court found no error in the trial judge’s handling of s. 11(b) Charter delay, the Garofoli application, or the sentence imposed.

The court emphasized the seriousness of child luring offences and the deference owed to trial judges on sentencing, especially where mitigating factors exist.

The SOIRA order was corrected to comply with statutory minimums.

The applicant sought a bail review under s. 520 of the Criminal Code after being detained on secondary grounds.

The court found a material change in circumstances due to charge withdrawals/amendments and new disclosure, allowing a fresh consideration of bail.

However, the proposed new release plan, including a new surety, was deemed insufficient to mitigate the substantial likelihood of re-offending, given the seriousness and repetition of the charges, the applicant's history of non-compliance with release orders, and the surety's lack of insight and inadequate supervision plan.

The court also noted an error by the original Justice of the Peace in failing to consider the tertiary ground, but ultimately dismissed the bail review application, affirming continued detention on secondary grounds.

The defendant, charged with second-degree murder, sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay, even after accounting for a deduction for judicial illness, fell below the 30-month presumptive ceiling established in R. v. Jordan.

The defence argued that despite being under the ceiling, the Crown's "culture of complacency" regarding disclosure and the overall timeline meant the case took "markedly longer than it should have." The court found that the defence failed to demonstrate "sustained efforts to expedite proceedings" and did not establish that the case took "markedly longer than it reasonably should have." The application for a stay was dismissed, with the court reiterating that stays below the Jordan ceiling are rare, particularly in homicide cases.

The accused, Jedidiah Drummond, brought an application under section 11(b) of the Charter of Rights and Freedoms, alleging unreasonable delay in his firearms-related prosecution.

Despite the total delay falling below the 18-month presumptive ceiling established in R. v. Jordan, the court found that the Crown's persistent failure to provide core disclosure promptly, both when the accused was self-represented and after counsel was retained, caused the case to take "markedly longer" than reasonably required.

The court emphasized the Crown's constitutional disclosure obligations, especially towards self-represented litigants, and found no defence delay.

The application was granted, and a stay of proceedings was ordered.

At a preliminary inquiry, the Crown sought committal on two counts: possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, and simple possession of oxycodone contrary to s. 4(1).

The accused was arrested following six weeks of police surveillance and a search warrant executed at a residence.

Police seized cocaine and oxycodone from the residence and dime bags of cocaine from the accused's person.

The court discharged the accused on both counts, finding that while the Crown's theory was plausible, the evidence was fatally deficient in detail necessary to support the essential elements of knowledge and control of the drugs found in the residence.

The court emphasized that the Crown's case relied on circumstantial evidence that lacked sufficient foundational facts, including inadequate evidence of the accused's exclusive or primary connection to the residence and the specific rooms where drugs were secreted.

The applicants, Dyllan Ali and Diquan Taylor, facing firearms and drug trafficking charges, brought a motion for disclosure of the full contents of disciplinary and criminal investigation files relating to Constable Sean Osborne, a key police witness.

The court dismissed the request for disclosure of files related to past disciplinary findings, citing principles of finality and lack of demonstrated likely relevance.

However, the court granted the request for disclosure of investigative files related to Constable Osborne's outstanding criminal charges for assault and obstruction of justice, finding them "obviously relevant" to the applicants' Charter application and trial, particularly concerning the officer's credibility and potential propensity for misconduct.

The defendant, Abdul Shahin, brought a pre-trial Charter application seeking to exclude evidence obtained from searches of his apartment unit (595 Proudfoot Lane, unit 808) and police observations in the building's common areas.

The court found that Shahin had a reasonable expectation of privacy in his unit, but not in the common areas (eighth-floor hallway).

The general warrant and subsequent search warrant were deemed valid, and no Charter breaches occurred.

Even if s. 8 Charter breaches had occurred, the court determined that the evidence would not be excluded under s. 24(2) of the Charter, considering the seriousness of state conduct, the impact on Charter interests, and society's interest in adjudication on the merits.

The application was dismissed.

The defendants applied under s. 11(b) of the Charter for a stay of charges due to unreasonable delay, as the time from charge to the anticipated end of trial exceeded the 30-month presumptive ceiling.

The court found no defence-caused delay and no discrete events that would justify the delay.

Furthermore, the case was not deemed particularly complex to rebut the presumption of unreasonable delay.

Despite acknowledging significant judicial resource limitations, the court concluded that the 30.5-month delay was unreasonable and granted the application, staying the charges against both defendants.

The Crown sought to admit expert forensic accounting evidence from Jeffrey J. Good to establish that approximately $49,500 in seized currency was proceeds of drug trafficking.

The defendants were jointly charged with possession of various prohibited substances for trafficking and possession of proceeds of crime.

The court applied the two-step admissibility test for expert evidence from *Mohan* and *White Burgess*.

While the expert was qualified, the court found the evidence lacked logical relevance to directly link the seized funds to drug trafficking over the seven-year period analyzed.

Concerns were also raised regarding the unexplained expansion of the expert's mandate from one defendant to both, and the arbitrary selection of the seven-year period.

The court concluded that the potential prejudicial effects of the evidence, including inviting speculation and devolving the case into a remote inquiry, outweighed its slight probative value.

Consequently, the expert evidence was deemed inadmissible.

Deion Campbell was found guilty by a jury of possession of a weapon for a purpose dangerous to the public peace, following acquittals on aggravated assault and assault with a weapon charges.

In sentencing, the court considered mitigating factors including the possibility of self-defence, a positive pre-sentence report, stable family, no criminal record, and efforts towards education and employment.

Aggravating factors included the public location of the offence, the escalation caused by brandishing the knife, and ongoing non-medicinal marijuana use.

The Crown sought a suspended sentence with probation, while the defence requested an absolute discharge.

The court imposed a conditional discharge with 12 months of probation, including conditions such as a non-communication order, a prohibition from attending Humber College (unless registered), a 10-year weapon prohibition, and a mandatory $200 victim surcharge.

A request for a DNA sample order was declined.

Monique Clarke, a payroll administrator, was convicted of fraud over $5,000 against her employer, Acxsys Corporation, involving a sophisticated scheme of unauthorized transactions totaling over $300,000.

The court considered aggravating factors including breach of trust, the planned nature of the fraud, and a prior conviction for dishonesty, balanced against mitigating factors such as family support, education, and a medical condition.

The Crown sought 30-36 months imprisonment, a prohibition order, a DNA order, and restitution of $254,798.00, plus a fine in lieu of forfeiture.

The defence sought a suspended sentence and probation.

The court imposed a 36-month federal prison sentence, a lifetime prohibition from positions of financial trust, and a restitution order of $12,282.78, declining the DNA order and fine in lieu of forfeiture.

Monique Clarke, a payroll administrator, was charged with fraud over $5,000 against her employer, Acxsys Corporation.

The Crown alleged she manipulated payroll records to divert funds to terminated employees' accounts, which were then deposited into seven different bank accounts, including one jointly held by her husband, and also granted herself unauthorized excess remuneration.

The court found the ADP and banking records reliable through comparison, establishing a total fraud of over $300,000.

The defense argued lack of proven actual loss and suggested other perpetrators, but the court dismissed these arguments, finding that Clarke had the exclusive opportunity and motive to commit the fraud.

The court concluded that the Crown proved beyond a reasonable doubt that Clarke committed the fraud.

The applicant, a complainant in a sexual assault prosecution, sought certiorari to review a preliminary inquiry ruling refusing to admit proposed expert evidence regarding the limited reliability of facial demeanour in assessing credibility.

The proposed expert intended to testify about social science literature suggesting that observing facial expressions does not meaningfully improve the ability to detect dishonesty.

The court applied the admissibility framework from R. v. Mohan and held that the preliminary inquiry judge did not err in declining to qualify the expert or admit the evidence, noting that the proposed opinion relied primarily on a literature review outside the expert’s field of direct research and lacked necessity.

The court further held that the complainant, as a third party whose Charter interests were directly affected, could seek certiorari review, but no jurisdictional error or error of law was established.

The accused brought two applications: one seeking a variation of bail conditions based on an alleged material change in circumstances, and another seeking further disclosure from the Crown.

The disclosure request targeted confidential informant files, occurrence reports, redacted officer notes, and additional police notebook entries.

The court reviewed the law governing informer privilege and disclosure obligations under Stinchcombe, emphasizing that informer privilege is near-absolute and cannot be balanced against other interests except where innocence is at stake.

The court held that the requested informant materials were protected by privilege and that additional materials sought were either irrelevant or outside the investigative file relied upon for the search warrants.

Finding that disclosure had been provided in a reasonably timely and adequate manner, the court concluded that no material change in circumstances justified varying the accused’s bail.

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.