Erin Winocur

The court sentenced Keron Alvarez for aggravated assault following a two-on-one attack that left the victim, David Shellnutt, with life-threatening injuries.

The decision reviews the facts, procedural history, impact on the victim, Alvarez’s background and criminal record, and the aggravating and mitigating factors.

The court found joint liability based on common intention, rejected provocation as a defence, and imposed a three-year penitentiary sentence (less pre-sentence custody credit), with ancillary orders.

The decision discusses the range of sentence for aggravated assault and the principles of sentencing, including rehabilitation, deterrence, and denunciation.

The accused brought a Charter motion seeking to exclude evidence of drugs, a firearm, explosives, and her utterances, alleging violations of her ss. 8, 9, and 10 rights.

Police had entered her apartment without a warrant following a 911 call about a violent assault, finding drugs and a firearm in plain view.

The accused was later located at another address, detained, and questioned without being advised of her right to counsel.

The court found that while the initial entry and a subsequent strip search were lawful, police violated s. 8 by remaining in the apartment pending a search warrant, and seriously violated ss. 10(a) and (b) by failing to provide rights to counsel.

Applying s. 24(2), the court excluded the accused's utterances but admitted the real evidence seized from the apartment.

Gerard Cook, a security officer, pleaded guilty to assault after tackling and striking a loitering individual at Ikea.

The court considered aggravating factors, including abuse of authority, vulnerability of the victim, and the public nature of the assault, alongside mitigating factors such as a guilty plea, lack of prior record, and ongoing therapy.

The court rejected a conditional discharge, emphasizing general deterrence and denunciation, and imposed a 90-day conditional sentence followed by 18 months of probation, a 10-year weapons prohibition, and a DNA order.

The defendant, Anitosh Chopra, pleaded guilty to one count of causing unnecessary suffering to his dog, Max, contrary to s. 445.1 of the Criminal Code.

The incident involved the defendant violently hitting and slamming his 6-7 month old puppy after it urinated on the floor, which was captured on CCTV.

The Crown sought a custodial sentence of 4-6 months, a 5-year animal prohibition, and a 2-year probation order.

The defence argued for an 8-12 month conditional sentence.

The court imposed a 12-month conditional sentence (first half under house arrest, second half with a curfew), a 2-year probation order, and a 3-year animal prohibition.

The judge emphasized the increased seriousness with which Parliament views animal cruelty offences, while also applying the principle of restraint given the defendant's rehabilitative efforts and low risk of re-offending.

The accused was charged with possession of a loaded restricted firearm after police found a handgun in an apartment rented by his girlfriend.

The Crown's case relied on the accused's fingerprints on the firearm and statements made by the girlfriend to police upon her arrest, claiming the gun belonged to the accused.

The court found the girlfriend's evidence and statements to be unreliable and lacking credibility.

The court held that the fingerprint evidence alone, without corroborating evidence of the accused's presence in the apartment or knowledge of the firearm's character, was insufficient to establish constructive possession.

The accused was found not guilty.

The accused applied for a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay from the date of arrest to the anticipated end of the trial was 50.5 months.

After deducting 1.25 months for defence delay, the net delay was 49.25 months, well above the 30-month presumptive ceiling established in Jordan.

The Crown argued that the delay caused by the COVID-19 pandemic should be deducted as an exceptional circumstance.

The court rejected this argument, finding that the trial could not have proceeded during the pandemic period in any event due to the Crown's failure to provide timely disclosure.

The application was granted and the charges were stayed.

The Crown sought a finding that the defendant was not criminally responsible (NCR) on account of mental disorder for two assaults committed on strangers.

The defendant opposed the finding.

The court found the defendant criminally responsible, holding that the Crown failed to displace the presumption of criminal responsibility.

The court found that the expert opinion relied heavily on materials not before the court, significantly diminishing its weight, and that the question of the defendant's mental state at the time of the offences was too speculative and tenuous to support an NCR finding.

The applicant sought to set aside guilty pleas entered on April 13, 2016, to three counts of knowingly using forged documents, totalling $138,807.01 in losses.

The applicant claimed the pleas were involuntary and uninformed, alleging his counsel pressured him to plead guilty and failed to inform him that the Crown would seek a freestanding restitution order.

The court rejected the applicant's evidence as lacking credibility and accepted the counsel's evidence that the plea was voluntary, unequivocal, and informed.

The applicant was aware of the Crown's intention to seek restitution and had multiple opportunities to disclose any improper pressure.

The application was dismissed and the guilty pleas were upheld.

The accused was charged with operating a motor vehicle while impaired by alcohol and with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The accused challenged the lawfulness of the arrest and breath demand, alleging breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The court found that the arresting officer lacked reasonable and probable grounds for the arrest and breath demand, as the grounds relied upon were not objectively supported.

The court also found that the accused was subjected to an unlawful arrest and detention, during which he was handcuffed excessively tightly despite being compliant, causing him significant pain.

The court excluded the breath sample evidence pursuant to section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted on both charges.

The applicant sought a stay of proceedings on a charge of refusing to provide a breath sample, arguing a breach of his Charter right to be tried within a reasonable time under section 11(b).

Although the total net delay, including retrial time, exceeded the Jordan presumptive ceiling of 18 months, the court found the transitional exceptional circumstance applied.

The parties had relied on the prior Morin framework when the case was proceeding, and the operative delay under Morin guidelines, while exceeding them slightly, was not so egregious as to warrant a stay.

The application was dismissed and the case proceeded to trial.

The offender pleaded guilty to personating a police officer and simple possession of cocaine following an incident on Labour Day weekend 2015 in Toronto's entertainment district.

While intoxicated, the offender called 911 falsely identifying himself as an undercover officer being assaulted during a drug investigation, diverting significant police resources.

The offender was a 27-year-old first-time offender with no prior criminal record, employed as a project manager, and living with his family.

Post-offence, the offender demonstrated genuine remorse, completed drug counseling, performed over 100 hours of volunteer work, and made charitable donations.

The court imposed a conditional discharge with 18 months probation, finding that the offender's sincere remorse, rehabilitation efforts, and lack of criminal history warranted a non-custodial disposition without a conviction.

The defendant, charged with sexual assault, brought an application challenging the constitutionality of subsections 278.3(5) and 278.4(2) of the Criminal Code.

The defendant argued that requiring notice to a witness of an application for third party records (specifically, police occurrence reports regarding the complainant's boyfriend) would undermine cross-examination and violate sections 7 and 11(d) of the Charter.

The court dismissed the application, finding that the Supreme Court of Canada had already upheld the constitutionality of the Mills regime, which includes the impugned notice provisions, and that this regime applies to extrinsic police occurrence reports.

The offender, a nightclub bouncer, was found guilty of assault causing bodily harm after using excessive force to eject an intoxicated patron.

Despite the pre-sentence report indicating a lack of remorse, the court considered mitigating factors including the offender's first-time offender status, strong community ties, and the complainant's provocative behavior.

The Crown sought intermittent incarceration, while the defence requested a conditional discharge.

The court granted a conditional discharge with probation, emphasizing general deterrence for security staff against excessive force, but also acknowledging the offender's recent nuanced understanding and rehabilitation prospects.

A firearms prohibition was issued, but a DNA order was deemed disproportionate and unnecessary.

The accused, charged with a 1998 sexual assault identified via a 2014 DNA hit, brought a pre-trial motion under the Mills regime seeking production of the complainant's OHIP billing records, police occurrence reports, and particulars of her testimony in a prior unrelated sexual assault trial.

The court dismissed the requests for the OHIP and police records, finding them overly broad, irrelevant, and an unjustified intrusion into the complainant's privacy.

However, the court ordered the Crown to provide particulars of the time and place of the complainant's prior public testimony, as there is no reasonable expectation of privacy in such information.

The accused, a nightclub bouncer, was charged with assault causing bodily harm and aggravated assault following an altercation while ejecting patrons.

The accused kicked one patron repeatedly while he was on the ground, breaking his rib, and punched another patron in the face, fracturing his orbital bone.

The court found the accused guilty of assault causing bodily harm for the kicking, ruling the force was excessive and not in self-defence.

However, the court acquitted the accused of aggravated assault for the punch, finding he acted in self-defence after the second patron grabbed him from behind and appeared ready to strike.

The defendant pleaded guilty to wilfully and without lawful excuse injuring a dog contrary to section 445(1)(a) of the Criminal Code and failing to comply with a house arrest condition of his recognizance.

The defendant threw his girlfriend's small Yorkshire terrier violently up a flight of stairs, causing bilateral scleral hemorrhage to the dog's eye.

The court imposed a sentence of 60 days custody (already served), three years probation with conditions prohibiting ownership or possession of animals, and a four-year section 447.1 order prohibiting contact with animals.

The court emphasized the defendant's extensive history of violent criminal conduct as the primary aggravating factor.

The accused was charged with aggravated assault following a stabbing incident.

Upon his arrest at an apartment, the police advised him of his right to counsel.

The accused declined to call a lawyer immediately, stating 'not right now.' The police then cautioned him and asked if he wished to say anything, prompting the accused to provide a spontaneous exculpatory statement claiming self-defence.

The accused sought to exclude the statement, arguing it was involuntary and obtained in violation of his ss. 10(a) and 10(b) Charter rights.

The court found the statement was voluntary and that the police complied with their Charter obligations, as the accused's decision to delay contacting counsel did not trigger an immediate police duty to hold off questioning.

The statement was ruled admissible.

The offender was found guilty by a jury of possession of a loaded prohibited firearm, possession of crack cocaine for the purpose of trafficking, and related offences.

The offences arose from a search of a residence where the offender was staying, which uncovered a loaded machine pistol, ammunition, and drugs in a bedroom also occupied by a toddler.

The court weighed the offender's lengthy criminal record and the serious aggravating factors against his recent good conduct in custody and expressions of remorse.

The court imposed a total sentence of 9 years and 3 months imprisonment, less 3 months credit for pre-trial custody.