D. Fletcher Dawson

The applicant, Nivethan Alakeswaran, sought a stay of proceedings after being convicted of aggravated assault, alleging a Charter breach (ss. 7 and 12) due to an assault by a Peel Regional Police constable during his post-arrest interview.

The court dismissed the application, finding the applicant's evidence unreliable and incredible, and that the alleged assault was not established on a balance of probabilities.

This ruling addresses whether the applicants, Melissa Merritt and Christopher Fattore, had a reasonable expectation of privacy (REP) in data stored on a 'loaner phone' provided by police after their original phone was seized.

The court applied the totality of circumstances test, considering the subject matter (data), the applicants' interest in it, their subjective expectation, and its objective reasonableness.

The court found that the applicants did have a reasonable expectation of privacy in the personal data on the loaner phone, primarily because police had previously informed Ms. Merritt that a warrant would be required to access data on their seized family phone, fostering a reasonable belief that the same protection would apply to the replacement device.

The applicants, charged with multiple murders, brought an application to exclude electronic intercepts and tracking warrant evidence, alleging violations of section 8 of the Charter.

The application challenged the necessity of judicial authorization for police email exchanges in an undercover operation, the police's actions in repacking belongings containing listening devices, and the validity of a tracking warrant based on alleged material errors and omissions in the information to obtain.

The court dismissed the application, finding no reasonable expectation of privacy in the email communications, that police actions regarding the trailer were within the scope of implied invitation, and that the tracking warrant was valid.

The accused was charged with possessing and making available child pornography.

The central issue at trial was the admissibility of evidence seized from his BlackBerry cell phone without a warrant, specifically whether exigent circumstances justified the warrantless seizure under s. 8 of the Charter.

Police seized the phone after identifying the accused at a Tim Hortons, concerned about potential evidence destruction.

A search warrant was subsequently obtained to examine the phone, which revealed incriminating evidence on an attached memory card.

The court found that exigent circumstances existed, making the warrantless seizure reasonable and not a violation of s. 8 of the Charter.

Alternatively, even if a s. 8 violation occurred, the evidence would not be excluded under s. 24(2) of the Charter, given the seriousness of the offense, the good faith of the police, and the minimal impact on privacy interests due to a subsequent warrant.

The application to exclude evidence was dismissed.

The Crown appealed the acquittal of the respondent on a charge of possessing child pornography.

The trial judge had excluded evidence obtained via a search warrant, finding a violation of s. 8 of the Charter due to insufficient reasonable grounds in the Information to Obtain (ITO) the warrant, particularly concerning the 13-month delay between the alleged offence and the warrant application.

The trial judge also excluded statements made by the respondent, finding a violation of his s. 10(b) right to counsel due to unlawful detention prior to being advised of his rights.

The appeal court upheld the trial judge's findings on both Charter violations and the subsequent exclusion of evidence under s. 24(2), dismissing the Crown's appeal.

The applicants, facing multiple murder charges, brought a last-minute application to seal emails seized under a general warrant and prohibit Crown and police access, alleging facial invalidity and abuse of process.

This application followed an earlier agreement to return non-privileged emails to the Crown.

The court, acting as the trial judge on the eve of trial, deferred the full review of the warrant's validity to pretrial motions, emphasizing trial management and procedural fairness.

The court also found the warrant not facially invalid on a preliminary review and noted the defence's failure to adhere to the prior agreement regarding email return.

The accused, Dexter Peters, was convicted by a jury of importing 2.827 kilograms of cocaine.

Defence counsel argued for a sentence reduction of 5-11 months, citing the Abolition of Early Parole Act (AEPA) and its elimination of accelerated parole review (APR), to ensure parity with individuals sentenced before the AEPA came into force.

The court rejected this submission, distinguishing Canada (A.G.) v. Whaling on the basis of retrospectivity and affirming that parole eligibility is generally not a factor for sentencing judges.

The court also held that the parity principle does not apply across different legislative regimes and that courts should not impose artificial sentences to circumvent Parliament's legislative intent.

Considering the gravity of the offence, the quantity of drugs, the accused's lack of criminal record, family support, and rehabilitation prospects, the court imposed a sentence of six and a half years.

After accounting for 239 days of pre-trial custody at a 1.5:1 ratio (359 days credit), the net sentence was five years, six months, and six days.

A 10-year weapons prohibition order and a DNA order were also issued, and seized drugs and property were forfeited to the Crown.

The Crown appealed a trial judge's decision to stay an "over 80" charge against the respondent, Hany Ibrahim, due to a violation of his s. 11(b) Charter right to trial within a reasonable time.

The appellate court reviewed the trial judge's calculation of institutional delay, finding errors in the characterization of neutral time and inherent preparation time.

After recalculating, the institutional delay was determined to be 10 months, at the upper limit of the Morin guidelines.

The court upheld the stay of proceedings, emphasizing the straightforward nature of the case, the respondent's expeditious conduct, the institutional nature of the delay, and the significant prejudice suffered by the respondent.

The appellant, Winsome Hurditt, appealed a finding of not criminally responsible (NCR) for criminal harassment and mischief, following a trial where she was found guilty.

The trial judge, after ordering an NCR assessment, made an NCR finding but provided insufficient reasons, which the appellant argued prevented meaningful appellate review.

The respondent conceded the deficiency but sought to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.

The Superior Court of Justice, Summary Conviction Appeal Court, allowed the appeal, ruling that the absence of comprehensible reasons for an NCR finding constituted a substantial wrong, making the proviso inapplicable.

The court set aside the NCR finding and convictions and ordered a new trial before a different judge.

Babak Rajaei-Mehrabadi was convicted by a jury of importing 6.45 kilograms of opium into Canada.

The court considered the gravity of the offence, the significant quantity and value of the opium, and the accused's lack of criminal record, good rehabilitation prospects, and history of depression and anxiety.

The court established a sentencing range of three to seven years for commercial importation of multiple kilograms of opium, distinguishing it from more addictive drugs like heroin or cocaine.

A sentence of four years four months and 22 days imprisonment was imposed, along with a DNA order and a 10-year weapons prohibition.

The accused, Brandon Cleland, was charged with the robbery of a taxi driver, Tahir Khan, in Mississauga.

The primary issue was the proof of identity, as the victim did not identify the accused in court.

The Crown relied on photographs from a malfunctioning in-car taxi camera system, police recognition of the accused from these images, and comparison with the accused's Facebook photos and physical appearance.

The defence challenged the occurrence of a robbery and the reliability of the identification evidence.

The court found the victim's testimony credible and, despite the camera malfunction, gave significant weight to the images due to corroborating factors.

The court concluded that the images depicted the accused, supported by police recognition, facial features, tattoos, and accessories, and found the accused guilty of robbery.

Mohammed Karimullah appealed his conviction for impaired driving.

The appeal raised several grounds, including alleged factual errors by the trial judge, the rejection of expert evidence regarding alcohol impairment, and the failure to adequately address good character evidence.

The court found that the alleged factual errors were either insignificant or not palpable and overriding.

The trial judge was entitled to reject expert opinion, even if uncontradicted, and to use common sense in evaluating the evidence, particularly regarding the appellant's changed driving behavior.

The court also determined that the trial judge's brief reference to good character evidence was sufficient, as a judge is presumed to know the law, and counsel did not emphasize it in closing.

The appeal was dismissed.

The applicant, an English-speaking accused, sought to challenge prospective jurors for cause based on their English language proficiency, pursuant to s. 638(1)(f) of the Criminal Code, having obtained a s. 530(1) order for an English trial.

The court denied the application, finding that the s. 530 order was not serving its intended purpose of ensuring equal access to justice in an official language where it would not normally occur.

The court also found that the applicant failed to establish an "air of reality" to the need for such a challenge, as the provided census data on "mother tongue" did not directly correlate to current English language abilities, and the standard jury selection process already addresses language competence.

The Crown appealed Kelly's acquittal for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams, which resulted from the exclusion of breath test results due to a s. 8 Charter violation.

The trial judge found that the police officer administered an Approved Screening Device (ASD) test despite knowing the respondent had a lozenge in his mouth, a circumstance the officer himself stated would invalidate the test.

This rendered the subsequent Intoxilyzer demand unlawful.

The appeal court upheld the trial judge's findings regarding the officer's credibility, the s. 8 Charter violation, and the s. 24(2) Charter analysis for excluding the evidence, emphasizing the officer's misleading testimony.

The appeal was dismissed.