Fred Fedorsen

The accused, Azary Matanov, charged with sexual assault, brought a two-stage application under sections 278.93(1) and 278.94 of the Criminal Code to determine the admissibility of certain evidence (text messages, a selfie, a phone call, and a kiss) at trial.

The evidence was sought to provide context to the relationship with the complainant and to challenge her credibility.

The court granted the Stage One application, finding the evidence capable of being admissible, and subsequently granted the Stage Two application, finding the evidence admissible.

The court emphasized that in a judge-alone trial, the risk of improper use of evidence is diminished, and the probative value of the evidence for context and credibility outweighed any potential prejudicial effect, without engaging "twin myth" reasoning.

The Crown appealed the accused's acquittal on a charge of operating a motor vehicle while impaired by a drug.

The trial judge had delivered a brief oral acquittal and later provided comprehensive written reasons after inviting further submissions on a new appellate decision.

The parties agreed that under R. v. Teskey, the appellate court could not consider the written reasons, and under R. v. Sheppard, the oral reasons were insufficient for appellate review.

The summary conviction appeal court accepted the joint submission, set aside the acquittal, and ordered a new trial.

The Crown appealed a stay of proceedings granted by the trial judge under s. 11(b) of the Charter for unreasonable delay.

The respondent conceded that the trial judge committed a palpable and overriding error by misapprehending the evidence regarding the attribution of delay.

The summary conviction appeal court found that the trial judge erred in failing to attribute the delay from a contested adjournment to the defence, as the respondent had changed counsel days before trial and requested the adjournment while the Crown was ready to proceed.

The appeal was allowed and the matter remitted for a new trial.

The accused, charged with sexual assault, brought an application under s. 278.93(1) of the Criminal Code to adduce evidence of prior sexual activity and communications with the complainant.

The Crown opposed, arguing the evidence engaged the twin myths under s. 276.

The court granted the application, finding that cross-examining the complainant on the prior incidents was necessary for the accused to make full answer and defence by challenging her assertion that they were merely friends, and that the evidence did not engage the twin myths if accompanied by proper jury instructions.

The appellant, Rory Coutts, appealed his conviction for refusing to provide a breath sample under s. 254(5) of the Criminal Code.

The trial judge found Charter breaches regarding the roadside Approved Screening Device (ASD) demand not being made forthwith and a delay in providing reasons for detention, but declined to exclude the evidence under s. 24(2).

On appeal, the court considered whether the breathalyzer demand under s. 254(3) was lawful, given the unlawful ASD demand.

The court found that the unlawful ASD demand rendered the "fail" result inadmissible to establish reasonable grounds for the s. 254(3) breathalyzer demand, thus making the latter demand unlawful.

Consequently, the appellant was under no legal obligation to comply, and his refusal was not a criminal offence.

The conviction was quashed, and an acquittal entered.

The appellant appealed her summary convictions for impaired care and control and 'over 80'.

At trial, the judge relied on the evidence of two security guards to dismiss the appellant's Charter application, despite an explicit agreement between counsel that their testimony would only apply to the trial proper and not the voir dire.

The Superior Court of Justice allowed the appeal, finding that the trial judge's use of this evidence denied the appellant procedural fairness and a fair trial.

The convictions were quashed and a new trial was ordered.

The accused was charged with operating a motor vehicle while blood alcohol content exceeded 80 mg per 100 ml of blood.

The Crown's case depended entirely on the results of an Approved Screening Device test and subsequent breath samples.

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

The court found that the officer lacked reasonable grounds to rely on the ASD results because he could not establish the device had been calibrated within the required timeframe, resulting in an unlawful arrest and arbitrary detention.

The court also found a breach of the right to counsel, as the officer failed to inform the accused of his right to search for counsel of choice, controlled all means of contacting counsel, and withheld information that the accused's father had called with a lawyer's name.

The evidence was excluded under section 24(2) of the Charter.

The accused was charged with failing to comply with an approved screening device (ASD) demand under section 254(5) of the Criminal Code.

The Crown alleged the accused was feigning to blow and did not provide a suitable sample despite being given seven opportunities.

The accused brought Charter arguments under sections 8 and 9 to exclude evidence of his refusal.

The court found violations of both sections 8 and 9 but admitted the evidence under section 24(2) after balancing the Grant factors.

On the substantive charge, the court found the accused intentionally failed to provide a suitable sample and convicted him as charged.

The accused was charged with impaired driving and having a blood alcohol content over 80 milligrams per 100 millilitres of blood following a single motor vehicle collision on February 29, 2015.

The Crown proceeded summarily.

The accused brought multiple Charter applications alleging violations of sections 7, 8, 9, 10(a), 10(b), and 11(d), arguing that statements made to police prior to arrest were compelled under the Highway Traffic Act and that he was detained without being informed of his rights.

The court rejected these arguments, finding that the accused was not detained during the initial police encounter, which was a preliminary investigation of the accident scene.

The court found the accused's statements were voluntary and not compelled.

The breath samples were properly obtained and admissible.

The court convicted the accused on the impaired driving charge and entered a conditional stay on the over 80 charge.

The applicant brought a section 11(b) Charter motion seeking a stay of proceedings for impaired operation and drive over 80mg charges.

The applicant alleged violations of Charter rights including section 7 and 8 rights regarding video recording in police cells.

The court found that the respondent caused the adjournment of the initial trial date through late filing of its Charter response notice and late disclosure of Police Cell Videotaping Pilot Project materials, particularly Phase 2 materials unknown to the applicant.

The court calculated 12 months and 4 days of combined institutional and crown delay, substantially exceeding Morin guidelines.

The court found both inferred prejudice based on delay duration and actual prejudice in the form of financial stress to the applicant.

The application was allowed and a stay of proceedings was ordered.

The accused was charged with failing to provide a suitable sample of breath into an approved screening device (ASD) pursuant to a demand under section 254(2)(b) of the Criminal Code.

The Crown alleged the accused intentionally failed to provide a suitable sample after eight attempts, each resulting in an E0 message.

The defence argued the accused lacked mens rea, having genuinely attempted to provide a sample but been unable to do so due to various factors including emotional distress, interference from her boyfriend's confrontation with police, and the officer's premature withdrawal of the device.

The court found reasonable doubt regarding the intentionality of the failure and also found the Crown failed to establish that the ASD demand complied with section 254(2) requirements.

The charge was dismissed.

The defendant brought a Charter s. 11(b) motion challenging unreasonable delay in his prosecution for operating a motor vehicle with excessive blood alcohol concentration and speeding.

The defendant was arrested on May 18, 2012, released on a Promise to Appear, and the Information was sworn on June 7, 2012.

The trial was not scheduled until September 3, 2013—nearly 15 months later.

The court found that approximately 10 months of delay was attributable to institutional factors and a further 2 months to Crown conduct.

The defendant suffered actual prejudice to his security interests, including anxiety, depression, and medical intervention.

The court concluded that the delay exceeded permissible guidelines for simple cases and granted a stay of proceedings.

The accused was charged with driving with over 80 milligrams of alcohol in 100 millilitres of blood.

The Crown relied on breathalyzer readings of 137 and 139 milligrams.

The defence challenged the reliability of the Intoxilyzer 5000C readings by arguing that the accused had unmedicated diabetes which would produce acetone in his breath, and that the acetone detection system in the machine could malfunction without alerting the operator.

The court found that the accused's evidence regarding his alcohol consumption and failure to take medication was credible, and that expert evidence established a realistic scientific possibility that the machine's acetone detection system could have malfunctioned.

The Crown failed to rebut this evidence, and the presumption of accuracy was rebutted.

The charge was dismissed.

The accused was charged with driving while having over 80mg of alcohol in 100ml of blood following a R.I.D.E. program stop.

The central issue was whether the accused's Charter rights under section 10(b) were violated when police failed to wait a reasonable amount of time for the accused's chosen counsel to call back before directing the accused to speak with duty counsel and subsequently requiring a breath sample.

The court found a breach of section 10(b) and, applying the section 24(2) analysis, excluded the breathalyser results.

The accused pleaded guilty to one count of luring a child by computer contrary to s.172.1(1) of the Criminal Code.

The accused communicated with an undercover police officer he believed to be a 14-year-old girl over a two-week period, made sexual solicitations, exposed himself, and arranged to meet her.

He also possessed five images of child pornography.

The court imposed a sentence of 12 months imprisonment followed by two years probation, reflecting both the serious nature of the offence and significant mitigating factors including the accused's stable background, early guilty plea, intensive counseling participation, and very low risk of reoffending as assessed by a forensic psychiatrist.

The court also imposed a 20-year s.161 order and 20-year SOIRA obligation.

The appellant appealed an assault conviction from the Ontario Court of Justice, arguing that the trial judge erred in applying the rule in Browne v. Dunn by concluding that defence counsel failed to put certain contradictory propositions to Crown witnesses in cross-examination.

The appellant submitted that the rule was misapplied and that any alleged deficiency in cross-examination did not justify undermining the defence evidence.

The reviewing judge held that although the trial judge raised and analyzed the Browne v. Dunn rule and relevant authorities, the reasons as a whole showed that the trial judge ultimately declined to apply the rule against the accused.

The conviction rested on credibility findings favouring the complainant and a corroborating witness.

The appeal was therefore dismissed.

The accused was charged with care or control of a motor vehicle with excess blood alcohol.

The trial proceeded with a blended Charter application challenging the validity of the breath sample evidence.

The court found multiple Charter breaches: (1) the demand under s. 254(2) Criminal Code was not made "forthwith" as required, with a 22-minute delay from formation of suspicion to commencement of testing; (2) the accused's s. 10(a)(b) Charter rights were not provided immediately after the roadside test failure.

Under s. 24(2) Charter analysis, the court excluded the Certificate of Analysis evidence as the breaches were multiple, protracted, and contrary to the officer's training, warranting disassociation by the justice system.

The accused was acquitted.

The appellant appealed a conviction for impaired driving and driving over 80, arguing the trial judge erred by refusing to permit a late Charter application under s. 24(1) after an earlier s. 24(2) exclusion application had failed.

The proposed remedy sought to prevent the Crown from relying on the presumption of identity under the Criminal Code following a finding of a minor s. 8 breach.

The court held that trial judges possess broad discretion to control proceedings and enforce compliance with procedural notice rules governing Charter applications.

Given the late timing, non‑compliance with notice requirements, and minimal seriousness of the underlying breach, the trial judge properly exercised discretion in refusing to entertain the application.

The appeal was dismissed.