George S. Gage

Two young persons were convicted after trial of robbery with violence committed against a peer on the first week of school.

The offence involved a premeditated attack on an isolated location where the victim was lured, assaulted, robbed of personal items and marijuana, and left with bleeding feet after being forced to descend metal stairs barefoot.

The court imposed a custodial sentence of three months (two months secure custody followed by one month community supervision) followed by two years probation, finding that the seriousness of the offence, the degree of participation, the intentional and foreseeable harm, and the need for denunciation and accountability warranted custody despite the YCJA preference for non-custodial dispositions.

The Crown appealed the acquittal of the respondent, Joseph Irving, on charges of impaired operation of a motor vehicle and drive over 80.

The trial judge had excluded evidence (police observations and breath samples) under s. 24(2) of the Charter, finding breaches of the respondent's s. 8 (unreasonable search) and s. 10(b) (right to counsel) rights.

The s. 8 breach arose from police coercing the respondent to the door of his home by placing a foot on the threshold and demanding his presence, thereby revoking the implied invitation to knock.

The s. 10(b) breach was a brief delay in providing rights during investigative detention.

The appeal court upheld the trial judge's findings on both Charter breaches and the s. 24(2) analysis, affirming that the police conduct was serious and had a significant impact on the respondent's privacy interests, thus dismissing the Crown's appeal.

The appellant appealed his conviction for stunt driving under section 172(1) of the Highway Traffic Act, challenging the reliability of LIDAR speed measurement evidence.

The Crown's case rested solely on the testimony of OPP Constable Tihor, who used a LIDAR device to measure the appellant's vehicle speed at 180 km/h on a highway with a 100 km/h speed limit.

The appellant argued that the constable's qualifications to operate the LIDAR device and the device's proper functioning raised reasonable doubt.

The trial justice found the officer qualified and credible, and convicted the appellant.

On appeal, the court upheld the conviction, finding that the officer's training, testing protocols, and device reliability were adequately established to prove the offence beyond a reasonable doubt.

The accused was charged with impaired operation of a motor vehicle and operation with blood alcohol concentration over 80 mg per 100 ml of blood.

The Crown's case relied on breath sample analysis showing readings of 130 mg and 140 mg.

The accused brought a Charter application alleging breaches of sections 8 (unreasonable search and seizure), 9 (arbitrary detention), and 10(b) (right to counsel).

The court found that police breached the accused's section 8 rights by unlawfully entering and remaining in the home beyond the scope of the implied invitation to knock doctrine, and breached section 10(b) by failing to inform the accused of his right to counsel without delay during an investigative detention.

The court also found a breach of section 10(b) regarding the timing of rights to counsel.

Under section 24(2) analysis, the court excluded the breath sample evidence as the serious Charter breaches outweighed society's interest in adjudication on the merits.

Both charges were acquitted.

The offender pleaded guilty to multiple serious offences including sexual interference with a child, possession and production of child pornography, voyeurism, assault of a police officer, and failure to appear in court.

The victim was the offender's stepdaughter, whom he systematically and repeatedly sexually assaulted over approximately 18 months when she was between 6 and 8 years old.

The offender recorded the assaults and made them available to others.

A forensic examination of his electronic devices revealed an extensive collection of child pornography, the bulk of which consisted of images and videos of the victim.

The offender also surreptitiously recorded his 16-year-old stepdaughter showering.

The court imposed a global sentence of 13 years and 3 months, with credit for pre-trial custody reducing the remaining sentence to 10 years and 205 days.

Ancillary orders included DNA registration, lifetime sex offender registry, lifetime weapons prohibition, and a section 161 order.

A 24-year-old first-time offender was convicted of sexual assault against a 16-year-old victim.

The assault occurred when the offender, who was intoxicated, engaged in non-consensual sexual contact with the victim despite repeated verbal objections.

The Crown sought a 12-month custodial sentence, while defence counsel sought a suspended sentence with probation or a conditional sentence.

The court imposed a 12-month conditional sentence of imprisonment to be served in the community, finding that rehabilitation and specific deterrence were paramount considerations for a youthful first offender, and that a conditional sentence was consistent with sentencing principles despite the serious nature of the offence.

Appeal of convictions and sentences for violations of the Highway Traffic Act arising from a wheel detachment incident on October 10, 2013.

Inter County Concrete Products Limited was charged under section 84.1(1) for permitting operation of a commercial motor vehicle from which a wheel became detached.

Pedrag Petkovic was charged under section 84(1) for driving a vehicle in a dangerous or unsafe condition.

The trial justice convicted both appellants and imposed substantial fines.

The appellants appealed both convictions and sentences, raising issues regarding the sufficiency of the information, the characterization of the offence, and the appropriateness of the sentences imposed.

The accused was charged with possession of cocaine for the purpose of trafficking following a vehicle search.

The Crown alleged the accused possessed 497.32 grams of cocaine found in a concealed compartment in the rear seat of his BMW.

The accused challenged the arrest and search on Charter grounds, arguing arbitrary detention and unreasonable search and seizure.

The court found a breach of section 9 of the Charter due to the officer's failure to confirm complete bail conditions before arrest, but declined to exclude the evidence under section 24(2).

The accused was convicted of possession for the purpose of trafficking but acquitted of failure to comply with bail conditions due to reasonable doubt regarding whether the second cell phone was operational.

The accused was charged with impaired driving after being observed operating a motor vehicle errationally on July 8, 2015.

She provided breath samples showing blood alcohol concentrations of 267 and 288 mg per 100 ml of blood.

The defence raised the issue of automatism arising from parasomnia (sleepwalking), arguing that the accused's actions were involuntary.

The court found that the accused had a documented history of parasomnia episodes triggered by stress and anxiety, had been fatigued from a long drive, had not used her sleep apnea device, and had ingested sleep medication.

Expert evidence and observations by the arresting officer supported the conclusion that the accused was in a dissociative state.

The court found the automatism to be a disease of the mind and rendered a verdict of Not Criminally Responsible.

The offender pleaded guilty to impaired driving causing death and impaired driving causing bodily harm.

On September 4, 2015, the offender consumed alcohol for four hours at a restaurant, then drove at excessive speed on a busy residential road, lost control of his vehicle, and collided with another vehicle.

His passenger was killed at the scene, and the driver of the other vehicle sustained serious permanent injuries.

The offender's blood alcohol concentration was approximately three times the legal limit.

The court imposed a four-year penitentiary sentence, balancing the serious aggravating factors (high blood alcohol level, death and serious injury, reckless driving) against mitigating factors (early guilty plea, first offender, good character, genuine remorse, strong family support).

The accused was charged with luring a child by means of computer contrary to section 172.1(1)(b) of the Criminal Code.

The Crown proceeded by indictment, triggering a mandatory minimum sentence of one year imprisonment.

The court conducted a Charter challenge to the constitutionality of subsections (3) and (4) of section 172.1, finding subsection (3) unconstitutional but subsection (4) constitutionally valid.

The accused was convicted based on his failure to take reasonable steps to ascertain the age of the online interlocutor, who was actually an undercover police officer posing as a 14-year-old.

The court then addressed the accused's Charter challenge to the mandatory minimum sentence under section 12 of the Charter, finding it grossly disproportionate to the circumstances of the offence and the offender's personal characteristics.

The accused was charged with production of marijuana and possession of marijuana for the purposes of trafficking contrary to the Controlled Drugs and Substances Act, and theft of hydroelectricity contrary to the Criminal Code.

He was arrested at a residential property where a substantial marijuana grow operation was discovered.

The accused brought a motion to exclude evidence of the grow operation, arguing the search was illegal.

The Crown raised a threshold issue of standing, contending the accused could not demonstrate a reasonable expectation of privacy in the premises searched.

The court found the accused had not established on a balance of probabilities that he had a reasonable expectation of privacy in the property and therefore lacked standing to challenge the search.

The accused was charged with luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code.

The Crown proceeded by indictment.

The accused posted a personal advertisement on Craigslist seeking a "daddy/daughter" role-play partner and engaged in sexual communications with a person he believed to be a 14-year-old girl named Mia.

The person was actually an adult police officer conducting an undercover investigation.

The accused claimed he believed he was communicating with an adult engaged in consensual role-play.

The court found the accused guilty, determining that while there was a reasonable doubt as to his subjective belief regarding the age of the person, he failed to take reasonable steps to ascertain the age of the person with whom he was communicating.

The applicant was charged with luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code.

The applicant brought a Charter application challenging the lawfulness of the police obtaining his cell phone subscriber information from a telecommunications provider without a warrant.

The applicant argued that the disclosure of cell phone subscriber information was analogous to internet subscriber information and should require judicial authorization under the principles established in R v. Spencer.

The court rejected this argument, finding that cell phone subscriber information does not attract the same reasonable expectation of privacy as internet subscriber information, and therefore no breach of section 8 Charter rights occurred.

The applicant was charged with luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code.

The applicant brought a Charter application challenging the constitutionality of the combined operation of subsections 172.1(3) and 172.1(4).

Subsection (3) creates a presumption that a representation of being underage constitutes proof of the accused's belief in that age, rebuttable only by evidence to the contrary.

Subsection (4) provides that honest belief in legal age is not a defence unless the accused took reasonable steps to ascertain the person's age.

The applicant argued these provisions violated section 7 (fundamental justice) and section 11(d) (presumption of innocence) of the Charter.

The court found the presumption in subsection (3) unconstitutional as applied in concert with subsection (4), as it could compel conviction despite reasonable doubt about the accused's belief.

The accused was charged with operating a motor vehicle with a blood alcohol concentration in excess of 80 mg per 100 ml of blood.

The Crown's case relied on breath samples obtained pursuant to an Intoxilyzer demand, which was based on an Approved Screening Device (ASD) test result.

The accused challenged the lawfulness of the seizure of the breath samples, arguing that the officer lacked an objective basis for believing the ASD was in proper working order, thereby breaching section 8 of the Charter.

The court found that the officer had reasonable grounds to believe the device was operating properly based on his knowledge of the fail-safe feature, the device's successful activation and operation, and the reasonable assumption that his unit would provide a properly functioning device.

The Charter application was dismissed.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration in excess of 80 mg per 100 ml of blood.

The accused conceded his blood alcohol concentration exceeded the statutory limit but challenged the lawfulness of his detention, arguing that the evidence was obtained in violation of his Charter rights.

The court found that the accused was not detained when the officer knocked on his vehicle window, as there was no significant physical or psychological restraint at that point.

The detention crystallized only when the officer directed the accused to exit the vehicle, at which point the officer had reasonable and probable grounds based on observations of impairment.

The Charter application was dismissed, and the accused was found guilty of the Over 80 charge.

The impaired driving charge was stayed pursuant to the Kienapple principle.

The Crown sought admission of a video and audio-taped statement given by the defendant to police at a hospital's SCAN unit.

The defence applied for exclusion under sections 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, arguing the statement was involuntary and obtained in breach of Charter rights.

The court conducted a voluntariness voir dire and Charter analysis.

The court found that the defendant was psychologically detained within minutes of the interview's commencement and that the police officer made significant inducements, including threats regarding custody of the defendant's child.

The court excluded the statement as involuntary and as obtained in breach of Charter rights.

The accused was charged with impaired driving and driving with excess alcohol (over 80) on October 30, 2011.

His trial commenced on October 31, 2012, but was not completed that day.

The Crown withdrew the over 80 charge.

The trial was scheduled to continue on April 10, 2013.

The accused brought a Charter application under sections 11(b) and 24(1) seeking a stay of the remaining charge based on unreasonable delay.

The court found that the total delay of 17.3 months, comprising approximately 4.25 months of neutral intake and preparation time, 7.75 months of institutional delay to the first trial date, and an additional 5.3 months of combined institutional, Crown, and defence delay to the continuation date, exceeded constitutional tolerability.

The court granted the application and stayed the charge.