Georgette Gaganiaras

The Crown sought to call a key witness residing in Barbados to testify via videoconference at a firearms trial due to COVID-19 travel risks.

The accused opposed, arguing it would be contrary to the principles of fundamental justice under s. 714.2 of the Criminal Code.

The court held that the accused failed to discharge the onus of showing that videoconference testimony would impair his ability to make full answer and defence or adequately test credibility.

The motion was granted, and the evidence was ordered to be received by videoconference.

The applicant, charged with second-degree murder, brought a pre-trial motion challenging the constitutionality of Bill C-75 amendments to the Criminal Code that abolished peremptory challenges and altered the challenge for cause procedure.

The applicant argued the changes violated sections 7, 11(d), and 11(f) of the Charter and relied on a recent coordinate court decision that found the repeal of peremptory challenges unconstitutional.

The court dismissed the application, finding the coordinate decision was plainly wrong and therefore not binding.

The court held that the amendments are constitutional and operate retrospectively.

The accused was charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code following the discovery of 148 images on USB devices seized from his residence.

The central issue was whether the material possessed constituted child pornography within the meaning of the Criminal Code.

The court found that the images, depicting prepubescent boys in sexualized poses while clothed or partially clothed, met the statutory definition of child pornography as they depicted sexual organs or anal regions as their dominant characteristic for a sexual purpose.

The accused was found guilty.

The accused was found guilty of sexual assault, sexual interference, and invitation to sexual touching involving a 13-year-old complainant.

This decision addresses sentencing, including the constitutionality of mandatory minimum sentences, the fit and proportionate sentence, and the application of the Kienapple rule.

The court found the one-year mandatory minimum sentences for these offences unconstitutional, imposed a 15-month imprisonment sentence for sexual interference, and stayed the other convictions.

The accused was tried on charges of sexual assault, sexual interference, and invitation to sexual touching arising from admitted sexual activity with a 13-year-old complainant.

The only live issue was whether he honestly believed the complainant was of age and whether he took all reasonable steps to ascertain her age under s. 150.1(4) of the Criminal Code.

The court accepted the mother's evidence that she had earlier phoned the accused and expressly warned him that the complainant was 14, and found the accused's denial neither credible nor reasonably doubt-raising.

Applying the contextual due diligence approach from the appellate authorities, the court held that the warning cried out for further inquiry and that no reasonable steps were taken.

Guilty verdicts were entered on all three counts.

The offender was found guilty of manslaughter by a jury after fatally shooting the victim in the chest during a dispute.

The court inferred the shooting was intentional for intimidation purposes but assumed the offender did not intend to hit the victim.

The court declined to revisit the constitutionality of the four-year mandatory minimum for manslaughter with a firearm.

Balancing the gravity of the offence with the offender's youth, lack of criminal record, and strong family support, the court imposed a sentence of six years, reduced to three years less 15 days after credit for pre-trial custody.

The accused was charged with failing to comply with a demand for a breath sample into an approved screening device contrary to section 254(5) of the Criminal Code, arising from a R.I.D.E. check stop.

The central issue was whether the Crown proved beyond a reasonable doubt that the accused intentionally failed to comply with the breath demand.

The court found that the accused was cooperative throughout the process, made nine attempts to provide a sample within approximately four minutes, and was given minimal initial instruction and demonstration.

The court concluded that the rapid escalation of the situation, conflicting instructions from two officers, lack of clear feedback on why samples were unsuccessful, and the accused's repeated requests to try again after arrest created a reasonable doubt as to whether the failure was willful or intentional.

The accused was acquitted.