G. Hendry

The Crown sought a ruling on the admissibility of in-court statements made by the accused, Nelson Tayongtong, on two separate dates (March 11 and March 17, 2015).

The Defence opposed, arguing the statements were made to persons in authority, that the accused lacked an operating mind, or that their admission would lead to an unfair trial by revealing mental health issues.

The court found that the statements were not made to persons in authority, thus the confessions rule did not apply.

Even if it did, the Crown proved beyond a reasonable doubt that the accused had an operating mind.

The court also determined that the statements could be redacted to avoid disclosing mental illness to the jury.

Consequently, the in-court statements were ruled admissible.

The defendant was charged with communicating by telecommunication with a person he believed was under 18 years of age for the purpose of facilitating a sexual offence contrary to section 172.2(2) of the Criminal Code.

The defendant posted advertisements on Craigslist's "Casual Encounters" section and engaged in electronic communications with an undercover police officer posing as a 15-year-old girl named "Krissy." The defendant sent explicit sexual messages and photographs, requested voicemails and photos, and ultimately provided his residential address to facilitate a meeting.

The defendant claimed he did not subjectively believe he was communicating with a child and that he took reasonable steps to ascertain the person's age.

The court rejected both defenses and found the defendant guilty.

The defendant was charged with operating a motor vehicle while over 80 milligrams of alcohol per 100 millilitres of blood.

A police officer lawfully stopped the defendant for traffic violations and sobriety concerns.

The officer formed reasonable suspicion and administered an approved screening device test, which the defendant failed.

However, the officer delayed providing Charter rights to counsel by approximately 10 minutes after arrest.

The defendant brought a Charter application alleging a breach of s. 10(b) rights and sought exclusion of breath samples under s. 24(2).

The court found a s. 10(b) breach but declined to exclude the evidence, finding the nexus between the breach and the evidence too tenuous and that admission would not bring the administration of justice into disrepute.

The defendant was convicted.

The applicant brought an application for certiorari to quash his committal for trial on charges of attempted murder and transferring a firearm.

He argued the preliminary inquiry judge committed jurisdictional errors by allowing the Crown to re-open its case and by improperly weighing after-the-fact conduct evidence.

The Superior Court dismissed the application, finding that the decision to re-open the case was an evidentiary ruling not subject to certiorari, and that there was some evidence upon which the judge could reasonably order committal on the attempted murder charge.

Two defendants were charged with operating motor vehicles on Highway 401 while performing a stunt (speeding 80 km/h over the limit), racing, and careless driving.

The Crown's evidence established that the defendants were paced by a police officer at 180 km/h in a 100 km/h zone.

The defendants claimed they were travelling at 120-140 km/h and invoked the defence of necessity, arguing they accelerated to create distance from a vehicle following closely behind.

The court found the Crown's evidence credible and reliable, rejected the necessity defence as failing the modified objective test, and applied the Kienapple principle to stay the careless driving and racing charges, resulting in convictions for performing a stunt.

The accused was charged with wilfully committing an indecent act in a public place in the presence of one or more persons contrary to section 173(1) of the Criminal Code.

The Crown alleged that the accused exposed his erect penis in a women's lingerie store in the presence of a woman and her eleven-year-old daughter.

The accused claimed he was displaying a six-inch silicon caulking object, not his penis, which he intended to use to model lingerie for his new girlfriend.

The court found the complainant's evidence credible and reliable, rejected the accused's testimony as riddled with contradictions, and convicted the accused.

The offender, a 64-year-old first-time offender, was convicted of sexually assaulting his former partner by forcing anal intercourse.

The Crown sought a three-year penitentiary sentence, while the defence requested a suspended sentence due to the offender's life-threatening C. difficile infection.

The court found that while a 22-month sentence would normally be fit, the offender's unique and severe medical condition meant incarceration would seriously compromise his life.

The court imposed a suspended sentence with three years of probation, including strict house arrest conditions to protect the public from infection.

The offender was acquitted of dangerous operation of a motor vehicle but found guilty of criminal harassment by indictment.

The court imposed a 15-month custodial sentence with credit for 438 days of pre-sentence custody, followed by three years of probation.

The sentence addressed the offender's recidivist history of criminal harassment, particularly involving domestic partners, his lack of impulse control, and the ongoing impact on the victim.

The court balanced denunciation and specific deterrence with rehabilitation, emphasizing the offender's need to engage with probationary resources and psychological programming.

The accused was charged with sexual assault contrary to s. 271 of the Criminal Code.

The complainant alleged that the accused sexually assaulted her in his bedroom by grabbing her, using his body weight to restrain her, and touching her breast and vagina without consent.

The accused denied the allegations entirely.

The trial judge applied the test from R. v. W.(D.) and found reasonable doubt based on the detailed account provided by the accused, corroborating evidence from the accused's son, inconsistencies in the complainant's account regarding the mail, and the circumstances of the complainant's departure from the apartment.

The accused was acquitted.

The Crown brought a bail review application under the Criminal Code after a justice of the peace ordered the accused released pending trial on serious charges including kidnapping, extortion, unlawful confinement, assault causing bodily harm, and uttering threats.

The reviewing judge held that the justice of the peace erred by giving insufficient weight to the accused’s extensive violent criminal record and excessive weight to the proposed surety.

The accused had a lengthy history of violent offences, breaches of court orders, and further violent conduct while in custody.

Applying the secondary and tertiary grounds under s. 515(10) of the Criminal Code and the guidance from R. v. St. Cloud, the court concluded there was a substantial likelihood the accused would commit further offences if released and that detention was necessary to maintain confidence in the administration of justice.

The prior release order was therefore clearly inappropriate.

The defendant was charged with care or control of a motor vehicle after consuming alcohol in excess of the legal limit contrary to section 253(1)(b) of the Criminal Code.

The defendant brought a motion for a stay of proceedings based on an alleged violation of his Charter right to be tried within a reasonable time under section 11(b).

The court found that approximately 13 months elapsed from the swearing of the information to the trial date, with 11 months constituting institutional delay exceeding the local guideline of 8-9 months.

The defendant demonstrated actual prejudice through educational disruption caused by additional legal fees necessitated by the delay.

The court granted the stay of proceedings.

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.

The accused was charged with sexual assault, sexual interference with a person under 16 years, and invitation to sexual touching involving a person under 16 years, contrary to sections 271, 151, and 252 of the Criminal Code.

The complainant, a 15-year-old girl, testified that the accused sexually assaulted her while she was in her pajamas at her mother's residence.

The court admitted similar fact evidence regarding two prior sexual assault convictions involving the accused's step-children, finding striking similarities in the context and circumstances.

Despite inconsistencies in the complainant's testimony that raised concerns about reliability, the similar fact evidence corroborated her account and established guilt beyond a reasonable doubt.

The accused was found guilty on all three counts.

The appellant appealed a conviction for impaired driving, arguing that the trial judge erred in relying on in‑court identification evidence to establish that he was the driver of the vehicle.

The appeal court considered the principles governing eyewitness identification, including the limited weight typically given to in‑court identification.

It concluded that the trial judge did not place undue weight on the in‑court identification and that sufficient independent evidence supported the finding that the accused had been driving the vehicle.

Considering the totality of the evidence, including witness observations and the matching licence plate, the conviction was supported beyond a reasonable doubt.