Glen Henderson

The Crown appealed stays of proceedings granted to two respondents charged in a massive cross-border drug trafficking investigation.

The application judge had found the delay exceeded the Jordan ceiling and declined to deduct time for joint-trial scheduling or find the case exceptionally complex.

The Court of Appeal allowed the appeal, holding that the 107 days of joint-trial scheduling delay should have been deducted as a discrete exceptional circumstance.

Furthermore, the overarching complexity of the multi-agency project prosecution, which involved voluminous disclosure, justified the remaining modest delay above the ceiling.

The stays were set aside and the matters remitted for trial.

The Crown appealed an acquittal in a dangerous driving causing bodily harm case.

The trial judge had excluded Event Data Recorder (EDR) evidence, finding an unreasonable search and seizure (s. 8 Charter violation) and police bad faith.

The Court of Appeal found the trial judge erred in law by concluding that police lacked reasonable grounds to seize the vehicle under s. 489(2)(c) of the Criminal Code, that there was a reasonable expectation of privacy in EDR data after lawful seizure, and in the s. 24(2) Charter analysis.

The Court held that EDR data, being objective and impersonal, does not attract a reasonable expectation of privacy post-lawful seizure.

It also found police acted in good faith given conflicting caselaw.

The appeal was allowed, the acquittal set aside, and a new trial ordered with the EDR evidence admitted.

The applicant sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay was 791 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court deducted periods of delay attributable to the defence (late disclosure receipt, late Crown Pre-Trial, and defence unavailability for an earlier trial date), resulting in a net delay of 643 days.

The Crown argued for exceptional circumstances (power outage, technology issues), but the court found these did not cause the delay, attributing the delay instead to the Crown's failure to prioritize the matter.

The application for a stay of proceedings was granted.

The appellant appealed from a conviction for sexual assault and the imposed sentence.

The conviction appeal argued that the trial judge misapprehended defence evidence regarding sleeping arrangements and erred in the authentication of photographs.

The sentence appeal challenged the trial judge's consideration of a conditional sentence in light of Supreme Court and Court of Appeal precedents concerning sexual assault against children.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no material misapprehension of evidence and no error in principle in sentencing.

The accused was charged with two counts of assault and four counts of sexual assault against his former wife.

The Crown's case relied heavily on the complainant's testimony.

The court found the complainant's evidence lacked credibility, noting her demeanour during cross-examination regarding a marriage fraud investigation she initiated against the accused in India.

The court concluded the complainant had an ulterior motive to force reconciliation and gave false evidence.

The accused was found not guilty on all counts.

The accused was arrested for impaired care and control after police responded to a call about individuals drinking and smashing bottles in a parking lot.

A search incident to arrest revealed a loaded firearm.

The accused brought a Charter application alleging multiple breaches of his rights under ss. 8, 9, 10(a), and 10(b), seeking to exclude the firearm and his refusal to provide a breath sample under s. 24(2).

The court found minor breaches of ss. 10(a) and 10(b) but concluded the evidence was either not obtained in a manner that infringed the Charter or should not be excluded under the Grant framework.

The Crown's application to admit the accused's statements regarding his identity was granted.

The accused applied for an adjournment of his sexual offence trial to await a pending Supreme Court of Canada decision on the constitutionality of Criminal Code provisions regarding the admissibility of complainant records and sexual history.

The court dismissed the adjournment request, citing the significant trial delay that would result and finding that proceeding under the current provisions would not cause irreparable harm or a miscarriage of justice even if the provisions were later struck down.

The applicant, charged with sexual offences, brought a motion challenging the constitutional validity of the Bill C-51 amendments to the Criminal Code regarding the production of personal records and the admissibility of sexual history evidence.

The applicant argued that the definition of 'record' was overbroad, that granting the complainant standing in the admissibility voir dire disrupted the trial balance, and that mandatory disclosure of the application to the complainant violated the right to a fair trial.

The court dismissed the application, finding that the provisions did not violate sections 7 or 11(d) of the Charter, relying on previous Supreme Court of Canada jurisprudence upholding similar protections for complainants' privacy and dignity.

The defendant was charged with impaired driving following a motor vehicle collision.

The central issue at trial was whether the Crown proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol.

The court considered various indicia of impairment, including the collision circumstances, the defendant's unsteadiness, physical observations, and an utterance about alcohol consumption.

The judge found that the evidence, even when considered cumulatively, allowed for competing reasonable explanations and did not meet the high standard of proof beyond a reasonable doubt.

Consequently, the charge was dismissed.

The accused, charged with sexual and simple assault against his ex-wife, brought a Stage 1 application under s. 278.93(4) of the Criminal Code to admit the complainant's medical records and evidence of prior consensual sexual activity.

The court found that the complainant's signed police release form did not constitute a valid waiver of her reasonable expectation of privacy, meaning the medical records remained subject to the s. 278 regime.

The court also held that evidence of post-separation consensual sexual activity was capable of being admissible to show ongoing association, rather than relying on twin-myth reasoning.

Both the medical records and sexual activity evidence were permitted to proceed to a Stage 2 hearing.

The defendant was charged with sexual assault, sexual interference (two counts), and showing sexually explicit images to a person under age 16, with offences dated between July 18-19, 2017.

The defendant brought a Charter section 11(b) application for a stay of proceedings due to delay.

The Crown proceeded by summary conviction.

The total delay from charge to trial was approximately two years.

The court found that while the defence was unavailable for January trial dates, those dates did not allow reasonable time for defence preparation given the need to retain an expert to analyze the defendant's cell phone.

The court determined that the defence pursuit of expert analysis was legitimate and that the Jordan clock did not stop in January.

All subsequent trial dates fell beyond the presumptive ceiling with no exceptional circumstances.

The court granted the stay of proceedings.

The appellant appealed his convictions for fraud-related offences involving possession of fraudulent and forged credit cards and identity information.

The central issue was whether evidence obtained from warrantless searches of a USB key and a stolen vehicle should have been excluded under s. 24(2) of the Charter due to breaches of s. 8 rights.

The trial judge admitted the evidence, finding no Charter violation.

On appeal, the court found that the two searches of the USB key were unreasonable and violated s. 8 rights, as they were not truly incidental to the arrest for which the appellant was charged.

However, the court declined to exclude the evidence under s. 24(2), balancing the seriousness of the breach against the minimal impact on the appellant and society's interest in adjudicating the case on its merits.

The appeal from conviction was dismissed.

The appellant also sought leave to appeal his four-year sentence, arguing the trial judge failed to consider rehabilitation.

Leave was granted but the sentence appeal was dismissed as the sentence was not demonstrably unfit.

The accused pleaded guilty to aggravated assault arising from an attack on a vulnerable victim with Asperger Syndrome at a shopping mall.

The Crown applied for a publication ban on the victim's identity pursuant to section 486.5 of the Criminal Code.

The court granted the publication ban, finding that it was in the interest of the proper administration of justice to protect the victim's identity and privacy, balancing the victim's vulnerability and the risk of harm against the principles of open court and freedom of the press.

The appellant appealed his conviction for impaired and dangerous driving offences.

The central issue at trial was the identification of the driver of the vehicle involved in a collision that caused serious injuries to the victim.

The appellant conceded he was impaired and an occupant of the vehicle but maintained he was not the driver.

He argued the trial judge erred by failing to recognize inconsistencies in witness descriptions of the driver's clothing and the possibility of a third person being the driver.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the eye-witness testimony alongside substantial circumstantial evidence, including video footage, the appellant's clothing, and his movements following the crash, which collectively established guilt beyond a reasonable doubt.

The appellant was convicted of impaired care or control after the trial judge, on his own initiative, considered this included offence without inviting submissions from counsel.

The appeal court found this constituted procedural unfairness, as the Crown had focused solely on impaired driving and the defence had not had an opportunity to address the care or control theory or rebut the presumption.

The conviction was set aside, and a new trial was ordered.

The appellant, a professional truck driver, was convicted of dangerous driving after his dump truck collided with the Burlington Skyway Bridge on the Queen Elizabeth Highway.

The collision occurred when the trailer box rose higher than the bridge's clearance because the Power Take-off (PTO) system was left engaged.

The appellant was detained in a police cruiser for approximately 2.5 hours at the accident scene, during which police detected the smell of alcohol on his breath.

The appellant challenged the admissibility of evidence relating to the alcohol detection, arguing the detention was arbitrary and his Charter rights were violated.

The trial judge excluded breath sample evidence but admitted the evidence of the smell of alcohol.

The appellant was convicted of dangerous driving and sentenced to one year in custody.

On appeal, the Court of Appeal upheld both the conviction and sentence.

The Crown appealed a summary conviction decision staying sexual assault and forcible confinement charges for breach of the accused’s right to be tried within a reasonable time under s. 11(b) of the Charter.

The Superior Court held that the trial judge erred in assessing delay, including mischaracterizing the neutral intake period, incorrectly attributing institutional delay, and placing disproportionate weight on a disclosure issue that caused only a brief delay.

The court concluded the overall delay of approximately 15¾ months was reasonable when accounting for inherent case requirements and minimal prejudice to the accused.

The stay was therefore set aside and a new trial ordered.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol level over 80 mg, arguing that the police failed to make an approved screening device demand under s. 254(2) of the Criminal Code and thereby breached his Charter rights under ss. 8 and 9.

The trial judge had found that no roadside screening demand was made but concluded that the officer nevertheless had reasonable and probable grounds to arrest and make a breath demand.

On appeal, the court held that there is no requirement that police administer a roadside screening test before forming reasonable and probable grounds for arrest if those grounds arise from observations during a rapidly unfolding encounter.

Considering the totality of the circumstances and the brief timeline between the stop and arrest, the court found no legal error in the trial judge’s reasoning.

The conviction was upheld.

The accused was charged with fraud over $5,000 for failing to disclose material financial information to the Ontario Disability Support Plan (ODSP) between April 1998 and July 2007, resulting in overpayment of $107,442.24.

The Crown alleged the accused deliberately concealed ownership of two properties, multiple vehicles, business accounts, and business operations.

The accused claimed the properties and assets belonged to a friend and that she derived no income from the businesses, asserting she had no obligation to disclose.

The court found the accused guilty, determining she had the requisite mens rea and actus reus for fraud, rejecting her credibility and finding her non-disclosure was deliberate and put the agency at risk of deprivation.