Gus Kim

The accused was charged with multiple firearms offences after police found a loaded handgun in a bag left on a bar patio.

The accused brought a Charter application arguing that his rights under ss. 8, 9, 10(a), and 10(b) were violated during the police investigation.

The court found that the accused had not abandoned the bag and had a reasonable expectation of privacy in it, making the warrantless search a violation of s. 8.

The court also found that the accused was arbitrarily detained during a parole compliance check, violating s. 9, and that police breached his ss. 10(a) and 10(b) rights by failing to promptly advise him of the reasons for his detention and his right to counsel.

Applying the Grant framework under s. 24(2), the court concluded that the cumulative effect of the serious Charter breaches warranted the exclusion of the firearm.

Without the firearm, the Crown could not prove its case, and the accused was acquitted of all charges.

The Crown applied to admit the preliminary inquiry testimony of the accused's deceased mother under s. 715 of the Criminal Code or the principled exception to the hearsay rule.

The defence opposed, arguing the subpoena compelling her attendance at the preliminary inquiry was invalid because it was issued by a Superior Court judge rather than an Ontario Court of Justice judge.

The court held that under s. 5 of the Justices of the Peace Act, a Superior Court judge has the powers of a justice of the peace and can issue such subpoenas.

Furthermore, the witness testified under oath and was subject to cross-examination, satisfying the requirements of s. 715 and the procedural reliability threshold of the principled exception to the hearsay rule.

The application was granted.

N.N. pleaded guilty to second-degree murder, while K.H. and Y.N. pleaded guilty to manslaughter, all related to the killing of Hashim Kinani.

The court determined the appropriate youth sentences under the Youth Criminal Justice Act, focusing on the length of the custodial portion and credit for pre-sentence detention.

The decision balanced accountability, rehabilitation, and reintegration, considering the serious nature of the offences, the young persons' backgrounds, and the impact of COVID-19 on their detention conditions.

This is a sentencing decision for Shomari Samuel Clarke-Brown, who was found guilty after trial of five firearm-related offences, including possession of a loaded handgun, and pleaded guilty to failing to comply with a release order.

The court considered aggravating factors such as the loaded and readily accessible nature of the firearm, the reckless discarding of the weapon during arrest, resisting arrest, and flagrant breaches of bail.

Mitigating factors included the offender's youth, lack of prior criminal record, family support, and desire for education.

The court also applied pre-sentence custody credit, including enhanced credit for harsh detention conditions and COVID-19 risks.

The final sentence imposed was a term of imprisonment of 36 months for the firearm offence (less 756 days pre-sentence credit), a concurrent one-year sentence for careless storage, and a consecutive 30-day sentence for the bail breach.

Ancillary orders included a DNA order, a 10-year weapons prohibition, and forfeiture of seized items, with the victim fine surcharge waived for the breach and not applied to the firearm offences.

The defendant, Abdirahman Mohiadin, was convicted on six counts related to the possession of a loaded handgun in an automobile.

The court considered aggravating factors, including carrying a loaded handgun in public, and mitigating factors, such as the defendant's youth, first-time offender status, challenging background, and time spent under house arrest.

The Crown sought a sentence of 32-36 months, while the defence sought no more than 21 months.

The court imposed a global sentence of 38 months imprisonment, concurrent sentences for lesser counts, pre-sentence custody credit, a weapons prohibition order, and a DNA sample order, emphasizing denunciation and deterrence due to the proliferation of gun violence.

The offender was convicted of sexually assaulting his intimate partner while she was highly intoxicated and asleep.

The Crown sought a sentence of two years less a day, while the defence sought nine to twelve months.

The court weighed the aggravating factors of breach of trust and profound impact on the victim against the mitigating factors of the offender's youth, lack of criminal record, remorse, and rehabilitative prospects.

The court sentenced the offender to 12 months' imprisonment followed by 24 months of probation, along with DNA and SOIRA orders.

The offender was convicted of second degree murder after brutally stabbing the victim following a day of drinking.

The Crown sought 15 years of parole ineligibility, while the defence sought the mandatory minimum of 10 years.

The court weighed the offender's difficult background as a refugee and his efforts at self-improvement against the brutal nature of the prolonged attack and his failure to seek medical help for the victim.

The offender was sentenced to life imprisonment with no eligibility for parole for 13 years, along with DNA and firearms prohibition orders.

The accused, Abdirisaq Yabarow, facing a charge of second-degree murder, brought a motion seeking to admit an exculpatory statement he made to an acquaintance, Mohamed Khalinle, or to compel the Crown to lead this statement as part of its case.

The statement included a claim of self-defence.

The court considered the established exceptions to the rule against self-serving statements, including mixed statements and spontaneous statements.

The court found that the Khalinle statement did not qualify as a mixed statement because it was separate from other inculpatory statements adduced by the Crown, lacking a sufficient nexus.

It also did not meet the criteria for a spontaneous statement, as it was made after ample time for consideration and not upon confrontation with an accusation.

Consequently, the court ruled the exculpatory statement inadmissible at the instance of the accused and refused to compel the Crown to lead it, affirming the Crown's discretion in calling witnesses and the principle against self-serving evidence.

The accused, charged with second-degree murder, brought an application to quash a search warrant and production order related to his electronic devices (cell phone and tablet) and to exclude evidence under s. 24(1) and (2) of the Canadian Charter of Rights and Freedoms.

The application challenged the facial and subfacial validity of the orders, alleging a lack of reasonable grounds, overbreadth, material non-disclosure in the supporting information, and improper execution of the warrant outside the authorized time period.

The court dismissed the application, finding that reasonable grounds for the orders existed, there was no material non-disclosure that vitiated the authorizations, and the forensic examination of the devices was not required to be completed within the search and seizure period stipulated in the warrant, but rather was governed by the Criminal Code's detention regime.

The accused, Abdirizaq Yabarow, was charged with second-degree murder.

The Crown brought an application to determine the voluntariness and admissibility of two statements made by the accused.

The first statement was made to paramedics and police on October 4, 2017, when the accused was perceived as a victim seeking help for injuries.

The second statement was made to homicide detectives on October 6, 2017, following his arrest for murder.

The court found that the paramedics were not persons in authority and that the first statement was voluntary and admissible.

Regarding the second statement, the court determined it was voluntary and admissible up to the point where the accused expressed confusion and requested a rest, but any statements made thereafter were inadmissible as police questioning should have ceased at that juncture.

The court declined to exercise its discretion to exclude the voluntary portions of either statement.

In a second-degree murder trial, the Crown applied to admit three graphic autopsy photographs of the deceased.

The defence opposed, citing prejudicial effect and proposing alternatives such as limiting the number of photographs or presenting them in black and white.

The court applied the balancing test of probative value versus prejudicial effect, finding the photographs highly relevant to central issues including intent, self-defence, and a potential third-party suspect theory.

The court emphasized that modern juries are capable of dispassionate evaluation and concluded that the significant probative value of the photographs strongly outweighed any potential prejudicial effect.

The court declined to exercise its discretion to limit the photographs, as doing so would undermine their evidentiary purpose.

The Crown's application was granted, allowing the introduction of all three full-colour autopsy photographs.

In a criminal trial for break and enter, the Crown sought to introduce a video statement, an alibi note, and judicial pre-trial transcripts as evidence of the accused's consciousness of guilt.

The accused, who was self-represented, conceded the voluntariness of the video statement.

The court granted the admission of the video statement, with the exception of portions where the accused suggested checking his work whereabouts, allowing its use for cross-examination if the accused testified.

However, the court dismissed the Crown's applications to admit the alibi note and the pre-trial transcripts.

It found that the alibi note, though false, lacked independent evidence of deliberate fabrication to meet the "demonstrably false" threshold for consciousness of guilt.

Furthermore, the court ruled that admitting transcripts of a self-represented accused's utterances from mandatory judicial pre-trials would be highly unfair, undermine the pre-trial process, and violate principles against compelled admissions.

The accused pleaded guilty to aggravated assault, threatening death, unlawful confinement, and mischief over $5,000 following a prolonged attack on his former intimate partner in her home.

The court accepted a joint submission, sentencing the accused to two years in the penitentiary in addition to three years and 64 days of pre-sentence custody credit, followed by three years of probation.

A judicial interim release hearing for an accused charged with aggravated assault, robbery, threatening death, and possession of a knife.

The accused, a 19-year-old refugee claimant with a serious youth record for armed robberies and robberies, was arrested following an incident where a complainant was stabbed and robbed.

The Crown sought detention on secondary and tertiary grounds.

The defence proposed three sureties, including the accused's aunt.

The court found that two of the three proposed sureties lacked credibility due to false testimony regarding criminal charges.

The court determined that the plan of release was inadequate given the serious nature of the offence, the accused's criminal history, and the inability of the remaining suitable surety to control him.

The accused was detained on both secondary and tertiary grounds.

The accused was charged with impaired care or control of a motor vehicle and having care or control of a motor vehicle with a blood-alcohol concentration exceeding the legal limit.

The Crown's case relied on observations by the arresting officer of suspicious driving and parking, physical indicators of impairment, and breath test results.

The defence challenged the lawfulness of the approved screening device demand and the timing of breath samples.

The court found the officer had reasonable suspicion to make the demand based on the totality of circumstances, the samples were taken as soon as practicable, and the accused's ability to operate the vehicle was impaired by alcohol.

The accused was convicted on both counts.