Hafeez S. Amarshi

Police executed a search warrant at an apartment, finding a loaded firearm and various illicit drugs (crystal methamphetamine, powder cocaine, fentanyl).

Two defendants, Daylo Robinson and Dalton Wilson, were charged with multiple firearms and drug-related offences, as well as breaches of release orders.

The court assessed possession (personal, constructive, joint) based on circumstantial evidence, including the location of contraband, a digital scale, and a "daily diary" containing drug price lists.

The court found Daylo Robinson not guilty of firearms and drug charges but guilty of breaching his recognizance.

Dalton Wilson was found guilty of possession of cocaine and crystal methamphetamine for the purpose of trafficking, simple possession of fentanyl, and breach of probation, but not guilty of firearms charges and fentanyl trafficking.

This ruling addresses a Section 8 Charter application brought by Daylo Robinson and Dalton Wilson to exclude a firearm and illicit drugs seized during the execution of a search warrant at Mr. Wilson's residence.

The applicants argued that the Information to Obtain (ITO) the search warrant lacked reasonable grounds to believe a firearm would be found or that evidence of procuring and obstruction of justice would be present in electronic devices.

The court reviewed the ITO holistically, considering multiple police reports and the affiant's expert opinion, and found that there were sufficient credible and reliable grounds to support the issuance of the search warrant.

The application to exclude the evidence was dismissed.

Daylo Robinson and Dalton Wilson brought an application to exclude evidence found during a search warrant execution, arguing the information to obtain (ITO) did not establish reasonable grounds.

The Crown challenged Daylo Robinson's standing to assert a Section 8 Charter right, contending he lacked a reasonable expectation of privacy as an unlawful occupant of the searched apartment.

The court applied the Edwards and El-Azrak tests, finding that while Robinson had a subjective expectation of privacy and some historical use, his illegitimate occupancy as an uninvited visitor, coupled with the Crown's theory of exploitation and intimidation, undermined any objectively reasonable expectation of privacy.

Consequently, the court ruled that Robinson lacked standing to challenge the search.

The applicant sought a stay of proceedings under s. 24(1) of the Charter due to an alleged violation of his s. 11(b) right to a trial without unreasonable delay.

The total delay was 35.5 months, exceeding the 18-month Jordan ceiling for the Ontario Court of Justice.

The Crown argued the Jordan clock should start at arrest or that pre-arrest delay was an exceptional circumstance.

The court affirmed that the Jordan clock begins when the information is sworn.

It found that police efforts to locate the accused after the information was sworn, particularly after he was known to be in custody, did not meet the standard of due diligence, and thus the pre-arrest delay was not an exceptional circumstance or attributable to defence delay.

After deducting a period of defence delay, the net delay remained 28.75 months, which was presumptively unreasonable and not rebutted by the Crown.

A stay of proceedings was warranted.

Matthew McLellan pleaded guilty to aggravated assault for unprovoked knife attacks on two homeless individuals.

The court considered aggravating factors including victim vulnerability, bias against homeless persons, and the violent, impulsive nature of the attacks.

Mitigating factors included the offender's youth, lack of criminal record, guilty plea, remorse, and efforts at rehabilitation.

The court emphasized denunciation and deterrence, concluding that a custodial sentence was required over a conditional sentence.

The offender was sentenced to 22 months of custody, with a six-month credit for strict bail conditions, resulting in an additional six months to serve, followed by two years of probation.

The accused, Ahnaf Alvee, faced nine charges related to his former girlfriend, C.M., including assault, mischief, theft, sexual assault, and breach of undertaking.

The central issue was credibility.

The court found C.M. to be a credible and reliable witness, while largely rejecting Mr. Alvee's testimony.

Mr. Alvee was acquitted of assault by choking and assault in the lobby, but convicted of mischief (damaged eyeglasses), assault (grabbing cheeks), theft of a cellphone, sexual assault in a stairwell, and three counts of failing to comply with an undertaking.

The defendant, Matthew McNair, was charged with refusing a breath sample, failing to comply with a release order, and several Highway Traffic Act offences.

The defence sought to exclude evidence of the breath refusal due to alleged violations of Charter rights (ss. 8, 9, 10(a), 10(b)) and an unlawful breath demand.

The court found that the defendant's s. 9, 10(a), and 10(b) Charter rights were violated due to arbitrary detention, prolonged handcuffing, and delayed/unclear right to counsel cautions.

Applying the Grant analysis, the court excluded the evidence of the breath refusal.

Additionally, the breath demand itself was found unlawful due to non-compliance with the "immediacy" requirement of s. 320.27 of the Criminal Code and the absence of an Approved Screening Device (ASD).

However, evidence for the Highway Traffic Act offences and the breach of the release order was admitted as these offences occurred prior to the Charter breaches and the evidence was not "obtained in a manner" that violated the Charter.

The applicant, Noah Hart, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 11(b) right to a trial without unreasonable delay.

The total delay was 22 months and 21 days, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice established by R. v. Jordan.

The court analyzed periods of delay, particularly focusing on the time taken for Legal Aid Ontario (LAO) to process the applicant's certificate.

The court found that the LAO processing time, with the Crown's reasonable mitigation efforts, constituted an exceptional circumstance.

Additionally, the court noted defence delay due to the failure to proactively raise delay concerns.

After deductions for defence delay and exceptional circumstances, the net delay was calculated to be 15 months and 1 week (464 days), which fell below the Jordan threshold.

The s. 11(b) application was dismissed.

The offender, Stavros Tsoraklidis, was sentenced after being found guilty of assault with a weapon and administering a noxious substance, and pleading guilty to failing to attend court.

The charges arose from an incident where he pepper-sprayed a grocery store employee after uttering a homophobic slur.

The court considered aggravating factors, including the use of a weapon, the homophobic slur, and a prior weapons conviction, alongside mitigating factors such as a gap in his criminal record and prospects for rehabilitation.

The defence sought a time-served sentence, requesting "Downes credit" for restrictive bail conditions.

The court granted one month's credit for house arrest and imposed a total sentence of seven months' jail, followed by a two-year probation order with conditions.

Noah Hart was charged with assault, uttering a death threat, and two counts of failing to comply with an undertaking.

The Crown conceded the death threat charge, and the defence conceded the two undertaking breaches.

The central issue for the assault charge was credibility and whether the Crown proved intent beyond a reasonable doubt.

The court found the complainant credible with reservations and the defendant also downplayed aspects of his evidence.

Ultimately, the court could not conclude beyond a reasonable doubt that the defendant assaulted the complainant with the requisite intention, finding a reasonable possibility that the fall was accidental.

The assault and death threat charges were dismissed, and convictions were entered for the two counts of failing to comply with an undertaking.

Nigel White pleaded guilty to two counts of assault bodily harm and one count of failing to comply with a probation order, stemming from random, unprovoked attacks on strangers at a subway station and a breach of a prior probation order.

The Crown sought a 2.5-year sentence, while the defence argued for 12 months, citing the offender's schizophrenia as a mitigating factor.

The court admitted a chart detailing prior similar violent convictions on public transit.

The court balanced aggravating factors, including the random nature of the attacks on public transit and the offender's criminal history, with mitigating factors such as an early guilty plea, remorse, and mental illness.

The court imposed a 20-month jail sentence, less pre-trial custody, followed by a 2-year probation order with conditions aimed at rehabilitation, including mental health and substance abuse counselling.

The defendant, Stavros Tsoraklidis, was charged with assault with a weapon and administering a noxious substance after spraying the complainant with pepper spray.

The central issue at trial was whether the defendant acted in self-defence.

The court found the defendant's testimony lacked credibility and reliability, particularly regarding his claim that the complainant threatened him with a boxcutter.

The court concluded that the defendant's actions were offensive and motivated by anger, not self-defence, and that the force used was disproportionate and unreasonable.

The Crown proved beyond a reasonable doubt that the conditions for lawful self-defence were not met.

The defendant, Garrett Depippo, was charged with impaired driving and operating a motor vehicle with an illegal blood alcohol content.

The court addressed whether the roadside breath demand satisfied the "immediacy" requirement and if the defendant had a realistic opportunity to consult counsel.

The court found the immediacy requirement was met and there was no realistic opportunity for counsel at roadside, dismissing the Charter application.

The court then found the defendant guilty of impaired driving based on the totality of evidence, including his own testimony and poor judgment.

Following a Supreme Court decision (R. v. Breault), the excess blood alcohol count was stayed under the Kienapple principle.

The defendant, Brandon Wisdom, was charged with one count of sexual assault.

The complainant alleged that Mr. Wisdom sexually assaulted her while she was sleeping at a high school house party.

The central issue was credibility and consent, with the defence arguing the sexual activity was consensual and the complainant's evidence unreliable due to intoxication.

The court found the complainant to be a credible and reliable witness, rejecting the defendant's testimony as contradicted and implausible.

The court concluded that the complainant was sexually assaulted while asleep and that the Crown proved the absence of consent beyond a reasonable doubt, leading to a conviction for sexual assault.

The defendant, Vinusan Arudselvam, was charged with failing or refusing to comply with a breath demand under s. 320.15(1) of the Criminal Code following a motor vehicle accident.

The defence argued that due to chest pain from the accident, he had a reasonable excuse for not providing a suitable sample and challenged the mens rea requirement for the offence.

The court ruled that the breath demand was lawful and that the mens rea for the offence is knowledge that a demand has been made, not specific intent to refuse.

However, the court found the defendant's testimony credible regarding his chest pain and accepted that his injury constituted a reasonable medical excuse, making compliance extremely difficult or painful.

The police investigation was deemed rushed and poorly conducted, particularly regarding the officer's failure to ascertain the defendant's language difficulties or medical distress.

Consequently, the charge was dismissed.

M.K. brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 11(b) right to a trial without unreasonable delay.

The total delay was 858 days (28 months and 7 days), exceeding the 18-month presumptive ceiling for the Ontario Court of Justice established in R. v. Jordan.

The court deducted 224 days for the COVID-19 pandemic (an exceptional circumstance) and 50 days for defence-caused delay (due to lack of diligence in filing a trial scheduling form).

The net delay remained 19 months and 1 week (578 days), which was presumptively unreasonable.

The Crown failed to rebut this presumption, with the court noting a lack of institutional resources and flexibility as a prominent cause of delay.

Consequently, a stay of proceedings was granted.

The defendant, Husani Alexander, was charged with three counts of assault against his former partner, Tashina Yorke: assault causing bodily harm on December 22, 2019, assault causing bodily harm on March 10, 2016, and assault on August 24, 2016.

The central issue was credibility.

The court found both the complainant and the defendant to be credible witnesses, albeit with reservations for the complainant.

Regarding the December 2019 incident, the court found the headbutt was accidental, leading to dismissal of that charge.

For the March and August 2016 incidents, the court found both versions of events equally plausible and could not conclude guilt beyond a reasonable doubt.

Consequently, all three charges were dismissed.

Sanveer Singh brought a section 8 Charter application seeking to exclude a firearm and drugs seized during a search warrant execution at his residence, arguing the information to obtain (ITO) lacked reasonable grounds.

The court reviewed the ITO's sufficiency based on the Debot principles (compelling information, credible source, corroboration) and the Garofoli procedure for excising and amplifying the ITO, particularly given the reliance on a confidential informant.

Despite identifying some deficiencies and misleading phrasing in the ITO, the court found that, after excising irrelevant or misleading statements, there remained a sufficient basis for the issuing justice to have granted the warrant.

The application to set aside the search warrant and exclude the evidence was dismissed.

The defendant, M.A.M., was charged with multiple counts of assault and sexual assault against his wife and child.

The central issue was credibility.

The complainant was found to be an unreliable and evasive witness due to significant inconsistencies between her police statement and trial testimony, and her apparent willingness to minimize events.

While the defendant was also found not credible, the court could not make definite findings of fact due to the complainant's unreliability.

Consequently, all charges were dismissed as the Crown failed to prove guilt beyond a reasonable doubt.

In a sexual assault trial, the Crown applied to admit two out-of-court statements by the complainant (A.M.) as hearsay evidence: a spontaneous utterance to a life skills coach and a videotaped statement to police.

The defence conceded necessity but disputed reliability.

The court applied the principled approach to hearsay, finding both substantive and procedural reliability for the videotaped statement, particularly due to DNA evidence and corroborating video/audio.

The spontaneous utterance was admitted under the res gestae exception, as it was made under the stress of a startling event (learning video evidence was deficient).

Both statements were admitted.