Hafeez S. Amarshi

The accused, charged with sexual assault, brought an application under ss. 276 and 278.92 of the Criminal Code to admit private records and cross-examine the complainant on certain communications.

The Court admitted a redacted selfie and several text message exchanges relating to the relationship's breakdown and disputes over property, finding they were relevant to demeanour and potential motive to fabricate.

However, the Court refused to permit cross-examination on mutual accusations of infidelity, finding it lacked specific relevance and its minimal probative value was outweighed by prejudice and privacy concerns.

The Crown applied under s. 714.1 of the Criminal Code for an order permitting the complainant to testify remotely from Halifax at the accused's sexual assault trial in Toronto.

The accused opposed the application.

The court found that despite a barely sufficient evidentiary record, remote testimony was appropriate given the complainant's location, the cost of travel, and the impact on her emotional well-being.

The application was granted subject to conditions ensuring the solemnity of the proceedings and the integrity of the evidence.

The appellant appealed a decision denying his application to reopen two traffic convictions entered in his absence.

The initial reopening application was supported by an affidavit purportedly sworn by the appellant, but the evidence established it was falsely prepared by an unlicensed legal operation and improperly commissioned remotely by a licensed paralegal who failed to verify the deponent's identity.

The court found the paralegal's conduct fell below professional standards and failed to comply with the requirements for remote commissioning under Ontario Regulation 431/20.

The appeal was allowed, the convictions were struck, and the court directed that the reasons be reported to the Law Society of Ontario.

The offender, a correctional officer, pleaded guilty to breach of trust, possession of a weapon for a dangerous purpose, and possession of drugs for the purpose of trafficking after smuggling contraband into the Toronto South Detention Centre for financial gain.

The Crown sought a three-year penitentiary sentence, while the defence sought a conditional sentence.

Emphasizing denunciation and general deterrence for a profound breach of trust, the court rejected a conditional sentence and imposed a 26-month penitentiary term, along with probation and forfeiture orders.

The offender was serving a conditional sentence for fraud over $5,000.

The Crown alleged she breached the order by providing forged employment contracts and paystubs to her supervisor to gain exceptions to her house arrest condition.

The court found the breaches established on a balance of probabilities, noting the offender's calculated deceit and fabrication of documents.

Applying the presumption of incarceration for unjustified breaches, the court terminated the conditional sentence and committed the offender to custody for the remaining 21 months of her sentence.

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 accused 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 be tried within a reasonable time.

The total delay from charge to the anticipated end of trial was 22.5 months, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The Crown argued that exceptional circumstances, including the COVID-19 pandemic and the time required to vet a search warrant involving a confidential informant, justified the delay.

The court rejected these arguments, finding that the primary cause of the delay was the police's unacceptable and apathetic approach to providing disclosure.

After deducting 89 days for continuing trial dates and 9 days for officer illness, the net delay remained over 19 months.

The application was granted and a stay of proceedings was ordered.