Hilary Dudding

This decision concerns the prosecution of five members of the 2018 Canadian World Junior Hockey Team for sexual assault.

The complainant, E.M., alleged that after consensual sexual activity with Michael McLeod, she was sexually assaulted by McLeod and his teammates in a London hotel room.

The accused maintained that E.M. was a willing and active participant.

The court found significant inconsistencies and reliability issues in the complainant’s evidence, including contradictions with video evidence and other witness testimony.

The court concluded that the Crown had not proven the absence of consent beyond a reasonable doubt for any of the accused and acquitted all five.

The judgment provides a detailed analysis of the law of consent, credibility, and the use of myths and stereotypes in sexual assault trials.

This decision addresses the Crown's application to admit a text message as hearsay evidence under the principled exception in a high-profile sexual assault prosecution.

The court reviews the necessity and reliability requirements for hearsay, ultimately finding that the reliability threshold is not met and dismissing the application.

The ruling provides a detailed application of the Supreme Court’s guidance in R. v. Bradshaw and R. v. Charles on the dangers of hearsay and the use of corroborative evidence.

The Crown sought to admit a text message sent by Brett Howden to Taylor Raddysh as past recollection recorded, an exception to the hearsay rule.

The court reviewed the requirements for admissibility, including reliability, timeliness, absence of memory, and the witness’s ability to vouch for the accuracy of the record.

The court found that while the first three requirements were met, Mr. Howden could not vouch for the accuracy of the text message, as he had no memory of sending it and could not confirm its truthfulness.

As a result, the application to admit the text message as past recollection recorded was denied.

This decision addresses a defence motion for a mistrial after a jury note alleged unprofessional conduct by defence counsel, raising concerns about jury impartiality.

The court reviews the legal principles governing mistrials, including the presumption of jury impartiality, the test for reasonable apprehension of bias, and the discretion to discharge jurors or declare a mistrial.

The court finds that the fairness of the trial has been compromised and grants the motion for a mistrial, emphasizing that such a remedy is reserved for the clearest of cases where no other remedy will suffice.

The court granted a stay of proceedings under section 24(1) of the Charter after finding that the delay in bringing Christopher Vaughan to trial, while technically under the 30-month ceiling set by R. v. Jordan, was markedly longer than it reasonably should have been.

The delay was caused by a major disclosure failure by the Crown and chronic institutional delays in Brampton, as well as the Crown’s decision to prefer a direct indictment, which further prolonged the proceedings.

The court found that the Applicant had acted reasonably throughout and that the Crown was responsible for the delay.

The indictment was stayed.

This decision concerns a Gardiner hearing following a conviction for sexual interference.

The court analyzes the evidence to determine the aggravating facts necessary for sentencing, including the number of incidents, the nature and manner of the touching, and the position of trust.

The judge finds that the evidence supports three specific incidents of sexual touching by the accused, W.S., against K.M., his niece, while in a position of trust, and that the complainant’s evidence is credible and reliable.

The court rejects the defence’s arguments for a lesser finding and sets out the legal principles for fact-finding at sentencing following a jury verdict.

Joshua Auld pleaded guilty to two counts of robbery and one count of assault causing bodily harm.

The Crown sought a 10-year global sentence, while the defence proposed five years.

The court considered aggravating factors, including the use of a handgun and planning, and significant mitigating factors such as Mr. Auld's guilty plea, mental health issues, substance abuse recovery, challenging personal history rooted in systemic anti-Black racism, and onerous bail conditions.

Applying the principle of totality and considering the impact of anti-Black racism on moral culpability and rehabilitation potential, the court found a six-year and three-month aggregate sentence unduly harsh.

A global sentence of five years was imposed, with specific terms for each count and credit for pre-sentence custody.

Rohan Jones was charged with twenty offences, including procuring, advertising, and trafficking in the sex trade, as well as sexual assault and assault, involving three complainants (DG, JS, HD).

The Crown did not call HD, leading to directed verdicts for most counts related to her.

The trial focused on the credibility of the two main complainants, Ms. G and Ms. S, and the accused, Mr. Jones.

The court found significant credibility issues with all key witnesses, noting material inconsistencies, omissions, implausible explanations, and potential motives for false implication in the complainants' testimonies, and a lack of credibility in Mr. Jones's exculpatory account due to his criminal record and involvement in the drug trade.

Hotel records also contradicted both the complainants' and the accused's narratives regarding the frequency and nature of sex work.

Ultimately, the court was left with a reasonable doubt regarding Mr. Jones's guilt for each charge.

This is an appeal from convictions under the Immigration and Refugee Protection Act for aiding or abetting persons to possess a passport to contravene the Act and aiding or abetting illegal entry into Canada.

The appellant drove individuals to a border crossing, presenting Canadian passports that did not match the individuals, with Nigerian passports subsequently found.

The appellant challenged the admissibility of lay opinion identification evidence from border services officers, arguing a voir dire was required.

The Court of Appeal found no voir dire was necessary, as the evidence constituted admissible lay opinion based on direct observations.

The appellant also argued the trial judge misapprehended evidence, which the Court found to be an error in narration, not substance, and thus not warranting appellate intervention.

Finally, the Court dismissed the unreasonable verdict argument, finding the circumstantial evidence of guilt overwhelming.

The appeal was dismissed.

The appellant, Kester Ellis, appealed his conviction for possession of cocaine for the purpose of trafficking.

The appeal raised two main issues: whether cell phone location tracking data, obtained under a facially invalid warrant (a s. 8 Charter breach), should have been excluded under s. 24(2) of the Charter, and whether the Crown's opening statement contained inadmissible and prejudicial investigative hearsay.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision to admit the evidence under s. 24(2) due to the unintentional nature of the warrant error, minimal privacy impact, and societal interest in adjudication on the merits.

The court also found the Crown's opening statement to be permissible narrative evidence, not improper hearsay.

Marcus Cumsille was found guilty of offering to transfer a firearm.

The court considered sentencing principles, aggravating and mitigating factors, including the impact of anti-Black racism and trial delay.

Despite the Crown seeking a three-year prison sentence and the defence seeking a suspended sentence, the court imposed a 17-month sentence, reduced to a 75-day conditional sentence after credit for pre-sentence custody and stringent bail conditions.

The decision emphasized balancing denunciation, deterrence, and rehabilitation, and considered the practical realities of the COVID-19 pandemic on incarceration.

The applicant, Traequon Mahoney, sought a bail review under s. 520 of the Criminal Code, seeking release from custody pending trial on two sets of serious charges (armed robbery and firearm offences).

The court found a material change in circumstances, entitling the applicant to a de novo hearing.

While acknowledging the seriousness of the charges and the applicant's breach of prior bail conditions, the court noted the applicant's lack of criminal record and a new, potentially stronger, release plan.

The court found the secondary and tertiary grounds for detention to be evenly balanced.

Ultimately, the application was adjourned, with the judge requiring further sworn affidavits from the proposed sureties and the applicant to provide a detailed, firm, and enforceable 24/7 supervision schedule and specific bail conditions, including weapon searches, social media restrictions, and no-contact provisions with prior associates.

The applicants, two of three co-accused in a large project prosecution involving a criminal organization, brought applications for a stay of proceedings alleging unreasonable delay under s. 11(b) of the Charter.

The trial was delayed by six weeks to accommodate the schedule of counsel for the third co-accused.

The court found that the net delay for one applicant fell below the 30-month Jordan ceiling.

For the other applicant, the court found that the delay exceeded the ceiling but was justified by exceptional circumstances, specifically case complexity and the strong public interest in holding a joint trial.

Both applications were dismissed.

The applicant brought a motion for a stay of proceedings under s. 24(1) of the Charter, alleging his right to be tried within a reasonable time under s. 11(b) was infringed.

The total delay from the charge to the anticipated end of the trial was nearly 35 months.

The court analyzed the periods of delay, particularly focusing on delays caused by the applicant's change of counsel.

The court concluded that the deductible defence delay reduced the net delay to below the 30-month presumptive ceiling established in Jordan.

Furthermore, the applicant failed to demonstrate a sustained effort to expedite the proceedings.

The application for a stay was dismissed.

Craig Savory was convicted by a jury of possession of cocaine for the purpose of trafficking, involving approximately $300,000.00 worth of cocaine.

The Crown sought a sentence of five to eight years, while the defence argued for approximately two years, citing exceptional circumstances and Savory's rehabilitative efforts.

The court considered Savory's personal background, including his family support, employment, and lack of substance abuse issues, as well as his previous minor criminal record (which was given no weight).

Mitigating factors included strong family support, compliance with bail conditions, full-time employment, and no evidence of broader involvement in the drug world beyond the immediate offence.

Aggravating factors included the presence of his children in the car where the drugs were concealed, the difficulty police had in finding the secret compartment, the absence of a guilty plea, and the societal impact of drug trafficking.

Applying the principles of sentencing under Section 718 of the Criminal Code, and noting that Savory's role was limited to transportation, storage, and distribution without evidence of profit-sharing, the court imposed a sentence of six years' incarceration.

Following their convictions for various prostitution-related offences involving minors, the applicants sought a declaration that sections 286.2(2), 286.3(2), and 286.4 of the Criminal Code were unconstitutional, arguing they violated sections 7 and 2(b) of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding the impugned sections constitutional.

It held that the sections were not arbitrary, overbroad, or grossly disproportionate under s. 7, and that while s. 286.4 infringed s. 2(b) freedom of expression, it was justified under s. 1 of the Charter.

The accused pleaded guilty to robbery and possession for the purpose of trafficking arising from a home invasion.

At sentencing, the court conducted an evidentiary hearing to determine whether police used excessive force during the accused's arrest.

The court found that the police used more force than was necessary to effect the arrest, causing serious bodily harm to the accused.

The court reduced the sentence from 7.5 years to 5.5 years (44 months net after pre-sentence custody credit) to account for the excessive use of force, the racialized context of the arrest, and the failure of police to ensure medical attention.

The offender pleaded guilty to conspiracy to traffic in Fentanyl, trafficking in Fentanyl, and failing to comply with probation.

The offender was a member of a conspiracy that sold approximately 375 patches of Fentanyl over a six-month period from January to June 2017.

The offender played a subordinate role as a "runner" or "mule" for the organization, controlled by the conspiracy leader.

The court imposed a sentence of 30 months incarceration less pre-trial custody calculated at 1.5:1, resulting in five months remaining to be served.

The sentencing was informed by a comprehensive Gladue report and a sentencing circle incorporating Indigenous justice principles.

The court emphasized the serious nature of Fentanyl trafficking while recognizing the offender's traumatic childhood, Indigenous heritage, addiction issues, and significant rehabilitative progress.

A young person was sentenced following a guilty plea to possession of an unloaded prohibited firearm (sawed-off shotgun) with readily accessible ammunition.

The offence was discovered during execution of a search warrant at the young person's residence.

The court found this to be an exceptional case under the Youth Criminal Justice Act, warranting a custodial disposition.

The court imposed a six-month Deferred Custody and Supervision Order followed by 16 months of probation, along with a ten-year weapons prohibition and a DNA order.

The sentence balanced the serious aggravating factors (possession of multiple types of ammunition, storage in a shared residence with the young person's mother) against significant mitigating factors (guilty plea, no prior record, unloaded firearm, constructive rather than actual possession, and strong rehabilitative potential).

The applicant, charged with sexual offences against his stepdaughter, brought an application under s. 11(b) of the Charter alleging unreasonable delay.

The total delay from the date charges were laid to the anticipated end of trial was over 41 months.

Applying the Jordan framework, the court deducted periods of defence delay caused by retainer issues and counsel unavailability, as well as delay attributable to discrete exceptional circumstances including a Crown family emergency and defence counsel's health issues.

The remaining operative delay was calculated at under 29 months, which fell below the 30-month ceiling for Superior Court matters.

The court found the applicant failed to rebut the presumption of reasonableness, as the defence did not take meaningful and sustained steps to expedite the proceedings.

The application was dismissed.