Howard Borenstein

The accused challenged the validity of a search warrant executed at his apartment, alleging it violated section 8 of the Canadian Charter of Rights and Freedoms.

The accused argued there were no reasonable grounds to believe he was the individual referred to by a confidential informant, that he resided at the searched location, or that evidence would be found there.

The court upheld the search warrant, finding that the police had established reasonable grounds based on the informant's credible and corroborated information, vehicle registration records, driver's licence information, and CCTV footage showing the accused's presence at the apartment.

The court rejected the accused's arguments and dismissed the Charter application.

The accused was charged with operating a motor vehicle while impaired by alcohol and with operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The accused was involved in a motor vehicle collision and subsequently provided breath samples showing elevated blood alcohol readings.

The accused brought Charter motions challenging the lawfulness of the detention, search, and breath demand.

The court found that the officer's suspicion of impairment was objectively reasonable, the search of the vehicle was authorized under the ancillary police powers doctrine, and the right to counsel was not violated.

The court acquitted the accused of impaired operation but convicted on the blood alcohol concentration charge.

The accused, Christopher Milford, challenged the admissibility of his confession and evidence seized under two search warrants, alleging breaches of his Charter rights under sections 8, 10(a), and 10(b).

The court found the first search warrant valid.

However, it determined that Milford's s. 10(b) right to counsel was breached due to an unexplained two-hour delay in facilitating contact with counsel at the police station.

Furthermore, his s. 10(a) and 10(b) rights were breached because police failed to inform him that he was being investigated for new voyeurism charges involving different victims (Patricia and Esther) before his seven-hour interview, which significantly increased his jeopardy.

The court concluded that the confession and the evidence seized under the second warrant (which was largely based on the unconstitutionally obtained confession) must be excluded under s. 24(2) of the Charter due to the serious impact on the accused's Charter-protected interests.

This decision addresses the admissibility of blood and medical records seized from the accused, who was charged with impaired driving and driving with an unlawful blood alcohol concentration (BAC) following a single-vehicle accident.

The accused challenged the search warrant and production order, arguing a lack of reasonable and probable grounds in the Information to Obtain (ITO) and that the ITO was misleading.

The court found that the ITO was misleading regarding the presence of a whisky bottle (implying it was open when its state was unknown) and that a witness's bald suspicion of impairment lacked sufficient factual basis.

Excising the misleading information, the court concluded that the remaining facts did not establish reasonable and probable grounds, rendering the seizure warrantless and a violation of section 8 of the Charter.

Applying the section 24(2) Grant factors, the court determined that admitting the evidence would bring the administration of justice into disrepute, primarily due to the serious impact on the accused's Charter rights, despite the officer's conduct not being particularly egregious.

The evidence was therefore excluded.

Jared Burke was charged with multiple offences including possession of a weapon for a purpose dangerous to the public peace, carrying a concealed weapon, assault with a weapon, and aggravated assault following a violent altercation at a convenience store.

The court found that Burke's initial possession of a knife for self-defence was not a valid defence for the weapon charges, as the situation was avoidable.

He was found guilty of possession of a dangerous weapon, carrying a concealed weapon, and assault (but not assault with a weapon).

For the aggravated assault charge, the court accepted Burke's defence of his brother, finding his actions reasonable given the immediate lethal threat.

Roman Sydor pleaded guilty to possessing psilocybin for the purpose of trafficking and possession of proceeds of crime.

He was an employee at a store openly selling psilocybin and genuinely believed the operation was legal.

The Crown sought a six-month conditional sentence, while the defence requested a conditional discharge.

The court considered aggravating factors, such as the store's deceptive appearance and the quantity of drugs, alongside significant mitigating factors, including the accused's guilty plea, lack of criminal record, belief in legality, and role as a low-level employee.

Drawing on a similar case involving another employee of the same business, the court determined that a conditional discharge was in the accused's interest and not contrary to the public interest, prioritizing rehabilitation over deterrence for this specific offender.

This is a sentencing decision for Raphael Fortune, who was found guilty after trial of fraud over $5,000 and possession of proceeds of crime over $5,000.

The fraud involved a sophisticated scheme where the accused defrauded the complainant of over $300,000 CAD through a fake diamond investment opportunity.

The court considered aggravating factors such as the planned and deliberate nature of the fraud, the large scale of the loss, and the significant impact on the victim, balanced against mitigating factors including the accused being a first offender, his age (55), and his caregiving responsibilities.

The Crown sought 24-30 months imprisonment, while the defence proposed a conditional sentence or 12-18 months.

The court imposed a sentence of 15 months imprisonment, followed by one year probation, a restitution order of $303,059.75, a fine in lieu of forfeiture, a prohibition order from managing others' property, and a DNA order.

The court emphasized the need for general deterrence and denunciation in large-scale fraud cases, concluding that a conditional sentence would not adequately address these principles.

The accused, Raphael Fortune, was charged with fraud over $5,000 and possession of proceeds of crime in relation to an alleged diamond investment scheme.

The complainant, Mike Rantissi, invested a significant sum with Fortune based on representations of no risk and high profits, but never received diamonds or his money back.

The court found that Fortune intentionally deceived Rantissi, diverting the funds for personal expenses rather than purchasing diamonds as promised.

The accused was found guilty of both counts.

Timothy Knight was charged with three counts of domestic assault.

The complainant, Ms. Rigato, was the sole witness.

The defence argued Ms. Rigato had a motive to fabricate due to an impending custody dispute.

The court found Ms. Rigato to be a truthful and thoughtful witness, accepting her uncontradicted evidence that she reported the assaults because they occurred, not to gain a family law advantage.

While minor inconsistencies between her police statement and trial testimony did not undermine her credibility, the court had a reasonable doubt regarding the first alleged assault (a push in bed) due to its context.

Knight was found not guilty of the first assault but guilty of the second and third assaults.

The accused, Steven Karapetrov, was on trial for attempted murder, discharge firearm, and related offences following a shootout captured on video.

The Crown conceded the attempted murder charge.

The court had to determine if Karapetrov fired shots, if they were accidental, and if self-defence applied.

The court found Karapetrov did fire shots, rejected the accidental discharge claim, but found that self-defence applied to some charges due to the imminent lethal threat he faced.

He was acquitted of pointing a firearm and reckless discharge, but convicted of possession of a restricted firearm, possession of a weapon for a dangerous purpose, and being an occupant in a vehicle with a prohibited firearm.

The defendant, Jade Thelwel, pleaded guilty to two counts of breaching court orders that prohibited her from communicating or posting online about two individuals, Luke Halstead and Andrei Korottchenko.

These breaches occurred after a sustained online campaign of vilification against the victims, which continued even after police investigations found no basis for her allegations and despite prior release conditions.

The Crown sought a suspended sentence with probation, while the defence requested an absolute discharge.

The court considered aggravating factors, including the serious impact on victims and the willful breach of court orders, alongside mitigating factors such as the defendant's guilty plea, lack of prior criminal record, engagement in counselling, and promising career.

The court ultimately granted a conditional discharge, imposing two years of probation with no contact orders and 50 hours of community service, balancing the principles of deterrence, denunciation, and rehabilitation, and finding it in the public interest given the circumstances.

Michael Hennesy pleaded guilty to assault following a racist verbal and physical attack on a Chinese student on a bus during the early pandemic.

The victim experienced significant emotional distress.

The court considered Hennesy's tragic personal history, including childhood trauma, addiction, and a lack of prior criminal record, as mitigating factors.

However, the racist nature of the assault and its broader societal impact were deemed aggravating.

The judge imposed a four-month conditional sentence of imprisonment, followed by one year of probation, emphasizing the need to denounce racist conduct despite the offender's personal circumstances.

The Ontario Court of Justice declared a mistrial in a criminal proceeding against the accused, who had been found guilty of aggravated assault.

The mistrial was initiated by the court prior to sentencing due to a finding of ineffective assistance of counsel.

Defence counsel had failed to call a qualified expert to support the accused's automatism defence, which was based on an epileptic seizure, due to a fundamental misunderstanding of the legal requirement for expert evidence in such defences.

The court found that this error rendered the trial fundamentally unfair and constituted a miscarriage of justice, as the defence could not have succeeded without the required expert testimony.

Ala Al Safi pleaded guilty to ten counts of aggravated sexual assault or attempted aggravated sexual assault and breaching a recognizance condition related to his HIV status and sexual encounters.

The court imposed a ten-year sentence, reduced by enhanced pre-sentence custody credit, and declared him a Long-Term Offender, imposing a ten-year Long-Term Supervision Order with specific conditions aimed at public safety and rehabilitation, particularly regarding HIV disclosure and medication adherence.

The Crown sought a finding that the defendant was not criminally responsible (NCR) on account of mental disorder for two assaults committed on strangers.

The defendant opposed the finding.

The court found the defendant criminally responsible, holding that the Crown failed to displace the presumption of criminal responsibility.

The court found that the expert opinion relied heavily on materials not before the court, significantly diminishing its weight, and that the question of the defendant's mental state at the time of the offences was too speculative and tenuous to support an NCR finding.

The accused, a registered massage therapist, was charged with three counts of sexual assault.

The trial began in April 2019 but did not complete due to the trial judge's illness.

The Crown brought a motion to strike the proceedings and commence a new trial in December.

The defence applied for a stay of proceedings based on delay.

The court applied the Jordan framework, calculating net delay after deducting defence delay and exceptional circumstances.

The court found that the net delay fell below the 18-month threshold and dismissed the stay application.

The accused pleaded guilty to possessing a loaded prohibited firearm without a license, possessing a firearm in a careless manner, and possessing a firearm while subject to a weapons prohibition.

Seven months after being released on probation with a weapons prohibition for a violent robbery, the accused was found in public possession of a loaded .45 caliber handgun with seven rounds of ammunition.

The court imposed a sentence of three and a half years in custody, less pre-sentence custody credit, emphasizing denunciation and deterrence as the primary sentencing objectives.

The accused was charged with two counts of sexual assault and one count of administering a noxious substance.

The Crown alleged that the accused engaged in non-consensual anal intercourse with two 18-year-old complainants whom he met through the Grindr app, despite their explicit prior communication that they did not want anal intercourse.

The accused admitted to sexual activity but claimed it was consensual.

The court found the accused guilty of both sexual assault charges based on the credible and corroborating evidence of both complainants, the similar fact evidence demonstrating a distinctive pattern of behavior, and the clear communication of non-consent.

The court found the accused not guilty of administering a noxious substance due to inconsistencies in the evidence regarding that charge.

This is a ruling on committal for three accused charged with a brazen daytime shooting in Regent Park on May 28, 2018, allegedly in retaliation for a shooting in Vanauley Walk the previous day.

The Crown alleges the accused are members of Menace Gang, a junior gang associated with the Project Originals criminal organization.

The accused are charged with numerous offences including possession and discharge of firearms, dangerous driving, and committing these offences for the benefit of a criminal organization.

The court examined party liability under sections 21(1) and 21(2) of the Criminal Code, the admissibility of rap music videos as evidence of criminal organization status, and the distinction between acts that have the effect of benefitting a criminal organization versus acts done for that purpose.

The accused was charged with assault causing bodily harm after pushing the victim twice during an altercation in a shared residential home.

The accused admitted to using force but claimed self-defence.

The court found that while the first push may have been justified as self-defence, the second push was an act done in anger and not a reasonable act of self-defence.

The court determined that bodily harm was objectively foreseeable from the force used, and convicted the accused of assault causing bodily harm.