Howard Leibovich

The applicant sought a bail review after being denied bail by a Justice of the Peace following charges related to a loaded firearm found in her car.

The applicant argued errors in the initial decision and a material change in circumstances due to the COVID-19 pandemic and a new release plan.

The Crown conceded the pandemic as a material change, allowing a de novo assessment.

The court considered the applicant's extensive criminal record, history of breaching court orders, the seriousness of the current charges (including being in breach of a conditional sentence at the time of the offence), and the inadequacy of the proposed surety and release plan.

The court dismissed the application, finding that the applicant failed to meet her onus on primary, secondary, and tertiary grounds, and that releasing her would undermine confidence in the administration of justice, even considering the pandemic.

Dante Johnson, arrested for gun and drug offences, sought a bail review under s. 520 of the Criminal Code after being detained on secondary and tertiary grounds.

He asserted two material changes in circumstances: a new, suitable surety (his paternal grandmother) and the COVID-19 pandemic.

The Crown conceded COVID-19 as a material change but opposed release.

The court conducted a de novo assessment, finding the new surety addressed the Justice of the Peace's concerns regarding supervision.

Despite the seriousness of the offences and strength of the Crown's case, the court determined that a reasonable person, informed of Charter values and the specific circumstances (accused's youth, first adult charges, strong release plan), would not lose confidence in the administration of justice.

Bail was granted with strict conditions.

The defendant, charged with first-degree murder, brought a pre-trial motion (voir dire) to exclude a statement given to police, arguing a violation of his s.10(b) Charter right to counsel.

The police denied his request to contact his stepmother to arrange counsel of choice, instead directing him to duty counsel.

The court found that the police officer's denial was a clear violation of the well-established duty to facilitate access to counsel, even through a third party, and that the defendant was not reasonably diligent in renewing his request because the officer's initial response was a clear "no." Applying the R. v. Grant factors under s.24(2) of the Charter, the court found the breach serious, the impact on the defendant's Charter-protected interests significant (as it affected his ability to make an informed choice with trusted counsel), and the societal interest in adjudication on the merits did not outweigh the breach given the statement's questionable necessity.

Consequently, the January 25, 2018 statement was excluded.

The plaintiff, MEJJ Enterprises Inc., sought costs after largely succeeding in its claim for unpaid property taxes and lease payments and successfully defending a $5,000,000 counterclaim alleging failure to build a promised structure.

The court awarded costs on a partial indemnity basis, rejecting the plaintiff's request for substantial indemnity due to a lack of reprehensible conduct by the defendants.

The court significantly reduced the plaintiff's requested costs due to issues with the bill of costs, including duplication from multiple counsel and lack of itemization, and excluded costs related to voluntary mediation.

The court found that both parties contributed to the decade-long delay in the proceedings but did not reduce the costs award further on that basis, noting the plaintiff's bill had already been adjusted for duplication.

The applicant brought a motion for interim spousal support.

The parties disputed the separation date, the applicant's employment status (fired vs. quit), and the respondent's true income.

The court found the applicant established a prima facie case for entitlement, noting her financial disadvantage post-separation and the prior "homemade" interim support arrangement.

The court imputed income to the respondent based on corporate expenses and benefits, finding his reported salary did not reflect his true financial benefit.

Interim spousal support was ordered for the applicant.

The applicant sought leave to cross-examine the affiant of information to obtain (ITO) documents for tracking, general, and search warrants, arguing the search was unreasonable and evidence should be excluded.

The court granted leave for cross-examination on six specific areas concerning potential misstatements, omissions, or exaggerations in the ITOs, finding a reasonable likelihood that such cross-examination would assist in determining the grounds for warrant issuance.

Leave was denied for other areas deemed facial challenges or not likely to assist.

The issue of cross-examination regarding a confidential informant was deferred pending a judicial summary.

Arian Faroughi, convicted of communicating with persons believed to be underage for sexual purposes, brought an application to stay the charges due to police entrapment and a violation of his section 7 Charter rights.

The applicant argued that police inducement occurred through persistent texting, exploitation of his nervousness, and the use of a phone number previously associated with other escort ads.

The Crown contended there was no inducement and the applicant was a willing participant.

The court found that the police were acting under a bona fide inquiry and did not induce the applicant, applying the objective test from R. v. Mack.

The court determined that an average person in the applicant's position would not have been induced, and the police's oversight regarding the phone number was harmless and not a deliberate act of entrapment.

The section 7 disclosure argument was also dismissed.

Maneet Bajwa was convicted of six gun-related offences, primarily trafficking firearms.

The sentencing hearing addressed the constitutionality of the mandatory minimum sentence under s. 99(2) of the Criminal Code.

The court found that a fit sentence would be 12 months, and the three-year mandatory minimum would be grossly disproportionate, thus violating s. 12 of the Charter.

The court imposed a conditional sentence of two years less a day, with credit for pre-sentence custody, to be served in the community, along with a lifetime weapons prohibition and DNA order.

The appellant, Jevon White, appealed his conviction for breaching bail and probation orders, where the sole issue at trial was identity.

The appeal court found that while the verdict was not unreasonable, the trial judge erred in her analysis of the identification evidence.

Specifically, the trial judge's assessment focused too heavily on the witness's prior relationship with the accused (recognition evidence) rather than critically evaluating the circumstances of the actual observation during the incident.

Furthermore, there was no analysis of the reliability of the in-dock identification, which, standing alone, has negligible probative value.

The court emphasized that recognition evidence is a form of identification evidence subject to the same frailties and risks, requiring the same level of critical assessment.

Consequently, the convictions were set aside, and a new trial was ordered.

The defendant, Ryan Shepherd, faced four drug trafficking charges and brought a motion to sever counts 3 and 4 from counts 1 and 2, and further to sever count 4 from count 3.

Counts 1 and 2 related to a March 17, 2017, cocaine trafficking allegation, while counts 3 and 4 related to a March 29, 2017, trafficking allegation and a March 30, 2017, possession for trafficking allegation.

Applying the "interests of justice" test under s. 591(3)(a) of the Criminal Code, the court found a rational basis for the defendant to testify on counts 3 and 4 but not on counts 1 and 2, given the differing strength and nature of the Crown's evidence for the two sets of charges.

Consequently, counts 3 and 4 were severed from counts 1 and 2.

However, the court denied the request to sever count 4 from count 3, finding an evidentiary overlap and no sound reason for further severance, as the defendant intended to testify on both.

The accused, Stephen Lewis, charged with sexual assault, sought to cross-examine the complainant regarding a ten-year-old statement about an unrelated alleged assault by her former common-law spouse.

The Crown opposed this, arguing it was irrelevant and prejudicial.

The court dismissed the defence's application, finding the proposed cross-examination lacked probative value and carried significant prejudicial effect, potentially distracting the jury with collateral issues.