Hubert Gonzalez

This decision addresses the sexual assault allegations against Trung Pham, who was accused of non-consensual sexual touching during a body hair removal service at his hair salon.

The court carefully analyzed the credibility and reliability of the complainant J.N. and the accused, focusing on the issue of consent.

While the complainant testified to unwanted touching, the court found reasonable doubt regarding consent due to inconsistencies and the complainant’s conduct, including leaving a tip.

The accused’s denial was not believed, but the Crown failed to prove lack of consent beyond a reasonable doubt, resulting in dismissal of the charge.

The decision addresses a constitutional challenge to section 16(3) of the Immigration and Refugee Protection Act (IRPA) regarding the search of digital devices at the border.

The court finds that the provision is unconstitutional as it permits searches of digital devices without any threshold, and declares it null and void as against the applicant, Kerwin Sonny.

However, the court declines to exclude the evidence obtained from the search, applying the Grant analysis and finding that the state conduct was not serious, the impact on the applicant was substantial, but society’s interest in adjudication on the merits favoured admission.

The decision also clarifies the scope of standing for Charter challenges and the limits of remedies for third-party Charter violations.

The Crown brought an application at the outset of a jury trial for sexual assault to adduce uncharged discreditable conduct of the respondent.

The court ruled on the admissibility of various categories of evidence, including verbal and emotional abuse, shoving, and threats, balancing their probative value against potential prejudice.

The court admitted most of the proposed evidence, with some exclusions for hearsay or excessive prejudice, and provided a limiting instruction for the jury.

The accused, Sajeeth Vijayakumaran, faced a six-count indictment for firearm possession and threatening bodily harm.

The court assessed the credibility of the main complainant, noting inconsistencies and potential bias due to her own outstanding criminal charges.

While the complainant's testimony regarding the threats was deemed uncorroborated and insufficient for conviction beyond a reasonable doubt, her testimony about the accused's handgun and a unique lockbox was strongly corroborated by police findings during a search.

The court found the accused had constructive possession of the firearm and ammunition, having hidden them after an argument.

Consequently, the accused was acquitted of the threatening charges but found guilty of the three firearm possession offences.

This decision addresses an application for directions by the accused (B.W.) in a criminal proceeding.

The applicant sought a ruling on whether certain emails in his possession were "records" under s. 278.1 of the Criminal Code and permission to use them for cross-examination of the complainant.

The court conducted an in camera review, classifying some emails as records due to their intimate and highly personal nature (e.g., marital difficulties, financial status) and others as not (mundane exchanges).

The application to use the emails deemed "records" was dismissed due to the applicant's non-compliance with procedural requirements, including late service and failure to provide detailed particulars.

The application to use the emails deemed "not records" was granted, subject to a potential s. 276 application for two specific emails and general rules of evidence.

The court also allowed the applicant to challenge the admissibility of prior discreditable conduct evidence, despite an earlier indication of no objection, emphasizing the right to a fair trial.

This criminal trial concerned four counts of sexual assault, touching for a sexual purpose, invitation to sexual touching, and sexual exploitation against the accused, R.T.L., involving the complainant, A., his former stepdaughter.

The alleged offences occurred between 2004 and 2007, when the complainant was between 13 and 16 years old.

The defence challenged the complainant's credibility based on alleged contradictions, generalities, a history of lying (due to prior non-disclosure to authorities), and a motive to lie.

The court meticulously analyzed each defence submission, finding the complainant's explanations for non-disclosure and inconsistencies credible given her age, dependence, and the manipulative nature of the relationship.

The accused, Ricardo Charleston, brought an application to exclude evidence, including statements made to police and observations of the complainant's injuries, alleging violations of his Charter rights (sections 8, 9, 10(a), 10(b), and 24(2)) and involuntariness of statements.

The court found that police failed to inform Mr. Charleston of his right to counsel and the reason for his detention at multiple points, and conducted a warrantless search of his residence that was not justified by exigent circumstances due to delays and available alternatives.

Consequently, all statements made by Mr. Charleston after he was detained (10:38 pm) and the police observations of the complainant's injuries from the warrantless search were excluded under section 24(2) of the Charter.

However, statements made before his detention (before 9:07 pm) were found voluntary and admissible, and the complainant remains able to testify about her own injuries.

The four applicant defendants, charged with multiple residential break and enters, brought pre-trial Charter applications alleging violations of their rights under ss. 8, 9, 10(a), and 10(b).

They challenged the lawfulness of their arrests, the subsequent searches, the promptness and language of their arrest notifications, and the implementation of their right to counsel.

One applicant also alleged a s. 8 breach regarding video surveillance in his holding cell.

The Superior Court of Justice dismissed the applications, finding that police had reasonable grounds for the arrests and that the searches were lawful.

While the court found a s. 10(b) implementation breach for two applicants due to unexplained delays in contacting counsel, it declined to exclude the seized clothing under s. 24(2) of the Charter.

Sentencing of two co-accused following a judge-alone trial.

The first accused, a repeat offender with a lengthy record, was convicted of multiple firearms offences, assault with a weapon, drug trafficking, and driving offences.

After applying the Kienapple rule to stay several duplicative counts, the court sentenced him to a total of 10 years in custody.

The second accused, who had a limited record and demonstrated significant rehabilitation, was convicted of being an occupant in a vehicle with a firearm and possession of cocaine.

The court sentenced the second accused to an 18-month conditional sentence.

The accused faced multiple firearms, driving, and drug charges arising from two incidents in August 2019.

In the first incident, one accused threatened his ex-girlfriend with a handgun.

In the second, both accused were found in a vehicle and residence where a loaded handgun and cocaine were seized.

At trial, two key Crown witnesses recanted their prior statements to police, prompting the Crown to successfully apply under s. 9(2) of the Canada Evidence Act to cross-examine them.

The court found the first accused guilty of multiple firearms offences, assault with a weapon, uttering threats, driving while prohibited, and possession of cocaine for the purpose of trafficking.

The second accused was found guilty of occupying a motor vehicle knowing there was a firearm and simple possession of cocaine.

Gianluca Salvati was found guilty of multiple drug trafficking offences (cocaine, fentanyl, crack cocaine), possession of proceeds of crime, and breach of recognizance following a judge-alone trial.

The court considered aggravating factors, including his extensive criminal record, the significant quantity of drugs (including fentanyl with a street value up to $20,600), and his limited potential for rehabilitation.

Mitigating factors were minimal.

The Crown sought a seven-year sentence, while the defence sought five years.

The court imposed a global sentence of five years, less credit for pre-sentence custody, including enhanced credit for lockdowns and COVID-19 conditions.

The accused sought a bail review after a detention order was cancelled by consent.

The application was heard via teleconference during the COVID-19 pandemic.

The court considered new evidence, including proposed sureties and electronic monitoring, as material changes in circumstances, allowing for a de novo hearing.

The court found no primary ground concerns (flight risk).

However, on secondary grounds, the court found a substantial likelihood that the accused would commit further offences or interfere with justice, given an extensive criminal record, history of non-compliance with court orders, and the serious nature of the current drug and firearm charges.

On tertiary grounds, considering the strength of the prosecution's case, the objective gravity of the offences, and the accused's personal circumstances, the court concluded that continued detention was necessary to maintain confidence in the administration of justice.

The impact of the pandemic on correctional facilities and trial delays was considered but not found to be a sufficient basis for release in this specific case.

The application for bail review was denied.

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 faced multiple charges relating to drug and firearms trafficking arising from a major police investigation involving wiretaps and surveillance.

The court found the primary target guilty of all charges based on overwhelming intercept and surveillance evidence.

Another accused was found guilty of purchasing a firearm and trafficking marijuana.

However, charges against two other accused were dismissed due to insufficient voice identification evidence and the legal principle that a mere purchaser in a bilateral transaction is not guilty of conspiracy.

The accused was charged with public mischief and criminal harassment arising from her interactions with police regarding concerns about her son being abused by his father.

At the conclusion of the Crown's case, the defence brought a motion for a directed verdict.

The court granted the motion, finding that the Crown failed to adduce sufficient evidence on the essential elements of both offences.

Specifically, the Crown provided no clear evidence of the specific false allegation constituting the actus reus of mischief, no proof of falsity, and no evidence of the accused's knowledge that her allegations were false.

Regarding criminal harassment, the court found that the accused's lawful calls to police did not constitute prohibited conduct under section 264 of the Criminal Code, and that the accused's conduct did not cause the complainant to reasonably fear for his safety within the meaning of the statute.

The offender pleaded guilty to impaired operation of a motor vehicle causing bodily harm.

He drove his vehicle into oncoming traffic, causing a head-on collision with a 79-year-old victim who suffered catastrophic injuries including a shattered hip and femur, broken ribs, fractured shoulder and neck, and a brain injury.

The offender's blood alcohol concentration was approximately twice the legal limit.

The offender was a first-time offender with strong character references and demonstrated genuine remorse.

The Crown sought 18 months custody, while the defence sought a 90-day intermittent sentence.

The court imposed 14 months custody, finding that general deterrence and denunciation were paramount sentencing objectives despite significant mitigating factors.

The defendants were charged with importing cocaine after a controlled delivery of a package from Colombia.

The package contained cocaine hidden inside metal grinding wheels.

One defendant accepted the package at his residence, while the other was observed driving nearby in apparent counter-surveillance.

The court found that while the circumstances were suspicious, the Crown failed to prove beyond a reasonable doubt that either defendant knew the package contained imported cocaine.

Both defendants were found not guilty.

The accused was charged with eight criminal offences arising from his attempt to purchase video games using fraudulent Visa gift cards at a shopping mall.

The Crown alleged fraudulent possession of credit card data, possession of credit cards obtained by commission of an offence in Canada, assault with intent to resist arrest, failure to comply with recognizance conditions, and fraud under $5,000.

The court found the accused guilty on counts relating to fraudulent possession of credit card data, failure to comply with recognizance conditions, and fraud, but acquitted on counts relating to possession of cards obtained by commission of an offence in Canada and assault with intent to resist arrest.

The court found the arrest was lawful but that the contact with the officer during the attempted flight was accidental rather than intentional assault.

The Crown charged the defendant with breaching a house arrest condition of his recognizance on December 24, 2013.

The defence brought a motion for a directed verdict challenging whether there was sufficient evidence of identity to pass the Shephard test.

Officer Perreault identified the defendant based on a mug shot and surveillance observations, but the Crown failed to establish an admissible evidentiary link between the defendant and the person named in the recognizance and Information.

The court found the Crown's case fatally flawed due to reliance on hearsay evidence regarding the defendant's identity and lack of admissible evidence connecting the defendant to the named person in the legal documents.

The accused brought a Charter application seeking exclusion of cocaine discovered during a strip search following a traffic stop.

Police stopped a vehicle with mismatched licence plates and briefly questioned the passenger, who voluntarily provided identification that revealed he was bound by a probation order prohibiting association with persons with criminal records.

After learning the driver had a criminal record, police arrested the accused for breach of probation and discovered a hard object during a pat‑down search, leading to a strip search at the station that revealed cocaine.

The court held that the passenger was not detained during the initial roadside questioning and that brief requests for identification and relationship to the driver did not constitute detention or an unreasonable search under ss. 8 or 9 of the Charter.

The arrest and subsequent strip search were lawful and Charter‑compliant.

The application to exclude the evidence was dismissed.