Humza Hussain

This decision addresses a section 11(b) Charter application by three co-accused seeking a stay of proceedings for unreasonable delay in a large-scale drug importation and trafficking prosecution.

The court found the total delay (41 months) far exceeded the 30-month ceiling set by R. v. Jordan, and that the Crown failed to establish exceptional circumstances or case complexity to justify the delay.

The court found the Crown’s late addition of a key witness, failure to promptly seek additional hearing dates, late disclosure, and strategic choices in evidentiary applications all contributed to the delay.

The court ordered a stay of proceedings for all accused.

The applicants sought to exclude evidence (firearms, ammunition, etc.) seized from their vehicle, arguing violations of their Charter rights (ss. 8, 9, 10(a), 10(b)).

The court found that the warrantless search of the vehicle and occupants violated ss. 8 and 9 due to the Crown's failure to prove reasonable grounds based on unreliable officer testimony regarding cannabis residue observations.

However, the court found no breach of s. 10(a) or 10(b), deeming the delays in informing of detention reasons and rights to counsel justifiable for officer safety and operational requirements.

Applying the Grant test under s. 24(2) of the Charter, the court balanced the seriousness of the state conduct, the impact on Charter interests, and society's interest in adjudication on the merits.

Despite the s. 8 and 9 breaches, which were not found to be wilful or deliberate, the court concluded that the strong societal interest in prosecuting serious firearm offences outweighed the breaches, and therefore, the evidence would not be excluded.

The accused, Salman Jogiyat, was acquitted of first-degree murder but pleaded guilty to contempt of court for refusing to disclose the identities of other individuals involved in the circumstances surrounding the murder during his trial testimony, despite being ordered to do so by the court.

The court considered the fundamental purpose and principles of sentencing, including deterrence and denunciation, as well as the accused's personal circumstances, including a Mild Intellectual Disability and a significant criminal record.

The Crown sought a four-year penitentiary term, while the defence suggested 24 to 30 months.

The court imposed a three-year term of penitentiary imprisonment, finding it proportionate and necessary for deterrence and denunciation, aligning with the established sentencing range for such contempt.

Elijah Gilmore-Bent sought a stay of charges for possession of a loaded firearm, alleging violations of sections 7 and 12 of the Charter due to excessive force by correctional officers and a subsequent cover-up through false reports and testimony.

The court found that Officer Warburton's use of pepper spray was excessive and unnecessary, aggravated by Gilmore-Bent's 15-day segregation.

Furthermore, several officers colluded to write false use-of-force reports and provided dishonest testimony, indicating a systemic lack of oversight and accountability.

The court determined that no alternative remedy was sufficient and that continuing the prosecution would undermine the integrity of the justice system, granting a stay of proceedings.

The defendants brought applications for a stay of proceedings under s. 11(b) of the Charter of Rights and Freedoms, alleging unreasonable delay of up to 44 months from arrest to the anticipated completion of their five-week trial.

The court dismissed the applications, finding that the delay, while exceeding the presumptive 30-month Jordan ceiling, was justified by exceptional circumstances.

These circumstances included the particular complexity of the multi-accused kidnapping case, which involved extensive investigation, disclosure, and coordination of multiple counsel, and the systemic disruptions caused by the Covid-19 pandemic, which profoundly impacted court operations and created significant backlogs.

The court concluded that the Crown and the justice system took all reasonable steps to mitigate delay, and the time taken would not violate the applicants' constitutional right to a trial within a reasonable time.

The accused, charged with first-degree murder, brought a Garofoli application challenging a production order for his cell phone records, arguing the Information to Obtain (ITO) contained significant errors and omissions violating section 8 of the Charter.

The court found that while the affiant made several errors due to inexperience and negligence, there was no intent to mislead.

After excising the errors and amplifying the ITO, sufficient reliable evidence remained to justify the production order.

The court concluded there was no section 8 violation and noted that, even if a breach had occurred, the evidence would be admitted under section 24(2) of the Charter.

In a pre-trial motion for a first-degree murder case, the Crown sought to admit several pieces of evidence.

The court admitted antemortem statements of the deceased and evidence that one of the accused was a marijuana dealer, finding the latter's probative value in establishing narrative and identity outweighed its prejudicial effect.

However, the court excluded rap lyrics found on the other accused's phone, ruling that their limited probative value as circumstantial evidence of participation was outweighed by significant moral and reasoning prejudice.

Tyrone Matthews was charged with unlawful confinement, dangerous operation, and failing to stop for police.

The complainant, Kylee Jordan-Kalina, recanted her initial statements implicating Matthews at trial, claiming she was the driver.

The Crown successfully admitted her out-of-court statements.

The court dismissed the unlawful confinement charge but found Matthews guilty of dangerous operation and failing to stop for police, rejecting the complainant's trial testimony as contrived and accepting her out-of-court statements and other corroborating evidence.

The Crown applied to admit three out-of-court statements made by the complainant, Kylee Jordan-Kalina, as spontaneous utterances in a criminal trial for unlawful confinement, dangerous operation, and failing to stop for police.

The complainant had recanted her initial statement at trial.

The court applied the spontaneous utterance exception to the hearsay rule, which requires the statement to be made under stress or pressure such that the possibility of concoction is safely discounted.

The court admitted one statement (a phone call recorded by an in-car camera) due to the complainant's evident distress and the ongoing stressful events.

The other two statements (one to an officer with leading questions and no recording, and another made later at the police station) were excluded for lacking spontaneity and reliability.