Irving W. André

This decision addresses an application under s. 276 of the Criminal Code by the defendants to admit evidence of the complainant's prior sexual activity.

The complainant testified she was plied with drugs and alcohol and procured for sexual services.

The defendants sought to introduce cellphone location data showing the complainant at hotels providing sexual services independently prior to meeting them.

The court found the evidence relevant to challenge the procurement claim and that its probative value outweighed its prejudicial effect, subject to restrictions on salacious details.

The application was allowed, permitting cross-examination on these activities.

The applicant, M.C., sought to exclude evidence under s. 24(2) of the Charter, alleging violations of his s. 8 (unreasonable search) and s. 10 (right to counsel) rights by Canada Border Services Officers (BSOs) during a search of his electronic devices at Pearson International Airport.

The court found that the BSO had a particularized suspicion, triggering a constitutional detention, and failed to caution M.C. or advise him of his s. 8 rights before the search, thus violating s. 8.

The court also found that BSOs violated M.C.'s s. 10(b) right to counsel by adhering to a policy that restricted detainees to only duty counsel, denying his request to speak to his uncle, a criminal lawyer.

While a subsequent police interview by Constable Imber was found not to violate M.C.'s s. 10 rights and his statement to Imber was voluntary, the search warrant obtained by police was deemed invalid as it was based on constitutionally tainted information from the initial unlawful border search.

Applying the Grant test for s. 24(2) exclusion, the court found the Charter breaches serious, the impact on M.C.'s rights significant, and society's interest in the rule of law favoured exclusion.

The evidence recovered from M.C.'s electronic devices was therefore excluded from his trial.

The applicant, one of three co-accused charged with murder, brought a pre-trial application to exclude a video recovered from his cellphone.

The video depicted the applicant holding a firearm with a caption containing rap lyrics referencing a shot to the head, which mirrored the victim's cause of death.

The applicant argued the video was irrelevant and its prejudicial effect outweighed its probative value.

The court dismissed the application, finding the video was sufficiently proximate in time to the murder and admissible as a party admission, subject to limiting instructions to the jury regarding out-of-court statements and unconscious racial bias.

The Crown sought to admit ante-mortem statements made by the deceased, Sangita Sharma, in a murder trial against three defendants.

The statements concerned Ms. Sharma's business dealings and disputes with an alleged orchestrator of her contract killing, Mian Afzalaqif.

The court ruled on the admissibility of these statements under traditional hearsay exceptions (state of mind, statement of intention) and the principled approach to hearsay (necessity and threshold reliability).

The court found the statements admissible, deeming them relevant to motive and identity, and satisfying the reliability criteria despite defence concerns regarding the witness's credibility.

The applicant, charged with first-degree murder, sought to exclude cellphone evidence seized during a traffic stop, alleging breaches of sections 8, 9, and 10 of the Canadian Charter of Rights and Freedoms and a delay in filing a Report to Justice.

The court found that while the traffic stop was legitimate, the seizure of the cellphones by the London police officer was unlawful as he lacked independent reasonable grounds, acting solely on direction from another officer.

However, the court determined that the Charter breach was not serious, the impact on the accused was minimal, and the administration of justice would not be brought into disrepute by admitting the evidence, especially given the seriousness of the murder charge and the subsequent judicial authorization for the search.

The respondent brought a motion to suspend his interim spousal support obligations, claiming a material change in circumstances due to his retirement and a significant reduction in income.

The applicant opposed the motion and brought a cross-motion for an increase in support and an advance from the sale of the matrimonial home.

The court found the respondent's financial disclosure lacking credibility and dismissed his motion to suspend support.

The court ordered that both parties receive $100,000 from the net proceeds of the sale of the matrimonial home.

The respondent sought costs of $65,223.60 plus disbursements of $11,889.21 following the dismissal of the applicant's application for damages and injunctive relief regarding plaza access.

The applicant argued the claimed costs were excessive and suggested an award of $16,167.48 plus disbursements.

The court found the respondent's claimed hours excessive given the relatively uncomplicated nature of the issues and the short hearing time.

Costs were fixed at $25,000 inclusive.

The defendant, Trista Forbes, pleaded guilty to aggravated assault for stabbing her intimate partner during an argument.

The Crown sought a nine-month custodial sentence, while the defence argued for a conditional sentence.

The court considered aggravating factors, including intimate partner abuse and elements of a home invasion, alongside significant mitigating factors such as the defendant's lack of criminal record, status as a single mother, history of abuse, and gainful employment.

Distinguishing the Crown's cited precedents, the court applied the criteria for conditional sentences from R. v. Proulx.

Concluding that a conditional sentence would not endanger community safety and was consistent with sentencing principles, the court imposed a nine-month conditional sentence with house arrest and curfew conditions, followed by one year of probation, along with DNA and weapons prohibition orders.

The plaintiffs sought a declaration that the defendants misrepresented the location of a property they purchased and sought damages.

The court found that the defendant Yu Si, a real estate agent, misrepresented the property's location, leading the plaintiffs to believe it was at a different intersection than its actual site.

The court rejected the defendants' arguments regarding the plaintiffs' fault or market downturn as the reason for withdrawal.

The plaintiffs were awarded the return of their $120,000 down payment plus prejudgment interest and $30,000 in costs, but their claim for lost profit was denied as they chose to withdraw from the agreement.

The applicant, Mississauga Hardware Centre Inc., sought interlocutory and permanent injunctive relief to compel the respondent, Prombank Investment Limited, to remove barriers restricting access to a shopping plaza.

Mississauga Hardware alleged breaches of the implied covenant for quiet enjoyment, the doctrine of non-derogation from grant, and the landlord's duty to act in good faith.

Prombank asserted its contractual right to control plaza access, arguing the restrictions were a reasonable response to parking issues caused by a neighbouring business and that the applicant failed to demonstrate irreparable harm or mitigate losses.

The court applied the three-part test for interlocutory injunctions and found no serious issue to be tried, no irreparable harm, and that the balance of convenience did not favour granting the injunction.

The application was dismissed, with the court finding Prombank's actions to be a measured and reasonable response to the parking problems.

The applicant sought an incremental increase in the respondent's parenting time with their child, while the respondent sought an immediate, dramatic increase.

The court, applying the "best interests of the child" principle under the Divorce Act, found that maximum contact with both parents was in the child's best interests, despite past allegations of abuse against the respondent.

The court ordered an immediate increase in the respondent's parenting time, including alternating weekend overnights, and directed the parties to submit costs submissions.

The accused, Walid Wakeel, was charged with dangerous driving causing death, dangerous driving causing bodily harm, and two counts of failing to stop his vehicle after an accident with intent to escape civil or criminal liability.

The trial judge found that the accused's driving was objectively dangerous and constituted a marked departure from the actions of a reasonable person, having accelerated through a red light at high speed.

The court also found that the accused fled the scene with the intent to escape liability, despite arguments that he was in shock or later surrendered to police.

The accused was found guilty on all counts.

The applicant sought temporary and retroactive spousal support, full financial disclosure, and permission to retain a financial expert.

The respondent opposed, arguing a settlement conference was set and the applicant had withdrawn significant funds, seeking termination or nominal spousal support.

The court granted interim monthly and retroactive lump sum spousal support to the applicant, ordered full financial disclosure from the respondent, and permitted the applicant to retain an expert.

The respondent's requests to terminate or reduce support were denied due to his failure to provide disclosure and concerns about his financial transparency.

Costs were awarded to the applicant.

The applicant, Mr. Sharma, sought a conditional stay of his jury trial until he received funding for his defence, arguing that his Charter rights would be infringed without counsel.

The Crown opposed the application.

The court dismissed the application, finding that Mr. Sharma had not demonstrated a lack of financial means despite reasonable efforts, nor that counsel was essential for a fair trial given his education, English proficiency, and the trial judge's duty to assist unrepresented accused.

The defendants brought a motion to compel the plaintiff to attend a live virtual psychiatric assessment with Dr. D. Berbrayer.

The plaintiff had refused, arguing the defendants had previously opted for a paper review and that no new evidence warranted a further assessment.

The court granted the motion, finding that the necessity criterion was met due to a recently filed expert report by the plaintiff, and that trial fairness dictated both parties have an equal opportunity to present evidence.

The court also found no prejudice to the plaintiff and that granting the request would not delay the trial.

Costs were awarded to the successful defendants.

The appellant appealed his convictions and sentences for sexual interference and criminal harassment involving an eight-year-old boy at a grocery store.

The appeal against conviction was dismissed, as the summary conviction appeal judge found no errors in the trial judge's assessment of credibility, application of the W(D) test, or treatment of the complainant's statements.

The sentence appeal was allowed in part.

The appeal judge found the trial judge erred by treating a prior peace bond following an acquittal as an aggravating factor and by imposing consecutive rather than concurrent sentences for offences arising from the same continuous act.

The sentence was reduced from an additional 10 months to 7 months in custody.

This criminal trial concerned charges of sexual assault, using an imitation firearm, uttering death threats, and forcible confinement.

The case hinged on the credibility of the complainant, Zoe Pessoa, and the accused, Alpha McLeod, who claimed the sexual activity was consensual and arranged via an escort website.

The court found Mr. McLeod's testimony to be inconsistent and contradictory, disbelieving his account.

Conversely, the complainant's evidence was found credible and reliable, supported by consistent testimony and corroborating facts.

Mr. McLeod was found guilty on counts of sexual assault, uttering death threats, and forcible confinement.

The appellant, Dimitrios A. Maniatis, appealed his conviction for sexual assault, alleging two reversible errors by the trial judge: failure to resolve a material inconsistency between the complainant's and an independent witness's evidence, and material misapprehension of the independent witness's testimony regarding his ability to observe the incident.

The Superior Court of Justice dismissed the appeal, finding that the trial judge adequately addressed the inconsistencies by attributing them to the complainant being asleep and the witness's initial misperception, and that it was open to the trial judge to accept the independent witness's evidence regarding his observations.

The appellant appealed his summary convictions for impaired operation of a motor vehicle, failing to comply with a demand, and dangerous driving.

The appellant argued that the trial judge misapprehended evidence regarding his speed and that the arresting officer lacked lawful grounds to make a Drug Recognition Evaluation demand.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings and concluding that the modified objective test for dangerous driving was met.

The court also upheld the lawfulness of the demands made by the officers.

Manuel Maric appealed his conviction for refusing to comply with a breath demand, alleging errors by the trial judge regarding judicial notice of duty counsel advice, consideration of his Covid-19 fear as a reasonable excuse, handling of his Charter application, and limitations on cross-examination.

The Superior Court dismissed the appeal, affirming the trial judge's assessment of credibility, the finding that Covid-19 fear was not a genuine excuse, and the proper disposition of Charter issues and control over cross-examination.