Ismar Horic

The accused brought a pre-trial motion seeking a stay under s. 24(1) of the Charter for alleged breach of the s. 11(b) right to be tried within a reasonable time.

Applying the Jordan and Cody framework, the court found that the gross delay of approximately 35 months had to be materially reduced for defence-caused delay, express waivers, and late assertion of the delay claim.

The court held that the defence repeatedly sought adjournments to pursue unattainable global resolution, failed to raise s. 11(b) concerns when trial dates were set above the ceiling, and thereby caused or contributed to the delay.

After deducting defence-attributed delay and treating limited early scheduling time as neutral or institutional, the net delay was 307 days, well below the 18-month ceiling.

The stay application was dismissed.

Ezekel Vincent pleaded guilty to manslaughter after initially being charged with second-degree murder.

The charge stemmed from Vincent fatally shooting Kenroy Benjamin, who had just killed Vincent's friend, Sheldon Taylor, at a banquet hall.

The court determined that Vincent brought the handgun to the scene.

The sentencing decision considered aggravating factors, including the use of a prohibited firearm in a public place, the pursuit and close-range shooting of the victim, and the non-recovery of the weapon.

Mitigating factors included Vincent's guilty plea, lack of prior criminal record, difficult upbringing, experience with racial discrimination, and harsh pre-trial custody conditions.

The court imposed an 11-year sentence, reduced to 10 years due to harsh custody conditions, and further reduced by 30 months for pre-trial credit, resulting in a net sentence of 7.5 years.

A lifetime weapons prohibition and DNA order were also imposed.

The offender was convicted by a jury of sexual assault after engaging in non-consensual vaginal intercourse with a friend who was intoxicated.

The Crown sought a four-year sentence, while the defence sought six months followed by probation.

The court rejected the defence's argument that the victim's prior consensual sexual activity with another person mitigated the offender's blameworthiness.

Emphasizing denunciation and deterrence, the court sentenced the offender to three years' imprisonment.

The accused was found asleep in a stolen vehicle ten hours after it was taken in an armed robbery by four masked men.

He was in possession of a loaded prohibited handgun.

He pleaded guilty to the firearm offences but proceeded to trial on the robbery charges.

The Crown's case on identity was entirely circumstantial.

Applying the Villaroman framework, the court found that the circumstantial evidence, including discrepancies in physical descriptions and clothing, failed to negate the reasonable alternative inference that the accused came into possession of the stolen vehicle after the robbery.

The accused was acquitted of the robbery charges but convicted of the firearm offences.

The defendant, Wilfredo Hernandez, faced multiple criminal charges, some of which he pled guilty to (dangerous driving, driving while prohibited, evading police) and others proceeded to trial (uttering threats, break and enter, taking a child in contravention of a custody order, threat to cause death to child).

The court assessed witness credibility, including the complainant's attempt to influence another witness.

The defendant was found not guilty of taking a motor vehicle without consent and break and enter a dwelling house.

He was found guilty of uttering threats to the complainant, taking the child in contravention of a custody order, and threatening to cause death to the child.

The court emphasized the intent to deprive the custodial parent of possession of the child.

The applicant sought a review of his bail detention order under s. 520 of the Criminal Code.

He argued the detaining justice erred in law due to technical difficulties during the hearing and by relying on his COVID-19 diagnosis, and alternatively that his subsequent negative test and new release plan constituted a material change in circumstances.

The Superior Court dismissed the application, finding no error in law as the applicant was detained on secondary grounds due to numerous serious breaches of court orders and a lengthy criminal record.

The court also found the proposed release plan lacked adequate supervision and did not constitute a material change in circumstances.

The defendant was charged with sexual assault and failure to comply with probation.

The complainant alleged non-consensual sexual activity, while the defendant claimed consent or an honest but mistaken belief in consent.

The court assessed the credibility of the complainant, who presented as highly excitable and inconsistent, and other witnesses whose testimony was found unreliable or influenced.

The court noted ambiguities in the evidence, including text messages that did not explicitly accuse sexual impropriety.

Given the inconsistencies and the complainant's demeanor, the court found that the Crown had not proven the sexual assault beyond a reasonable doubt, and it was a reasonable possibility that the defendant had an honest but mistaken belief in consent.

Consequently, both charges were dismissed.

The defendant, C.C., charged with sexual assault, brought an application under section 276 of the Criminal Code to cross-examine the complainant about other sexual activity between them.

The defence sought to adduce evidence regarding the nature of their sexual relationship, shared use of the washroom, and the complainant's disclosures about past sexual assaults impacting her communication of consent.

The court applied the two-stage test under s. 276(2) and (3), considering the relevance to an honest but mistaken belief in consent and the probative value versus prejudice.

The court permitted cross-examination on the existence of a sexual relationship, shared washroom history, and the complainant's communication about how past experiences affected her consent communication, finding these relevant to the defendant's understanding of consent and not unduly prejudicial.

The applicants, charged with firearms offences, brought an application for a stay of proceedings, arguing their right to be tried within a reasonable time under s. 11(b) of the Charter was infringed.

The total delay exceeded the 30-month presumptive ceiling established in Jordan.

However, the court found several periods of delay were attributable to the defence, including time taken to retain counsel, scheduling conflicts for a joint preliminary hearing, and a late request for disclosure that delayed committal.

After deducting the defence delay, the remaining delay for both applicants fell below the 30-month ceiling.

The application for a stay of proceedings was dismissed.

Two offenders pleaded guilty to multiple offences arising from a home invasion on December 23, 2017, at 500 Dawes Road in Toronto.

The offenders, armed with knives, forced their way into an apartment, held victims at knifepoint, and a firearm was discharged, narrowly missing one victim.

The Crown and defence jointly recommended sentences, with disputes regarding credit for pre-sentence custody and the application of Gladue principles.

The court sentenced the first offender to three years consecutive to his existing sentence, with a reduction from the joint submission to account for his inability to access indigenous programming while awaiting sentence.

The second offender was sentenced to 36 months with enhanced credit for pre-sentence custody due to institutional conditions.

The defendants were charged with possession for the purpose of trafficking after a police officer pulled over their vehicle for a suspended license, discovered they were on conditions not to associate, arrested them, and found drugs during an inventory search of the car.

The defendants brought a Charter motion to exclude the evidence.

The court found multiple violations of both defendants' rights under ss. 8, 9, 10(a), and 10(b) of the Charter, including arbitrary detention, unlawful questioning, failure to promptly advise of reasons for detention and right to counsel, and an unlawful inventory search.

Applying the Grant framework, the court concluded the breaches were serious and significantly impacted the defendants' rights, warranting the exclusion of the evidence under s. 24(2).

The offender was convicted of possession for the purpose of trafficking heroin, cocaine, and MDMA, and possession of proceeds of crime.

The offender became addicted to heroin after being prescribed Oxycontin for a back injury.

The court considered the offender's significant rehabilitative efforts, lack of prior criminal record, and the fact that he was a street-level seller servicing his own addiction.

The court imposed a global sentence of 33 months in custody, balancing the need for denunciation and deterrence with the offender's lower moral culpability and excellent prospects for rehabilitation.

The accused, Christopher Saccoccia, brought a Garofoli application to exclude evidence seized from his condominium unit, alleging that the search warrant was issued without reasonable grounds and based on misrepresentations in the Information to Obtain (ITO).

The court reviewed the ITO, found that an alleged misrepresentation regarding "observation" was not a misrepresentation, and an inaccuracy in the number of visits was a mistake that did not vitiate the warrant.

Considering the totality of the circumstances, including the known drug dealing of an associate, the use of an adjacent unit as a stash house, and the ongoing association between the accused and the associate, the court found sufficient grounds for the warrant.

The application to exclude evidence was dismissed.

The applicant, Christopher Saccoccia, sought a stay of proceedings due to an alleged violation of his Charter right to be tried within a reasonable time under s. 11(b).

The total delay from charges to anticipated trial end was 35.5 months, exceeding the 30-month presumptive ceiling set by R. v. Jordan.

The Crown argued for defence delay, case complexity (part of a large "Project Battery" investigation with 112 accused, including a joint Garofoli application), and the transitional exception under Jordan.

The court found 7 months of delay attributable to the applicant's failure to retain counsel and an additional 6 months due to the complex Garofoli application involving multiple parties.

With these deductions, the net delay fell within the 30-month ceiling.

Furthermore, the court applied the transitional exception, noting the parties' reasonable reliance on the pre-Jordan Morin framework.

The application for a stay was dismissed.

The sentencing concerned a youthful first offender convicted after trial of dangerous driving arising from a sudden turn in front of a TTC bus while transporting others from the scene of a robbery.

The court accepted that the respondent had been an unwitting participant in the broader events and that his dangerous operation resulted from panic after seeing a sawed off shotgun and the agitation of his passengers.

Applying the discharge provisions in s. 730 of the Criminal Code, the court held that a conditional discharge was in the accused's best interests and not contrary to the public interest despite the usual need for denunciation and deterrence in dangerous driving cases.

A 12-month probation order and parallel one-year driving prohibition were imposed.

The accused were tried for offences arising from a home invasion armed robbery where the victim was shot.

The Crown alleged one accused was one of the three armed robbers and another was the getaway driver.

The court found the first accused guilty of armed robbery, aggravated assault, and firearms offences based on circumstantial DNA and cell phone evidence, but acquitted him of attempted murder.

The getaway driver was acquitted of being an accessory after the fact and failing to remain at the scene of an accident, as his evidence raised a reasonable doubt regarding his intent and knowledge, but he was convicted of dangerous driving for turning his vehicle into the path of a bus.

The applicant, Mohamed Taha, applied for a directed verdict of acquittal at the close of the Crown's case on charges of accessory after the fact to robbery, dangerous operation of a motor vehicle, and failing to remain at the scene of an accident.

The Crown's case relied on circumstantial evidence, including the applicant's presence near the driver's door of the getaway vehicle and a rental agreement in his name found inside.

The court dismissed the application, finding that there was some evidence upon which a reasonable jury, properly instructed, could infer that the applicant was the driver.

Following a jury conviction for sexual assault under s. 271 of the Criminal Code, the court imposed sentence for an offence involving penetration and a breach of trust where the offender was the complainant’s stepfather.

The court considered the principles in s. 718.2(e) and the Supreme Court of Canada decisions in Gladue and Ipeelee, including systemic factors affecting Indigenous offenders, based on a detailed Gladue report.

Aggravating factors included the breach of parental trust and the devastating psychological impact on the victim, including a suicide attempt shortly after the assault.

Mitigating factors included the offender’s lack of criminal record, expressed remorse, sobriety since arrest, and prospects for rehabilitation.

A penitentiary sentence at the low end of the range was imposed together with mandatory ancillary orders.