James Clark

The applicant, James Jahkyn Grant, sought release pending his appeal from a conviction for importing cocaine.

The Crown opposed on grounds of the proposed appeal's lack of merit, the applicant's likelihood of not surrendering into custody, and public interest considerations.

The court dismissed the application, finding that the applicant failed to establish that his appeal was not frivolous, that he would surrender into custody, or that his detention was not necessary in the public interest.

The court noted the seriousness of the offence and the applicant's history of non-compliance and challenging court authority.

Dwayne Counsell, an accused in a multi-accused preliminary hearing, applied under s. 715.23(3) of the Criminal Code to cease attending by videoconference and attend in person.

The court denied the application, finding jurisdiction to compel remote attendance without consent, especially given the COVID-19 pandemic.

The court emphasized public health risks associated with in-person attendance and the functionality of the virtual platform, concluding that the accused's preference for in-person attendance did not outweigh the serious health risks.

The Crown applied for an order permitting three designated undercover officers to testify remotely while wearing partial face masks during a preliminary hearing.

The Crown argued this was necessary due to the security risk posed by the ease of digital image capture in Zoom hearings, which could compromise the officers' anonymity and future undercover work in investigations involving criminal organizations.

Two defendants opposed, arguing existing protections were sufficient and that masks could hinder credibility assessment.

The court granted the Crown's application, finding the identified security risk was real and that the proposed measure balanced witness safety with the defendants' rights, noting that facial demeanor is of little value in preliminary hearings and that in-person witnesses during the pandemic often wear masks.

The applicant sought a review of a detention order under s. 680 of the Criminal Code pending his re-trial on terrorism charges.

Before the terms of release were finalized, the Supreme Court of Canada allowed the Crown's appeal and restored the applicant's convictions, resulting in him serving a life sentence.

The Court of Appeal dismissed the s. 680 application as moot, noting that any future application for release must be brought under s. 679 for bail pending appeal.

A publication ban under s. 517 was also lifted.

The applicant sought a review of a detention order pending his retrial for terrorist-related offences.

The bail judge had dismissed his application on the secondary and tertiary grounds.

The reviewing judge found the bail judge erred by misapprehending a risk assessment, failing to address the applicant's present ideology, and considering irrelevant factors regarding the proposed sureties.

Fresh evidence regarding trial delay, the COVID-19 pandemic, and the applicant's rehabilitation was admitted.

The application was allowed, and the applicant was released on strict bail conditions including house arrest, electronic monitoring, and four sureties.

Two appellants appealed their convictions for conspiracy to traffic heroin and cocaine, and their sentences.

The appellants argued that the trial judge misapprehended the evidence, rendering the verdicts unreasonable.

The Court of Appeal upheld all convictions and sentences, finding that the trial judge properly applied the three-stage test from R. v. Carter for the co-conspirators exception to the hearsay rule.

The court found sufficient evidence that both appellants were members of the conspiracies, with McGean playing an instrumental role and Lucas acting as an enforcer.

The court also rejected arguments regarding the quantum of drugs and the scope of the conspiracy.

Victim surcharges were set aside for both appellants.

The appellant appealed convictions for possession of cocaine and heroin for the purpose of trafficking, and a sentence of 26 months' imprisonment.

The trial judge found that the Crown had proven beyond a reasonable doubt that the appellant's possession was for trafficking purposes, rejecting the appellant's testimony that the drugs were for personal use due to his addiction.

The appellant's explanation that he obtained funds from online poker winnings was found to be far-fetched and unsupported.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no error in the trial judge's W.(D.) analysis or sentencing principles.

The victim surcharge was set aside.

The appellant appealed his sentence for possession of heroin for the purpose of trafficking.

The appellant was found in possession of 21.91 grams of heroin divided into four packages and pleaded guilty to possession but claimed it was for personal use.

The trial judge rejected this claim, finding that given the appellant's limited financial resources and addiction, he must have been trafficking to support his habit.

The appellant argued the sentencing judge made errors in principle by treating the absence of pro-social life factors as aggravating, considering outstanding domestic violence charges as aggravating, and failing to exercise restraint.

The appellate court agreed with two of the three errors but found the sentence was nonetheless fit and within the appropriate range for similar offences.

The Crown sought to qualify a police officer as an expert in fingerprint and palm print analysis and comparison using the ACE-V method.

The defence opposed the qualification, arguing that fingerprint analysis is not a science and that the ACE-V method is susceptible to confirmation bias and lacks fixed standards.

The court applied the Mohan and Abbey frameworks for the admissibility of expert evidence.

The court found that the officer's extensive training and experience met the threshold requirements and that the evidence was sufficiently beneficial to the trial process to warrant admission, noting that defence concerns could be addressed in cross-examination.

The accused were charged with multiple counts of importing cocaine and conspiracy to import cocaine into Canada from Trinidad and Grenada.

The Crown's case relied on the testimony of couriers, fingerprint evidence on the seized suitcases, and circumstantial evidence including travel records and items seized from Guthrie's home.

The court found the couriers' testimony to be unreliable and fraught with inconsistencies.

The court also found the fingerprint and circumstantial evidence insufficient to prove guilt beyond a reasonable doubt, particularly given the loss of police search videos and photos.

Both accused were found not guilty on all counts.

The applicant sought a stay of proceedings and exclusion of evidence under ss. 7, 11(d), and 24 of the Charter due to lost police evidence, including a photo line-up video and photos/videos of a search warrant execution at his apartment.

The court dismissed the application, finding that a stay or exclusion of evidence was not warranted.

Instead, the court held that less intrusive remedies were appropriate, such as prohibiting the Crown from arguing the applicant was identified in the photo line-up and allowing the absence of the search evidence to be considered in assessing reasonable doubt.

During a trial for importing cocaine, the Crown sought to introduce expert evidence from a detective regarding drug paraphernalia and cash seized from the accused's residence.

The defence objected, arguing the evidence was irrelevant and constituted prejudicial bad character evidence.

The Superior Court of Justice ruled the evidence admissible, finding that tools of the drug trade are logically relevant to the charge of importing large quantities of cocaine, as importers typically do so for distribution.

The court concluded the evidence was highly probative and its admission would not lead to improper propensity reasoning.

The applicant sought to quash a search warrant and exclude evidence seized from his residence under s. 24(2) of the Charter, arguing the Information to Obtain (ITO) contained misleading information and material non-disclosure.

The Crown alleged the applicant was the primary overseer for three shipments of cocaine intercepted at Pearson International Airport.

The reviewing judge applied the Garofoli standard, excising erroneous information and assessing the totality of the remaining evidence.

The court concluded that despite some omissions, the issuing justice could have found reasonable and probable grounds to authorize the warrant.

The application was dismissed.

The applicant sought leave to cross-examine the affiant of an Information to Obtain a search warrant for his residence in a drug importation case.

The applicant argued there was no reasonable basis to believe evidence would be found at his residence and sought to cross-examine on surveillance, misrepresentations, lack of connection to the residence, and travel patterns.

Applying the Garofoli test, the court found the applicant established a reasonable likelihood that limited cross-examination would elicit testimony of probative value.

The court granted leave to cross-examine the affiant on specific, restricted areas identified by the applicant.

This decision provides supplementary reasons to correct a jurisprudential error in the interpretation of s. 96(1)(b)(ii) of the Bankruptcy and Insolvency Act.

The original reasons incorrectly required the trustee to prove both insolvency and fraudulent intent for non-arm's length transfers at undervalue made between one and five years prior to bankruptcy.

The correction clarifies that the statutory test is disjunctive, requiring proof of only one of these conditions.

The correction ensures the law is expressed correctly but does not alter the outcome of the original order, as the trustee had already proven both conditions.

The trustee in bankruptcy sought costs following a successful decision against the respondents.

The trustee had made an offer to settle for $100,000, which remained open until the commencement of the hearing.

As the trustee beat its offer, the court applied Rule 49 and awarded the trustee partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The respondents were ordered to pay costs fixed at $15,356.99.

The trustee in bankruptcy moved for an order requiring a director and his company to pay $159,330 to the estate under s. 96 of the Bankruptcy and Insolvency Act, alleging a transfer at undervalue while the bankrupt was insolvent.

The court found that the bankrupt made payments to the company for no actual value, that the parties were not dealing at arm's length, and that the payments were made with an intent to defraud, defeat, or delay a creditor, as evidenced by badges of fraud.

The court granted the order, requiring the director and his company to pay the specified amount to the estate.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking.

He argued the trial judge erred by refusing to grant a mistrial after an improper question was asked of the Crown's expert, by admitting a statement he made at the hospital about having swallowed cocaine before, and by refusing an adjournment to call a defence expert on cocaine toxicity.

The Court of Appeal dismissed the appeal, finding that the trial judge's discretionary rulings were reasonable and entitled to deference.

The trial judge's remedial instruction cured the improper expert question, the hospital statement was highly probative to the issue of duress, and the need for a defence expert should have been foreseen.

The applicant sought costs against the Crown under s. 24(1) of the Charter, alleging misconduct for failing to disclose a police report related to officer misconduct.

The Crown brought a motion to summarily dismiss the costs application.

The court found no evidence of mala fides or intentional suppression of evidence by the Crown.

At most, the Crown made a good faith error in judgment regarding the relevance of the report.

The court concluded that the costs application had no reasonable prospect of success and granted the Crown's motion to dismiss it.

The appellants brought an action to enforce promissory notes and a claim for fraudulent conveyance.

The motion judge granted summary judgment to the appellants on the promissory notes but dismissed their fraudulent conveyance claim.

On appeal, the appellants argued the motion judge erred in dismissing the fraudulent conveyance claim when the defendants had not moved for summary judgment.

The Court of Appeal dismissed the appeal, confirming that summary judgment may be granted against a moving party.

The cross-appeal was allowed in part on consent to reduce the damages awarded on the promissory notes from $710,000 to $650,000.