James Clark

The accused in a terrorism prosecution brought motions challenging the constitutionality of s. 577 of the Criminal Code, which permits the Attorney General to prefer a direct indictment, and alleging abuse of process arising from the loss of a preliminary inquiry.

The accused argued that bypassing the preliminary inquiry deprived him of judicial screening and the opportunity to cross-examine a key undercover officer.

The court held that longstanding appellate authority confirms the constitutionality of s. 577 and that there is no constitutional right to a preliminary inquiry or to discovery through that process.

The preferment of a direct indictment is an exercise of core prosecutorial discretion reviewable only for abuse of process or Charter violations.

Given the extensive disclosure provided and the absence of evidence of misconduct, the accused failed to demonstrate any infringement of Charter rights.

The Crown appealed acquittals entered after a trial judge quashed a search warrant, found a s. 8 Charter breach, excluded the seized evidence under s. 24(2), and dismissed drug-production charges.

The Court of Appeal held that the trial judge erred by excising or discounting too much of the information to obtain, since the remaining hydro data, physical indicators of a grow operation, and odour evidence provided sufficient grounds on which the warrant could have issued.

Although the court upheld the finding that use of the telewarrant procedure was not shown to be impracticable within s. 487.1 of the Criminal Code, it rejected the conclusion that a police supervisor had improperly interfered with the issuing justice.

Reapplying the s. 24(2) analysis, the court found the Charter breach not serious, the privacy interest diminished, and society's interest in adjudication on the merits strong.

The appeal was allowed, the acquittals were set aside, and a new trial was ordered.

The Crown appealed a trial judge's decision to stay proceedings against the respondent for drug and proceeds of crime offences due to unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal found that the trial judge failed to properly analyze and allocate the periods of delay.

Upon conducting its own analysis, the Court of Appeal concluded that the total period of Crown and institutional delay was approximately 10 months, which only slightly exceeded the Morin guidelines.

Balancing this against the minimal prejudice suffered by the respondent and society's interest in a trial on the merits, the Court allowed the appeal, set aside the stay, and ordered a new trial.

The defendants moved to set aside a Mareva injunction granted ex parte that froze their assets in relation to allegations that interest payments received as trustee under a debenture had not been forwarded to the plaintiff debenture holder.

The defendants argued the injunction should be rescinded because the plaintiff failed to provide full and fair disclosure on the ex parte motion and lacked a strong prima facie case.

The court reviewed the disclosure obligations on ex parte motions and the test for material non-disclosure.

It found that the alleged omissions were either immaterial or adequately disclosed and that the evidence supported a strong prima facie case that trust funds had been misapplied.

The motion to set aside the Mareva injunction was therefore dismissed.

The accused was charged with possession of cocaine for the purpose of trafficking after police executed a search warrant at his residence and located 505 grams of cocaine hidden in a Kleenex tissue box.

The Crown relied primarily on circumstantial evidence to establish knowledge and control, including the accused’s admitted involvement in marijuana trafficking, drug paraphernalia found in the residence, and his association with a known cocaine trafficker.

The accused testified that he had no knowledge of the cocaine and suggested that a third party with access to the residence may have hidden it there shortly before the search.

The court rejected aspects of the accused’s credibility regarding the extent of his drug trafficking but found that the possibility that the third party concealed the cocaine in the residence raised a reasonable doubt about the accused’s knowledge.

As knowledge was not proven beyond a reasonable doubt, the essential element of possession was not established.

The accused brought a s. 8 Charter application challenging the manner in which police executed a search warrant at his residence using a dynamic entry.

The accused argued that the failure to comply with the knock notice rule and the alleged ransacking of the home rendered the search unreasonable and required exclusion of cocaine discovered during the search.

The court reviewed the governing principles from recent jurisprudence concerning dynamic entries and exigent circumstances.

It held that police had reasonable grounds to conduct a dynamic entry based on risks of destruction of cocaine and the possible presence of firearms connected to the drug investigation.

The court further found insufficient evidence that the search itself was conducted in an unreasonably destructive or disorderly manner.

The application was dismissed.

The accused, charged with possession of cocaine for the purpose of trafficking, sought leave to adduce third party suspect evidence suggesting another individual was responsible for the drugs discovered during execution of a search warrant.

The proposed evidence connected the third party to cocaine trafficking and placed him at the residence shortly before police located the drugs, along with evidence of suspicious driving, possession of a large sum of cash, and cocaine discovered at his own residence.

Applying the governing test from Supreme Court jurisprudence, the court held that the accused met the evidentiary burden of demonstrating a sufficient connection between the third party and the offence.

The evidence was capable of supporting a reasonable inference that the third party deposited the cocaine at the residence to avoid police detection.

Concerns about the strength of the inference or competing explanations were matters for the trier of fact rather than the threshold admissibility stage.

The Crown appealed the acquittals of the respondents on charges of production of marijuana and possession for the purpose of trafficking.

The trial judge had excluded the evidence obtained from a search warrant, finding the Information to Obtain (ITO) was carelessly drafted, materially misleading, and factually incomplete, resulting in a s. 8 Charter breach.

The Court of Appeal allowed the appeal, finding the trial judge misapprehended the evidence and failed to apply the proper test of whether a sufficient basis remained to issue the warrant after excising any offending portions.

The Court also held that even if there was a breach, the evidence should not have been excluded under s. 24(2) given the respondents' reduced expectation of privacy in the premises.

The appellant appealed his conviction and sentence.

The sentence appeal was abandoned.

On the conviction appeal, the appellant argued the conviction was unreasonable.

The Court of Appeal held that it was open to the trial judge to infer that the jacket containing drugs belonged to the appellant, given the documents found in the wallet inside the jacket.

The appeal was dismissed.

The plaintiffs brought a motion for leave to appeal an order that set aside a judgment obtained after the defendants failed to attend trial.

The plaintiffs argued there was a conflicting decision and good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The Divisional Court dismissed the motion, finding that the motion judge properly exercised his discretion under Rule 52.01(3) to set aside the judgment on terms, and there was no conflicting decision or reason to doubt the order's correctness.

The respondent was charged with trafficking cocaine.

On the trial date, the assigned Crown counsel realized she had previously represented the respondent and eventually disclosed a potential conflict of interest.

The trial judge stayed the proceedings as an abuse of process and awarded costs against the Crown, finding the Crown's conduct placed the respondent in an untenable position.

The Court of Appeal allowed the Crown's appeal, holding that the trial judge made a palpable and overriding error in concluding the Crown could not prove its case and failed to apply the proper legal principles for a stay of proceedings.

The stay and costs orders were set aside.

The appellant appealed his convictions for sexual assault and unlawful confinement, as well as his 30-month sentence.

He argued the trial judge erred in her credibility findings and failed to consider a conditional sentence on compassionate grounds due to his poor health.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the W.D. principles and conducted a fair assessment of the evidence.

The sentence appeal was also dismissed, as the appellant's medical needs could be adequately managed in custody.

The Crown appealed an order staying proceedings against the respondent for child pornography charges due to a 27.5-month delay between arrest and trial.

The trial judge found the delay unreasonable under s. 11(b) of the Charter, attributing it to the slow pace of Crown disclosure and institutional delay.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the case's complexity, the inherent time requirements, or the balancing of the respondent's prejudice against society's interest in a trial on the merits.

The appellant appealed his conviction and sentence.

The Court of Appeal found no error in the trial judge's decision or the summary conviction appeal decision, holding that the evidence supported the lawful investigative detention of the appellant.

The court noted there was no lawful basis for interference, particularly given the trial judge's rejection of the defence evidence.

The sentence appeal was not pursued.

Both appeals were dismissed.