James L. Miglin

During a jury trial for multiple sexual offences involving two young complainants, the defence sought a mid‑trial ruling permitting the accused to testify about statements made by a third party at a prior trial where the accused had been acquitted.

The proposed evidence included that the third party had recanted allegations and admitted lying to police.

The Crown objected on the basis that the testimony would constitute inadmissible hearsay.

The court held that evidence of what the third party said at the earlier proceeding was hearsay because the declarant was not testifying and would not be available for cross‑examination.

The court ruled the proposed evidence inadmissible unless properly introduced through statutory mechanisms such as s. 23 of the Canada Evidence Act.

During a jury trial involving multiple sexual offence counts relating to two alleged young victims, the Crown sought to amend an indictment to add the words “for a sexual purpose” to a count alleging invitation to sexual touching.

The defence did not seriously contest the amendment but argued that the evidence did not disclose the proposed element and sought a directed verdict of acquittal.

Applying the principles governing amendments under s. 601 of the Criminal Code and the directed verdict test from Arcuri, the court held the accused had fair notice of the allegation and would suffer no prejudice from the amendment.

The court further concluded that circumstantial evidence could support an inference of sexual purpose.

The amendment was granted and the application for a directed verdict was dismissed.

During a jury trial for multiple sexual offences involving two complainants, the accused brought a Corbett application seeking to exclude portions of his criminal record from being introduced if he testified.

The court considered the balance between probative value and prejudicial effect, including the relevance of prior convictions to credibility, their similarity to the charged offences, and the effectiveness of limiting jury instructions.

The court rejected most of the defence request, holding that youth convictions, most assault convictions, and trafficking-related narcotics offences remained admissible.

However, convictions with minimal relevance to credibility, including dangerous driving and certain possession and assault offences, were excluded.

The application was granted in part, resulting in nine convictions being removed from the record presented to the jury.

During a jury trial for multiple sexual offences involving two young complainants, the Crown brought an application to admit similar act evidence across counts of the indictment.

The Crown argued that the allegations shared sufficient similarities and were relevant to issues including the actus reus, credibility of the complainants, motive, and pattern of behaviour.

The defence argued the allegations were materially different and that admitting the evidence would create a substantial risk of prejudice, particularly given the weaker evidence supporting one count.

The court held that the similarities were limited and the probative value of the evidence was slight, while the prejudicial effect—particularly the risk of improper propensity reasoning and wrongful conviction—was significant.

The Crown failed to establish that the probative value outweighed the prejudicial effect, and the application was dismissed.

Mid‑trial evidentiary ruling in a criminal jury trial addressing the admissibility of evidence concerning alleged photographs.

The court had previously excluded photographs seized pursuant to a search warrant as a breach of the accused’s s. 8 Charter rights, excluding the evidence under s. 24(2).

The Crown sought to re‑examine the complainant about statements and preliminary inquiry testimony referencing the photographs.

The court held this evidence constituted derivative evidence arising from the unconstitutional search and was closely connected in time and subject matter to the Charter breach.

Allowing the Crown to introduce it would undermine the exclusionary remedy and be fundamentally unfair.

The accused brought a Charter application alleging a breach of s. 8 arising from a search of a cell phone conducted pursuant to a warrant.

The court found the warrant was issued based on an Information to Obtain sworn by an officer with no personal knowledge of the investigation, rendering the authorization unreasonable.

Although the investigating officer had not acted in bad faith, the warrant process involved material deficiencies and non‑disclosure affecting the reliability of the authorization.

Applying the framework in R. v. Grant, the court held the Charter breach was moderately serious and had a significant impact on the accused’s privacy interests in the contents of a personal smartphone.

Evidence obtained from the search, including alleged child pornography images, was excluded under s. 24(2).

The accused brought a defence pretrial application seeking permission to sit beside defence counsel during jury selection and throughout the trial while in custody on serious sexual offence charges.

The Crown opposed the request and sought that the accused remain in the prisoner’s dock with restraints or, alternatively, with multiple uniformed officers nearby if seated at counsel table.

The court reviewed competing jurisprudence on whether an accused in custody should ordinarily sit in the prisoner’s dock or at counsel table and preferred the approach that treats the dock as the customary position absent special circumstances.

The judge found no evidence requiring departure from that approach, noting the seriousness of the charges and the accused’s lengthy criminal record, but also rejected the Crown’s request for shackles or excessive security.

The application was dismissed and procedural safeguards were ordered to prevent the jury from learning the accused was in custody.

The accused brought a pre‑trial application seeking a challenge for cause during jury selection based on potential racial bias against a Black accused.

The defence proposed a multiple‑choice version of the Parks inquiry to assess juror prejudice, while the Crown supported a simplified form previously endorsed in Ontario jurisprudence.

The court held that there was no evidentiary basis to conclude that multiple‑choice responses provide better information than open responses.

Adopting the approach endorsed in prior authority, the court approved a simplified question asking whether the accused’s race would affect a juror’s ability to judge the evidence fairly, accompanied by judicial instructions that jurors may answer in their own words.

The defence proposal for a multiple‑choice format was rejected.

The accused brought a defence application seeking a stay of proceedings after being subjected to repeated Level 3 strip searches each time he left the courtroom while permitted to sit at counsel table during his jury trial.

The court found the searches were conducted pursuant to an improper practice and were not supported by individualized reasonable grounds.

The repeated searches constituted serious breaches of the accused’s s. 8 Charter right to be free from unreasonable search or seizure.

The court held that routine strip searches cannot be justified merely because an in‑custody accused is seated at counsel table and emphasized the extreme intrusiveness of such searches.

Although a stay of proceedings was initially ordered to prevent ongoing Charter violations, the order was suspended when court security agreed to alter the seating arrangement and cease the searches.

The accused applied for a declaration that the offence of trafficking a person under 18 under s. 279.011 of the Criminal Code was unconstitutional.

The applicant argued the provision violated s. 7 of the Canadian Charter of Rights and Freedoms on the basis that it was overly broad, impermissibly vague, and allowed conviction with insufficient mens rea.

The court held that the statutory requirement that the acts be done “for the purpose of exploiting or facilitating exploitation” imports a high subjective mens rea consistent with the serious stigma and penalties of the offence.

Interpreted purposively, the concepts of exploitation and the reasonable person standard provide sufficient precision and do not create unconstitutional overbreadth or vagueness.

The applicant failed to establish a Charter breach.

The accused was tried on five criminal charges arising from an incident on July 10, 2011, in a Toronto Community Housing Complex known for drug and gang activity.

Police officers, responding to community complaints about drug trafficking, encountered the accused in the complex.

When approached, the accused fled, and during the chase, officers observed him reaching into his waistband and discarding a substance.

Officers apprehended him and found crack cocaine in his possession.

The accused was charged with unlawful possession of cocaine and marijuana, wilfully obstructing a police officer by falsely identifying himself, failing to comply with a recognizance condition regarding drug abstinence, and failing to comply with a probation order to keep the peace and be of good behaviour.

The court found the accused guilty of cocaine possession, obstructing police, and failing to comply with probation, but dismissed the marijuana possession charge and the breach of recognizance charge.

During a criminal trial for possession of cocaine and possession for the purpose of trafficking under the Controlled Drugs and Substances Act, the court ruled on the admissibility of police surveillance observations and text messages retrieved from the accused’s cell phone.

The defence argued that surveillance evidence of alleged hand‑to‑hand drug transactions constituted impermissible prior discreditable conduct and that a police officer should not be permitted to give opinion evidence.

The court held the surveillance evidence was directly relevant circumstantial evidence relating to possession on the charged date and permitted the officer to provide lay opinion evidence based on observations under the principles from R v Graat.

The court also addressed the admissibility of text messages allegedly using coded language related to drug transactions.

Messages from approximately six weeks prior were excluded due to their prejudicial effect, while messages from the day before and the day of the alleged offence were admitted subject to proof of electronic record integrity under the Canada Evidence Act.

The accused was convicted of attempted aggravated sexual assault after engaging in unprotected sexual intercourse with a partner for approximately fourteen months after learning he was HIV-positive and failing to disclose his status.

The complainant later tested positive for HIV and had developed AIDS, although it could not be proven that infection occurred after the accused learned of his status.

The court held that non-disclosure of HIV status vitiated consent through fraud under s. 265(3)(c) of the Criminal Code.

In determining sentence, the court weighed the accused’s lack of criminal record and positive community reputation against the repeated risk imposed on the complainant and the breach of trust inherent in the conduct.

A custodial sentence emphasizing denunciation and deterrence was required.

The applicant filed a human rights complaint alleging that a hospital and a doctor discriminated against her based on her Aboriginal ancestry by making stereotypical comments in a discharge summary.

The respondents raised preliminary objections, including that the complaint was filed out of time.

The Tribunal found that the applicant was aware of the material facts in December 2001 but did not file the complaint until February 2004.

The Tribunal rejected the applicant's argument that she was medically incapacitated from filing earlier, noting she had pursued other legal and complaint avenues during that time.

Finding no good faith reason for the delay and potential prejudice to the respondents, the Tribunal dismissed the application as out of time under section 34 of the Human Rights Code.

The Applicant, a mutual funds salesperson, sought a hearing and review of a Director's decision refusing to transfer his registration to a new employer.

The Applicant had been terminated for cause by his previous employer, a bank, for misappropriating Air Miles coupons for his own and his wife's benefit over a five-year period.

The Commission conducted a hearing de novo and found that the Applicant's conduct demonstrated a standard of business conduct below that required of a securities industry professional.

The Commission concluded that the Applicant lacked the trustworthiness and integrity required of a registrant and denied the request to transfer his registration.