James Martin Boonstra

This decision addresses a post-verdict application by Patrick Delisle seeking to set aside his conviction and declare a mistrial on grounds of ineffective assistance of trial counsel.

The core issue was whether trial counsel failed to properly advise Delisle of his right to elect the mode of trial, a fundamental procedural right under s. 536 of the Criminal Code.

The court found that trial counsel did not adequately inform Delisle of this right, particularly after significant additional charges were laid, which increased Delisle’s jeopardy.

The court held that this failure constituted a denial of Delisle’s right to make an informed election, undermining the fairness of the trial process.

The only appropriate remedy was to grant a mistrial and vacate the conviction, ordering a new trial.

The court considered charges of sexual exploitation and sexual assault against Steven Ronald Moreau, who was accused of engaging in a sexual relationship with VJ, his employee, beginning when she was 16 years old.

The court found Moreau guilty of sexual exploitation under s. 153(1) of the Criminal Code, finding he was in a position of trust and authority as VJ’s employer.

However, the court acquitted him on two counts of sexual assault, finding that the Crown had not proven beyond a reasonable doubt that Moreau abused his position to induce sexual activity or that he engaged in sexual activity without VJ’s consent on the occasion alleged.

The decision provides a detailed analysis of the legal distinctions between sexual exploitation and sexual assault in the context of positions of trust and authority.

The accused, Neetahwis Shognosh-Diaz, was found guilty of sexually assaulting the complainant, who was impaired by alcohol and unable to consent, involving vaginal and anal penetration.

The court considered sentencing submissions from both the Crown, who sought 36-48 months' custody, and the defence, who proposed an 18-month conditional sentence.

The court acknowledged the accused's youth, lack of prior record, and Gladue factors, but emphasized the gravity of the offence, the victim's vulnerability, and the need for denunciation and deterrence.

Ultimately, the court imposed a custodial sentence of two years less a day, followed by a 36-month probationary term, along with ancillary orders including a weapons prohibition, DNA order, and SOIRA registration.

The applicant brought a motion under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence of accessing and possessing child pornography obtained pursuant to a search warrant.

The applicant challenged the warrant on grounds that it was based on misleading and unfounded information in the Information to Obtain.

The court found that the affiant made serious misstatements regarding the frequency and location of access to the PlayPen website, claiming multiple accesses from the applicant's residence when only one IP address observation existed with no evidence of child pornography access on that specific date.

The court determined the warrant lacked reasonable grounds and violated section 8 Charter rights.

Applying the Grant factors under section 24(2), the court excluded the evidence, finding the seriousness of the breach and its impact on privacy interests outweighed society's interest in adjudication on the merits.

The applicants sought intervener or amicus status in proceedings under the Dog Owners' Liability Act involving charges of animal cruelty and dog fighting.

The court considered whether it had jurisdiction to grant such status and, if so, whether it should exercise that discretion.

The court held that while statutory courts may have implied jurisdiction to appoint interveners in exceptional circumstances, the applicants failed to meet the established common law tests for intervention.

The application was denied as the applicants lacked direct interest in the matter, their participation was not practically necessary, and their interests were substantially aligned with the defendants.