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 offender was sentenced after convictions for prolonged sexual exploitation and sexual assault of a highly vulnerable teenage complainant by her stepfather over more than a year.

The court applied the Kienapple principle to stay two sexual assault counts that overlapped with corresponding sexual exploitation counts, then held that denunciation and deterrence were the primary sentencing objectives under the Criminal Code, particularly given the abuse of a person under 18 and abuse of a position of trust.

Relying on Ontario Court of Appeal authorities addressing prolonged sexual abuse by adults in authority, the court found a penitentiary term well above the minimum range was warranted but rejected the Crown's request for eight years as disproportionate on parity grounds.

A global concurrent sentence of six years was imposed, together with pre-sentence credit, lifetime sex offender registration, a DNA order, weapons prohibition, no-contact order, and victim surcharges.

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 accused were charged with numerous offences related to dog fighting, firearms, and drug trafficking.

They brought a pre-trial application seeking a stay of proceedings, arguing their right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The total time from charge to the anticipated end of trial was calculated at 30 months and 28 days, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court found that the delay was primarily caused by late disclosure and the Crown's ill-advised decision to join a co-accused late in the proceedings.

Finding no exceptional circumstances to justify the delay, the court granted the application and stayed all charges.

The offender was convicted of luring and making sexually explicit material available to a child after communicating with an undercover police officer posing as a 15-year-old girl on Craigslist.

The court sentenced the offender to 18 months' imprisonment and 3 years' probation for the luring offence, finding that the aggravating factors, including the offender's persistence and attendance at a meeting place, warranted a sentence above the mandatory minimum.

The court applied the Kienapple principle to conditionally stay the charge of making sexually explicit material available to a child, finding it was an alternate form of the same criminal harm.

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.

The accused was tried on charges of child luring and making sexually explicit material available to a child arising from online communications with an undercover officer posing as a 14-year-old girl.

Applying the W.(D.) framework, the court rejected the accused's evidence that he believed he was communicating with a middle-aged man and found that the statutory presumption as to age belief was not displaced.

The court held that the sexually explicit communications, repeated efforts to maintain contact, and attendance at a prearranged meeting established a subjective intent to facilitate a sexual offence.

The court also held that sexually explicit electronic messages constitute written material within s. 171.1.

Convictions were entered on both counts.

Sentencing decision following convictions on both an adult indictment and a Youth Criminal Justice Act indictment for numerous historical sexual offences against children.

The court applied the Kienapple principle to stay duplicative counts, then imposed a youth sentence focused on accountability, rehabilitation, and reintegration under s. 38 of the Youth Criminal Justice Act, while emphasizing denunciation and deterrence on the adult indictment because the offences involved a child victim and breach of trust.

The court treated the absence of intercourse and threats, the offender's lack of record, and collateral consequences as mitigating factors, but found the repeated sexual assaults and resulting harm required substantial custodial terms.

A 12-month youth custodial sentence plus 6 months' supervision was ordered consecutive to a 4-year adult penitentiary sentence, along with multiple ancillary orders.

Judge-alone criminal trial on historical sexual offence allegations spanning youth and adult periods, involving multiple complainants who were neighbours, relatives, daughters, or step-daughters of the accused.

The court admitted cross-over similar fact evidence between the youth and adult indictments, and also considered prior sworn evidence from another complainant, applying the similar fact evidence framework from Handy and related authorities.

After applying W. (D.), the court accepted the evidence of four complainants as credible and reliable beyond a reasonable doubt, but found a reasonable doubt on two adult counts because of a material inconsistency in one complainant's account.

Convictions were entered on 26 adult counts and all 26 youth counts, with acquittals on counts 27 and 28 of the adult indictment.