James Zegers

Dangerous offender application following guilty pleas to manslaughter, assault causing bodily harm, and attempted robbery arising from an unprovoked fatal stabbing, a second random stabbing, and an attempted carjacking.

The court found the predicate offences formed part of both a pattern of repetitive violent behaviour and a pattern of persistent aggressive behaviour, established through a lengthy record of unprovoked assaults, robberies, weapon use, breaches, and continuing in-custody assaults.

The court preferred the Crown psychiatrist's assessment that the offender posed a high risk of violent recidivism and gave significantly less weight to the defence psychiatrist's opinion that untreated PTSD and traumatic brain injury made the risk manageable through a determinate sentence and long-term supervision.

After considering Gladue factors, treatment history, cognitive functioning, and available Indigenous programming, the court held that anything less than an indeterminate sentence would be speculative and inadequate to protect the public.

The offender pleaded guilty to manslaughter in the death of Devon Cherrey-Rooke, who was killed on August 7, 2022, in London, Ontario.

The offender, who was heavily intoxicated on crystal methamphetamine and fentanyl, engaged in an unprovoked armed attack on an unarmed, vulnerable homeless victim following a dispute over a drug transaction.

The attack lasted approximately 26 seconds and involved six strikes with a sharp-bladed instrument and a final kick.

The victim sustained three sharp force wounds, including a stab wound to the left thigh that severed a major artery, resulting in fatal hemorrhagic shock.

The offender fled the scene without rendering assistance, changed his distinctive clothing, and was arrested eight days later.

The court imposed a custodial sentence of nine years, with credit for 1,103 days of pretrial custody at a rate of 1.5:1, resulting in a net sentence of approximately 4 years, 5 months to be served in a federal penitentiary.

The Crown appealed the respondent's acquittal on a charge of failing to comply with a breath demand.

The trial judge had found the approved screening device (ASD) demand unlawful, concluding the officer lacked reasonable suspicion and failed to make the demand immediately.

The summary conviction appeal court allowed the appeal, finding the trial judge erred in law by rejecting the defence's concession on reasonable suspicion without explanation and by ignoring objective facts such as the odour of alcohol and the respondent's admission to drinking.

The appeal court also held the trial judge erred by interpreting 'immediately' as 'instantaneously', finding the two-to-four minute delay was reasonably necessary.

The acquittal was set aside and a new trial ordered.

The Crown applied under section 714.2(1) of the Criminal Code for an order permitting the complainant in a sexual assault case to testify by videoconference from Florida, where she was residing with her mother due to an unforeseen health crisis and was currently self-isolating after testing positive for COVID-19.

The respondent opposed the application, arguing that videoconference testimony would violate principles of fundamental justice, including the right to face one's accuser and concerns about the solemnity of proceedings.

The court granted the Crown's application, finding that the respondent failed to demonstrate meaningful prejudice to his fair trial interests and that videoconference evidence is a capable substitute for in-person testimony under the Criminal Code framework.

The appellant appealed his sentence of two years less a day for trafficking cocaine to undercover police officers on three occasions within a two-week period.

The appellant argued that the sentencing judge erred in principle by applying the parity principle without sufficient information regarding a co-accused's sentence.

The sentencing judge acknowledged the need for caution but proceeded to rely on the co-accused's sentence despite incomplete information.

The Court of Appeal found this constituted an error in principle that impacted the sentence and reduced the appellant's sentence to 12 months.

The accused brought pre-trial applications alleging breaches of their rights under ss. 8 and 9 of the Charter, seeking the exclusion of evidence under s. 24(2).

The charges stemmed from a traffic stop where police discovered methamphetamine, hydromorphone, and weapons.

The court found that the police officer used the traffic stop as a pretext to investigate suspicions of drug activity and probation breaches, without legitimate highway safety concerns.

This constituted an arbitrary detention under s. 9 of the Charter, which tainted the subsequent plain view seizure and searches incident to arrest, violating s. 8.

Applying the Grant framework, the court concluded that admitting the evidence would bring the administration of justice into disrepute due to the seriousness of the police misconduct.

The evidence was excluded.

The Crown appealed the acquittal of James Bernard for driving with excess blood alcohol.

The trial judge had found violations of Mr. Bernard's s. 10(b) Charter rights (informational and implementational components) and excluded breathalyzer evidence under s. 24(2).

The Superior Court of Justice, on appeal, found that the trial judge misapprehended the evidence and erred in law regarding the s. 10(b) Charter analysis, particularly concerning officer safety exceptions and the feasibility of roadside counsel consultation.

The court also found errors in the s. 24(2) Grant analysis.

The appeal was granted, the acquittal set aside, and a new trial ordered.

The accused was tried on ten charges arising from a three-year common law relationship, including assault, sexual assault, assault causing bodily harm, assault with a weapon, and uttering threats.

The accused brought a Charter application alleging a breach of section 7 due to the police's failure to preserve video surveillance evidence, which was dismissed as the court found no unacceptable negligence.

Applying the W.(D.) framework, the court assessed the credibility of both parties, finding the complainant largely credible despite some inconsistencies, while rejecting much of the accused's testimony.

The accused was found guilty of seven counts, including assault, assault with a weapon, and uttering threats, but acquitted of sexual assault and two other assault charges where reasonable doubt remained.

The accused was charged with 13 offences arising from a domestic relationship with a young woman.

The Crown withdrew four charges and proceeded on five counts: common assault, two counts of assault with a weapon (knife and door), assault causing bodily harm, and unlawful confinement.

The trial involved extensive evidence of a pattern of physical and emotional abuse, isolation, drug manipulation, and threats.

The court found the complainant's evidence credible and compelling, rejecting defence arguments based on myths and stereotypes about domestic violence victims.

The court convicted on all five remaining counts.

The appellant appealed his conviction entered by the Superior Court of Justice on July 4, 2016.

The principal issue was whether the trial judge erred in finding that a reasonable person in the officer's position would have believed reasonable and probable grounds existed to arrest the appellant.

The Court of Appeal upheld the trial judge's analysis, finding that she stated the correct test, correctly examined the totality of the circumstances, and that those circumstances supported the objective reasonableness of the search.

The appeal was dismissed.

The appellant was convicted of sexual assault after engaging in sexual intercourse with the sleeping complainant.

He appealed his conviction and sentence, arguing the trial judge erred in her credibility analysis, misapplied the W.(D.) framework, and misinterpreted forensic evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility analysis was reasonable, she properly applied W.(D.) without shifting the burden of proof, and the forensic evidence was neutral.

The 30-month sentence was upheld as fit.

The appellant, Faouzi Reslan, appealed his conviction for sexual assault and the imposed sentence of three months custody followed by two years probation.

The appeal from conviction was based on the trial judge's alleged failure to provide adequate reasons and misapprehension of evidence, particularly regarding inconsistencies in the complainant's testimony.

The appeal from sentence argued that the trial judge erred by overly focusing on denunciation and deterrence, failing to consider the appellant's medical issues, and imposing an unnecessarily harsh sentence by rejecting a conditional sentence.

The court dismissed both appeals, finding the trial judge's reasons for conviction adequate and her sentencing decision within the acceptable range, properly balancing sentencing principles and considering the appellant's circumstances.

The applicant brought a Charter application under s. 24(2) seeking exclusion of drugs and other items seized following his arrest for possession of controlled substances for the purpose of trafficking.

He argued the police lacked reasonable and probable grounds to arrest him and that the subsequent searches of his person, vehicle, and backpack were unlawful, breaching ss. 7, 8, and 9 of the Charter.

The court held that, considering the totality of the circumstances including confidential informant tips, corroborating surveillance, and the observation of a distinctive backpack linked to drug trafficking, the arresting officer had objectively reasonable and probable grounds.

Even if a Charter breach had been established, the court concluded that the Grant factors would favour admission of the evidence.

The application to exclude the evidence was dismissed.

During a criminal jury trial for arson with disregard for human life under s. 433(a) of the Criminal Code, the Crown sought to have the jury also consider arson causing damage to property under s. 434 as a lesser and included offence, or alternatively, to amend the indictment to add a s. 434 charge.

The court ruled that s. 434 is not a lesser and included offence of s. 433(a) because it contains distinct elements, such as the property not being wholly owned by the accused.

The court denied the Crown's motion to amend the indictment mid-trial, finding it would prejudice the accused and risk confusing the jury.

However, the court permitted the offence of mischief to be put to the jury as a valid included offence.

The accused was charged with driving over 80.

Upon arrest, the police informed him of his right to counsel.

When asked if he wanted to call a lawyer, the accused replied, 'No, not right now.' He subsequently provided breath samples at the police station without requesting to speak to counsel.

The trial judge found no violation of the accused's s. 10(b) Charter rights, concluding he had not invoked his right to counsel, and convicted him.

The summary conviction appeal judge overturned the conviction, finding the accused did not unequivocally waive his right to counsel.

The Crown appealed.

The Court of Appeal allowed the appeal and restored the conviction, holding that the issue of waiver only arises after a detainee has invoked their right to counsel.

The trial judge made no palpable and overriding error in finding the accused had not invoked his rights.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

The appeal centred on whether breath samples were admissible where the accused responded “No, not right now” when asked if he wished to contact counsel after arrest.

The court held that this response did not constitute a clear and unequivocal waiver of the right to counsel under s. 10(b) of the Charter.

Police obtained breath samples before providing a meaningful opportunity to consult counsel, and the failure to reiterate and facilitate access at the station constituted a Charter breach.

Applying the exclusion analysis under s. 24(2), the court found the breach deliberate and significant and excluded the breath evidence.

The applicant sought leave to cross-examine the affiant of an Information to Obtain (ITO) a search warrant at a preliminary hearing (a Dawson Application).

The applicant was charged with marijuana possession, marijuana production, careless use of a firearm, and two counts of unauthorized possession of a weapon.

The applicant argued that the information in the ITO was only minimally corroborated and that the confidential source was unproven.

The court dismissed the application, finding that the applicant had not tendered extrinsic contradictory evidence, had not demonstrated facial validity issues with the ITO, and had not shown that the affiant inaccurately or unfairly presented the information.

The proposed cross-examination did not fall within the scope permitted under the Garofoli test.

The appellant appealed his convictions for having care and control of a motor vehicle while impaired and failing to comply with a breath demand.

He argued the trial judge erred in finding the arresting officer had objectively reasonable grounds to make the breath demand.

The Superior Court of Justice dismissed the appeal, finding that the constellation of facts—including the appellant sleeping in a running car at 3 a.m., the smell of alcohol, a partially consumed bottle of vodka, fumbling with his wallet, and stumbling—objectively supported the officer's subjective belief of impairment.

A secondary ground regarding re-examination of the officer was also dismissed.

The appellant appealed his convictions for several sexual offences, arguing that the trial judge provided inadequate reasons, failed to account for inconsistencies in the complainant's evidence, and improperly shifted the burden of proof.

The Court of Appeal dismissed the appeal, finding that while the reasons could have been fuller, the trial judge grasped the essence of the case, made essential factual findings, and properly applied the burden of proof and the W.(D.) framework.

The appellant appealed his sentence, arguing that the trial judge erred by rejecting a joint submission on sentence without explicitly giving counsel an opportunity to address it.

The Court of Appeal found that counsel had an opportunity during a break in proceedings.

The Court upheld the trial judge's decision, agreeing that the joint submission was grossly inadequate and that this was one of the rare cases where it was necessary to depart from it.

The appeal was dismissed.