Jason J. Wakely

The Court of Appeal for Ontario dismissed Aleksandr Shaporov’s conviction and sentence appeals for possessing and accessing child pornography.

The court addressed arguments regarding delay under section 11(b) of the Charter, the sufficiency and candour of the search warrant ITO under section 8, and alleged errors in the trial judge’s handling of the burden of proof and evidence.

The court found that, even after correcting for double-counted and misattributed periods of delay, the case’s complexity justified the time taken.

The trial judge’s findings on the ITO’s sufficiency and candour were upheld, as were his credibility findings and sentencing approach.

The court considered whether to exercise its discretion to grant pre-charge Charter relief in the form of a declaration that the seizure of items by police during a criminal investigation was in violation of section 8 of the Charter.

The Applicants, Eastway Tank Pump and Meter Ltd. and Neil Greene, had not been charged with a criminal offence but were under investigation following a fatal explosion.

The court reviewed the factual background, the parties' positions, and relevant case law on the availability of certiorari and declaratory relief prior to the laying of charges.

Ultimately, the court declined to exercise its discretion to grant the relief at this stage, finding the Charter issues best left to the trial judge, but left open the possibility of renewal if charges are not laid within a reasonable time and further evidence of reputational harm is provided.

The court granted an authorization to intercept private communications, with some exceptions, and issued a strong reminder to the Crown and police regarding the need for concise and focused affidavits in such applications.

The endorsement references the Supreme Court’s guidance in R. v. Araujo, emphasizing that affidavits must be full and frank but also clear and concise, and should not include every minute detail of an investigation.

The judge warned that future affidavits exceeding 200 pages may be rejected for resubmission, citing the burden on judicial resources and the need for efficiency.

The Crown appealed an acquittal for an offence under s. 172.2(1)(b) of the Criminal Code, which criminalizes agreeing or arranging to commit enumerated sexual offences against a person believed to be under a certain age.

The respondent had communicated with an FBI agent posing as a mother of young girls, discussing sexual acts and travel arrangements.

The trial judge acquitted, finding the Crown failed to prove the respondent intended to follow through with the plan, characterizing the communications as fantasy role-play.

The Court of Appeal found the trial judge erred in interpreting the mens rea, clarifying that the mens rea is the intent to agree, not the intent to carry out the underlying offence.

The court further clarified that the actus reus requires a "true consensus" or genuine agreement on the part of the accused, even if the other party is an undercover officer.

As the trial judge's reasons were unclear on whether the actus reus was proven under the correct legal test, the appeal was allowed, and a new trial was ordered on the relevant count.

The applicant, J.C., sought bail pending appeal after being convicted of sexual assault, sexual interference, and accessing child pornography, and sentenced to 6.5 years' imprisonment.

The court applied the three-part test under s. 679(3) of the Criminal Code: whether the appeal is frivolous, whether the applicant will surrender into custody, and whether detention is necessary in the public interest.

While the appeal was deemed not frivolous and the surrender condition met, the court found that the public confidence ground was engaged due to the gravity of the offences and the lengthy sentence.

The applicant's grounds of appeal were assessed as weak, and the enforceability considerations strongly outweighed the reviewability factors.

The application for bail pending appeal was dismissed.

The Crown appealed the acquittal of a respondent charged with committing indictable offences for the benefit of, at the direction of, or in association with a terrorist group under section 83.2 of the Criminal Code.

The respondent was the sole member of his own terrorist group.

The trial judge found the respondent not guilty of the section 83.2 offences but found him not criminally responsible on account of mental disorder (schizophrenia) for the underlying predicate offences.

The Court of Appeal upheld the trial judge's interpretation that section 83.2 does not apply to a lone wolf terrorist acting as the sole member of a terrorist group, as the provision contemplates a bilateral relationship between the principal committing the offence and a separate terrorist group.

The court dismissed the appeal.

Rehab Dughmosh was found guilty by a jury of four terrorism-related charges, including attempting to leave Canada to join ISIS, two counts of assault with a weapon for the benefit of ISIS, and possession of a weapon for a dangerous purpose for the benefit of ISIS.

The sentencing judge considered aggravating factors, such as the planned nature of the attacks and the violent ideology of ISIS, alongside significant mitigating factors, primarily the offender's major mental illness (likely schizophrenia) which played a central causal role in her adopting extremist beliefs and committing the offences.

The court emphasized that while deterrence and denunciation are paramount for terrorism offences, the mental illness reduced the offender's moral culpability, shifting the primary sentencing concern towards treatment and public protection through rehabilitation.

A global sentence of 7 years imprisonment was imposed, significantly lower than the 10-12 years the Crown suggested for an offender without mental illness, with parole to be determined in the ordinary course.

The court delivered reasons for sentence for the offence of possession of cocaine for the purpose of trafficking.

The sentence was based on a joint submission, reflecting the offender's first-offender status but also the large quantity of cocaine (over four kilograms).

The court accepted the joint submission, imposing an eight-year penitentiary sentence, reduced by 21 months for pre-sentence custody and restrictive bail conditions, resulting in 75 months to be served.

Ancillary orders included a DNA order, a 10-year section 109(2)(a) order, a lifetime section 109(2)(b) order, and a forfeiture order with a fine in lieu of forfeiture of $99,999, payable by September 20, 2027, with an 18-month consecutive jail term in default.

At a preliminary inquiry into charges of trafficking in cocaine arising from Project Keystorm, the Crown sought to commit the accused to stand trial on two counts: trafficking on March 19, 2015, and trafficking on April 9, 2015.

The accused conceded the evidence for the April 9 charge but contested the March 19 charge.

The central dispute concerned the admissibility and interpretation of an audio probe recording of a conversation between the accused and a co-conspirator in a vehicle.

The court found that the parties had agreed to the accuracy of the transcript and that the conversation, combined with subsequent intercepted communications, provided sufficient evidence for committal on both counts.

The applicant, facing terrorism charges, elected to be tried in the provincial court.

The Director of Public Prosecutions subsequently preferred a direct indictment under s. 577 of the Criminal Code, moving the trial to the Superior Court.

The applicant sought certiorari to quash the indictment, arguing that s. 577 does not apply to an accused who elected a provincial court trial and that overriding his election violated his s. 7 Charter rights.

The Superior Court dismissed the application, holding that s. 577 broadly permits direct indictments regardless of the accused's election, and that there is no constitutional right to a trial by a judge alone in a specific court.