Jason Rabinovitch

Sentencing for repeated sexual abuse of a child by a close family member, including digital and penile penetration, physical restraint, threats, and forcing the child to look at the offender's penis.

The court rejected the defence argument that the exposure conviction should be stayed under the Kienapple principle, holding that forcing the child to look at the offender's penis while he put on a condom was a factually distinct wrong from the sexual interference.

Applying the modern sentencing framework for child sexual offences, the court emphasized denunciation and deterrence, substantial harm to the child, breach of trust, repeated abuse over many months, and the child’s vulnerability.

The court also considered significant collateral consequences to the offender's spouse, children, and extended family, and imposed a sentence below the Crown's request but far above the defence position.

A six-year penitentiary term for sexual interference and a concurrent one-year term for exposure were imposed, together with lifetime SOIRA and other ancillary orders.

Sentencing for sexual interference involving online communications with a 13-year-old child, explicit image exchanges, deception about age, and sexual touching while the child was asleep at a sleepover.

The court held that denunciation and deterrence remained the primary objectives under ss. 718.01 and 718.2 of the Criminal Code and that a conditional sentence would only rarely be appropriate for sexual offences against children absent exceptional circumstances.

Although the offender was a youthful first offender with strong rehabilitation prospects, counselling, family support, and significant collateral consequences to his family, those factors did not justify a community sentence.

A custodial sentence of 18 months followed by two years' probation was imposed, together with DNA, no-contact, SOIRA, and s. 161 orders.

Trial on circumstantial evidence for possession of a loaded handgun found beneath the accused's vehicle.

A police officer observed the accused smoking cannabis in a parked car at a motel parking lot, drove past, and saw the accused exit and kneel beside the driver's door before attempting to walk away.

A loaded handgun was subsequently discovered under the vehicle within arm's reach of the driver's door.

No fingerprints attributable to the accused were found and DNA on the firearm belonged to an unknown male.

The court applied the Villaroman framework for circumstantial evidence, rejected defence arguments that the firearm could have been left by someone else, and found the only reasonable inference was that the accused possessed and discarded the firearm upon spotting the officer.

The accused was stopped during a mobile sobriety investigation after an officer observed him stumble while carrying alcohol to his vehicle in an LCBO parking lot.

He challenged the stop, the ASD demand, and the approved instrument demand under ss 8 and 9 of the Charter, and sought exclusion of the breath samples under s 24(2).

The court held that random or mobile sobriety stops are lawful in the regulated driving context, that the odour of alcohol supplied reasonable suspicion for the ASD demand, and that the ASD fail supplied reasonable grounds for the approved instrument demand.

The court rejected the argument that the officer's roadside reference to alcohol being “in his system” showed a misunderstanding of the statutory standard.

The Charter applications were dismissed and the Crown was found to have proved the charge beyond a reasonable doubt.

The accused was charged with assault contrary to section 266 of the Criminal Code and assault by choking, suffocating, or strangling contrary to section 267(c) of the Criminal Code, arising from an incident on August 2, 2023, involving his wife.

The Crown proceeded summarily.

The complainant testified that the accused struck her repeatedly in the face while driving, choked her by the neck, and pushed her head into the dashboard.

The accused denied all allegations.

The court found the complainant's evidence credible and reliable, supported by photographic evidence and medical observations.

The court rejected the accused's denial as incapable of belief and found him guilty on both counts.

The Crown sought a dangerous offender designation for the defendant following his conviction on four offences: assault with a weapon (predicate offence), uttering death threats, mischief under $5,000, and breach of probation.

The defendant had a 15-year history of violent outbursts, including three serious knife assaults on family members.

The court found the defendant met all criteria for dangerous offender designation based on a pattern of repetitive violent behaviour and persistent aggressive behaviour showing substantial indifference to consequences.

The court imposed an indeterminate sentence, finding that no lesser measure would adequately protect the public.

The defendants jointly applied for a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay was 618 days, exceeding the 18-month Jordan ceiling.

The Crown argued for a reduction in delay due to defence actions and inactions.

The court found that a joint prosecution was justified and that the defence acted as a collective.

Specific periods of delay were attributed to the defence, including 44 days due to one counsel's unavailability for a JPT, 11 days due to a change in counsel, and 95.5 days due to the collective defence's delay in raising s. 11(b) concerns and not utilizing backlog initiatives.

Alternatively, one defendant was found solely responsible for 306 days of delay due to counsel's unavailability for an earlier trial date, which was then communally shared.

In both scenarios, the net delay fell below the Jordan ceiling.

The court also found that the defence failed to demonstrate meaningful steps to expedite proceedings or that the case took markedly longer than it should have.

The application for a stay of proceedings was dismissed.

The defendant, Ayodele Adekoya, was found guilty by a jury of fraud over $5,000, possession of identity documents, uttering a forged document, and possession of property obtained by crime, stemming from a large-scale credit card fraud operation involving 60 compromised identities and a total loss of $239,677 to Citibank.

The court considered aggravating factors, including the significant quantum of fraud, the scale of the operation, and the defendant's extensive criminal record for similar dishonesty offences.

Mitigating factors included family support and rehabilitative potential.

The court rejected a conditional sentence order due to the defendant's history of non-compliance and dishonesty.

Despite concerns about collateral immigration consequences and the impact on the defendant's family, the court imposed a custodial sentence of 40 months concurrent for all counts, along with a DNA order and a restitution order of $239,677.

The accused was charged with sexual assault, break and enter, and being unlawfully in a dwelling house after breaking into a stranger's apartment and sexually assaulting her.

The accused claimed he was in a dissociative state due to bereavement, lack of sleep, lack of food, and alcohol consumption, leading him to mistakenly believe he was in his childhood home in Casablanca with his fiancée.

The court emphatically rejected the accused's testimony as incredible and implausible.

The court found no air of reality to the mistake of fact defence, noting that self-induced intoxication short of automatism is not a defence to general intent crimes like sexual assault.

The accused was found guilty on all counts.

The defendant, Duncan Morrison, was charged with sexual assault under s. 271 of the Criminal Code, stemming from an allegation that he removed a condom during consensual sexual intercourse without the complainant's knowledge or consent.

The central issue was whether the complainant consented to sexual activity without a condom.

The court assessed the credibility and reliability of both the complainant and the defendant.

While the complainant testified she insisted on condom use and saw the defendant put one on, her recollection of other significant details of the evening was found to be unreliable.

The defendant denied using a condom at all, stating he did not bring one.

Despite some issues with the defendant's explanations for his post-incident apologies, the Crown failed to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity as it occurred.

The appellant appealed his convictions for impaired driving causing bodily harm and failing to remain at the scene of an accident.

He argued the trial judge erred in inferring from circumstantial evidence that he was the driver of the vehicle and that he was impaired.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the Villaroman test for circumstantial evidence and concluding that the totality of the evidence supported the findings that the appellant was the driver and was impaired.

The accused was convicted by a jury of aggravated assault.

During deliberations, the jury inquired whether misidentification of the victim relieved the accused of intent.

The court ruled that the doctrine of transferred intent applied, meaning the accused's potential misidentification of the victim did not negate the intent to apply force, as the intention was transferred from the intended victim to the actual victim.

The accused, Peter Korgbor, was charged with aggravated assault and assault with a weapon.

During a pre-charge conference, the court considered whether the defence of self-defence should be put to the jury.

The court applied the "air of reality" test, reviewing the evidence from Crown witnesses regarding the altercation where the accused stabbed one individual and assaulted another with a knife.

The court found no direct or circumstantial evidence to support a reasonable belief that force was being used or threatened against the accused, nor that his actions were for defensive purposes or objectively reasonable in the circumstances.

Consequently, the court declined to leave the defence of self-defence with the jury, concluding that doing so would invite speculation.

The accused pleaded guilty to making available child pornography, possessing child pornography, making child pornography, sexual assault, and sexual exploitation of his stepdaughter between 2014 and 2017.

The offences involved the systematic grooming and sexual abuse of the victim from age 13 to 17, the creation and distribution of hundreds of sexually explicit images of the victim, and the possession of numerous child abuse images of other children.

The court imposed a global sentence of 4.5 years imprisonment, with specific counts running concurrently and consecutively as required by statute, less credit for pre-trial custody.

The sentencing emphasized denunciation and deterrence as primary objectives given the serious nature of crimes against children.

The accused was tried on two counts of attempted fraud over $5,000, two counts of possession of property obtained by indictable offence, and four counts of breaching recognizance conditions.

The Crown alleged the accused knowingly participated in a scheme to deposit stolen cheques into a trust account.

The accused maintained he did not know the cheques were stolen and was not involved in any fraudulent scheme.

The court found reasonable doubt regarding the fraud and possession charges, acquitting on counts 1-4.

The court found the accused guilty of breaching recognizance conditions related to possession of financial instruments (counts 7-8), but acquitted on the house arrest breach charges (counts 5-6) as the bank visits fell within the work exemption.

The accused was charged with threatening to cause bodily harm contrary to section 264.1 of the Criminal Code.

The Crown alleged that the accused made threatening statements to a Children's Aid Society caseworker when she attended his home to remove his children.

The accused denied making the threats.

The trial judge found the caseworker to be a credible and reliable witness and rejected the accused's evidence as unreliable.

The court found that the Crown proved the charge beyond a reasonable doubt and entered a conviction.

The Crown appealed the acquittal of the respondent on charges of impaired care or control and over 80.

The respondent was involved in a single motor vehicle accident and was later arrested after registering a fail on an approved screening device.

The trial judge acquitted the respondent, finding that he had successfully rebutted the statutory presumption of care or control for the period between a tow truck's arrival and police arrival.

The Superior Court found that the trial judge erred by failing to apply the presumption of care or control under section 258(1)(a) of the Criminal Code to the entire relevant time period, specifically the period of driving leading up to the collision.

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

In a youth criminal appeal from convictions for historical sexual offences against a child relative, the appellant argued that the trial judge failed to properly apply the third branch of W. (D.) in a case turning on credibility and reliability.

The court held that the trial judge did not adequately resolve significant inconsistencies between the complainant’s evidence, the mother’s evidence, and prior statements, and also failed to sufficiently explain important inferential findings central to guilt.

Although the court rejected the argument that expert evidence was required before the trial judge could refer to the complainant’s childhood behaviour as part of the credibility assessment, the cumulative deficiencies in the reasons constituted reversible error.

The convictions were set aside and a new trial was ordered.

The accused, Kamil Filli and Liban Douale, faced charges of drug trafficking and possession of proceeds of crime.

Both brought applications to exclude evidence under section 8 of the Canadian Charter of Rights and Freedoms.

Filli argued his warrantless arrest and subsequent search were unlawful.

The court dismissed Filli's application, finding his arrest and search lawful, or at worst a low-level Charter breach that would not warrant exclusion of evidence under the R. v. Grant test.

Douale argued the search warrant for his residence was based on information obtained through an unlawful warrantless search by police in the common hallway of his multi-unit residential building.

The court granted Douale's application, finding that the police conducted an unlawful warrantless search by entering the building and overhearing a conversation, which was the sole basis for subsequent incriminating observations.

This serious breach of privacy, coupled with the affiant's omission of these facts from the Information to Obtain, led to the exclusion of evidence against Douale under section 24(2) of the Charter, effectively ending the prosecution's case against him.

The appellant appealed his sentence for possession of a sawed-off shotgun on a public street.

The trial judge had rejected a joint submission for a conditional sentence, finding it woefully inadequate and imposing a custodial sentence instead.

The Court of Appeal upheld the trial judge's decision, agreeing that possession of deadly prohibited firearms requires a denunciatory sentence.

The appeal was allowed only to vary the terms of the s. 109 prohibition order to clarify the lifetime prohibition.