Jeff Hershberg

The accused was charged with firearms and drug offences following the execution of a search warrant at a condominium unit where he was present.

The Crown's case for possession of items found in the main bedroom relied entirely on circumstantial evidence, including the presence of the accused's passport and clothing.

The court found that while the evidence created a strong suspicion, it did not establish beyond a reasonable doubt that the accused had knowledge and control of the items, as other individuals had access to the unit and alternative reasonable inferences were available.

The accused was acquitted on all remaining counts.

The applicant, Melvin Ogbomo, applied to exclude evidence seized during a search of his residence, arguing the search warrant was facially and sub-facially invalid.

He alleged the affiant lacked subjective grounds, made misleading statements, and omitted material facts in the Information to Obtain (ITO).

The court found that while the affiant was careless and lacked training, his conduct was not deliberately misleading or subversive to the authorization process.

After amplifying the record to correct omissions, the court concluded there were still sufficient reasonable grounds to issue the warrant based on the shooting investigation and confidential source information.

The application to exclude evidence was dismissed.

The Ontario Court of Justice found that the accused, Martin Tinglin, experienced an unreasonable delay in his trial process, infringing his s. 11(b) Charter right to be tried within a reasonable time.

Despite the total delay being above the Jordan presumptive ceiling of 18 months, the court calculated a net delay below the ceiling after subtracting defence delay.

However, the court emphasized the Crown's failure to actively manage disclosure and case progression, which contributed significantly to the delay.

The court granted a judicial stay of proceedings under s. 24(1) Charter as a remedy for the violation, highlighting systemic issues in case management and Crown disclosure practices.

Three defendants, Levi Alexander, Vejay Alexander, and Lamar Cyrus, pleaded guilty to manslaughter after a planned robbery of a modified starter's pistol resulted in the unintentional shooting death of Alex Perlmutter.

Lamar Cyrus also pleaded guilty to unauthorized possession of a prohibited firearm.

The court accepted joint sentencing recommendations, emphasizing the egregious nature of the offence, the defendants' disregard for court orders (firearms prohibitions, probation conditions), and their serious criminal records.

Mitigating factors included the guilty pleas (though late) and the harshness of pre-sentencing custody during the COVID-19 pandemic.

The victim's family provided impact statements detailing their profound loss.

The offender pled guilty to robbery with a restricted firearm, robbery with an imitation firearm, and possession of a weapon contrary to a prohibition order.

The court found a breach of section 9 of the Charter due to a 32-hour delay in bringing the offender before a justice, granting a six-month sentence reduction as a remedy.

The court interpreted section 344(2)(a) of the Criminal Code to require a prior conviction for robbery with a firearm to trigger the seven-year mandatory minimum, finding the applicable minimum was five years.

The court also held that a seven-year minimum would violate section 12 of the Charter.

Considering the harsh conditions of pre-sentence custody and the Charter breach, the court imposed a global sentence of five years and three months, less pre-sentence custody credit.

The accused, John, David, and Jonathan Pham, brought a Charter application under section 11(b) for a stay of proceedings due to unreasonable delay.

The total delay from charge to anticipated end of trial was nearly 28 months, exceeding the 18-month presumptive ceiling for provincial court.

The Crown argued that the delay was due to an "exceptional circumstance" related to their post-ruling investigation into surveillance evidence.

The court found that the Crown's decision to investigate and introduce new evidence after a section 8 ruling (which found police misrepresentations) was not a reasonably unforeseen or unavoidable event, as the issues were central to the litigation from the outset.

Therefore, the delay was not attributable to an exceptional circumstance, and the presumptive ceiling for delay was exceeded without justification.

The accused brought a Charter application challenging the issuance of a tracking warrant, alleging violations of their s.8 rights due to misrepresentations and omissions in the Information to Obtain (ITO).

The application also included a s.7 claim for a stay of proceedings due to lost evidence (CCTV footage).

The court found that the affiant made significant misrepresentations and omissions regarding a confidential human source's criminal record and surveillance observations, particularly concerning a trip to Whole Foods characterized as "counter-surveillance" driving and an alleged "drug transaction." These misrepresentations were found to be intentional or reckless, tainting the reliability of the ITO.

Consequently, the court excised the misleading portions, rendering the warrant invalid.

The s.7 application for a stay was not granted, as the s.8 remedy was deemed sufficient at this stage.

The court ruled on the Crown's request to instruct the jury on an alternative theory of first-degree murder under s. 231(6.1)(a) of the Criminal Code, which pertains to murders committed for the benefit of, at the direction of, or in association with a criminal organization.

The accused, Sheldon Tingle and Jermaine Dunkley, were charged with first-degree murder in the shooting death of Neeko Mitchell.

The Crown alleged that Dunkley ordered the killing and Tingle lured the victim.

The court determined that the "substantial cause" standard, established in R. v. Harbottle for s. 231(5) of the Code, also applies to s. 231(6.1)(a) due to identical statutory language and legislative history.

Applying this high standard, which requires an "essential, substantial and integral" and usually physical role in the killing, the court found no evidentiary "air of reality" to support that the actions of Tingle or Dunkley met this threshold, as the victim was killed by a lone gunman and their alleged roles were more remote.

Consequently, the jury would not be instructed on this alternative theory of liability.

The accused, charged with first-degree murder, sought to admit the jury verdict from the principal offender's separate trial, where the principal was acquitted of first-degree murder but convicted of second-degree murder.

The Crown objected to the admissibility of this prior verdict.

The court ruled that a jury verdict from an earlier, separate criminal trial against a principal offender is not admissible in subsequent proceedings against alleged parties to the crime.

This is based on long-standing Supreme Court of Canada jurisprudence, which holds that such a verdict is irrelevant and merely represents the opinion of another jury, not binding on the current jury.

This is a mid-trial ruling on the admissibility of lay opinion evidence from David Griffith in a first-degree murder trial.

The accused, Sheldon Tingle and Jermaine Dunkley, are charged in connection with the killing of Neeko Mitchell.

Griffith, a friend of the deceased, observed a man make a gesture to Mitchell shortly before his death, which the Crown alleges was Tingle luring Mitchell outside.

Defence counsel argued the evidence was inadmissible opinion and hearsay, and highly prejudicial.

The court ruled the evidence admissible, finding it fell within the exception for non-expert opinion evidence, was not tendered for a hearsay purpose, and its probative value outweighed any potential prejudice.

A 17.5-year-old young person pleaded guilty to second-degree murder.

The court was tasked with determining whether to impose an adult or youth sentence under the Youth Criminal Justice Act (YCJA).

The Crown sought an adult sentence of life imprisonment, while the defence argued for a youth sentence comprising time served and conditional supervision.

The court considered the seriousness of the offence, the young person's background (including a toxic relationship with the victim, substance abuse, and the impact of her mother's death), and her significant rehabilitative progress while in custody.

Professional assessments unanimously recommended a youth sentence, citing the young person's developmental vulnerability and the potential negative impact of an adult correctional facility.

Applying the YCJA's principles of accountability, rehabilitation, and reintegration, the court found that a youth sentence of sufficient length would hold the young person accountable.

Consequently, the Crown's application for an adult sentence was dismissed, and a youth sentence of seven years was imposed, consisting of four years in custody (crediting three years for pre-sentencing detention plus one additional year) followed by three years of conditional supervision, along with a weapons prohibition order.

At a preliminary inquiry, the Crown sought committal on charges of second degree murder, attempted murder, and aggravated assault arising from a violent street attack on September 30, 2013, outside Sang's Restaurant in Toronto.

The attack involved six assailants attacking three victims, resulting in the death of Danny La from blunt force trauma to the head.

The court found sufficient evidence to commit both defendants to trial on second degree murder and aggravated assault charges, but rejected the attempted murder charge and the Crown's theory of constructive first degree murder based on forcible confinement.

Following conviction, the accused sought a stay of proceedings on the basis of entrapment arising from an undercover officer's drug-related telephone calls initiated after an unverified tip.

Applying the entrapment framework, the court held the officer's initial references and coded language were legitimate investigative steps and that reasonable suspicion arose before any opportunity to commit the offence was provided.

The court further held that, even if entrapment had been established in relation to trafficking, the possession offences were committed independently and would not attract a stay.

Entrapment, as a post-conviction abuse of process doctrine, also could not retroactively invalidate the arrest.

The accused was charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime after an undercover police drug buy at a shopping mall.

The central issue at trial was whether the accused had knowledge and control of the drugs and money seized upon arrest.

Police witnesses described the controlled buy, continuous surveillance, and the seizure of cocaine, marked buy money, and additional cash and drugs from the accused and his backpack.

The accused testified that another individual committed the transaction and denied possessing the drugs, money, or backpack.

The court rejected the accused’s evidence as not credible and found the police evidence reliable, concluding the Crown proved possession and proceeds beyond a reasonable doubt.

The accused was charged with dangerous driving causing death after failing to stop at a stop sign and colliding with a vehicle travelling on a through road.

The court found the actus reus established because driving through the stop sign created a significant risk to other road users.

However, applying the principles from Supreme Court of Canada authorities on dangerous driving, the court held that the evidence did not establish a marked departure from the standard of care of a reasonable driver.

The evidence suggested either a momentary lapse of attention or a negligent misjudgment when performing a rolling stop.

Such conduct, while careless and potentially giving rise to civil liability or provincial offences, did not meet the criminal threshold for dangerous driving.

The accused brought a Charter application alleging a violation of s. 8 after police accessed and downloaded data from the airbag control module (ACM) of his vehicle without a warrant following a fatal motor vehicle collision.

The court held that the accused had a reasonable expectation of privacy in the data stored on the vehicle’s onboard computer and that the police conduct in entering the vehicle, cutting the flooring, and imaging the data constituted an unreasonable warrantless search.

However, applying the framework under s. 24(2) of the Charter, the court concluded that admission of the evidence would not bring the administration of justice into disrepute.

The breach was moderate, the evidence was reliable and real, and society’s interest in adjudicating a fatal dangerous driving charge on its merits was high.

The Crown appealed a sentence imposed after conviction for possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code.

Following the court's earlier ruling that the mandatory minimum sentence was unconstitutional and that the trial sentence was manifestly unfit, the remaining issue was whether the respondent should be re-incarcerated after having completed the sentence originally imposed.

The court held that a fit sentence at trial would have been two years less a day, with 12 months' credit reducing the remaining custodial term to 12 months.

However, given the lengthy appellate delay, the respondent's successful completion of the conditional sentence, and his demonstrated rehabilitation, the court permanently stayed execution of the 12-month sentence.

The Crown appealed the sentence imposed on the respondent for possession of a loaded prohibited firearm.

The trial judge had declared the three-year mandatory minimum sentence unconstitutional under s. 12 of the Charter and imposed a five-month conditional sentence.

The Court of Appeal upheld the declaration that the mandatory minimum violates s. 12 of the Charter, relying on its companion decision in R. v. Nur.

However, the Court found that the trial judge made unsupported findings of fact that improperly mitigated the offence.

The Court concluded the original sentence was manifestly inadequate and requested further submissions to determine an appropriate sentence.

The accused brought a Charter application seeking exclusion of a handgun discovered in the trunk of a vehicle following a police stop.

Police officers testified they observed the accused place a firearm in the trunk before stopping the vehicle and conducting a search incident to arrest.

The court found significant credibility and reliability problems in the officers’ testimony, including material inconsistencies and implausible explanations, and concluded the Crown failed to establish that officers honestly believed they had seen a gun placed in the trunk.

The court held the search was unreasonable under s. 8 of the Charter and the detention was arbitrary under s. 9.

Applying the s. 24(2) analysis, the court determined the serious Charter breaches and impact on the accused’s rights outweighed society’s interest in adjudication on the merits, and the firearm evidence was excluded.

This is a ruling on committal for trial following a three-month preliminary inquiry into Project Marvel, a police investigation into drug and firearm trafficking by members of a criminal organization known as the Young Buck Killers (YBK).

Nine defendants faced sixty-four counts including trafficking and possession of cocaine and other drugs, trafficking and possession of firearms, and conspiracy charges.

The Crown alleged that most defendants committed these offences for the benefit of, at the direction of, or in association with the YBK criminal organization.

The court applied the test for committal established in R. v. Arcuri, requiring that there be admissible evidence which could, if believed, result in a conviction.

The court found sufficient evidence to commit most defendants to trial on the charges, though some counts were discharged where the evidence was insufficient or speculative.

The court's analysis focused on whether the predicate offences were sufficiently connected to the criminal organization and whether the accused possessed the requisite mens rea.