Jelena Vlacic

Following a conviction for indecent assault, the applicant brought a post-conviction motion seeking a mistrial or leave to reopen the trial.

The applicant argued the court misapprehended evidence about the nature of the touching and failed to find that a prior inconsistent statement by the complainant was a deliberate lie.

The court held it did not misapprehend the evidence and declined to provide further clarification.

The court found the defence made a tactical decision at trial not to recall the witness to cross-examine on the inconsistency, relying instead on an Agreed Statement of Fact.

Applying the Palmer test and principles from Kowall, the court declined to reopen the trial or order a mistrial based on this tactical choice.

The accused, a professional truck driver, was charged with dangerous operation causing bodily harm and death after his tractor-trailer collided with stationary vehicles at a red light, killing one person and injuring thirteen others.

The Crown relied on dashcam video showing the accused repeatedly yawning and using his cellphone in the minutes leading up to the collision.

The court found that the accused's prolonged inattention, exacerbated by fatigue and distraction, constituted a marked departure from the standard of care expected of a reasonable professional driver.

The accused was found guilty on all counts.

In a judge-alone historic sexual assault trial involving multiple complainants and allegations spanning several decades, the court acquitted on most counts but convicted on one count of indecent assault and one count of sexual assault.

The court held that count-to-count similar fact evidence was inadmissible because the proposed similarities were generic, one complainant's evidence was incapable of belief, and the overall probative value did not outweigh prejudice.

The abuse of process application was not pursued to a stay at the close of the case, and the court treated the investigative shortcomings as matters potentially bearing on reliability rather than as grounds for terminating the proceedings.

Applying orthodox principles of credibility, reliability, consent, and mens rea in historic sexual assault cases, the court found two complainants reliable on the central acts alleged and found the remaining allegations too uncertain to meet the criminal standard.

Following convictions after a judge-alone trial for sexual assault, uttering threats, arson, and break and enter arising from intimate-partner violence incidents, the court determined a fit custodial sentence by balancing denunciation, deterrence, rehabilitation, and totality.

The court rejected a conditional sentence despite substantial post-offence rehabilitation and sobriety efforts, emphasizing the gravity of the sexual assault and intentional fire-setting.

The court imposed consecutive and concurrent terms, reduced the aggregate sentence under totality, and further reduced it for restrictive bail conditions in part.

The court declined to impose a Sex Offender Information Registration Act order under s. 490.012(3), finding it unnecessary on the facts.

In a mid-trial Charter application, the accused sought exclusion of cocaine evidence seized from his basement bedroom during execution of a warrant targeting another occupant of the residence.

The court held the search was reasonable under s 8 because, on the totality of the circumstances, police could reasonably conclude the target had access to the room or that the accused was connected to the target’s alleged trafficking activity.

The court found the dwelling functioned as a single-family home with shared access features and no clear objective indicators of a separate, excluded sub-unit.

Alternatively, even assuming a Charter breach, exclusion under s 24(2) was refused after balancing police culpability, privacy impact, and society’s interest in adjudication on the merits.

The application was dismissed.

The defendant/applicant brought a certiorari application to quash his committal for trial on a charge of rape contrary to the former s. 144 of the Criminal Code, alleged to have occurred between July 1980 and July 1981.

The complainant testified she had no memory of events between being at a bar and waking up during intercourse with the accused, and stated she would not have consented.

The applicant argued the preliminary inquiry judge failed to engage in the limited weighing of circumstantial evidence required by Arcuri.

The reviewing court held that the preliminary inquiry judge correctly applied the committal test, finding available circumstantial evidence sufficient to support an inference favourable to the Crown, and that the existence of competing inferences was irrelevant at this stage.

The application was dismissed.

Youth sentencing decision for three robbery counts arising from violent car-jackings and an attempted vehicle theft involving vulnerable victims.

The court held that the matter met the exceptional-case custody threshold under s. 39(1)(d) of the Youth Criminal Justice Act, having regard to the seriousness of the offences, the violence used, the harm to victims, and the young person's level of responsibility.

Taking into account lengthy pre-trial detention, rehabilitation efforts in custody, the guilty plea, and the joint submission, the court accepted a low-end disposition.

The sentence imposed was probation in recognition of 12.5 months' deemed custody already served, together with ancillary weapons and DNA orders.

The accused was charged with nine counts arising from two discrete incidents in May and June 2019 involving his former partner.

The Crown conceded two counts.

The court found the accused guilty of uttering threats (two counts), sexual assault, arson, and break and enter with intent to commit an indictable offence.

The court acquitted on assault, break and enter with intent (May incident), uttering threats (June incident), and escape from lawful custody.

The defence of automatism based on substance abuse was rejected, as the court found the accused retained sufficient capacity to form the necessary intent for the offences.

The Crown sought to admit a statement given by the accused to police following his arrest for assault, uttering threats, and related offences.

The defence opposed admission, arguing the statement was involuntary and that various Charter breaches occurred, including violations of sections 10(a), 10(b), and 7.

The court conducted a voir dire to determine the admissibility of the statement.

The court found that the statement was voluntary and that while two technical Charter violations occurred (failure to inform the accused of all charges at the initial arrest and providing an incorrect charge description at the second arrest), these breaches were remedied before the statement was taken through a "fresh start." The court admitted the statement.

The accused was charged with two counts of assault by choking, attempted murder, discharging a firearm with intent, and aggravated assault against his former spouse.

The Crown relied on circumstantial evidence, including the accused's absence from work, DNA on a hat left at the scene, his subsequent arson of the matrimonial home, and his motive regarding family law proceedings.

The court found the complainant's evidence regarding the prior assaults credible and concluded that the only reasonable inference from the circumstantial evidence was that the accused was the shooter and intended to kill the complainant.

The accused was found guilty on all counts.

The court considered whether Taverio Stewart had knowledge and control of a loaded firearm found in the glove compartment of his Audi, following police surveillance and a search warrant.

The defence argued that Stewart’s uncle, Mr. Downey, who regularly borrowed the car, could have placed the firearm there.

The court found the defence evidence credible and raised a reasonable doubt, resulting in Stewart’s acquittal.

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.

Following a trial, the offender, Alexander Barreira, was found guilty of possessing a firearm without a license, possessing a restricted firearm with readily accessible ammunition, and possessing cocaine for the purpose of trafficking.

The offences occurred after police executed a Feeney warrant at his residence, observing drug paraphernalia and a firearm in plain view, leading to a search warrant.

The offender admitted to dealing drugs for profit.

The Crown sought a global sentence of six years imprisonment, while the defence argued for a sentence of less than two years to be served in the community.

The court considered the gravity of the offences, the offender's dated but relevant criminal record, his extensive involvement in drug trafficking for profit, and mitigating factors including strong family support, expressed remorse, and significant pre-sentence custody and restrictive bail conditions.

The court imposed a global sentence of 35 months imprisonment, comprising 24 months concurrent for the firearms offences and 11 months consecutive for the drug trafficking offence, after accounting for 19 months of enhanced credit for pre-sentence custody and 6 months credit for restrictive bail conditions.

Ancillary orders included a DNA order, a lifetime weapons prohibition, victim surcharges, and forfeiture of offence-related property.

Roland Nugent, charged with firearms and conspiracy offences, brought an S. 11(b) Charter application for a stay of proceedings due to unreasonable delay.

The total delay was 25 months and 16 days (777 days), exceeding the 18-month presumptive ceiling for provincial court matters.

The Crown argued for exceptional circumstances, citing discrete events related to an ongoing homicide investigation and the particular complexity of the multi-accused case.

The court found no discrete exceptional circumstances for the Crown's decision-making delay but accepted that the case's complexity, including multiple accused, extensive disclosure, and necessary pre-trial motions, justified the remaining delay.

The application was dismissed.

Brian Arsenault pleaded guilty to failing to stop after an accident where he knew or was reckless as to whether it resulted in bodily harm, contrary to s. 320.16(2) of the Criminal Code.

The incident involved striking a pedestrian, Christine Williamson, and then leaving the scene and later making a false report.

The Crown sought a 15-month carceral sentence, while the defence sought an 18-month conditional sentence.

The court considered aggravating factors, including the victim's profound psychological trauma, the offender's bad driving, and the false accident report, and mitigating factors such as an early guilty plea, genuine remorse, and strong rehabilitative prospects.

The judge imposed an 18-month conditional sentence, with the first nine months under house arrest, a 2-year driving prohibition, a DNA order, and a victim fine surcharge, finding that this sentence could achieve denunciation and deterrence while promoting rehabilitation.

The accused was stopped during a Festive R.I.D.E. campaign.

Police smelled raw cannabis and searched the vehicle, finding a loaded handgun.

The accused brought a Charter application to exclude the firearm and statements made to police, alleging breaches of his ss. 8, 9, and 10(b) rights.

The court found that the search based solely on the smell of raw cannabis was unreasonable, leading to arbitrary detention and a breach of the right to counsel.

However, applying the Grant framework under s. 24(2), the court concluded that the evidence should not be excluded, as the admission of the reliable evidence of a serious gun crime would not bring the administration of justice into disrepute.

The statements were also found to be voluntary and admissible.

Victor Alvarado pleaded guilty to manslaughter for the fatal stabbing of his friend, Orlando Donaldson.

The court considered aggravating factors including the use of a knife, the significant victim impact, and the offender's criminal record, which included prior violent offences involving a knife.

Mitigating factors included the genuine guilty plea, remorse, the triable issue of self-defence, the causal link between his paranoid schizophrenia and his actions, and the harsh pre-trial detention conditions during the COVID-19 pandemic.

The court emphasized denunciation and individual deterrence, noting that general deterrence is less significant when mental illness drives behaviour.

A sentence of six years incarceration was imposed, with credit for pre-trial custody.

The defendant pleaded guilty to one count of voyeurism contrary to section 162(1) of the Criminal Code, involving his 9-10 year old son.

The court considered aggravating factors including the victim's age, the significant breach of trust by a parent, and the location of the offence (the victim's bedroom).

Mitigating factors included an early guilty plea, no prior criminal record, and the defendant seeking professional counselling and psychiatric assessment, which indicated a very low risk of reoffending despite a diagnosis of pedohebephelic disorder.

The court emphasized the principles of deterrence and denunciation for the breach of trust, concluding that a conditional discharge or suspended sentence would be inappropriate.

A 60-day conditional sentence followed by 12 months probation was imposed, with specific conditions regarding house arrest, curfew, and contact with the victim and other minors.

The accused, A.V., brought a Charter application challenging the constitutionality of section 7(4.1) of the Criminal Code, arguing it was overbroad and infringed his liberty interests under section 7 of the Charter of Rights and Freedoms.

The provision grants extraterritorial jurisdiction over Canadian citizens and permanent residents for certain child sexual exploitation offences committed abroad.

The court examined the legislative objective of section 7(4.1) and assessed whether reasonable hypotheticals, such as consensual sexual activity with a 15-year-old in France (where the age of consent is 15), fell outside the objective.

The court found the objective was broad: to deter Canadian nationals from engaging in conduct viewed by Canadian standards as sexually exploitative of children abroad, regardless of dual criminality or international comity.

The court concluded that the hypotheticals, while potentially leading to "ill-advised prosecutions" were technically connected to this broad objective and therefore dismissed the overbreadth challenge.

The offenders were found guilty by a jury of exercising control, direction, or influence over the movements of two complainants who provided sexual services, and of receiving a financial benefit from those activities.

The court found the offenders exploited the young, vulnerable complainants for profit, with Mr. Deidun providing drugs and transportation, and Ms. Bernard booking hotel rooms.

After considering the Tang/Miller factors, the parity principle, pre-sentence custody, and Downes credit for restrictive bail conditions, the court sentenced Mr. Deidun to a net term of 30 months less 10 days, and Ms. Bernard to a net term of 11 months and 15 days.