Jennifer K. Penman

The accused brought a Charter motion seeking to exclude evidence of drugs, a firearm, explosives, and her utterances, alleging violations of her ss. 8, 9, and 10 rights.

Police had entered her apartment without a warrant following a 911 call about a violent assault, finding drugs and a firearm in plain view.

The accused was later located at another address, detained, and questioned without being advised of her right to counsel.

The court found that while the initial entry and a subsequent strip search were lawful, police violated s. 8 by remaining in the apartment pending a search warrant, and seriously violated ss. 10(a) and (b) by failing to provide rights to counsel.

Applying s. 24(2), the court excluded the accused's utterances but admitted the real evidence seized from the apartment.

The accused, Enrique Martinez-Reynosa, was found guilty by a jury of two counts of sexual assault.

The court determined a fit sentence, considering aggravating factors such as the complainant's intoxication and sleep state, the breach of trust, and the unprotected nature of the assaults, as well as mitigating factors including the accused's lack of prior criminal record (save for one impaired driving conviction), family support, and compliance with bail conditions.

The court imposed a global sentence of four years in custody, reduced to three years after applying Summers credit for pre-sentence custody and considering harsh detention conditions and restrictive bail.

The accused was charged with drug and firearms offences after police executed a search warrant at a residence.

During the search, police found drugs and cash, and subsequently questioned the accused without providing rights to counsel or a caution, eliciting statements about vehicle keys.

The police used these statements to seize the keys and search two vehicles, locating firearms.

The court found egregious violations of the accused's ss. 8 and 10(b) Charter rights, noting that senior officers acted carelessly, showed blatant disregard for Charter rights, and misled the court.

Applying the Grant framework, the court excluded the firearms evidence under s. 24(2) of the Charter.

The defendant, Enrique Humberto Martinez-Reynosa, applied for a directed verdict of acquittal on a sexual assault count at the close of the Crown's case.

The defence argued insufficient circumstantial evidence of lack of consent or capacity to consent.

The Crown contended the evidence could reasonably support an inference of guilt.

Applying the test for a directed verdict, the court found sufficient circumstantial evidence, including the complainant's prior disinterest in the accused, her high level of intoxication leading to a blackout, her post-event confusion and distress, and the accused's own statements, to allow the jury to consider the count.

The application for a directed verdict was dismissed.

This ruling addresses the discharge of a juror during a sexual assault trial.

The trial judge received multiple notes from a single juror and the jury foreperson, indicating the juror was engaging in discriminatory thinking, speculating on matters not in evidence, misapprehending the law, and refusing to collaborate.

Despite the defence's request for a mistrial, the judge discharged the juror under section 644(1) of the Criminal Code, finding the juror's conduct prevented proper deliberation.

The remaining jury subsequently returned verdicts of not guilty on one count and guilty on two counts.

The applicant, Spiro Rusha, brought a Charter application to exclude evidence seized during a search warrant execution, arguing the warrant lacked reasonable grounds and the Information to Obtain (ITO) was misleading.

He also challenged the lawfulness of his arrest under s. 9 of the Charter and alleged excessive force during the arrest under s. 7.

The court dismissed all applications, finding the search warrant valid based on credible, compelling, and corroborated confidential informant information, and that the affiant did not intentionally mislead the issuing justice.

The court also found reasonable grounds for the arrest and that the force used was not excessive given the circumstances.

Marlon Downey applied to stay human trafficking proceedings, arguing his s. 11(b) Charter right to a trial within a reasonable time was infringed, as the total delay exceeded the 30-month Jordan ceiling.

The Crown opposed, attributing delay to the pandemic and defence unavailability.

The court found the primary reason for delay was a systemic lack of judicial resources, not solely COVID-19 backlog or defence actions.

The application was granted, and proceedings were stayed.

The defendants, Victoria Manna-Silva and Ralph George, brought applications under sections 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence (drugs and a firearm) and for a stay of proceedings, alleging violations of their section 8 (unreasonable search) and section 10(b) (right to counsel) Charter rights.

The court found that police lawfully entered the apartment under exigent circumstances (911 domestic violence call) and observed drugs in plain view.

However, the court found section 8 violations for police remaining in the apartment after Ms. Manna-Silva was removed and for minor unlawful searches by a supervising officer.

A section 10(b) violation was also found due to delay in facilitating Ms. Manna-Silva's access to counsel.

Applying the Grant factors, the court determined that the seriousness of the breaches was low to moderate, the impact on the accused's Charter interests was not sufficiently serious to warrant exclusion given the independent discoverability of evidence and lack of self-incrimination, and society had a strong interest in adjudicating the serious drug and firearm charges on their merits.

Consequently, both the applications for exclusion of evidence and a stay of proceedings were dismissed.

The offender, an on-duty police officer, was convicted of sexual assault after using his position to engineer private meetings with a vulnerable complainant, leading to digital penetration and forced fellatio.

The Crown sought a sentence of five to six years, while the defence sought three years.

The court weighed the grave breach of trust and profound impact on the complainant against the offender's lack of criminal record, exemplary career, and the collateral consequences of his conviction.

The offender was sentenced to four years in custody, along with DNA, SOIRA, weapons prohibition, and non-communication orders.

Elijah Gilmore-Bent sought a stay of charges for possession of a loaded firearm, alleging violations of sections 7 and 12 of the Charter due to excessive force by correctional officers and a subsequent cover-up through false reports and testimony.

The court found that Officer Warburton's use of pepper spray was excessive and unnecessary, aggravated by Gilmore-Bent's 15-day segregation.

Furthermore, several officers colluded to write false use-of-force reports and provided dishonest testimony, indicating a systemic lack of oversight and accountability.

The court determined that no alternative remedy was sufficient and that continuing the prosecution would undermine the integrity of the justice system, granting a stay of proceedings.

The court convicted the accused of four counts of sexual assault arising from incidents involving a vulnerable 17-year-old complainant who was temporarily living with the accused's family.

Applying the W.(D.) framework and the sexual assault consent principles in Ewanchuk, the court rejected the accused's denials, found the supporting defence witness unreliable, and accepted the complainant's evidence as credible and reliable.

The court held that Facebook messages sent in 2020 were confirmatory evidence tantamount to an admission of prior sexual activity and supported the complainant's account.

Delayed disclosure did not undermine credibility, and corroboration was not legally required.

A Toronto Police Service officer, Constable Quinn, was charged with one count of sexual assault of E.W. while on duty.

The Crown alleged the sexual activity was non-consensual, and that Quinn manipulated the situation by faking a phone call to his partner and creating opportunities to be alone with the complainant.

Quinn testified the activity was consensual and instigated by the complainant.

The court found Quinn's testimony not credible, particularly regarding the fake phone call and his efforts to engage with the complainant outside of police duties.

The court accepted the complainant's evidence that she did not consent and found her credible and reliable.

The court also determined that, even if there had been apparent consent, it would have been vitiated by Quinn's abuse of his position of trust, power, or authority as an on-duty police officer.

Constable Quinn was found guilty of sexual assault.