Jennifer Moser

Following a judge-alone criminal trial arising from violence between former intimate partners, the court acquitted on criminal harassment but convicted on assault, assault with a weapon, sexual assault, and two counts of mischief.

The court accepted the complainant's evidence that the accused destroyed her phone, struck her repeatedly, used a bathroom door as a weapon, damaged her belongings, and obtained sexual access only after offering phone access needed for safe departure.

Applying the Criminal Code consent provisions and sexual assault jurisprudence, the court held that any ostensible agreement to sexual activity was not legally valid and was in any event vitiated by fear, fraud, and abuse of trust, and that continued crying and requests to stop eliminated any air of reality to a mistaken-belief defence.

The criminal harassment count failed because, despite repeated and distressing communications, the Crown did not prove beyond a reasonable doubt that the accused knew those communications were harassing in light of the complainant's continued engagement with him.

This decision concerns the sentencing of Carlos Guerra Guerra for second degree murder, assault with a weapon, obstructing justice, and intimidation of a justice participant, arising from a fatal shooting at a bush party in London, Ontario.

The court reviews the facts, aggravating and mitigating factors, and relevant case law, ultimately imposing a life sentence with 16 years of parole ineligibility, plus additional concurrent and consecutive sentences for the other offences.

The decision provides a detailed analysis of the application of sentencing principles, the impact of gun violence, and the effect of harsh pre-trial custody conditions.

The Crown brought an application to recall a witness, Ricardo Silva, before closing its case in a trial for second-degree murder and assault with a weapon.

The Crown sought to question the witness regarding the location of his deceased son's airsoft gun on the night of the shooting, an issue that became relevant only after the defence suggested during cross-examination of other witnesses that the deceased may have had a gun.

The defence opposed the application, arguing that the witness had sat through the trial and that recalling him would cause prejudice.

The court granted the application, finding that the evidence was relevant to self-defence, the Crown could not have anticipated the issue, and any potential prejudice could be mitigated through cross-examination.

After a five-day judge-alone trial, James Nathan McLarnon was found guilty of sexual assault, multiple counts of assault with a weapon, assault with choking, assault, uttering threats to cause death, and unlawful confinement, all arising from intimate partner violence against the same complainant, M.C., between 2020 and 2021.

The Crown sought a seven-year global sentence; the defence proposed three years.

The court imposed a global sentence of five and a half years, reduced by pre-sentence custody and a modest "Duncan" credit for harsh pre-trial conditions, resulting in a final sentence of two years and 234 days.

The decision details the aggravating and mitigating factors, the application of the totality principle, and the ancillary orders imposed.

Sentencing decision following guilty pleas to being a party to manslaughter and assault with a weapon arising from a retaliatory armed confrontation at a bush party.

The offender attended with others to assist in another person's grievance, knowing a handgun was present, while himself armed with a machete, then assaulted one victim as another participant fatally shot a second victim.

The court held the offence was close to murder on the manslaughter spectrum, prioritized denunciation and deterrence, and treated the offender's youth, guilty plea, partial cooperation, and harsh pretrial conditions as mitigating factors.

A total sentence of 10 years' imprisonment was imposed, with a concurrent 2-year term for assault with a weapon, enhanced pre-sentence credit, and ancillary weapons, DNA, and no-contact orders.

The offenders, a mother and father, were convicted of multiple counts of severe physical and sexual abuse, including incest, sexual assault, and unlawful confinement, committed against four of their children over nearly two decades.

The court applied the principles from Friesen, emphasizing the profound harm caused by sexual violence against children and the egregious breach of trust.

After applying the totality principle to the numerous consecutive sentences, the mother was sentenced to a global term of 17 years and 8 months, and the father to a global term of 21 years.

The accused was charged with nine offences arising from multiple incidents of intimate partner violence against his former partner, including assault, unlawful confinement, and sexual assault.

The incidents occurred in the context of severe drug addiction and trafficking.

The court applied the W.D. framework to assess credibility, rejecting the accused's denials and accepting the complainant's evidence despite her history of drug use and memory gaps.

The accused was found guilty on all counts.

The Crown brought pre-trial applications to admit extrinsic discreditable conduct evidence against the accused, who is charged with second-degree murder.

The evidence included text messages about purchasing a firearm, videos of the accused with handguns, and witness testimony about prior gun possession.

The Crown also sought to qualify a police officer as an expert in firearm identification to testify that the guns in the videos were real.

The court excluded the text messages due to their prejudicial effect but admitted the videos, the expert testimony, and the witness testimony, finding their probative value in showing the accused's access to a firearm capable of being the murder weapon outweighed any prejudicial impact.

This ruling addresses the admissibility of statements made by the accused, Nathaniel Veltman, who was charged with four counts of first-degree murder and one count of attempted murder following an incident where he drove his vehicle into a Muslim family.

The defence sought to exclude statements made to a 911 call-taker, spontaneous statements to arresting officers, and two videotaped statements to a police detective, arguing involuntariness and breaches of the accused's s. 10(b) Charter rights.

The court found all statements to be voluntary beyond a reasonable doubt.

While acknowledging some technical s. 10(b) Charter breaches by arresting officers due to exigent circumstances and delays at the police station, the court determined these were made in good faith and that a "fresh start" was achieved by the detective's thorough re-cautioning.

The court concluded that the accused had an "irresistible desire to speak" and would have made the statements regardless of the breaches, thus rendering them admissible under s. 24(2) of the Charter.

In a judge-alone trial on two counts of sexual assault, the court found the complainant to be a highly credible and reliable witness and rejected the accused’s evidence as implausible, internally inconsistent, and contradicted by preserved text messages and video recordings.

The court held the Crown proved beyond a reasonable doubt that the accused intentionally applied force in circumstances of a sexual nature, that the complainant did not consent, and that the accused knew of that non-consent or was at least reckless or wilfully blind.

The decision contains an extensive review of credibility principles, the W.(D.) framework, sexual assault myths and stereotypes, and the law of consent.

Although unnecessary to the verdict, the court further held in obiter that any ostensible consent would have been vitiated by abuse of a position of trust under s. 273.1(2)(c).

The offender was convicted by a jury of four counts of first-degree murder and one count of attempted murder after driving his truck into a Muslim family in London, Ontario.

The sentencing judge found that the murders constituted terrorist activity under the Criminal Code, as they were motivated by white nationalist ideology and intended to intimidate the Muslim community.

The offender was sentenced to a mandatory life sentence with no parole eligibility for 25 years for each murder, and a concurrent life sentence for the attempted murder, reflecting the extreme brutality and terrorist nature of the attack.

The accused brought a motion seeking leave to communicate with defence counsel between the completion of the Crown's cross-examination and the commencement of re-examination, contrary to the presumptive Ontario Rules of Professional Conduct.

The court granted the motion, finding that the constitutional rights to a fair trial and full answer and defence, coupled with the gravity and complexity of the charges (four counts of first-degree murder and one of attempted murder) and the extensive nature of the accused's testimony, justified a departure from the rule.

The ruling permits counsel and client to discuss both the decision to re-examine and the proper scope of re-examination.

The Crown sought a permanent publication ban on excerpts from the accused's "A White Awakening" manifesto and video footage depicting the incident, arguing public harm and inspiration for copycat crimes.

The media coalition opposed the ban, emphasizing the open court principle and the importance of public information.

The court dismissed the ban on manifesto excerpts, finding no serious risk from responsible media reporting, but ordered the unredacted manifesto sealed until trial conclusion and limited video access to exclude the moment of impact.

This ruling addresses the challenge for cause process in a high-profile criminal trial.

It outlines principles from R. v. Chouhan regarding screening for bias, balancing fair trial rights with juror privacy.

The court determined how to screen for potential juror bias related to the disturbing nature of the allegations, bias against those holding extremist views, and the impact of pre-trial publicity, including statements by public officials and participation in commemorative events.

The judge proposed specific questions for the challenge for cause.

This ruling addresses the editing of an accused's statements for admissibility at trial.

The court considered jointly proposed edits by the Crown and defence to remove irrelevant and prejudicial content, such as references to abortion clinics, political views, and Covid-19 vaccine opposition.

However, the court denied the defence's requests to excise statements where the accused asserted he would not plead insanity, characterized his actions as terrorism, and stated he was inspired by other mass killers.

The judge found these contentious statements highly probative and relevant to the Crown's case on mental state, intention, motive, planning, and deliberation, emphasizing that their probative value outweighed any prejudicial effect, which could be mitigated by limiting instructions to the jury.

The accused, Nathaniel Veltman, facing charges of first-degree murder and attempted murder with terrorism allegations, brought a pre-trial motion regarding the admissibility of ideological evidence found on his devices and expert testimony from Dr. Barbara Perry on right-wing extremism.

The court ruled that the ideological documents (including 'A White Awakening', Tarrant's manifesto excerpts, Breivik's manifesto cover, and mass shooting video existence) were admissible, subject to careful presentation and limiting instructions to the jury.

However, the expert testimony of Dr. Perry was deemed inadmissible, as it was not necessary to assist the jury and its potential prejudicial effect outweighed its probative value, particularly given the accused's own explanations and the general notoriety of some concepts.

The accused, facing charges of first-degree murder and attempted murder, applied for a mental condition assessment under s. 672.11(b) of the Criminal Code to explore a Not Criminally Responsible (NCR) defence.

The defence sought the assessment without disclosing specific grounds to the court or the Crown, and requested that the resulting report not be shared unless and until the defence decided to lead the evidence at trial, citing solicitor-client privilege and fair trial rights.

The Crown opposed on the basis of lack of grounds and security concerns regarding the accused's transfer to Ottawa.

The court granted the assessment, relying on counsel's assertion of grounds and the constitutional imperative of a fair trial, and ordered the report to be prepared but disclosed only to the defence, allowing them to decide whether to use it at trial, thereby protecting solicitor-client privilege.

The court also allowed the assessment to take place at a location of the psychiatrist's choice in Ottawa, balancing efficiency and security.

The accused, charged with four counts of first-degree murder and one count of attempted murder arising from a vehicle attack on a Muslim family, applied for a change of venue.

The accused argued that extensive media coverage, community events, and political commentary in London, Ontario, rendered it impossible to select an impartial jury there.

The Crown opposed the application, arguing that publicity was widespread and safeguards like challenges for cause were sufficient.

The court granted the application, finding that the saturation of local coverage and the community's sense of personal violation created a risk of subconscious bias that warranted moving the trial to ensure a fair and impartial jury.

The applicant challenged the constitutional validity of s. 577 of the Criminal Code, arguing that the Attorney General's power to direct an indictment without providing reasons or a preliminary hearing violates s. 7 of the Charter.

The court dismissed the application, holding that binding precedent establishes there is no constitutional right to a preliminary hearing and that core prosecutorial discretion, including the decision to direct an indictment, is not subject to routine judicial review absent an abuse of process.

The applicant, Dylan Schaap, charged with second-degree murder and firearms offences, sought release on bail.

The Crown opposed release on secondary and tertiary grounds.

The court reviewed the proposed release plan, including multiple sureties and electronic monitoring, and assessed the applicant's past conduct, the seriousness of the charges, and the strength of the Crown's case.

The court found that the applicant failed to meet the onus to justify release on both secondary (public safety/recidivism/interference with justice) and tertiary (maintaining confidence in the administration of justice) grounds, citing concerns about the reliability of the sureties and the applicant's history of non-compliance and dishonesty.

The application for release was dismissed.