Jennifer S. Rooke

The moving party brought two motions for leave to appeal in a family law dispute.

The Divisional Court dismissed the motion for leave to appeal the order of Bezaire J. dated May 2, 2025, with no costs awarded.

The court granted the motion for leave to appeal the order of Hebner J. dated May 13, 2025, specifically regarding the suspension of the moving party's parenting time, with costs left to the discretion of the appeal panel.

The applicant sought a stay of proceedings under s. 24(1) of the Charter, alleging an infringement of his s. 11(b) right to be tried within a reasonable time.

The total delay from the information being sworn to the anticipated end of trial was 804 days (26 months, 13 days), exceeding the 18-month presumptive ceiling for provincial court matters.

The court found that the Crown abdicated its responsibility to efficiently manage the prosecution, particularly regarding a co-accused whose charges were eventually stayed, and failed to diligently respond to disclosure requests.

Despite some defence delay (122 days), the net delay remained above the presumptive ceiling, and no exceptional circumstances were established by the Crown.

The court granted the stay of proceedings.

The accused, Preet Kiran Singh Gill and Suresh Sharma, were charged with importing cocaine and possession for the purpose of trafficking after approximately 25 kg of cocaine were found in their commercial tractor-trailer at the Canadian border.

The Crown's case was circumstantial, relying on evidence of undocumented stops during their return trip from California and Mr. Gill's inconsistent and untruthful statements to authorities.

The defence argued that the accused were blind couriers and the cocaine was loaded at one of the pick-up locations without their knowledge.

The court found Mr. Gill's testimony not credible due to numerous inconsistencies and deliberate deceptions, concluding that the only reasonable inference was his knowledge and control of the cocaine.

However, for Mr. Sharma, the court found a rational inference that he was unaware, as he was sleeping during the undocumented stops and was not the primary driver or decision-maker.

Mr. Gill was found guilty on both counts, while Mr. Sharma was found not guilty on both counts.

During a trial for drug importation, the accused brought an application to exclude his video statement to police, alleging a breach of his s. 10(b) Charter rights.

The accused, whose first language is Punjabi, struggled with English during his police interview, but officers did not offer him the opportunity to speak with duty counsel in Punjabi or with an interpreter.

The court found that special circumstances arose during the interview when the accused's language difficulties became apparent, triggering a duty on police to ensure he understood his rights.

The court concluded the accused's s. 10(b) rights were breached and excluded the statement under s. 24(2) of the Charter.

The accused, two American citizens, were charged with importing marijuana and possessing a prohibited firearm after mistakenly crossing the border into Canada.

They intended to stay at a hotel in Detroit but took a wrong turn onto the bridge to Windsor.

The court accepted their evidence that they had no intention of entering Canada and were unaware they had done so until they were on the bridge.

Finding that the requisite mens rea for the offences was absent, the court acquitted both accused on all charges.

The accused, Brandon Nunn, charged with possession of fentanyl for trafficking, brought an application to exclude evidence (fentanyl tablets) under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Crown conceded violations of ss. 8, 9, and 10(b) of the Charter.

The court found that the police unlawfully detained the accused, conducted an unreasonable search, and profoundly violated his right to counsel by forcing him to choose between medical treatment for pepper spray exposure and his constitutional rights, and by questioning him after he requested a lawyer.

Applying the R. v. Grant framework, the court determined that the egregious state conduct and significant impact on the accused's liberty, privacy, and dignity interests outweighed society's interest in adjudicating the case on its merits.

Consequently, the fentanyl evidence was excluded.

Six accused persons charged with offences under the Controlled Drugs and Substances Act and related Criminal Code firearms charges made dissimilar elections as to mode of trial.

Some accused elected trial by judge and jury, while others elected trial by provincial court judge.

Some accused subsequently re-elected without obtaining written Crown consent as required by statute.

The court addressed whether a justice presiding at a preliminary inquiry has residual jurisdiction to remedy or disregard recorded elections to avoid a multiplicity of proceedings.

The court held that elections and re-elections as recorded must stand, and that a justice has no power to strike down or disregard a recorded election after the fact.

The offender pleaded guilty to cultivating marijuana and theft of electricity.

He voluntarily surrendered into custody prior to sentencing and sought a conditional discharge to avoid deportation under the Immigration and Refugee Protection Act.

The court denied the discharge, finding it would be a custodial sentence in disguise and would improperly circumvent Parliament's intent regarding immigration consequences.

The court also denied enhanced credit for the voluntary pre-sentence custody.

However, applying R. v. Pham, the court imposed a sentence of 5.5 months (less 10 weeks credit) to preserve the offender's right to appeal any inadmissibility finding.

The accused was charged with importing cocaine and possession for the purpose of trafficking after 45 kilograms of cocaine were found in his transport truck at the border.

He brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing that the delay of nearly three years from the time of the charge to the trial was unreasonable.

The court analyzed the periods of delay, attributing some to late disclosure by the Crown and institutional delay, but also noting delay caused by the defence and a co-accused.

The court concluded that the state-attributable delay of 18.5 months did not meaningfully offend the Morin guidelines and was outweighed by the strong public interest in trying a serious offence on its merits.

The application was dismissed.