Jennifer Tremblay-Hall

The accused, charged with sexual offences, brought a Charter motion challenging the constitutionality of sections 278.92 and 278.94 of the Criminal Code.

These provisions govern the admissibility of records in the accused's possession, such as the complainant's social media messages.

The court applied the 'plainly wrong' test to a recent coordinate jurisdiction decision, R. v. Reddick, which had struck down the provisions.

Finding that Reddick was not plainly wrong, the court followed it and declared sections 278.92 and 278.94 unconstitutional and of no force or effect.

Stephen Ward brought an application for detention review under s. 520 of the Criminal Code, challenging his detention by a Justice of the Peace on tertiary grounds.

The application raised three issues: whether the Crown needed leave to cross-examine a surety, whether the Justice of the Peace adequately balanced tertiary ground factors, and the failure to explicitly mention the lack of trial dates due to COVID-19.

The reviewing judge dismissed the application, finding no error in the Justice of the Peace's decision not to require leave for cross-examination of a surety, and that the tertiary ground analysis was functionally sound despite a minor misstatement.

The judge also found no error in the omission regarding trial dates, noting the fluid nature of the pandemic's impact on court operations.

The accused pleaded guilty to recklessly causing damage by fire to occupied property and participating in a riot while covering his face, arising from a January 27, 2019 incident at the Algoma Treatment and Remand Centre.

The riot resulted in approximately $50,000 in damages.

The court imposed a sentence of 17 months incarceration followed by two years probation, with a 30-day reduction for lockdown and COVID-19 conditions.

The court rejected the defence's requests for enhanced pre-sentence custody credits for collateral consequences, Duncan credits for lockdowns, and additional COVID-19 credits, finding the sentence already at the low end of the appropriate range.

The accused, charged under a 13-count indictment, brought an application for the disclosure of unredacted police notes and source documents.

The Crown resisted the application, claiming the redacted information was protected by confidential informant privilege.

Following an in camera Basi hearing, the court found that the individual who provided the information had an expectation of confidentiality and was a confidential informant, not a police agent.

The court scheduled a further in camera hearing to review the unredacted material to determine if any portions could be disclosed to the defence.

The accused was tried on a three-count indictment for the armed robbery of a gas station convenience store.

The sole issue at trial was the identity of the perpetrator.

The Crown relied on video surveillance, the eyewitness testimony of the store clerk, and recognition evidence from police officers and the accused's family members.

The court found the identification evidence to be unreliable, noting inconsistencies, the influence of police suggestions on the clerk, and the poor quality of the video footage.

Concluding that the Crown failed to prove identity beyond a reasonable doubt, the court acquitted the accused on all counts.

The accused was charged with multiple offences, including robbery and break and enter, following a home invasion where the victims were sprayed with bear mace.

The Crown's case relied entirely on circumstantial evidence, specifically the accused's DNA found on a bear spray canister located outside the residence.

The court found that the forensic evidence could not establish how or when the DNA was deposited on the canister, nor could it definitively link the exterior canister to the substance used inside the home.

Concluding that the circumstantial evidence did not lead to the sole reasonable inference of guilt, the court acquitted the accused on all counts.

The applicants, charged with drug trafficking offences, brought an application for disclosure of police notes related to a search warrant.

The Information to Obtain (ITO) relied heavily on information from confidential informants.

The affiant officer stated she reviewed the handler's notes when drafting the ITO.

The Crown refused to disclose these source notes, arguing they were irrelevant.

The court held that because the affiant expressly reviewed and relied on the handler's notes, they formed part of the investigative file and must be disclosed, subject to redactions to protect informant privilege.

Nicholas Goodchild was convicted of three counts of aggravated sexual assault for having sexual intercourse with three complainants without disclosing his HIV-positive status.

Although condoms were used, he was not on antiretroviral medication, and his viral counts were not low, creating a realistic possibility of transmission.

The court considered aggravating factors, including the vitiation of consent, violation of trust, and the devastating impact on victims, particularly one who was medically vulnerable.

Mitigating factors included his youth (28), first-offender status, positive pre-sentence report, and genuine remorse.

The court also considered the Federal Government's policy on HIV non-disclosure, which suggests lower blameworthiness for condom use.

Applying principles of denunciation and deterrence, the court imposed consecutive sentences of 18 months, 12 months, and 12 months, for a total of 42 months (3.5 years) incarceration, along with ancillary orders.

The accused was charged with three counts of aggravated sexual assault for failing to disclose his HIV-positive status to three sexual partners.

The accused argued that his use of condoms during sexual intercourse negated the realistic possibility of HIV transmission, despite not having a low viral load at the time.

The court applied the Supreme Court of Canada's test in Mabior, holding that both a low viral load and condom use are required to negate a realistic possibility of transmission.

As the accused did not have a low viral load at the time of the offences, the court found him guilty on all three counts.

The accused, Johnathan Townsend, brought an application under section 8 of the Charter to exclude computer evidence, specifically Skype chat logs and internet searches, in his first-degree murder trial.

The court found that the police search of the computer breached Townsend's Charter rights due to insufficient judicial authorization regarding the scope and timing of the data analysis.

However, applying the R. v. Grant test, the court determined that the evidence should not be excluded, citing the technical nature of the breach, the good faith of the police, the principled search methodology, and the overwhelming societal interest in the highly probative and essential evidence for the first-degree murder prosecution.

The accused, Nicholas Goodchild, brought an application to sever Count 1 (aggravated sexual assault involving complainant Lindsay Glass) from the indictment, which also included three other counts of aggravated sexual assault.

The court considered factors from R. v. Last, including prejudice to the accused, factual and legal nexus, complexity of evidence, similar fact evidence, multiplicity of proceedings, inconsistent verdicts, length of trial, right to be tried within a reasonable time, and the accused's intention to testify.

Despite some factors favouring a joint trial (e.g., multiplicity of proceedings), the court found that the unique facts and potential legal defence related to Count 1, coupled with the accused's intention to testify only on that count and his waiver of his s. 11(b) rights, cumulatively favoured severance.

The application to sever Count 1 was granted.

The applicant sought to sever count 1 (aggravated sexual assault) from an indictment containing four counts, arguing that the interests of justice required it.

The Crown opposed the severance.

The court, applying the factors from R. v. Last, balanced the risk of prejudice to the accused against the public interest in a single trial.

Given the applicant's waiver of his Section 11(b) rights regarding delay, the court found that the applicant met the onus to establish that severance was in the interests of justice.

The Crown brought a motion for a finding that the accused's video statement to police was voluntary and admissible.

The accused argued the statement was involuntary due to a lack of operating mind, inducements/trickery related to his parents, and the cumulative effect of these factors.

The court found the statement was voluntary beyond a reasonable doubt, concluding that police conduct did not amount to trickery or inducement, and the accused possessed an operating mind, demonstrating nuanced decision-making despite his Asperger's condition and recent psychiatric care.

The statement was deemed admissible for the upcoming trial.

The Crown sought leave to withdraw charges against four defendants (three members of Batchewana First Nation and one self-identified Métis individual) for unlawfully harvesting forest resources in Crown forests without proper licenses, contrary to the Crown Forest Sustainability Act.

The defendants opposed the withdrawal, arguing the prosecution was a vehicle to establish aboriginal and treaty rights.

The court granted the Crown leave to withdraw the charges, finding it was in the public interest to resolve such complex aboriginal issues outside the criminal forum.

However, the court awarded substantial costs against the Crown for its delay in withdrawing the charges and for failing to reassess its position when it received the defendants' expert report in May 2014.

The court awarded $90,000 to Clinton Robinson and $300,000 to the three other defendants.

The applicant, charged with drug offences in two separate cases, applied for the release of seized funds to pay for his legal defence under s. 462.34 of the Criminal Code.

The Crown conceded he was denied legal aid, had no other means, and owned the seized funds, but argued the cases were not complex enough to warrant two lawyers at private rates.

The court found the second case, involving multiple confidential informants, was sufficiently complex to justify two lawyers (a senior and a junior) and approved the requested hourly rates of $400 and $200.

The court ordered the release of $250,000 from the seized funds to cover legal expenses for both cases.

The accused, Daved James Nadon, pleaded guilty to eight counts, including two counts of pointing a firearm, uttering a threat to cause death, forcible confinement, possessing a loaded prohibited firearm, attempted murder with a firearm, breach of probation, and possessing a firearm contrary to prohibition.

The court considered aggravating factors such as the use of a prohibited firearm, threats, and the permanent debilitating injuries suffered by the victim, as well as mitigating factors including a guilty plea, remorse, youth, and participation in rehabilitation programs.

The Crown sought a sentence of nine to twelve years, while the defence proposed seven to eleven years.

The court imposed a total sentence of 7 years and 7 months imprisonment after accounting for 2 years and 5 months of pre-sentence custody, along with ancillary orders for a lifetime firearms prohibition, DNA sampling, and a non-communication order.

The moving party sought leave to appeal the dismissal of a Rule 21 motion that had attempted to strike the plaintiff’s claim against a First Nation on the basis of an expired limitation period and lack of a reasonable cause of action.

The proposed appeal raised the issue of whether provincial limitation statutes bar claims against a First Nation for breach of fiduciary duty where the claim involves on-reserve property and the relationship between band and member.

The court acknowledged that the law in this area contains ambiguity and that the issue is of general importance.

However, the court held that the motions judge had refused to strike the claim primarily because the evidentiary record was insufficient at the pleadings stage to determine the applicability of limitation statutes.

Leave to appeal was refused because the issues should be determined on a fuller factual record rather than in an interlocutory appeal.

The appellant appealed his sentence, seeking to reduce his period of parole ineligibility from 14 to 10 years based on fresh Gladue evidence.

The Court of Appeal dismissed the appeal, finding that the fresh evidence added little more than context and that the sentencing judge was fully alive to the appellant's difficult personal circumstances, including his aboriginal status.

The court upheld the increased period of parole ineligibility due to the brutality of the victim's slow death and the indignities perpetrated on the victim.

The appellant appealed his sentence, arguing the trial judge failed to properly credit pre-trial custody and consider his guilty plea and status as an Aboriginal offender.

The Court of Appeal dismissed the appeal, finding that the trial judge properly concluded the pre-trial custody did not relate to the charge and was aware of the mitigating factors.

Given the seriousness of the offence, the sentence was not unfit.