Jessica Sickinger

Following an undercover internet sting, the accused was tried on multiple child luring counts and one count of making sexually explicit material available to a child.

The court rejected the accused's evidence that he believed he was engaged in role-playing with an adult and found his explanation about chatting to impress co-workers not credible.

Applying the statutory presumptions and the Supreme Court's framework for internet luring, the court held the accused believed he was communicating with a 14-year-old, took no reasonable steps to ascertain age, and used sexualized communications, requests for images, and pornography links to groom and lower the child's inhibitions.

Convictions were entered on all counts.

This ruling addresses the admissibility of evidence under s. 24(2) of the Charter, following findings that five of six judicial authorizations were invalid and police exceeded the "plain view" doctrine during searches.

The court applied the R. v. Grant framework to various items.

Computer and cell phone evidence were excluded due to serious Charter violations and high impact on privacy interests.

Observations of the computer screen were also excluded.

However, handcuffs, a forensic textbook, handwritten notes, and Rogers cell phone records were deemed admissible, as their exclusion would bring the administration of justice into disrepute, despite some Charter breaches, particularly where lawful alternative means to obtain the evidence existed.

The applicant, facing 22 criminal charges including attempted sexual assault and kidnapping, brought a pre-trial application challenging the validity of six judicial authorizations (search warrants and a production order) under section 8 of the Canadian Charter of Rights and Freedoms.

The court conducted a Garofoli review, finding that while the affiant made full, fair, and frank disclosure, only the initial telewarrant for specific items (sunglasses and gloves) was valid.

However, specific seizures and searches conducted under this initial warrant (handcuffs, a forensic textbook, and activating a laptop screen) were deemed unlawful as they exceeded the warrant's scope or the plain view doctrine.

The subsequent five judicial authorizations, including a second telewarrant for laptop seizure, two warrants to search laptop contents, a warrant to search a cell phone, and a production order for cell phone records, were all quashed due to insufficient grounds or fatal flaws on their face.

The court emphasized that "plausibility" or "possibility" is not the legal standard for issuing warrants, which require "reasonable and probable grounds." The admissibility of the unlawfully obtained evidence will be determined in a subsequent s. 24(2) Charter analysis.

The accused, Antonio Ricciardi, brought a pre-trial application challenging the warrantless seizure of his sweatshirt by police during a court appearance.

The Crown argued the seizure was authorized under s. 489(2) of the Criminal Code as a simple seizure of evidence in plain view.

The court, applying a broad and purposive interpretation of Charter s. 8 privacy rights, held that the non-consensual removal of clothing from a person constitutes a "search and seizure" not merely a "seizure." Since s. 489(2) only authorizes a seizure and not a search, the police action fell outside its scope and violated the accused's s. 8 Charter rights.

The applicant, Gary Allen, sought to exclude a "chat log" as evidence in his trial for luring and making sexually explicit material available.

He argued that the "chat log" was obtained in violation of his section 8 Charter rights (unreasonable search and seizure), constituted participant surveillance requiring prior judicial authorization under section 184.2 of the Criminal Code, and was inadmissible under the best evidence rule.

The court found that Allen had no subjective or objectively reasonable expectation of privacy in the online communications, as he advertised for sexual encounters with strangers on Craigslist and made no requests for confidentiality.

Consequently, section 8 of the Charter was not engaged, and no judicial authorization for interception was required.

The court further found the "chat log" admissible under the best evidence rule, explaining that the concept of an "original" is not readily applicable to electronic documents and that the integrity of the compilation was sufficiently established by police testimony.

The application was dismissed, and the "chat log" was deemed admissible.

The Crown brought a voluntariness application to admit the accused's videotaped statement to police, while the accused brought a Charter application seeking to exclude evidence obtained during a search of his home and computer, alleging breaches of ss. 8, 9, and 10(b).

The accused was charged with child luring after communicating online with an undercover officer posing as a 14-year-old girl.

The court found the videotaped statement was voluntary and admissible.

While the court found a s. 8 breach regarding the obtaining of subscriber information and a s. 10(b breach regarding pre-caution statements, it admitted the evidence under s. 24(2) of the Charter, finding the police acted in good faith and the evidence was highly reliable and crucial to the prosecution.

The applicant, Gary Phillip Allen, challenged the constitutionality of subsections 171.1(3)-(4) and 172.1(3)-(4) of the Criminal Code, which pertain to internet luring and making explicit material available to a child.

The applicant argued these provisions violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms by creating a reverse onus and reducing the constitutionally required mens rea.

The court dismissed the application, finding the impugned provisions constitutionally valid.

The court held that these provisions impose an evidential burden, not a persuasive one, and are akin to a due diligence inquiry, consistent with prior appellate and Supreme Court jurisprudence on similar "reasonable steps" provisions.

The applicant, an 80-year-old man charged with sexual assault, sought a stay of proceedings due to a heart condition, arguing that continued prosecution violated his Charter rights under ss. 7 and 11(d) and constituted an abuse of process.

The court reviewed medical evidence, which indicated that while the applicant had serious health issues, his condition had stabilized, and he was physically able to attend trial with appropriate accommodations.

The court found that the applicant failed to demonstrate a substantial risk to his health or that the trial process would seriously imperil it.

Applying the tests from R. v. Hillier, R. v. Magomadova, and R. v. Babos, the court concluded that this was not one of the "clearest of cases" warranting a stay, especially considering the public interest in adjudicating serious offences involving child harm.

The application for a stay of proceedings was dismissed.

The appellant sought leave to appeal convictions and sentence arising from allegations that he spat blood on correctional officers during a prison disturbance and uttered a death threat to one officer.

The appeal judge held that the trial judge failed to properly apply the principles from W.D. regarding the assessment of an accused’s evidence and provided inadequate reasons linking accepted facts to the essential elements of assault.

In particular, the reasons did not address whether the spitting was intentional or explain the reliability of the complainants’ evidence in chaotic circumstances.

The conviction for uttering a threat was upheld, but the assault convictions were set aside due to insufficient reasons and improper credibility analysis.

A new trial was ordered on the assault counts.

The appellant appealed his sentence of five and one half years imprisonment for criminal harassment, attempting to obstruct justice, and breaching a court order.

The appellant had a lengthy criminal record, including related offences against other women, and persisted in harassing the victim despite police warnings and court orders.

The Court of Appeal dismissed the appeal, finding that the trial judge's sentence was fit, entitled to deference, and appropriately prioritized deterrence, denunciation, and the separation of the offender from society.

The appellant appealed his sentence of 18 months' incarceration for possession of oxycodone for the purpose of trafficking.

He argued the sentence was manifestly unfit and that the sentencing judge failed to adequately explore the principle of restraint for youthful first offenders.

The Court of Appeal dismissed the appeal, noting the appellant was 29 years old and the trial judge properly considered and rejected a conditional sentence due to the harm caused by the drug.

The court found the sentencing judge balanced general deterrence and rehabilitation, and provided adequate reasons.

The accused was charged with domestic assault.

He brought a Charter application seeking a stay of proceedings, arguing that police conduct during his arrest violated sections 7, 9, and 12 of the Charter.

The accused alleged that police used excessive force when they tackled him to the ground, resulting in a broken cheekbone and broken ribs.

He also challenged the lawfulness of police entry into his apartment and raised concerns about being denied access to a washroom while in custody.

The court found that while the police use of force was excessive and violated section 7 of the Charter, a stay of proceedings was not the appropriate remedy.

The court determined that the officer acted in good faith in a volatile situation, and that sentencing principles would be flexible enough to address the circumstances of the arrest.