J. Kushnir

This decision addresses an application to stay proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms due to alleged unreasonable delay in trial.

The accused, Brian Kumar, faced multiple fraud charges arising from the same investigation, with charges laid at different times and later joined.

The court carefully analyzed the total delay from the first information sworn, the defence-caused delay including explicit 11(b) waivers and adjournments, and the Crown's conduct.

The judge found that the majority of the delay was caused or waived by the defence, including delays related to retaining counsel and scheduling judicial pre-trials.

The net delay was calculated to be below the presumptive ceiling of 18 months established in R. v. Jordan.

The application for a stay was dismissed, and the matter was ordered to proceed to trial.

The applicant, M.C., sought to exclude evidence under s. 24(2) of the Charter, alleging violations of his s. 8 (unreasonable search) and s. 10 (right to counsel) rights by Canada Border Services Officers (BSOs) during a search of his electronic devices at Pearson International Airport.

The court found that the BSO had a particularized suspicion, triggering a constitutional detention, and failed to caution M.C. or advise him of his s. 8 rights before the search, thus violating s. 8.

The court also found that BSOs violated M.C.'s s. 10(b) right to counsel by adhering to a policy that restricted detainees to only duty counsel, denying his request to speak to his uncle, a criminal lawyer.

While a subsequent police interview by Constable Imber was found not to violate M.C.'s s. 10 rights and his statement to Imber was voluntary, the search warrant obtained by police was deemed invalid as it was based on constitutionally tainted information from the initial unlawful border search.

Applying the Grant test for s. 24(2) exclusion, the court found the Charter breaches serious, the impact on M.C.'s rights significant, and society's interest in the rule of law favoured exclusion.

The evidence recovered from M.C.'s electronic devices was therefore excluded from his trial.

Alex Yizhak was found guilty of possession of a prohibited firearm and a BB gun.

The court considered sentencing principles, including denunciation, deterrence, and rehabilitation, as well as aggravating factors (loaded, prohibited, concealable firearm in a condo) and mitigating factors (no prior record, strong community support, attenuated responsibility due to prior gun violence exposure).

The court rejected a conditional sentence, finding it insufficient for denunciation and deterrence and a violation of parity.

A jail sentence of two years less a day, reduced to 20 months with credit for pre-trial custody and restrictive bail, was imposed, along with probation, a s. 109 order, and DNA order.

The applicant, Alex Yizhak, brought a s. 11(b) Charter application for unreasonable delay after being found guilty of firearms charges, claiming the Jordan ceiling was exceeded by 17 days.

The Ontario Court of Justice dismissed the application for two primary reasons.

First, the application was untimely, as the defence failed to raise concerns or act proactively regarding delay despite knowing the trial's temporal bounds months in advance, which deprived the Crown and Court of opportunities to remedy the delay.

Second, the court found that significant periods of delay were solely attributable to defence conduct, including inefficiency in reviewing disclosure and counsel's unavailability, which far exceeded the 17-day alleged breach.

The judge's medical leave, which caused "verdict deliberation delay," was deemed an exceptional circumstance and not a factor to "bump up" the delay beyond the Jordan ceiling.

The applicant, Alex Yizhak, sought to make inquiries of the presiding judge regarding her health-related leave, which had impacted the deliberative period of his criminal trial.

These inquiries were intended to support a s. 11(b) application for unreasonable delay.

The court dismissed the request, finding that the information already provided was sufficient, the questions amounted to an improper cross-examination of the judge, probed into private health information, and resembled a public inquiry beyond the scope of a criminal trial.

The applicant, Alex Yizhak, sought a mistrial alleging a reasonable apprehension of bias by the trial judge.

The judge, after delivering a guilty verdict, disclosed the reason for a five-month delay in judgment (a health-related leave) when the accused indicated a potential s. 11(b) Charter application for unreasonable delay.

The applicant argued this unsolicited disclosure, which could favour the Crown in a Jordan analysis, constituted bias by shaping the evidentiary record.

The court dismissed the application, finding no reasonable apprehension of bias, emphasizing the presumption of judicial impartiality and the judge's proactive role in managing proceedings and providing relevant information.

The accused, Khanij Chopra, was charged with impaired operation of a conveyance, "over 80," and possession of a controlled substance.

The defense filed a Charter application alleging violations of sections 8, 9, 10(a), and 10(b), seeking to exclude breath samples and the controlled substance.

The Crown sought to admit the accused's utterances.

The court found significant Charter breaches due to prolonged unlawful detention and denial of the right to counsel, leading to the exclusion of the breath samples and the controlled substance under section 24(2) of the Charter.

Consequently, the accused was found not guilty of the "over 80" and possession charges.

For the impaired operation charge, the court found reasonable doubt regarding impairment at the time police located the accused, leading to an acquittal on that count as well.

Omnibus Garofoli application challenging the naming of multiple accused persons in two authorizations to intercept private communications issued in Project Kraken, an investigation into criminal activity by the Deep Waters and Chester Le gangs in Toronto.

The applicants challenged their inclusion as named targets in the first authorization (March 25, 2019) and second authorization (May 21, 2019), as well as the inclusion of Maral Ashoury's telephone number in an earlier Transmission Data Recorder warrant (February 11, 2019).

The court applied the deferential Garofoli standard of review and upheld the authorizations, finding sufficient reliable evidence that the interception of the applicants' communications could assist in the investigation of criminal organization offences.