Joan M. Barrett

The accused, Libsom Hibab, was charged with sexual assault as a party to the offence under s. 272(1)(d) of the Criminal Code.

The complainant alleged that Hibab digitally penetrated her vagina while another individual, Tinsay, restrained her.

Hibab admitted to some sexual touching but claimed it was consensual and stopped when asked, and that Tinsay's actions were separate and unknown to him.

The court rejected Hibab's testimony, finding it contrived and unbelievable, particularly his explanation for the complainant's injuries.

The court found the complainant's evidence credible and reliable, supported by physical injuries and her distressed demeanour during the 911 call.

Applying the principles from R. v. W.(D.), the court found the Crown proved guilt beyond a reasonable doubt, convicting Hibab as charged.

The offender was found guilty by a jury of possessing a loaded prohibited firearm and pleaded guilty to possessing a firearm while subject to a prohibition order.

The court considered the offender's background, including systemic anti-Black racism, and the harsh conditions of his pre-sentence custody involving frequent lockdowns.

Emphasizing denunciation and deterrence, the court imposed a total sentence of 39 months' imprisonment, which was reduced to 12 months of new custody after applying enhanced credit for pre-sentence custody, followed by 12 months of probation.

The accused was charged with sexual interference against a young relative.

The allegations involved incidents occurring during overnight visits when the complainant was between four and eight years old.

The court assessed the credibility and reliability of the complainant's evidence against the accused's denial and the limited opportunity to commit the offences.

Applying the W.(D.) principles, the court found the accused's evidence, supported by his wife's testimony regarding the physical layout of the home and timeline of events, raised a reasonable doubt.

The accused was acquitted.

Joseph Kovacs, convicted of five counts of violence, brought a post-conviction application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay minimally exceeded the 30-month Jordan ceiling.

The Crown successfully argued that a 35-day jury blackout period due to the COVID-19 pandemic constituted a discrete exceptional circumstance, which, when deducted, brought the delay below the ceiling.

The court found that the defence failed to demonstrate that the remaining delay was unreasonable, as they did not take meaningful steps to expedite proceedings or put the court on timely notice of s. 11(b) concerns.

The application for a stay of proceedings was dismissed.

J.N.Z. was found guilty by a jury of invitation to sexual touching and sexual interference against a child (RM) aged 8-12.

The offences involved multiple incidents of sexual touching and one act of oral sex, occurring over several years, with the offender in a position of trust.

The court applied the principles from R. v. Friesen, emphasizing denunciation and deterrence for child sexual offences.

Despite mitigating factors (age, support, no prior record at the time of offences), aggravating factors included the victim's young age, significant victim impact (suicidal ideation), multiple incidents, breach of trust, and a pattern of opportunistic behaviour (overlapping with a previous conviction involving another child).

The court rejected a reformatory sentence, deeming a penitentiary term necessary.

The applicant, Eze Moses Ojukwu, brought a Charter application seeking to exclude evidence (heroin found in a knapsack) under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

The defence argued the search was unlawful as it was not truly incidental to the arrest and reflected a systemic failure by the Toronto Police Service.

The Crown contended the search was lawful for safety and evidence discovery purposes, or alternatively, that the evidence should be admitted under s. 24(2).

The court found the search was a lawful search incident to arrest based on safety concerns, given the high-risk domestic violence context and the accused's breach of release terms.

Even if there was a s. 8 breach, the court found the evidence would be admissible under s. 24(2) due to the minor nature of the breach, the moderate impact on the accused's privacy, and society's strong interest in adjudicating serious drug trafficking charges on their merits.

The application to exclude evidence was dismissed.

The Crown brought an application to admit prior convictions of the accused, Jorge Nieto-Zelaya, as similar fact evidence in a sexual assault trial involving a young complainant (RM).

The prior convictions related to sexual touching involving another young complainant (MG) while the accused was providing hair care services.

The defence argued that the similarities were generic and that the prejudicial effect outweighed the probative value.

Applying the framework from R. v. Handy, the court found the evidence highly probative, demonstrating a specific and distinctive pattern of predatory conduct by the accused towards young boys in the context of hair care services, which defied coincidence.

The court concluded that any moral or reasoning prejudice could be managed through proper jury instructions.

The application to admit the similar fact evidence was granted.

In a criminal proceeding involving allegations of sexual assault and probation breach, the Crown sought to admit text messages sent by the complainant to a friend as res gestae hearsay or alternatively as narrative evidence.

The court held that messages sent before the alleged assault were not instinctive responses to a triggering event, and that messages said to have been sent during or immediately after the alleged assault lacked sufficient independent indicia of reliability to satisfy the spontaneous utterance exception.

The court further held the texts were not essential narrative evidence and their admission would improperly circumvent the rule against prior consistent statements.

However, computer-generated timestamps and screenshot photographs were admitted, with the photographs authenticated under the Canada Evidence Act as electronic documents.

The accused was charged with two counts of sexual assault and one count of breach of probation involving a 16-year-old complainant, SB, whom he believed to be his biological daughter.

The accused admitted to sexual touching on March 1, 2021, but denied vaginal penetration and claimed consent.

He denied any sexual activity on March 3, 2021.

The court rejected the accused's testimony, finding him not credible.

The court found that the sexual activity on March 1, 2021, included non-consensual vaginal intercourse, supported by SB's testimony and medical evidence of vaginal tearing.

The court also found that sexual touching occurred on March 3, 2021, despite the accused's denial, supported by SB's testimony and photographs.

The court emphasized that the accused failed to take reasonable steps to ascertain consent and that any ostensible consent was vitiated by his abuse of a position of trust and authority over a vulnerable young person.

The accused was found guilty on all three counts.