Joel Hechter

On a pre-trial Charter application in a first degree murder prosecution, the accused alleged that his s. 10(b) rights were breached because his brief Brydges duty counsel consultation was constitutionally deficient and because police failed to facilitate a second consultation before routine post-arrest evidence-gathering steps.

The court held that the police fulfilled both their informational and implementational duties by promptly advising the accused of his rights and facilitating private contact with duty counsel at the first reasonable opportunity.

Applying Sinclair, Willier, LaFrance, and Dussault, the court found no objectively observable change in circumstances and no basis requiring police to monitor advice quality or provide renewed access before photographs, fingerprints, clothing seizure, and hand swabs.

The court further held that duty counsel providing summary legal advice is not a state actor and that s. 10(b) guarantees access to counsel, not the quality of legal advice received.

The Crown brought a pre-trial motion in a first-degree murder case to admit hearsay statements and video-recorded police interviews of the deceased's eight-year-old daughter.

The child witnessed a struggle between the accused and her mother, during which she heard her mother say 'let me go' and the accused reply 'wait, wait, wait, wait'.

The court ruled the mother's statement admissible as a res gestae spontaneous utterance and under the principled exception to the hearsay rule.

The accused's statement was admitted as a party admission.

The court also admitted the child's video statements under s. 715.1 of the Criminal Code, subject to editing, and granted testimonial aids including testimony via closed-circuit television with a support person and support dog.

The accused is charged with first-degree murder of his former intimate partner.

The Crown sought to admit the expert opinion evidence of a forensic pathologist regarding the cause of death, which included neck compression.

The defence opposed the admission, arguing the expert was biased, inflexible, and failed to consider alternative causes for petechiae, such as coughing.

The court applied the two-stage test for expert evidence and found the expert was properly qualified, understood her duty to the court, and her reasoning was transparent and evidence-based.

The court admitted the expert evidence, concluding its probative value outweighed any potential prejudicial effect, leaving the ultimate assessment of weight to the jury.

The applicant, Melissa Merritt, challenged the constitutionality of the absence of an appeal route following the dismissal of a directed verdict application and a subsequent mistrial.

She argued that section 7 of the Charter requires an appeal to the Court of Appeal in these circumstances and attacked sections 674 and 675 of the Criminal Code.

The court rejected the argument, holding that Parliament is entitled to restrict appeals to those provided by statute and that interlocutory appeals are not constitutionally required.

The application was dismissed, and the applicant later pled guilty to manslaughter.

The defendant, Kyle Hughes, was convicted of possession of child pornography and making child pornography available.

The Crown sought a three-year prison sentence, while the defence proposed a one-year conditional sentence.

The court emphasized that denunciation and deterrence are paramount in child pornography cases, especially following the Supreme Court's directive in Friesen for increased sentences in child sexual abuse cases.

The court found no exceptional circumstances to warrant a conditional sentence.

Considering aggravating factors such as the large and disturbing collection (over 1,700 images and 22 videos, many depicting prepubescent females and infants in explicit acts) and the defendant's active role as a downloader/uploader on the BitTorrent network, balanced against mitigating factors like being a first-time offender, showing remorse, having no prior record, and a supportive family, the court imposed a global sentence of 30 months.

This was reduced by one month to 29 months due to stringent bail conditions, particularly during the pandemic.

Ancillary orders included a DNA order, a 20-year Sex Offender Information Registration Act order, and a 10-year s. 161 Criminal Code prohibition order, but a s. 109 weapons prohibition was not imposed as the actus reus of the offences did not involve violence.

A victim surcharge of $200 was also ordered.

The applicant challenged the police stop and subsequent search of his SUV on Charter grounds (sections 8 and 9), arguing arbitrary detention and unreasonable search.

A loaded handgun and fentanyl were found.

The applicant alleged police officers falsified notes and testimony regarding the reason for the stop (burnt-out headlight vs. prior BOLO) and the observation of cannabis in plain view.

The court found the police evidence untrustworthy, concluding the stop was based on stale BOLO information, not a burnt-out headlight, and the cannabis observations were inconsistent and unreliable.

The court found breaches of sections 8 and 9 of the Charter and excluded the evidence under section 24(2), emphasizing the seriousness of wilful Charter violations and testimonial dishonesty.

The court also commented on the police's failure to record interactions when attempting to enlist the applicant as a confidential informant, recommending a procedure for such records.

The applicant sought extensive disclosure from the Crown and Peel Regional Police (PRP) under Stinchcombe and O'Connor, and a sealing order for application materials.

The disclosure requests stemmed from suspicions of targeting and police misconduct related to a vehicle stop and subsequent arrest for firearms and drug offences.

The court denied most disclosure requests where the information did not exist (e.g., historical CPIC snapshots, specific informant recruitment policies) or where likely relevance was not met.

However, the court ordered the production of officer notes and "will say" statements regarding an off-camera interview where the applicant was asked to become a confidential informant, and specific notes of an officer related to a BOLO broadcast.

The sealing order request was denied as the applicant failed to meet the Dagenais/Mentuck test for restricting the open court principle.

The defendant, Kyle Hughes, was charged with two counts of possession of child pornography and one count of making child pornography available to others.

He pleaded not guilty but chose not to contest the Crown's case, a procedure functionally equivalent to a nolo contendere plea, to preserve his right to appeal a prior Charter ruling.

The court found Hughes guilty on both counts, concluding that the circumstantial evidence established beyond a reasonable doubt his knowledge and control of the child pornography and his intent to make it available through the BitTorrent network.

The accused was charged with possession and distribution of child pornography.

The police used automated software tools (the Roundup Suite) to detect the accused's IP address sharing child pornography files on the BitTorrent peer-to-peer network.

The accused brought a Charter s. 8 and Garofoli application to exclude the evidence, arguing that the automated surveillance constituted an unreasonable search and that the Information to Obtain (ITO) the search warrant was flawed.

The Superior Court of Justice dismissed the application, finding that the accused had no reasonable expectation of privacy in his IP address, port, or the files he knowingly exposed in a shared folder on a public network.

The court also upheld the validity of the search warrant and production order, finding the ITOs were adequate and not misleading.

The accused sought disclosure of operational copies of BitTorrent investigative software, related manuals, source code, and associated materials used in a child pornography investigation.

The court held that operational copies of the software were relevant to anticipated Charter and Garofoli applications and to an issue at trial, but nevertheless refused production after balancing the accused’s interests against the public interest in preserving investigative technique privilege.

The court found that certain narrow categories of private information, including peer identification data and methods by which the software identified itself on the network, were not relevant and were privileged.

Most Crown redactions to manuals, logs, transcripts, and validation materials were upheld, although some were ordered removed where the information was relevant and non-privileged.

The defendant, Kyle Hughes, brought a disclosure application in a criminal case involving child pornography charges, seeking technical information about automated law enforcement software (Torrential Downpour and Torrential Downpour Receptor) used to investigate his IP address.

The application sought operational copies, source codes, user manuals, training materials, and changelogs to challenge software functionality, potential Charter breaches (s. 8), and the sufficiency of grounds for a search warrant.

The Crown resisted, arguing irrelevance, lack of possession/control, and privilege.

The court ruled that user manuals and changelogs for the software are "obviously relevant" first-party disclosure, subject to privilege claims.

Operational copies of the software were deemed third-party disclosure, meeting the "likely relevant" threshold for a second-stage privilege assessment.

However, the court dismissed requests for source codes and training materials, finding them not "likely relevant" or "obviously relevant" respectively, and clarified that foreign agencies providing investigative leads are not part of the "investigating police force" for disclosure purposes.

The accused, charged with sexual assault, applied for certiorari and mandamus to quash a trial judge's decision to defer hearing a constitutional challenge and stay of proceedings application until after the trial on the merits.

The accused argued that a police media release violated their Charter rights and sought a stay.

The Superior Court dismissed the application, finding the trial judge committed no jurisdictional error in exercising his discretion to manage court resources and defer the constitutional issue, noting that an acquittal would render the constitutional issues moot for the purpose of the criminal trial.

The applicant sought an order compelling the Crown to provide electronic disclosure in a searchable and indexed format, arguing that the current disclosure was not meaningful or reasonably accessible, thereby compromising his right to make full answer and defence.

The disclosure, comprising over 300,000 pages, was largely in unsearchable PDF format and poorly organized.

The court found that the Crown had failed to provide meaningful disclosure, violating the applicant's Charter rights.

While declining to order re-disclosure of previously provided documents, the court mandated that all future PDF documents, both type-written and hand-written, must be disclosed in a machine-readable format to ensure reasonable accessibility.

The defendant was charged with assault causing bodily harm against his estranged wife.

The defendant admitted striking his wife three to four times in the face, causing significant injuries including two black eyes and broken nasal bones.

The defendant raised a self-defence claim under Criminal Code section 34, arguing he acted to protect his three-year-old son from imminent harm.

The Crown conceded there was an air of reality to the defence.

The court found that the defendant subjectively believed his son's safety was at risk and that this belief was objectively reasonable given the circumstances, including the complainant's prior threat of self-harm, her volatile behavior that evening, and her deliberate destruction of his clothing.

The court concluded the force used was reasonable in the circumstances and acquitted the defendant.

The accused brought pre-trial Charter applications alleging abuse of process, unlawful searches, and multiple right-to-counsel breaches arising from his arrest on an outstanding warrant and ensuing firearm and drug investigation.

The court rejected allegations of police cover-up, fabrication, and perjury, and dismissed most alleged s. 8 and s. 10 breaches, but found specific breaches when an officer went onto the unit balcony without authority, when police asked the accused 'where's the gun' before a proper opportunity to consult counsel, when a canine officer re-entered the unit without lawful authority, and when Unit searches proceeded under invalid Criminal Code and CDSA warrants.

Applying the Grant framework, the court excluded observations and evidence flowing from those specific breaches, including all observations and items seized under the invalid Unit warrants.

The court held, however, that the firearm and drugs found on the neighbouring balcony were not obtained in a manner that infringed the accused's Charter rights and remained admissible.

The application for a stay was dismissed.

The defendant, Shane Trought, facing firearm and drug charges, brought motions seeking a sealing/non-communication order regarding his submissions on police credibility and extensive disclosure of CPIC audits.

The court dismissed the sealing order, finding no basis to presume Crown misconduct and emphasizing the Crown's duty to prepare witnesses.

Regarding disclosure, the court distinguished between Stinchcombe (first-party) and O'Connor (third-party) disclosure.

It ordered the Crown to produce CPIC information related to specific license plates and Mr. Trought himself, deeming these "fruits of the investigation." However, disclosure requests for other individuals (Mr. Velasquez, Mr. White, Mr. Tryden Reis, and Mr. Royden Reis) were dismissed as speculative "fishing expeditions" and due to the lack of proper service required for third-party disclosure applications.

During a murder trial, the accused brought a mid-trial application to admit an additional portion of a deceased witness's video-recorded statement under the principled exception to the hearsay rule.

The Crown opposed the admission.

The court found that while necessity was established, the statement lacked threshold reliability due to unmitigated hearsay dangers related to perception and narration.

The application was dismissed and the evidence was ruled inadmissible.

The applicant applied to reopen and reconsider a prior ruling that his post-arrest confession to two murders was voluntary.

The application was based on the subsequent exclusion of internet search queries under s. 24(2) of the Charter, which had been put to the applicant during his police interview.

The court dismissed the application, finding no material change in circumstances because the police acted in good faith using a presumptively valid warrant at the time of the interview.

The court concluded that the subsequent inadmissibility of the evidence did not render the police conduct oppressive or affect the voluntariness of the statement.

The applicants brought a pre-trial application to excise certain passages from transcripts of intercepted private communications, arguing the audio was inaudible and the transcripts would prejudice the jury.

The court dismissed the application, applying established law that the audio recordings are the evidence and the jury may use the transcripts as an aid.

The court found that the jury, properly instructed, could resolve disputes about the accuracy of the transcripts by listening to the recordings and considering cross-examination.

The co-accused applied to sever a second-degree murder count from two first-degree murder counts on the same indictment.

The co-accused argued that the stronger evidence on the first two counts, including a confession, would cause moral and reasoning prejudice on the third count, where the cause of death was disputed.

The court dismissed the application, finding a strong factual and legal nexus between the counts, as all three deceased were members of the same family involved in an ongoing child custody dispute.

The court also found that count-to-count similar fact evidence was likely admissible to prove identity, and that the interests of justice, including avoiding a multiplicity of proceedings, favoured a joint trial.