John Semenoff

The accused, David Wilson, brought an application to admit fresh evidence and seek a mistrial after being convicted of sexual touching but before sentencing.

The fresh evidence was his subsequent acquittal in a separate trial involving a similar fact witness (K.B.) who had testified in the initial trial.

The court considered whether the subsequent acquittal met the Palmer test for fresh evidence and whether the Supreme Court of Canada's decision in R. v. Mahalingan overruled the Ontario Court of Appeal's decision in R. v. G. (K.R.) regarding the retrospective application of issue estoppel.

The court found that Mahalingan did not overrule G. (K.R.) in this context, as the trial was not yet completed by sentencing.

The application to admit the fresh evidence was granted, and a mistrial was declared.

The defendants, Michael Buckley and Dwayne Young, were charged with first-degree murder in the death of Jonathan Wite.

They pleaded not guilty to murder but guilty to manslaughter, which the Crown did not accept.

The trial proceeded to determine guilt for first-degree murder, second-degree murder, or manslaughter.

The court found that the Crown failed to prove first-degree or second-degree murder beyond a reasonable doubt, concluding that the incident was a "robbery gone wrong" rather than a planned murder.

Both defendants were found guilty of manslaughter based on common unlawful purpose and objective foreseeability of harm.

During a trial for a home invasion and robbery, the accused applied to exclude photo lineup evidence under s. 24(2) of the Charter.

The accused's photo was included in the lineups based on information obtained from an unlawful search of his cellphone by police in an unrelated investigation.

The court applied the Grant framework and found that while the police misconduct was moderately serious, the evidence would have been discovered lawfully by another investigator.

The court concluded that admitting the evidence would better serve the truth-seeking function of the trial and dismissed the application.

The accused were charged with armed robbery, conspiracy, and related offences following a home invasion.

The Crown's case relied heavily on the testimony of an unsavoury witness who admitted to participating in the robbery and other crimes.

The court applied the Vetrovec warning, requiring corroboration for the witness's evidence.

Finding significant inconsistencies in the identification evidence and a lack of corroborating physical or circumstantial evidence linking the accused to the crime, the court concluded the Crown failed to prove the charges beyond a reasonable doubt.

Both accused were found not guilty.

In a pre-trial ruling for a first-degree murder trial, the court determined that only prospective jurors fully vaccinated against Covid-19 would be permitted to serve.

The judge reasoned that under section 632(c) of the Criminal Code and section 4 of the Juries Act, an unvaccinated person is physically unable to perform the duties of a juror due to the unacceptable risk of viral transmission in the confined jury room during the pandemic's fourth wave.

The court concluded that accommodating unvaccinated jurors was practically impossible and outweighed by the need to protect public health and ensure the trial's completion.

The applicants, Jahmyle Johnson and Kyle Bancroft, sought to exclude evidence obtained from Johnson's cellphone through two police searches, arguing violations of their s. 8 Charter rights against unreasonable search and seizure.

The court found that the initial search by Officer Down, conducted under a CDSA warrant, unlawfully extended to browser history unrelated to the drug investigation, and his testimony regarding inadvertent discovery was not credible.

The subsequent search by Officer Fahey, based on the unlawfully obtained information and flawed legal advice, was also deemed unlawful.

Applying the R. v. Grant test, the court concluded that the seriousness of the Charter-infringing conduct, including police misconduct and reckless legal advice, outweighed society's interest in admitting the reliable evidence, as its admission would bring the administration of justice into disrepute.

The application to exclude the evidence was granted.

The applicants, charged with aggravated assault, applied to sever their trial from a co-accused charged with second-degree murder on the same indictment.

They argued the charges did not arise from the same transaction and that a joint trial would cause prejudice.

The court dismissed the application, finding the events shared a factual, temporal, and legal connection under s. 589 of the Criminal Code.

The court also held that severance under s. 591(3) was not required in the interests of justice, as the evidence of the murder was highly relevant to the aggravated assault charges and the risk of prejudice was low.

The appellant appealed his conviction for impaired care and control of a motor vehicle.

He argued the trial judge erred by applying the Hatfield test instead of the Boudreault framework to assess the presumption of care and control under s. 258(1)(a) of the Criminal Code.

The summary conviction appeal judge dismissed the appeal, holding that Boudreault did not overrule Hatfield, and the relevant time to assess the driver's intention remains when occupancy of the vehicle began.

The trial judge's factual findings regarding the appellant not exiting the vehicle were also upheld as reasonable.

The accused, Gaston Nicholas, was found guilty of two counts of arson.

At sentencing, the Crown sought a 12-month reformatory sentence, while the defence sought a suspended sentence with probation, citing the accused's advanced age, poor physical and mental health (including vascular dementia and depression), and the ongoing COVID-19 pandemic.

The court found a causal link between the accused's mental health and the offences, and concluded that incarceration would have a severe negative effect on him due to his vulnerabilities and the pandemic conditions in correctional institutions.

The court imposed a suspended sentence with three years probation and a 10-year weapons prohibition, declining a DNA order.

The accused was convicted of manslaughter by a jury for his role as an aider and abettor in a shooting death.

The Crown sought a sentence of 6 to 8 years and a Long-Term Offender (LTO) designation.

The court found the Crown failed to prove beyond a reasonable doubt that the accused knew about the firearm prior to its use.

The court sentenced the accused to 4 years imprisonment, which was satisfied by pre-sentence custody, followed by 3 years of probation.

The LTO application was dismissed, as the court was not satisfied the accused posed a substantial risk to violently reoffend.

Gaston Nicholas was charged with two counts of arson and admitted to setting the fires.

The issue was whether he was not criminally responsible (NCR) due to a mental disorder under s. 16 of the Criminal Code.

The defence argued that vascular dementia, paranoia, or delusions rendered him incapable of appreciating the nature and quality of his acts or knowing they were wrong.

The Crown contended that despite some dementia, his actions and words demonstrated appreciation and knowledge of wrongfulness.

The court found that Nicholas suffered from early-stage dementia, which qualified as a mental disorder, but it did not render him incapable of appreciating the nature and quality of his acts or knowing they were morally wrong.

Consequently, the NCR defence was not established, and Nicholas was found criminally responsible and guilty of arson.

The appellant, Warren Tremblay, appealed his convictions for assault causing bodily harm and breach of probation, as well as the imposed sentence.

The Superior Court of Justice found that the trial judge erred in failing to consider the element of intentional application of force for the assault charge, and misapprehended significant evidence, leading to a miscarriage of justice.

The court also found errors in the reliance on a 9-1-1 recording as compelling evidence and the finding of corroboration.

Consequently, the convictions were quashed, and a new trial was ordered.

The accused was charged with refusing to provide an Intoxilyzer sample and impaired operation of a motor vehicle.

The court examined multiple Charter breach allegations including sections 7, 8, 9, and 10(b).

The court found that the Alcohol Screening Device demand was made forthwith despite a 5-6 minute delay, that reasonable and probable grounds existed for arrest based on the ASD fail result, and that there was no arbitrary detention.

However, the court found a serious breach of the right to counsel at the police station where the accused's waiver was not properly established due to altered police notes and insufficient documentation.

The evidence of refusal was excluded as a remedy.

The Crown applied to have the offender declared a Dangerous Offender following his convictions for aggravated assault and assault with a weapon against five female strangers.

The offender had struck the women in the head with a hammer or hard object from behind.

The court found that the offender met the criteria for a Dangerous Offender designation under s. 753 of the Criminal Code.

However, relying on psychiatric evidence that the offender's risk could eventually be managed in the community, the court declined to impose an indeterminate sentence.

Instead, the court imposed a determinate sentence of 12 years' imprisonment, less enhanced pre-sentence custody credit, followed by a 10-year Long Term Supervision Order.

A young person was charged with aggravated assault, assault with a weapon (knife), possession of a weapon for a purpose dangerous to the public peace, and breach of an undertaking not to possess a weapon, following an altercation on Rideau Street in Ottawa.

The Crown relied on direct evidence from a security guard that the defendant stabbed the victim twice.

The defence argued self-defence and contended the Crown had not proven beyond a reasonable doubt that the defendant intentionally stabbed the victim.

The court found the direct evidence unreliable due to poor lighting, obstructed views, and significant inconsistencies among the three security guards' accounts.

While circumstantial evidence established the defendant held the knife when it came into contact with the victim, the court could not conclude the stabbing was voluntary or intentional.

The court found an air of reality to the self-defence claim, as the defendant was being attacked by multiple persons, including being struck with a construction pylon.

All charges were dismissed.

The defendant was charged with impaired driving and operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood following a traffic stop.

The Crown conceded the impaired driving charge lacked evidentiary support.

The trial judge dismissed the over-80 charge after finding that the Crown failed to establish that breath samples were taken "as soon as practicable" as required by the Criminal Code.

Multiple unexplained delays occurred: the decision to conduct field sobriety tests at a community policing centre rather than roadside caused an 11-minute delay; a 7-minute delay occurred between arrest and reading of rights; a 5-minute delay occurred before departure to the police station; and a 16-minute delay occurred at the station before the defendant spoke to counsel.

The judge found these delays collectively breached the statutory requirement and the constitutional imperative of immediacy underlying the provision.

This is a preliminary inquiry decision concerning the first-degree murder of Dady Junior Jean on November 4, 2015.

Four defendants were charged: Dominique P. Chrétien, Johnnie-Dean Locey-Derochie, Candy L. Locey, and Todd S. Turner.

The Crown sought committal of all four on first-degree murder.

The court examined whether there was sufficient evidence to commit each defendant to trial on first-degree murder, considering the elements of planning and deliberation.

The court found that the cumulative circumstantial evidence, including motive, opportunity, communications, procurement of a firearm, and coordinated actions, supported reasonable inferences that all four defendants knew of and participated in a planned and deliberate murder.

All four defendants were committed to trial on first-degree murder.

The Crown sought a dangerous offender designation for the defendant, A.A.G., who was convicted of multiple sexual assaults and other violent offences against his stepchildren and their mother.

The defence argued for a long-term supervision order.

The court, after considering expert psychiatric opinions and the defendant's extensive criminal history, found that the defendant met the criteria for a dangerous offender designation due to a pattern of repetitive violent and sexual behaviour, high risk of recidivism, and lack of genuine willingness for treatment.

The court declined to impose a long-term offender designation, concluding that there was no reasonable possibility of eventual control of the risk in the community.

The accused was charged with assault, forcible confinement, mischief, choking, and theft arising from a domestic dispute.

The court found the complainant's uncorroborated evidence regarding the choking allegation to be unreliable due to her history of manipulation and dishonesty under oath, resulting in an acquittal on that count.

However, relying on the credible and independent testimony of the accused's roommate, the court found the accused guilty of forcible confinement for blocking the complainant from leaving the bedroom, assault for knocking her down in the bathroom, and mischief for taking her phone to prevent her from calling for help.

The theft charge was dismissed as there was no intent to convert the phone.

The accused, Floyd Herbert, was found guilty of eight counts including sexual assault, assault, threatening bodily harm, uttering a threat to kill an animal, forcible entry, and three counts of failing to abide by conditions of recognizance.

The offences involved a violent sexual assault and forcible entry into the 62-year-old complainant's apartment.

The court considered the accused's extensive criminal record, cocaine addiction, and mitigating factors such as remorse and efforts towards rehabilitation.

Applying principles of specific and general deterrence, denunciation, and rehabilitation, the court sentenced the accused to a total of five years in prison, with credit for two years of pre-trial custody, leaving three years to serve.

Additional orders included a lifetime firearms prohibition, a DNA order, and a 20-year SOIRA order.