Jonathan Shime

The applicants, charged with fraud and conspiracy to commit fraud in relation to a bid-rigging scheme, brought an application for the disclosure or third-party production of investigative files held by counsel for cooperating witnesses.

The cooperating witnesses had received immunity or leniency under the Competition Bureau's programs.

The applicants argued that the witnesses' lawyers acted as state agents when interviewing their clients and that solicitor-client privilege over those interview notes was waived.

The Superior Court of Justice dismissed the application, finding that the lawyers were not acting as state agents, the communications remained protected by solicitor-client privilege, and the privilege was never waived.

Consequently, the materials were not within the Crown's control for Stinchcombe disclosure and could not be produced as third-party records.

The accused pleaded guilty to assault causing bodily harm and raised a constitutional challenge during sentencing concerning the denial of enhanced credit for pre‑sentence custody where bail had been cancelled under s. 719(3.1) of the Criminal Code.

The court considered whether the statutory limitation violated s. 7 of the Charter by infringing the principle of proportionality in sentencing.

Relying on appellate authority recognizing proportionality as a principle of fundamental justice, the court found that the provision could produce disparate custodial outcomes unrelated to the gravity of the offence or the offender’s responsibility, particularly where detention depended on the ability to obtain bail.

The court held that the deprivation of liberty was not in accordance with fundamental justice and that the provision was arbitrary and not minimally impairing.

The infringement could not be justified under s. 1 of the Charter.

The offender pleaded guilty to an unprovoked assault causing bodily harm against a stranger while on parole for manslaughter.

The Crown sought a sentence of 3 years and a long-term offender designation.

The court sentenced the offender to 3.5 years (reduced to 6 months with enhanced pre-sentence credit) and 3 years of probation.

The court dismissed the long-term offender application, finding that while the offender posed a risk, the Crown failed to prove beyond a reasonable doubt that there was a substantial risk of violent reoffending as required by the legislation.

The Crown applied under s. 752.1 of the Criminal Code for an order directing an assessment to determine whether the offender should be designated a dangerous offender or long‑term offender following a guilty plea to assault causing bodily harm.

The offender previously pleaded guilty to manslaughter arising from an earlier violent assault and committed the new offence while on parole and under the influence of drugs and alcohol.

The court considered the low threshold applicable to ordering an assessment and whether there were reasonable grounds to believe the offender might meet the criteria under s. 753 or s. 753.1.

Finding evidence of a pattern of unprovoked violent behaviour associated with substance abuse and a failure to restrain conduct, the court concluded the statutory threshold was met.

An assessment order was therefore granted.

The Crown appealed a sentence imposed following a guilty plea to sexual assault arising from the non‑disclosure and transmission of genital herpes (HSV‑2) during unprotected sexual intercourse.

The sentencing judge had imposed a conditional discharge with one year of probation, emphasizing the offender’s lack of criminal record, guilty plea, remorse, and potential immigration consequences.

The Crown argued the sentence was manifestly unfit and that the sentencing judge improperly minimized the importance of denunciation and general deterrence.

The Superior Court held that the sentencing judge made no error in principle and that the disposition was defensible in the context of a novel “test case” with little appellate guidance.

The Crown’s appeal from sentence was dismissed.