Jonathan Smith

D.M., a young person, was found guilty of first-degree murder as a co-participant in a senseless, premeditated killing.

The Crown initially sought an adult sentence but abandoned it.

The court considered the appropriate youth sentence under the Youth Criminal Justice Act (YCJA), taking into account D.M.'s tragic background, mental illnesses, progress in pre-trial custody, and the principles of accountability, proportionality, and rehabilitation.

The court imposed a 10-year Intensive Rehabilitative Custody and Supervision (IRCS) order, structured as 4 years in secure custody followed by 6 years under conditional supervision, giving credit for the 3 years and 3 months spent in pre-trial custody.

This ruling addresses factual findings necessary for sentencing after a jury convicted the accused, D.F., of sexual assault, sexual interference, and invitation to sexual touching related to complainant E.Q. The judge applied principles from R. v. Ferguson and R. v. J.P. to determine the facts for sentencing, being bound by the jury's verdict but making independent findings where ambiguous.

The court found that sexual touching occurred in the bedroom of the accused's apartment, including petting, digital penetration, cunnilingus, fellatio, and touching of the accused's penis.

However, the court rejected the complainant's testimony regarding sexual activity in the main room, during car trips, in the stairwell, or at the Royal Canadian Legion, citing reliability concerns.

The defendants, facing a first-degree murder charge, applied for a challenge for cause based on racial and unconscious bias during jury selection.

The court found the threshold for such a challenge was met, acknowledging the necessity of questioning jurors on these biases.

The ruling addresses the specific questions to be posed to potential jurors, refining the defence's proposed questions.

The judge emphasized that the key is a juror's commitment to setting aside biases to render an impartial verdict, rather than merely identifying the existence of bias.

A specific preamble and four questions were approved for the challenge for cause.

Shamar Bailey, charged with first-degree murder, sought to exclude his video-recorded statement to homicide officers under section 24(2) of the Charter, arguing that two strip searches conducted after his arrest violated his section 8 Charter rights.

The court found that the second strip search, conducted at 42 Division, was unconstitutional as it lacked objective justification, being based solely on the officer-in-charge's lack of knowledge about the thoroughness of the initial search.

Applying the Grant factors for section 24(2) exclusion, the court found the Charter-infringing conduct serious, the impact on the accused's privacy significant, and the utility of the evidence for the prosecution marginal.

Consequently, the court excluded the statement, concluding that its admission would bring the administration of justice into disrepute.

The defendant, Shamar Bailey, brought a motion to exclude statements made to a police sergeant, alleging violations of his Charter rights under sections 9 (arbitrary detention) and 10(b) (right to counsel).

Bailey argued that a traffic stop conducted by Sgt. Lawson was a pretext or ruse to further a homicide investigation, rather than a legitimate Highway Traffic Act (HTA) stop.

The court found that Sgt. Lawson had a legitimate road safety purpose for the stop, based on information about erratic driving and a dangling fuel cap, even though there was also a dominant criminal investigative purpose.

The court reiterated that a dual purpose does not invalidate a stop if a legitimate regulatory purpose exists.

Consequently, the detention was found to be lawful under the HTA, and thus, the right to counsel was suspended.

The application to exclude the statements was dismissed.

The Crown sought to admit extrinsic discreditable conduct evidence against the accused, Shamar Bailey and Kwami Garwood, in a first-degree murder trial.

The evidence included a prior incident involving a firearm (Tragunna Lane Incident), firearm photographs found on a co-perpetrator's cellphone, a booking/release video of one accused, and ammunition found in another accused's residence.

The court applied the balancing test of probative value versus prejudicial effect for each item.

The Tragunna Lane Incident, firearm photographs, and ammunition were found admissible.

The booking/release video was admissible only as edited still images to mitigate prejudice.

The applicant, charged with sexual offences involving two complainants, brought a pre-trial motion to sever the counts relating to each complainant.

The court found a factual and legal nexus between the complaints, noting similarities in the alleged conduct, the vulnerability of the complainants, and the relationship between the parties.

The court held that the potential for similar fact evidence and the efficiency of a joint trial outweighed the risk of prejudice, which could be mitigated by appropriate jury instructions.

The application for severance was dismissed.

Michael MacKinnon was found guilty of manslaughter and aggravated assault.

The court considered aggravating factors, including the use of a knife, the victims being unarmed, the severe loss to the deceased's family, and the life-threatening injuries to the aggravated assault victim.

Mitigating factors included the offender's pro-social life for 20 years, strong family support, and a diagnosis of PTSD stemming from childhood trauma and a past shooting incident.

The court rejected the Crown's submission that the dated criminal record was an aggravating factor and that the mental health issues should be given limited weight.

A total sentence of 9 years imprisonment was imposed, with 3 years concurrent for aggravated assault, after accounting for 69 months (5 years and 9 months) credit for pre-sentence custody, leaving 39 months (3 years and 3 months) remaining to serve.

Ancillary orders included a lifetime weapons prohibition and a DNA order.

During a trial for murder and attempted murder, the Crown and defence brought evidentiary applications.

The Crown sought to admit hearsay statements made by the surviving victim to first responders shortly after being stabbed.

The court admitted the statements under the spontaneous utterance exception.

The defence sought to admit evidence of the deceased victim's disposition to instigate confrontations when intoxicated, pursuant to Scopelliti.

The court admitted the disposition evidence, finding it relevant to the issue of who instigated the confrontation, but also permitted the Crown to adduce evidence of the accused's prior robbery conviction in response.

The accused was charged with second-degree murder and attempted murder following a stabbing incident outside a bar.

The accused raised the defence of not criminally responsible (NCR) due to mental disorder, arguing he experienced a dissociative episode triggered by post-traumatic stress disorder after hearing a threat to shoot.

The court rejected the NCR defence, finding the accused's evidence of dissociation and lack of memory lacked credibility, particularly given his organized post-offence conduct.

However, the court found the Crown failed to prove the specific intent required for murder and attempted murder beyond a reasonable doubt, noting the suddenness of the attack, the single stab wounds, and the accused's intoxication and PTSD.

The accused was found not guilty of the charged offences but guilty of the included offences of manslaughter and aggravated assault.

During a Zoom preliminary inquiry for two accused charged with first-degree murder, a screen capture of one accused was taken and uploaded to social media, violating section 136 of the Courts of Justice Act.

The court suspended the observer portion of the Zoom proceedings to prevent further violations, emphasizing the seriousness of such acts and the potential for witness intimidation.

To uphold the open court principle, arrangements were made for public observation in a physical courtroom with limited capacity due to COVID-19 protocols and police supervision, while the main proceedings continued virtually.

The accused, on trial for second-degree murder and attempted murder during the COVID-19 pandemic, brought a motion requesting that civilian witnesses testify without masks so their demeanour could be assessed.

The trial judge applied the framework from R. v. S. (N.) to balance the accused's fair trial rights against the public health interest in limiting virus transmission.

The court held that requiring witnesses to remain masked did not create a serious risk to trial fairness, as demeanour is not determinative of credibility.

The court further noted that testimony by videoconference was a reasonable alternative that accommodated both interests.

The motion was dismissed, and witnesses were directed to remain masked.

During a trial for robbery with a firearm and unlawful confinement, the Crown sought to have the jury instructed that portions of the accused's post-arrest statement were fabricated and could be used as circumstantial evidence of guilt.

The accused had admitted during his testimony that he lied to police about material facts, including his knowledge of the victims and perpetrators, out of fear of retribution.

The court held that the accused's own admissions provided the necessary independent evidence of concoction.

The court ruled that the jury would be instructed they could consider the fabricated statement as after-the-fact conduct supporting an inference of guilt, provided they rejected the accused's explanation for the lies.

The accused applied for an order requiring that an Urdu interpreter be provided at trial despite acknowledging that he spoke and understood English.

The court reviewed the constitutional right to interpretation under s. 14 of the Charter and the principles established in R. v. Tran regarding when interpreter assistance is required.

Evidence included the accused’s education and employment history in English-speaking environments and a recorded police interview demonstrating fluent English comprehension and responses.

The court found the accused had not established a real need for interpretation assistance and that the burden of proof on a balance of probabilities was not met.

The application for an interpreter at trial was therefore dismissed.

The accused pleaded guilty to two historical sexual assaults committed in 1981 and 1993, both involving the use of firearms and violence against strangers.

DNA evidence from preserved forensic samples led to identification decades later while the accused was incarcerated in the United States for other offences.

The court considered aggravating factors including the age of one complainant, the use of weapons, home invasion, extensive criminal history, and high risk of re‑offending.

After assessing parity with comparable authorities and applying the principles of denunciation, deterrence, and protection of the public, the court determined appropriate consecutive sentences of 11 and 13 years before reductions.

Applying the totality principle and granting limited credit for cooperation with police, the court reduced the overall sentence to a global term of 20 years, to commence after completion of the accused’s American sentence.

The accused pleaded guilty to historical offences of having sexual intercourse with his 15-year-old foster daughter in 1978, resulting in a pregnancy.

The Crown sought a penitentiary sentence of 2 to 2.5 years, while the defence sought a conditional sentence.

The court considered the accused's guilty plea, deep remorse, lack of criminal record, and good character over the intervening 35 years.

Finding this to be a rare case where a conditional sentence would adequately address denunciation and deterrence, the court imposed a conditional sentence of two years less a day, followed by three years of probation.

Following a traffic stop, police discovered marijuana in a pouch and a loaded handgun on the accused during a search incident to arrest.

The accused argued that the initial detention, questioning, and search violated his Charter rights and sought exclusion of the evidence.

The court held that the traffic stop and extended detention were lawful and that the search of the pouch and subsequent arrest were valid.

Although the court found that police improperly asked about drugs without grounds during the traffic stop, no evidence flowed from that breach.

The firearm and drug evidence were therefore admissible, resulting in multiple convictions for firearm offences and simple possession of marijuana.