J. Smith

The accused, charged with human trafficking offences, applied for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total delay from charge to the anticipated end of trial was approximately 50 months.

The court deducted periods of delay attributable to the defence, the COVID-19 pandemic, a discrete event involving late disclosure of a co-accused's statement, and a preliminary inquiry overrun.

After deductions, the net delay was calculated at approximately 23 months, which fell below the 30-month presumptive ceiling established in Jordan.

The application was dismissed.

In a complex construction delay action regarding the Toronto York Spadina Subway Extension, the plaintiff contractor and defendant transit commission brought cross-motions regarding refusals and undertakings from examinations for discovery.

The court applied the principle of proportionality under Rule 29.2.03 to resolve the remaining disputes.

The court ordered the plaintiff to produce a breakdown of estimated project costs and a sample of 75 Requests for Information, but denied requests for the plaintiff's profit and loss reports and the internal correspondence of its scheduling consultant.

The defendant was ordered to produce the time periods for its liquidated damages claims against contractors at other stations.

The defendants brought a motion to remove the plaintiffs' law firm of record, arguing a conflict of interest because lawyers from the firm acted on the underlying mortgage transaction and would likely be called as witnesses at trial.

The court applied the factors from Essa (Township) v. Guergis and found that the late stage of the proceedings, the delay in bringing the motion, and the plaintiffs' undertaking not to cross-examine the lawyers mitigated the risks.

The motion to remove counsel was dismissed.

The accused was charged with Operation Over 80 and Exceed 80 following a motor vehicle stop on Highway 401.

An off-duty officer observed erratic driving and called for uniformed officers.

The off-duty officer detained the accused for 36 minutes without providing Charter rights to counsel.

When the uniformed officer arrived, an Approved Screening Device demand was made 45 minutes after the initial stop.

The accused challenged the validity of the roadside demand and the admissibility of the breath samples on Charter grounds.

The court found breaches of s. 10(b) rights due to the delay in making the roadside demand and the failure to provide a realistic opportunity to consult counsel.

The breath samples were excluded under s. 24(2).

The Exceed 80 charge was dismissed.

However, the court found the accused guilty of Operation Impaired based on the pattern of erratic driving observed prior to the stop.

The accused pleaded guilty to possession of cocaine for the purpose of trafficking but not guilty to firearms-related offences.

Police seized a loaded prohibited handgun and ammunition from under the driver's seat of a vehicle the accused was operating.

The Crown sought to establish the accused's knowing possession of the firearm through circumstantial evidence.

The court found the police investigation incomplete, as the two other vehicle occupants who were released before the gun's discovery were never investigated or called as witnesses.

The court held that reasonable alternative inferences existed regarding who placed the gun under the seat, and the Crown failed to negate these reasonable possibilities beyond a reasonable doubt.

The accused was acquitted of the firearms offences but convicted of the drug trafficking charge.

The accused was charged with impaired driving and operation of a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 milliliters of blood.

Police observed erratic driving, arrested the accused, and obtained breath samples showing readings of 140 mg/100 ml and 130 mg/100 ml.

The trial judge dismissed the impaired driving charge, finding that while the accused likely had consumed alcohol, his driving and behaviour could reasonably be explained by reckless driving and a quick temper rather than impairment.

However, the trial judge found the accused guilty of the over 80 offence, rejecting arguments that the accused's Charter rights under section 10(b) had been breached and that the breath results should be excluded.

The Crown prosecuted two accused for a series of gasoline thefts and possession of stolen license plates occurring between April 2016 and January 2017.

The accused were charged on separate informations but tried together.

The Crown relied on affidavit evidence from gas bar managers, closed-circuit video footage of the thefts, and circumstantial evidence linking both accused to the vehicles and stolen plates used in the offences.

Neither accused testified.

The court found both accused guilty of the theft charges (with one exception due to video distortion) and guilty of possession of stolen license plates based on the striking similarities in the methods of operation, physical characteristics, vehicles, and stolen plates used across all incidents.

The offender pleaded guilty to break and enter a dwelling house and commit therein the indictable offence of assault with a weapon.

The Crown sought a custodial sentence of 9-12 months with emphasis on denunciation and deterrence.

The defence sought a suspended sentence or intermittent custody of no more than 90 days.

The court imposed a suspended sentence with two years probation, considering the offender's Aboriginal heritage, his status as a first-time offender, genuine remorse, significant rehabilitative efforts, and the relatively modest level of violence despite the serious nature of a home invasion.

The court balanced aggravating factors including planning, use of weapons, and violation of the victim's home against substantial mitigating factors including youth, no criminal record, guilty plea, and demonstrated commitment to rehabilitation.

Two defendants appealed convictions for driving while under suspension.

Both claimed they did not receive notice of suspension from the Ministry of Transportation.

The trial justices of the peace convicted both defendants despite not rejecting their testimony that they did not receive notice.

The appellate court held that where a defendant testifies credibly that they did not know of the suspension and did not receive notice, it will seldom be the case that they fail to meet the due diligence defence on a balance of probabilities unless the justice of the peace rejects their evidence or provides cogent reasons for doing so.

The court emphasized that administrative efficiency cannot override the protection of the morally innocent from conviction.

Liban Omar, charged with first-degree murder, was the subject of a Crown application to admit a video-taped statement made by Gavin Daley to police.

Daley, who was murdered before trial, had implicated Omar in the murder and was found in possession of the deceased's ring.

The Crown sought to admit Daley's statement as hearsay evidence under the principled approach, arguing necessity due to Daley's death.

The court found the necessity criterion met but determined that the statement lacked sufficient circumstantial guarantees of reliability.

Factors undermining reliability included Daley's criminal record (including for fabricating evidence), his motive to lie to avoid more serious charges (accessory to murder, cocaine possession), and the interviewing officer's actions in feeding him key information about the suspect and the murder weapon.

The court concluded that the statement was not inherently trustworthy and that its admission would be unfair to the defence.

The Crown's application to admit the evidence was dismissed.

The defendant, Liban Omar, charged with first degree murder, sought to admit expert psychological evidence from Dr. Marc Patry regarding false confessions and "Mr. Big" operations during a voir dire concerning the admissibility of Omar's statements to undercover officers.

The court applied the Mohan and Abbey tests for expert evidence admissibility, finding that while Dr. Patry was qualified and the evidence logically relevant, it was not necessary to assist the jury.

The court concluded that the dangers of "Mr. Big" confessions could be adequately addressed through jury instructions, as established by Supreme Court of Canada jurisprudence in R. v. Hart and R. v. Mack, and was bound by R. v. Osmar.

The expert evidence was deemed unnecessary and therefore inadmissible.

The accused, Liban Omar, was charged with first-degree murder.

The Crown sought a ruling on the admissibility of statements made by Omar to undercover police during a "Mr. Big" operation.

Applying the principles from R. v. Hart and R. v. Mack, the court found the statements to be reliable and highly probative, with their probative value outweighing any prejudicial effect.

The court also found no abuse of process by the police.

Consequently, Omar's statements to the undercover officers were deemed admissible at trial, subject to editing.

The court also briefly addressed the admissibility of expert evidence on the shooter's height, finding it admissible but ultimately giving it no weight.

The accused, a Black man charged with first-degree murder, sought to challenge prospective jurors for cause regarding racial bias.

The accused requested that the challenge be decided by rotating triers and that the unsworn jury panel be excluded from the courtroom during the process.

The accused explicitly declined to apply under s. 640(2.1) of the Criminal Code, relying instead on the court's inherent common law jurisdiction.

The court reviewed the 2008 amendments to the Criminal Code and conflicting jurisprudence on whether trial judges retain inherent jurisdiction to exclude unsworn jurors when rotating triers are used.

The court concluded that applications to exclude jurors to preserve impartiality fall under s. 640(2.1), which mandates static triers if granted.

However, the court declined to make an order under s. 640(2.1) and further declined to exercise any residual common law discretion to exclude the panel, finding the grounds advanced did not warrant exclusion.

The challenge for cause was ordered to proceed with rotating triers and without excluding unsworn jurors.

The accused applied for a stay of proceedings alleging unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

The period from charge to the scheduled trial date was approximately 29 months.

Applying the Morin framework, the court assessed waiver, reasons for delay, institutional limitations, and prejudice to the accused.

After deducting defence-caused delay and neutral time, the remaining Crown and institutional delay exceeded the Morin guidelines by only one month, and the prejudice to the accused was limited.

Balancing the seriousness of the charges and the modest degree of prejudice, the court concluded the delay was not unreasonable.

At a preliminary inquiry into a charge of second-degree murder, the court determined whether sufficient evidence existed to commit the accused for trial.

The accused was charged with causing the death of a five-month-old infant through head injury while babysitting.

The Crown argued that medical evidence of severe brain injury, combined with evidence of animus and post-offence conduct, supported committal on second-degree murder.

The defence conceded sufficient evidence for manslaughter but argued the medical evidence alone was insufficient to establish the subjective intent required for murder.

The court found that a jury could reasonably infer from the medical evidence of severe repetitive mechanical assault, the ruling out of accident, evidence of animus, and post-offence conduct that the accused possessed the requisite subjective intent for second-degree murder.

The accused was charged with impaired driving and "over 80" following a traffic stop in the early morning hours.

The court found that while the arresting officer lacked reasonable and probable grounds for the impaired driving arrest, the breathalyzer evidence was admissible under the Charter s. 24(2) test.

The court also found breaches of the accused's s. 9 rights due to arbitrary detention both at the point of arrest and through "overholding" in police custody, but declined to grant a stay of proceedings.

The accused was acquitted of impaired driving but convicted of "over 80."

The accused was charged with Over 80 (driving with a blood alcohol content exceeding 80 milligrams per 100 millilitres of blood).

The trial turned on Charter applications regarding the admissibility of breath sample evidence.

The court rejected the defence argument that reply evidence regarding the calibration date of the approved screening device should be admitted.

The court found no violation of the accused's section 10(b) rights to counsel or section 8 rights against unreasonable search and seizure.

The court concluded that the officer had objectively reasonable grounds to rely on the approved screening device fail, and that even if there had been a Charter breach, the evidence would be admissible under section 24(2).

The accused was found guilty of Over 80.

The defendants were jointly charged with multiple counts of possession of credit card forgery devices, possession of credit cards obtained by crime, fraudulent possession of credit card data, and failure to comply with recognizance.

The defendants challenged the validity of a search warrant executed on their parents' home, alleging a breach of Charter section 8 rights.

The court found that the Information to Obtain, based on a confidential informant's tip and corroborated by police investigation, provided sufficient reasonable and probable grounds for the issuance of the warrant.

The application to exclude evidence under section 24(2) was dismissed.

The accused was convicted after a jury trial of abducting a child contrary to a custody order under s. 282(1)(a) of the Criminal Code.

The offender sent his four‑year‑old child to Iran and failed to comply with a Canadian court order granting interim custody to the mother, resulting in the child remaining outside Canada for approximately twelve years.

The court emphasized denunciation and general deterrence given the deliberate disregard of a custody order and the severe impact on the custodial parent who was deprived of contact with the child throughout his formative years.

Aggravating factors included the planned nature of the abduction, concealment of the child in a non‑Hague Convention country, and the offender’s criminal record.

The court imposed a custodial sentence followed by probation.

The accused pleaded guilty to sexual assault and robbery.

The victim was a stranger whom the accused contacted by phone and met at a subway station.

In a stairwell, the accused used threats and force to attempt sexual intercourse with the victim, and subsequently stole her cell phone.

The court imposed a sentence of 20 months in custody less credit for pre-sentence custody, plus three years probation, along with ancillary orders including a SOIRA order for 20 years and a weapons prohibition for 10 years.

The court balanced aggravating factors including the use of threats, the compounding robbery, and high risk for sexual recidivism against mitigating factors including the guilty plea, youthful first offender status, and family support.