Michael A. Code

The accused was charged with possession of marijuana, crack cocaine, and MDMA for the purpose of trafficking after police discovered the drugs in a locked briefcase during a vehicle search following arrest for possession of a marijuana cigarette.

The accused sought exclusion of the drugs under ss. 8 and 24(2) of the Charter, arguing the police unlawfully searched a locked briefcase without a warrant.

The court found the officers credible and accepted their evidence that a strong odour of fresh marijuana emanated from the vehicle and the briefcase, giving them a reasonable basis to search it as an incident to arrest.

Relying on authorities such as Cloutier v. Langlois, R. v. Caslake, and R. v. Zucatti, the court held that common law powers of search incident to arrest extend to forcibly opening a locked briefcase where the search is reasonably connected to the arrest.

No Charter breach occurred and the drug evidence was admitted.

Following convictions for sexual assault and sexual assault causing bodily harm against two young victims, the Crown initiated a dangerous offender application.

Prior to the hearing, the court ruled on the admissibility of documentary records from multiple agencies relating to the accused’s youth criminal history, probation supervision, psychiatric treatment, and counselling.

The court held that hearsay evidence is admissible at sentencing proceedings, including dangerous offender hearings, provided it is credible and trustworthy and subject to the Crown’s burden to prove disputed aggravating facts beyond a reasonable doubt.

The court found the records were prepared contemporaneously by professionals performing public duties and were therefore sufficiently reliable.

The documents were admitted, with certain limitations on their use and with the possibility that their authors could be called for cross-examination if accuracy were seriously challenged.

The appellant appealed convictions and sentence for offences involving the killing and wounding of two dogs contrary to the Criminal Code.

The conviction appeal alleged errors in credibility assessment and sought admission of extensive fresh evidence, including veterinary expert evidence suggesting vasculopathy, accidental injuries from falls, and revised dating of rib fractures.

Applying the Palmer test, the court held the proposed evidence failed the due diligence, credibility, and impact requirements and was not admissible.

The conviction appeal was therefore dismissed.

However, the court found an error in principle in sentencing where denunciation and deterrence were overemphasized relative to rehabilitation for a first offender, and reduced the custodial sentence while adjusting ancillary orders.

The accused were jointly tried for offences arising from a robbery at a mall cell phone store during which the victim was shot.

The central issue was whether the victim produced a firearm and accidentally shot himself during a struggle, as claimed by the accused, or whether one of the accused produced and discharged the weapon.

The court rejected the accused’s testimony as implausible and inconsistent with surveillance evidence and witness testimony, finding that one accused possessed and fired the handgun to facilitate the robbery while the other knowingly participated.

The principal offender was convicted of robbery while armed, aggravated assault, discharging a firearm with intent, and firearm possession offences.

The co‑accused was convicted of robbery while armed and firearm possession offences but acquitted of the aggravated assault and firearm discharge counts due to reasonable doubt about foreseeability.

The Crown appealed a sentence imposed following a guilty plea to sexual interference involving a child under 16.

The trial judge had imposed the statutory minimum sentence of 14 days' imprisonment and probation.

The appeal court found multiple errors in principle, including misapprehension of a psychiatric report, failure to properly consider aggravating factors, and improper characterization of the offence as being at the low end of seriousness.

Although the appellate court concluded that the sentence was manifestly unfit and that a range of six to twelve months would ordinarily be appropriate, it declined to intervene due to significant delays and the respondent’s completion of the custodial portion of the sentence and substantial compliance with probation.

The Crown appeal was therefore dismissed.

The appellant was convicted at trial of refusing to comply with a breath demand under ss. 254(3) and (5) of the Criminal Code after police interpreted statements made during a roadside conversation as a refusal to accompany them to the station for breath testing.

The appellant had been arrested, advised of his right to counsel, and requested to speak to a lawyer before the officers continued discussing the breath demand with him.

The appeal court held that the accused’s statements during the brief roadside discussion were tentative and formed part of a single ongoing exchange occurring while he sought legal advice.

Relying on authorities such as R. v. Jumaga, the court concluded that a definitive refusal cannot be established where the accused has requested counsel and has not yet been given a reasonable opportunity to obtain legal advice.

The trial judge erred in treating the roadside discussion as constituting the actus reus of refusal.

The conviction was set aside and an acquittal entered.

The Crown appealed acquittals for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit after the trial judge excluded breathalyzer evidence under ss. 8 and 24(2) of the Charter.

The trial judge had concluded that the police officer should have delayed administering the roadside screening device due to the possibility of recent drinking and residual mouth alcohol.

The appellate court held that the trial judge erred in law by requiring the officer to inquire about the timing of the last drink and by finding a reliability concern where the evidence showed a delay of at least twenty minutes between the last drink and the test.

The court further held that even if a Charter breach occurred, exclusion of the breath evidence was unwarranted under the Grant framework.

The acquittals were set aside and a new trial was ordered.

The appellant appealed a conviction for sexual assault following a judge-alone trial, arguing that the trial judge failed to properly apply the credibility analysis from R. v. W.(D.) and that the reasons for judgment were insufficient under the principles in R. v. Sheppard.

The court held that the W.(D.) framework does not require a trier of fact who has completely rejected the accused’s evidence to separately consider whether that rejected evidence could still raise a reasonable doubt.

The trial judge’s instructions demonstrated that the burden of proof was applied to the totality of the evidence, including any exculpatory evidence.

The appellate court also found that the reasons adequately explained the credibility findings and permitted meaningful appellate review.

The conviction was upheld.

The three accused were arrested while exiting an apartment building and entering a taxi, and each was found in possession of a loaded handgun.

They brought a Charter motion alleging violations of their rights under ss. 7, 8, 9, and 10, arguing they were unlawfully detained and searched.

The court found that the police had reasonable suspicion to conduct an investigative detention and pat search based on the totality of the circumstances, including the high-crime area, a recent shooting, and the accused's behaviour.

The Charter motions were dismissed, the firearms were admitted into evidence, and the accused were found guilty.

The Crown appealed a trial judge's decision to stay impaired driving charges against the respondent due to a violation of s. 11(b) of the Charter.

The trial judge had found seven weeks of Crown delay related to disclosure and six and a half months of institutional delay, along with actual prejudice.

The Superior Court of Justice allowed the appeal, finding that the trial judge erred in characterizing the delay periods, which should have been classified as neutral inherent time requirements or defence delay.

The court also found palpable and overriding factual errors in the trial judge's assessment of prejudice, noting the respondent's own conduct caused substantial delays.

The stay of proceedings was set aside and the matter remitted for trial.

The appellant appealed convictions for one count of common assault and one count of sexual assault arising from allegations by a spouse.

The Crown conceded that the trial judge failed to address significant inconsistencies in the complainant’s evidence, despite the case turning entirely on credibility.

The appeal court held that the failure to consider material inconsistencies constituted reversible error.

Due to ambiguity between the trial judge’s reasons and the endorsed verdicts on the information, acquittals were directed on both common assault counts and no retrial could be ordered for them.

The conviction for sexual assault was set aside and a new trial ordered on that count.

The appellant appealed a conviction for refusal to provide a roadside breath sample, arguing that the trial judge improperly used his silence as evidence of guilt.

The appeal challenged references made by the trial judge to the appellant’s failure to explain his inability to provide a sample at the roadside and his decision not to testify at trial or during a Charter motion alleging lost evidence.

The court held that comments about the absence of testimony on the Charter motion were permissible because the burden rested on the accused in that context.

The court further held that the trial judge’s observation that no defence evidence contradicted the officers’ testimony did not improperly use silence as proof of guilt, but merely noted the unchallenged nature of the Crown’s case.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and sexual interference involving a child complainant.

The Crown cross-appealed the conditional sentence, arguing it was illegal due to a mandatory minimum.

The Superior Court of Justice found that the trial judge misapprehended significant inconsistencies in the complainant's evidence regarding the location and frequency of the alleged assaults.

As this misapprehension played an essential part in the trial judge's credibility assessment, the conviction appeal was allowed, the convictions were set aside, and a new trial was ordered.

The Crown's cross-appeal against sentence was dismissed in light of the successful conviction appeal.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

At trial, defence counsel filed a Charter challenge to amendments enacted through Bill C‑2 but intentionally led no evidence and made no substantive argument, inviting the court to dismiss the application in order to preserve the issue pending appellate decisions on the legislation’s constitutionality.

The trial judge dismissed the Charter application due to the absence of an evidentiary record and convicted the appellant relying on statutory presumptions of accuracy and identity.

On appeal, the appellant argued the trial judge should have required a proper evidentiary record or withdrawal of the application.

The court held that constitutional challenges require a factual record and that the trial judge properly dismissed the application where no evidence supported it.

The conviction and dismissal of the Charter application were upheld.

The accused was charged with robbery as an aider and abettor.

The Crown's case relied on video surveillance, an oral utterance made upon arrest, and a fingerprint found on a duct tape wrapper in the getaway car.

Following a voir dire, the court excluded the oral utterance under s. 24(2) of the Charter, finding that police breached the accused's s. 10(b) rights by showing him a surveillance photo to elicit a response before advising him of his right to counsel for the robbery charge.

On the trial merits, the court found that the remaining circumstantial evidence—a general resemblance in the video and the fingerprint—raised a strong suspicion but failed to prove identity beyond a reasonable doubt.

The accused was found not guilty.

The appellant appealed a conviction for failing or refusing to comply with a roadside breath demand under the Criminal Code.

The appeal argued that the trial judge improperly relied on a roadside utterance captured on video in violation of jurisprudence limiting the use of compelled roadside statements while the right to counsel is suspended.

The court reviewed the governing principles from the Elias line of cases and the actus reus exception recognized in appellate authority.

It held that statements made during the testing process may be admissible where they form part of the actus reus of the refusal offence or help determine whether the accused genuinely attempted to comply.

The impugned statement was admissible because it demonstrated the accused’s linguistic understanding and was relevant to whether the repeated failed attempts constituted a constructive refusal.

The conviction was therefore upheld.

Police officers convicted of assault causing bodily harm arising from an arrest for public intoxication appealed their convictions and conditional sentences.

The appeal court found that the trial judge misapprehended key medical evidence by concluding the complainant’s injuries independently proved repeated blows, when the medical evidence was equally consistent with a fall during the arrest.

Applying the stringent misapprehension-of-evidence test, the court held the error was material and formed an essential part of the reasoning process leading to conviction.

The Crown argued the convictions could still stand on an alternative theory of unlawful arrest, but the court found the trial judge had not clearly analyzed or relied on that theory.

The convictions were therefore unsafe and a miscarriage of justice occurred.

The appellant appealed his conviction for impaired driving, arguing that his right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The Superior Court conducted a fresh analysis of the delays after finding that the trial judge had mistakenly omitted a two‑month period when calculating delay.

The court concluded that most delays were attributable to inherent time requirements of the case or institutional delay, with only one month attributable to the Crown.

The total unjustified delay of approximately eight months fell within the Morin guidelines and did not justify an inference of prejudice.

Balancing the limited delay, weak evidence of prejudice, and the strong societal interest in a trial on the merits, the court found no Charter breach.

The appellant appealed a conviction for failing to appear under s. 145 of the Criminal Code.

The trial judge rejected the appellant’s explanation that he mistakenly attended the wrong courthouse and then attempted to travel to the correct location.

The appeal court held that the trial judge erred by assessing the appellant’s evidence in isolation and by failing to consider corroborating evidence from the appellant’s mother, whose credibility was acknowledged by the Crown.

This omission constituted both a misapprehension of evidence and a failure to consider relevant evidence on a material issue.

The conviction was set aside and an acquittal entered.

The Crown appealed an acquittal for breach of a probation order under s. 137 of the Youth Criminal Justice Act involving a prohibition on contact with a co‑accused subject to limited exceptions for vocational, educational, employment, or counseling purposes.

The trial judge acquitted after concluding the Crown bore the burden of proving the accused was not within the counseling exception and had failed to investigate whether counseling was occurring.

The appeal court held the trial judge erred in law by treating the exception as an element of the offence despite no evidentiary foundation giving it an “air of reality.” The evidence established the accused and the co‑accused were simply sitting and walking together outside a building, which could not fall within the counseling exception.

The acquittal was set aside and a conviction entered, with the matter remitted for sentencing.