Kathryn L. McKerlie

David H. Whetham was sentenced for eight criminal charges, including possession of fentanyl, methamphetamine, cocaine, and hydromorphone for the purpose of trafficking, as well as multiple firearms offences (possession of a loaded prohibited firearm, possession while prohibited, careless storage) and possession of identity documents.

The offences occurred while the accused was subject to a prior weapon prohibition order.

A Charter breach (sections 8 and 9) was found regarding the search warrant that led to the seizure of evidence, but the evidence was admitted under section 24(2) of the Charter.

The court considered aggravating factors such as the accused's related criminal record and the dangerous combination of drugs and firearms, and mitigating factors including a challenging childhood, substance abuse issues, and the Charter breach.

The Crown sought a 10-year sentence, while the defence proposed 6 years (net 5).

The court imposed a total sentence of 8 years imprisonment, with 67 months remaining after accounting for 29 months of pre-sentence custody credit, emphasizing denunciation and deterrence, particularly for fentanyl trafficking.

Concurrent sentences were imposed for the other charges, along with life and 10-year weapon prohibition orders, secondary DNA orders, and a forfeiture order.

The accused brought an application to exclude evidence under sections 8, 9, and 24(2) of the Canadian Charter of Rights and Freedoms, arguing that a search warrant for his residence and his subsequent arrest lacked reasonable grounds.

The court found that the accused's Charter rights under sections 8 and 9 were violated due to insufficient grounds in the heavily redacted Information to Obtain and lack of reasonable grounds for arrest.

However, applying the R. v. Grant analysis, the court determined that while the impact on the accused's privacy was significant, the seriousness of the police conduct was weak, and society's interest in an adjudication on the merits for serious charges (including possession of a loaded prohibited firearm and trafficking fentanyl) outweighed the Charter breaches.

The application to exclude evidence was dismissed.

Subsequently, the court found the accused guilty on all eight charges, concluding that the prosecution proved beyond a reasonable doubt that the accused had knowledge and control over the seized items, particularly given the distinctive safe key found on his person.

The defendant, S.K., was charged with sexual assault contrary to section 271 of the Criminal Code of Canada, involving non-consensual vaginal intercourse with the complainant, J.F., who was 15 years old at the time.

The court found the complainant's testimony credible and reliable, establishing the actus reus of sexual assault.

Regarding mens rea, the court determined that the Crown proved beyond a reasonable doubt that S.K. did not take reasonable steps to ascertain consent and knew of, was wilfully blind to, or was reckless about the absence of consent.

The defendant was found guilty.

The accused was found guilty of impaired driving causing bodily harm after a single motor vehicle collision that resulted in life-altering injuries to her passenger.

The Crown sought an 18-month custodial sentence, while the defence sought a conditional sentence.

The court considered the recent Bill C-5 amendments that made conditional sentences available for this offence.

Despite the serious aggravating factors and the paramount objectives of denunciation and deterrence, the court found that a 21-month conditional sentence with strict house arrest and GPS monitoring was appropriate due to the accused's young age, significant rehabilitation efforts during pandemic-related delays, and history of trauma.

A 3-year probation order and a driving prohibition were also imposed.

R.G. was sentenced for 10 offences of sexual abuse against his daughter, spanning an eight-year period from when she was 9 or 10 until just before her 17th birthday.

The offences included incest, sexual assault with a weapon, and unlawful confinement, involving significant physical interference and violence.

The court considered aggravating factors such as the egregious breach of trust, the victim's young age, the duration and frequency of abuse, and the profound impact on the victim.

Mitigating factors included the offender's steady employment history and family support, as well as time spent in pre-sentence custody and under restrictive bail conditions, including hardships due to the COVID-19 pandemic.

Applying principles from R. v. Friesen, the court imposed a total sentence of 10 years, with a credit of 2 years for pre-sentence custody and stringent bail conditions, resulting in 8 years of imprisonment yet to be served.

Ancillary orders included a communication prohibition, DNA order, lifetime weapons prohibition, and Sex Offender Information Registration Act compliance.

The applicant, R.G., sought an order to reopen his trial and declare a mistrial after being found guilty of 10 counts of sexual abuse but before sentencing.

He presented fresh evidence, including cell phone records and affidavits, to establish an alibi for some charges and challenge the complainant's credibility.

The court applied the rigorous "exceptional circumstances" and "clearest of cases" test for vacating a guilt adjudication, incorporating the Palmer criteria for fresh evidence.

The court found that the proposed evidence could have been obtained with due diligence prior to trial and that the application was an attempt to reverse tactical decisions made by the defence.

The application was dismissed, as the test for reopening the trial or declaring a mistrial was not met.

Kyle Byrne pleaded guilty to impaired operation of a motor vehicle causing the death of Karli Chomick, contrary to s.320.14(3) of the Criminal Code of Canada.

The incident involved a high-speed collision while the offender's blood alcohol concentration was more than twice the legal limit.

The court accepted a joint submission for a sentence of five years imprisonment, an eight-year driving prohibition (totaling 13 years), a 10-year weapon prohibition, and a secondary DNA order.

The sentencing emphasized denunciation and deterrence, considering aggravating factors such as high blameworthiness, the victim's death, high BAC, excessive speed, and the offender's initial call to his mother instead of 9-1-1.

Mitigating factors included the guilty plea, first-time offender status, and the offender's serious injuries.

This decision concerns the sentencing of Nicholas Ditoro for luring a child, contrary to s. 172.1(1)(a) of the Criminal Code, where the Crown proceeded summarily, triggering a 6-month mandatory minimum sentence.

The accused challenged the constitutionality of this mandatory minimum under s. 12 of the Charter, arguing it constituted cruel and unusual punishment.

The court applied the two-step test from R. v. Nur and considered the Supreme Court of Canada's guidance in R. v. Friesen regarding the gravity of sexual offences against children.

The court found that while the 6-month mandatory minimum was harsh for a youthful first offender with mitigating circumstances, it was not "grossly disproportionate" to the fit sentence, nor would it be in reasonably foreseeable hypothetical scenarios, given the serious nature of child luring and Parliament's intent to impose tougher sanctions.

The s. 12 Charter application was dismissed, and the mandatory minimum sentence was imposed, with credit for pre-sentence custody and restrictive bail conditions.

The accused was charged with multiple counts of sexual interference, sexual assault, sexual assault with a weapon, unlawful confinement, and incest arising from allegations that he repeatedly sexually abused his daughter over several years.

The defence challenged the credibility and reliability of the complainant’s evidence, emphasizing inconsistencies and incremental disclosure during police interviews and testimony.

The court accepted the complainant’s explanations for delayed and selective disclosure, noting the dynamics of trauma, familial relationships, and the difficulty of reporting incest.

After carefully scrutinizing credibility and reliability, the court found the complainant’s testimony compelling and consistent with lived experience.

The Crown proved the essential elements of the offences beyond a reasonable doubt and the accused was convicted on ten counts.

The accused was charged with uttering a threat to bomb Gilly's Pubhouse, mischief, breach of probation, and public mischief.

The sole issue at trial was whether the Crown proved beyond a reasonable doubt that the accused made the bomb threat call.

The Crown's case relied on circumstantial evidence, including testimony from the doorman who heard the accused threaten to call in a bomb threat, and voice identification evidence from police officers.

The court found the voice identification evidence unreliable and placed no weight on it.

However, based on the totality of the circumstantial evidence—including the accused's explicit threat, his agitation, the timing and location of the 911 call, and his presence at the scene—the court found the accused guilty of all four charges.

The offender was convicted following a focused Charter voir dire of possession of 75 grams of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.

The offender admitted possession and that the methamphetamine was for trafficking purposes.

The offender had a prior record including a 2016 conviction for possession of methamphetamine.

The sentencing court imposed a 30-month custodial sentence, considering the significant quantity of the dangerous Schedule 1 substance, the offender's motivation for financial gain, prior related convictions, and mitigating factors including child care responsibilities and prospects for rehabilitation.

The accused pleaded guilty to sexual interference of a child under 16 years of age.

The offence involved systematic sexual abuse of an 11-year-old victim over a one-year period from January 2017 to January 2018.

The accused, a 43-year-old family friend residing in the victim's home, engaged in repeated vaginal and anal intercourse, penetration with various objects, and exposure to pornography.

The victim was discovered by a sibling on January 14, 2018.

The court imposed a sentence of 6.5 years imprisonment, considering the serious aggravating factors balanced against the mitigating factor of an early guilty plea.

Two accused were jointly charged with human trafficking offences, including unlawfully recruiting and exercising control over a young woman for the purpose of exploiting her in the sex trade, receiving financial benefits from sexual services, advertising sexual services, procuring for sexual services, and unlawful confinement.

The Crown's case relied primarily on the testimony of the complainant, a young mother with a history of drug use and involvement with child protective services.

The defence challenged the complainant's credibility, arguing she fabricated allegations to avoid losing custody of her child.

The court found the complainant's testimony credible and reliable despite inconsistencies noted by initial police responders.

The court convicted both accused of human trafficking and procurement offences, finding they exercised control and direction over the complainant through threats and coercion, causing her to provide sexual services against her will.

One accused was also convicted of receiving financial benefits from the offences and breaching probation conditions.

The accused was charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code.

The accused brought a Charter application seeking to exclude evidence, alleging that his right to counsel in private was breached when he spoke to duty counsel from a holding cell at the police detachment.

The accused claimed he could hear voices outside the cell and was concerned his conversation could be overheard.

The court found that the accused was in fact afforded privacy, was the only person in the cell block and booking area, and was monitored only by video with no audio recording.

The court rejected the accused's after-the-fact assertion that he reasonably believed his conversation could be overheard, finding his testimony lacked reliability and he took no steps at the time to indicate concern.

The Charter application was dismissed and the accused was found guilty.

The accused, a police officer and qualified breath technician, was charged with impaired operation of a motor vehicle and operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood following a collision with a parked pickup truck.

The accused fled the scene and attempted to obstruct justice by having his wife falsely claim she was the driver.

The Crown relied on expert toxicological evidence to "read back" breath test results to the time of the collision, as the presumption of identity was unavailable due to the delay in testing.

The accused claimed bolus drinking and that distracted driving, not impairment, caused the collision.

The court rejected the accused's testimony as incredible and unreliable, found the Crown proved the absence of bolus drinking beyond a reasonable doubt, and convicted on both charges based on the expert evidence and the accused's own admissions regarding his impaired judgment and decision-making.

The accused was charged with second degree murder in the death of a 17-month-old child who died from acute craniocerebral trauma on September 12, 1994.

The Crown alleged the accused inflicted fatal blunt force injuries to the child's head and torso while alone with her in the bedroom.

The defence conceded sufficient evidence existed for manslaughter but argued the Crown had not established the requisite mens rea for second degree murder, specifically that the accused intended to cause bodily harm he knew was likely to cause death.

The court found that based on the nature and extent of the injuries, a reasonable jury could infer the accused intended the natural consequences of his violent actions and committed the accused to stand trial on the charge of second degree murder.

The accused was charged with sexual assault contrary to Section 271 of the Criminal Code for alleged incidents occurring during a house party.

The complainant testified that she woke twice to unwanted sexual touching by the accused while she was in bed with another woman.

The accused testified that he dozed off in the bed and denied all allegations.

The court found the accused not guilty, determining that the Crown had not discharged its burden of proving guilt beyond a reasonable doubt based on credibility issues with the complainant's testimony, corroborating evidence from a third party in the bed, and inconsistencies in the complainant's account.

The accused was charged with four offences arising from events on August 16, 2014: operating a motor vehicle while impaired by a drug, dangerous operation of a motor vehicle, unlawful possession of cocaine, and failing to comply with an undertaking to abstain from drugs.

The accused pleaded guilty to the possession and breach charges.

The impaired driving and dangerous driving charges proceeded to trial.

The court found that the accused's ability to drive was impaired by a combination of central nervous system depressants and narcotic analgesics, and that his driving constituted a marked departure from the standard of care expected of a reasonable person.

The accused was convicted on all four counts.

The appellant appealed a sentence imposed for failing to comply with a Property Standards Order issued under the Building Code Act.

The appellant was convicted of non-compliance with an order requiring repairs to a residential property by August 15, 2012.

The sentencing judge imposed a $2,000 fine and six-month probation order.

The appellant challenged the sentence on grounds that evidence from her husband was improperly excluded and that certain factual findings were erroneous.

The appellate court upheld the sentence, finding it fit and proportionate within the acceptable range for the offence.

The offender was sentenced for two offences: possession of child pornography contrary to section 163.1(4) of the Criminal Code and making available child pornography contrary to section 163.1(1)(3) of the Criminal Code.

The offender had sent images and videos of child sexual abuse to other users on an internet website.

A search warrant revealed an extensive collection of child pornography on the offender's external hard drive, containing 355 accessible images and 242 accessible videos, depicting very young children (ages 2-11) being sexually abused.

The court imposed a custodial sentence of 120 days on the possession charge and 240 days consecutive on the making available charge, for a total of 348 days plus pre-sentence custody credit.

The court also imposed a three-year probation order, a lifetime Sex Offender Information Registration Act order, a 20-year section 161 prohibition order, a primary DNA order, and a forfeiture order.