Katrina Friesen

Kyle Ellis applied for a stay of proceedings under s. 24(1) of the Charter, alleging a breach of his s. 11(b) right to a trial within a reasonable time due to an 18-month and 14-day delay exceeding the 18-month presumptive ceiling established in R v Jordan.

The Crown argued for deductions of pre-arrest delay and defence delay, and exceptional circumstances due to joint trials.

The court found the 11(b) clock began at the swearing of the information, rejecting deduction of pre-arrest delay due to lack of police diligence.

The 36-day delay was not attributed to the defence as it was caused by co-accused counsel unavailability.

The joint trial complexity did not justify the delay, and the Crown and court failed to mitigate delay caused by the self-represented co-accused.

The court granted the stay, finding a Charter breach.

This decision addresses multiple Charter breaches arising from the detention, search, and arrest of Omar Yaqubi in Toronto's Entertainment District.

The court found breaches of sections 7, 8, 9, and 10(b) of the Charter, including arbitrary detention without reasonable suspicion, unlawful search without safety justification, and failure to promptly inform and facilitate the right to counsel.

The court excluded the evidence obtained during the unlawful detention and search pursuant to section 24(2) of the Charter.

Alternatively, a stay of proceedings was directed due to the loss of critical evidence caused by police muting body-worn cameras and failure to preserve key witness information, impairing the accused's right to make full answer and defence.

The accused, Afrah Mohamed, was charged with unauthorized possession of a firearm and ammunition.

He brought a Charter application to exclude evidence, which was dismissed.

The central issue at trial was whether the Crown proved beyond a reasonable doubt that he was in constructive possession of the firearm and ammunition found during a search.

The court found that the Crown failed to prove constructive possession, as the evidence did not establish the accused's knowledge and control of the items beyond a reasonable doubt.

The accused was found not guilty.