Kenneth S. Marley

The accused was charged with theft of a motor vehicle over $5,000, uttering threats to cause death, and operating a motor vehicle while disqualified.

The only contested issue at trial was the identity of the perpetrator.

Although the court treated the in‑dock eyewitness identifications as unreliable and gave them little weight, it relied on circumstantial evidence including the accused’s clothing, physical condition, proximity to the crash scene, the presence of pliers used to break the vehicle window, the absence of footwear, and the timing of police pursuit and arrest.

Considering the totality of the circumstantial evidence, the court found the Crown had proven identity beyond a reasonable doubt.

The accused, charged with multiple offences under the Controlled Drugs and Substances Act for possession of heroin, methamphetamine, cocaine, and hydromorphone for the purpose of trafficking, brought a Charter application seeking exclusion of drug evidence discovered while he was detained in a police “dry cell.” Police had obtained a general warrant under s. 487.01 of the Criminal Code authorizing detention until the accused passed drugs concealed in his anal cavity.

The accused argued that the warrant and the delay in bringing him before a justice violated ss. 7, 8, and 9 of the Charter and s. 503 of the Criminal Code.

The court held the warrant was valid and that the “dry cell” detention constituted the least intrusive method available to recover the drugs given the accused’s concealment method.

Even if Charter breaches occurred, the court concluded the evidence would not be excluded under s. 24(2) given the seriousness of the offences and police good faith.

The three accused were charged with robbery with a firearm and related offences.

At their jury trial, the sole Crown witness claimed complete memory loss.

The Crown sought to introduce her preliminary hearing transcript.

The trial judge ruled the transcript admissible but subject to strong Vetrovec warnings.

Recognizing the severe prejudice to the defence, who had elected a jury trial expecting to cross-examine the witness, the judge allowed the accused to re-elect a judge-alone trial, finding the Crown's refusal to consent to the re-election was an abuse of process.

Sitting as a judge alone, the trial judge found the witness's uncorroborated evidence insufficient and acquitted all accused.

The accused brought a Charter application under s. 24(2) seeking exclusion of drugs seized from his clothing during execution of a search warrant at a residence suspected of drug trafficking.

Police detained the accused after observing marijuana, cash, and a crack pipe in plain view, conducted a pat-down, and then performed a strip search based on prior knowledge that the accused concealed drugs on his person.

The accused argued the search was unconstitutional and that the resulting evidence should be excluded.

The court found the detention, arrest, and search were supported by reasonable and probable grounds and that the strip search was justified in the circumstances.

Even if there had been a breach, the evidence would not be excluded under the s. 24(2) analysis.

The accused brought an application under s. 24(2) of the Charter seeking exclusion of evidence obtained during the execution of a telewarrant at his residence on drug trafficking charges.

The defence argued the telewarrant lacked sufficient grounds because it relied heavily on information from a confidential informant and contained an error regarding the accused’s vehicle.

The court applied the Debot framework assessing the compelling nature of the tip, the credibility of the source, and police corroboration.

Despite a mistake in the information to obtain, the court found the informant’s observations, partial corroboration by police records and surveillance, and prior reliability of the source sufficient to justify the warrant.

The court concluded the totality of the circumstances supported issuance of the telewarrant and refused to exclude the evidence.

Two accused were jointly charged with multiple drug trafficking and firearms offences following a police traffic stop and brief pursuit.

Controlled substances were discovered in plain view on the centre console of the vehicle, and a civilian witness observed the passenger discard a plastic bag containing a handgun nearby.

The court held that both accused had joint knowledge and control of the drugs and were guilty of possession and possession for the purpose of trafficking.

The driver was convicted of fleeing police and dangerous driving but acquitted of the joint firearm offences due to reasonable doubt regarding knowledge of the firearm.

The passenger was found guilty of all firearm-related offences and possession while prohibited.

Two truck drivers were charged with importing cocaine and possession of cocaine for the purpose of trafficking after border officers discovered 45 kilograms of cocaine hidden in boxes of peppers in a commercial shipment.

The Crown relied on circumstantial evidence, including driver logs and an unexplained stop during the trip, to argue that the accused concealed the drugs after loading the cargo in California.

The defence pointed to irregularities in the loading process captured on video, the absence of forensic evidence linking the accused to the boxes, and the possibility that the drugs were inserted before the truck was loaded.

The court held that the Crown failed to prove knowledge and control beyond a reasonable doubt.

Both accused were acquitted.

During a drug raid, the accused was arrested and given his right to counsel multiple times.

He initially nodded his head indicating a desire to speak to counsel, but later told the booking officer 'not really' when asked if he wished to contact a lawyer now.

He subsequently made spontaneous statements to an investigating officer before being cautioned again.

The Crown applied to admit the statements as voluntary, while the defence applied to exclude them under ss. 7, 10(b), and 24(2) of the Charter.

The court found the statements were voluntary.

The court also found a technical breach of s. 10(b) because the police failed to clarify the accused's change of mind regarding counsel.

However, applying the Grant framework, the court declined to exclude the evidence under s. 24(2), concluding the breach was minor and the accused clearly understood his rights but chose not to exercise them.

The licensee, a standardbred driver/trainer/owner, appealed a 15-day suspension for a positive random drug test for cocaine and oxycodone, and an indefinite suspension for a subsequent positive follow-up test for cocaine.

He also sought a declaration that the initial suspension caused an unnecessary delay in his return to racing.

The Ontario Racing Commission dismissed the appeals and applications, finding that the positive tests were valid and the licensee's explanations were not credible.

The Commission ordered a one-year suspension, a $1,000 fine, and imposed strict conditions for reinstatement, including completion of a substance abuse program.

The young person appealed a conviction under s. 86(1) of the Criminal Code involving a paint-gun.

The Court of Appeal agreed with the trial judge that the paint-gun was a 'firearm' under s. 2 of the Criminal Code.

However, the trial judge erred in law by applying a negligence standard instead of the correct standard of 'a marked departure from the standard of care of a reasonable person in the circumstances' for s. 86(1).

The Court declined to apply the proviso, allowed the appeal, set aside the conviction, and ordered a new trial.

The appellant was convicted of possession of a controlled substance for the purpose of trafficking after police stopped his car for erratic driving, smelled marijuana, and found 197 grams of marijuana during a search.

On appeal, the appellant argued the evidence should have been excluded under the Charter and that the trial judge's reasons were inadequate.

The Court of Appeal dismissed the appeal, finding the search was justified as a valid search incident to arrest and the record supported the trial judge's inferences regarding possession for the purpose of trafficking.

The appellant previously appealed his sentence, which the Court of Appeal varied to four months' imprisonment and two years' probation.

The Court subsequently issued this supplementary endorsement to add three probation conditions that were inadvertently omitted from its original order, including a prohibition on associating with the complainant or persons under 16.

The variation was made on consent of both parties.

The appellant appealed his conviction and sentence for sexual assault of a young girl.

The Court of Appeal dismissed the conviction appeal, applying the curative proviso to find that the appellant's brief absence from the courtroom and pre-charge conference caused no prejudice.

The Court granted the sentence appeal, finding the trial judge erred in principle by exceeding the Crown's recommendation of four to six months to ensure treatment without an evidential foundation.

The sentence was varied from nine months to four months' imprisonment, followed by two years' probation with a treatment condition.

The licensee, a standardbred owner, trainer, and driver, requested a hearing after his license was indefinitely suspended due to a positive test for a cocaine metabolite.

At the hearing, the licensee argued the positive result was a false positive caused by prescription medication taken for injuries sustained in a racing accident, and raised a procedural defense regarding the lack of contact from a Medical Review Officer.

The Commission rejected both defenses, finding the licensee failed to provide sufficient evidence linking the prescription medication to the cocaine metabolite and that the procedural argument did not invalidate the test.

The Commission suspended the licensee until June 30, 2005, followed by an 18-month probation, and required completion of a drug rehabilitation program.

The applicant's licences as an owner, driver, and trainer were suspended pending his appearance before the Ontario Racing Commission after failing to provide a negative urine sample.

Following a hearing to consider his request for reinstatement, the Commission ordered that his licences remain suspended until June 30, 2004.

Upon reinstatement, he is required to present himself to the drug testing unit whenever competing and will be on probation for 18 months.

Counsel for the respondent brought a motion to be removed from the record after losing contact with his client.

The respondent had apparently abandoned his business and left the country permanently.

The Tribunal granted the motion, finding that counsel had made all reasonable efforts to locate his client.

The Tribunal ordered that the hearing on the merits would proceed as scheduled, as the respondent was on notice of the dates.

The licensee, a standardbred owner, trainer, and driver, sought reinstatement of his licences after they were suspended due to a positive test for a cocaine metabolite.

The licensee had a history of human drug violations and was on probation at the time of the positive test.

He claimed he did not intentionally ingest cocaine and suggested his drink may have been spiked at a party.

The Ontario Racing Commission rejected this theory, concluding the drug was ingested during a heavy drinking session.

Acknowledging the licensee's progress in recovery, the Commission ordered the licences to remain suspended until May 31, 2003, and imposed conditions for reinstatement, including completion of an outpatient support program and extended probation.

The respondent pleaded guilty to encouraging animal fighting.

The sentencing judge rejected a joint submission and imposed a harsher sentence.

The respondent appealed the sentence to the summary conviction appeal court.

The SCAC judge, finding the sentencing judge erred in calling a witness, invited the respondent to amend the notice of appeal to appeal the conviction and ordered a new trial.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that under s. 687(1) of the Criminal Code, a court hearing an appeal from sentence alone has no jurisdiction to order a new trial.

The conviction was restored and the matter remitted to the SCAC for review of the sentence.

The plaintiff appealed the dismissal of his defamation and wrongful dismissal actions arising from a workplace sexual assault allegation, while the defendant cross-appealed the dismissal of her sexual assault counterclaim as statute-barred.

The Court of Appeal held that the trial judge made no palpable and overriding error in accepting the defendant's evidence, rejecting the plaintiff's credibility, dismissing the plaintiff's claims, and awarding costs.

However, the court allowed the cross-appeal because the plaintiff had not pleaded the limitation defence under s. 45(1)(j) of the Limitations Act, and a trial judge should not decide the case on an unpleaded affirmative defence that may cause prejudice.

The defendant was therefore awarded $100,000 in damages on the counterclaim.