Kerry McVey

The Crown applied under s. 490(3) of the Criminal Code to retain a seized laptop hard drive for further investigation, while the respondent sought its return, alleging a warrantless seizure in breach of s. 8 of the Charter.

The police had seized the laptop from the respondent as he left a residence that was subject to a search warrant for child pornography.

The court found the arrest was unlawful and the seizure warrantless, but held the seizure was reasonable due to exigent circumstances, specifically the imminent risk of evidence destruction.

The court granted a 12-month extension for the detention of the hard drive, finding the investigation complex due to the ongoing efforts to decrypt the 26-digit alphanumeric password.

The accused was tried on child pornography offences arising from files found on a LimeWire-enabled computer in a shared residence.

The court applied the W. (D.) framework, rejected the accused's evidence that his roommate was the true user, and found on circumstantial and forensic evidence that the accused was the sole user of the computer and had constructive possession of the files.

However, the court was not satisfied beyond a reasonable doubt that the accused knew, or was wilfully blind to the fact, that LimeWire was a file-sharing program that made files available to others.

Convictions were entered on two possession counts, the accessing count was dismissed, and the accused was acquitted on making child pornography available.

The accused was sentenced following convictions for assault causing bodily harm and uttering a threat to cause death.

The offences arose from a violent attack in a restaurant washroom where the accused struck the complainant, banged her head against a wall, and threatened to kill her.

The court considered aggravating factors including the vulnerability of the victim, the gratuitous violence, and the offender’s significant criminal record, including prior robbery convictions, while recognizing mitigating factors such as the offender’s youth and difficult upbringing.

Applying the sentencing principles in ss. 718–718.2 of the Criminal Code, the court imposed a custodial sentence of two years for assault causing bodily harm and three months concurrent for the uttering threats offence, followed by probation.

Credit was granted for pre‑sentence custody and time spent in a residential facility, and ancillary orders including a DNA order and lifetime weapons prohibition were imposed.

The accused brought a Corbett application seeking to limit the Crown’s ability to cross‑examine him on his criminal record if he testified.

The defence requested that assault convictions be excluded and robbery convictions be characterized as thefts.

The court reviewed the principles governing the admissibility of prior convictions under s. 12(1) of the Canada Evidence Act and the balancing framework from R. v. Corbett.

Given the defence’s extensive reliance on the complainant’s criminal record, the relevance of the accused’s record to credibility, and the need to avoid presenting a distorted picture to the jury, the court declined to edit the record.

The accused’s criminal record was therefore admissible in full, subject to limiting instructions to the jury.

The Crown brought an application under s. 715 of the Criminal Code to admit preliminary inquiry testimony of an independent witness who had moved to Nicaragua and was therefore unavailable to testify at trial.

The defence argued the Crown failed to make sufficient efforts to secure the witness’s testimony through technological means such as videoconference under ss. 714.1 and 714.2 of the Criminal Code.

The court held that while efforts to obtain live testimony are a relevant factor, failure to pursue electronic testimony is not fatal to an application under s. 715.

Applying the principles in Potvin and Saleh, the judge concluded the accused had a full opportunity to cross-examine the witness at the preliminary inquiry and that the evidence was reliable and corroborated.

The prior testimony was therefore admitted to be read into the trial record.

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, unrepresented, defended on the basis that his Charter rights were violated through racist treatment by police.

The court rejected this defence.

However, the court found that the Crown failed to establish that breath samples were taken "as soon as practicable" as required by law.

The court identified three periods of inadequately explained or unexplained delay totalling approximately 20 minutes, which undermined the Crown's ability to rely on the presumption of identity.

Without evidence of the accused's blood alcohol level at the time of driving, the court found the accused not guilty.