Kevin Kaczmara

The court sentenced A.K. following a jury conviction for four weapons-related offences under the Criminal Code, including possession of a 3D-printed handgun, silencer, extended magazines, and ammunition.

The court reviewed aggravating and mitigating factors, including the arsenal's seriousness, the offender's youth and difficult background, and the absence of public use of the weapon.

The court rejected a conditional sentence order, finding a custodial sentence necessary but imposed a total of 30 months' incarceration, reduced for pre-trial custody and restrictive bail conditions.

The applicant, charged with historical sexual offences, brought a motion to admit expert opinion evidence from Dr. Tim Moore regarding the psychology of children's memory, including concepts like "imagination inflation" and "source amnesia," and how police interview practices might affect the reliability of a child complainant's testimony.

The court dismissed the application, finding that the proposed expert evidence did not meet the necessity criterion for admissibility.

The judge concluded that the concepts were within the common experience and knowledge of a jury and that the evidence risked intruding on the jury's role as the ultimate arbiters of credibility and reliability.

The applicant, Noah Hart, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 11(b) right to a trial without unreasonable delay.

The total delay was 22 months and 21 days, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice established by R. v. Jordan.

The court analyzed periods of delay, particularly focusing on the time taken for Legal Aid Ontario (LAO) to process the applicant's certificate.

The court found that the LAO processing time, with the Crown's reasonable mitigation efforts, constituted an exceptional circumstance.

Additionally, the court noted defence delay due to the failure to proactively raise delay concerns.

After deductions for defence delay and exceptional circumstances, the net delay was calculated to be 15 months and 1 week (464 days), which fell below the Jordan threshold.

The s. 11(b) application was dismissed.

Noah Hart was charged with assault, uttering a death threat, and two counts of failing to comply with an undertaking.

The Crown conceded the death threat charge, and the defence conceded the two undertaking breaches.

The central issue for the assault charge was credibility and whether the Crown proved intent beyond a reasonable doubt.

The court found the complainant credible with reservations and the defendant also downplayed aspects of his evidence.

Ultimately, the court could not conclude beyond a reasonable doubt that the defendant assaulted the complainant with the requisite intention, finding a reasonable possibility that the fall was accidental.

The assault and death threat charges were dismissed, and convictions were entered for the two counts of failing to comply with an undertaking.

In a pre-trial motion for a first-degree murder case, the court ruled on the admissibility of the accused's statements to police, ante-mortem statements of the deceased, and character evidence.

The court found the accused's statements were voluntary and not obtained in violation of his Charter rights.

The deceased's statement 'No, it's my brother' was admitted for state of mind but not for its truth.

The court also allowed some evidence of the deceased's prior violent acts to support the accused's self-defence claim, while permitting the Crown to lead balancing evidence of the accused's disposition for violence.

Tevin Bailey, charged with human trafficking and related offenses, applied for a stay of proceedings due to unreasonable delay under the Jordan framework.

The total delay was nearly 41 months.

The court analyzed periods of defence delay, attributing 7 months and 13 days, and subtracted 7.5 months for pandemic-related administrative delays as exceptional circumstances.

The resulting net delay of 26 months fell below the 30-month presumptive ceiling, leading to the dismissal of the application.

The Crown brought an application to admit similar fact evidence (the "Toronto Allegations") and to permit a witness (Ms. H.M.) to testify remotely via Zoom in a criminal trial for sexual assault and related charges.

The defence opposed the admission of similar fact evidence, arguing it was prejudicial and lacked probative value, and also opposed remote testimony for the trial proper.

The court partially granted the Crown's application, allowing Ms. H.M. to testify remotely due to childcare responsibilities and the COVID-19 pandemic, and permitting her to testify regarding the accused's observation/perception of a firearm and his utterances about its contents.

However, the court excluded other aspects of the Toronto Allegations, such as the proposition for sex and credit card purchases, finding them irrelevant and overly prejudicial.

The defendant, Sheldon Campbell, was convicted of possession of crack cocaine for the purpose of trafficking.

The Crown sought a sentence of 6 to 8 months, while the defence argued for time served.

The court considered aggravating factors, such as the insidious nature of crack cocaine and the commercial aspect of the trafficking, and mitigating factors, including the defendant's remorse, rehabilitation efforts, modest drug quantity, and difficult background.

Significant credits were applied for pre-sentence custody, strict bail conditions (2 months), and serious Charter breaches by police (2 months).

The court ultimately imposed a net sentence of 3 months intermittent custody, 2 years probation, a 10-year weapons prohibition, a DNA order, and a forfeiture order.

This decision provides supplemental reasons regarding a prohibition order imposed on an offender, Marcia Motayne, who was convicted of fraud over $5,000 against a not-for-profit agency.

The original sentence included a prohibition order under s. 380.2(1) of the Criminal Code, restricting future employment or volunteer work involving authority over money or property.

Defence counsel sought to make the order more permissive, arguing it would hinder the offender's ability to find remunerative employment and make restitution.

The court amended the order to allow for handling of money up to $500 in a volunteer context and up to $1,000 in remunerative employment without employer consent, while requiring consent for amounts exceeding $1,000.

The prohibition against supervisory authority over real property or valuable security was also clarified and limited.

The court emphasized the importance of allowing the offender to obtain employment for restitution purposes while balancing public protection.

During jury selection for a drug trafficking trial, the defence brought three motions regarding the composition of the jury.

The defence sought to strike the predominantly white jury panel for lacking racial diversity, requested the use of the newly amended s. 633 stand-aside discretion to ensure gender balance, and asked to stand aside a nurse for alleged partiality.

The court dismissed all three requests, holding that random selection satisfies the representativeness requirement, that the stand-aside discretion should not be used to manipulate gender balance, and that there was no objective evidence of partiality regarding the nurse.

During a jury trial for drug trafficking and firearms offences, the accused sought to introduce the criminal record of a third-party suspect.

In response, the Crown brought an application to introduce the accused's prior youth conviction for assault causing bodily harm as rebuttal evidence of disposition.

The court dismissed the Crown's application, holding that because the accused's youth sentence had ceased to have effect, section 82 of the Youth Criminal Justice Act deemed him not to have been convicted of the offence, rendering the record inadmissible at that stage of the trial.

During a trial for drug trafficking and weapons offences, the defence brought an application under s. 24(1) of the Charter to exclude a full cell phone extraction report due to late disclosure by the Crown.

The Crown had disclosed a partial report earlier but only provided the full report on the day evidence was to commence.

The court found that while the full report should have been disclosed earlier, the late disclosure did not warrant exclusion of the evidence.

The court held that a one-week adjournment was sufficient to allow the defence to review the report and attenuate any prejudice, ensuring the accused's right to make full answer and defence under s. 7 of the Charter.

The accused brought a Garofoli application challenging the validity of a search warrant issued for several cellular telephones seized from his hotel room.

The accused argued that the Information to Obtain (ITO) was rife with errors and recklessly misled the issuing justice regarding his identification as a theft suspect.

The court found that while the ITO contained drafting deficiencies and inaccuracies, they were the result of inexperience rather than an intention to mislead.

After excising the inaccurate portions and evidence obtained unconstitutionally, the court concluded the remaining evidence of drugs, scales, and a prohibited weapon in plain view provided sufficient reasonable and probable grounds to support the warrant.

The application was dismissed.

The defendant brought a pre-trial application to exclude evidence seized from his hotel room, alleging breaches of his rights under ss. 8, 9, 10(a), and 10(b) of the Charter.

Police officers investigating a theft knocked on the door of the hotel room.

When the door was opened, an officer observed brass knuckles in plain view and saw the defendant dart out of sight, prompting a warrantless entry for officer safety.

Inside, the officer saw the defendant with a bag of drugs and arrested him.

The court found that while the defendant had a reasonable expectation of privacy, the knock was not a search and the entry was a justified safety search.

The court found breaches of the defendant's s. 10(b) right to counsel and an overbroad search incident to arrest, but concluded under s. 24(2) that the evidence seized in plain view should not be excluded.

The accused, a former Director of Finance for a non-profit agency supporting disabled individuals, was found guilty by a jury of fraud over $5,000.

Over four years, she manipulated payroll and accounting records to steal over $900,000 from the charity.

The court found numerous aggravating factors, including the egregious breach of trust, the vulnerability of the charity's residents, and the significant financial and reputational impact on the organization.

The court rejected the Crown's request for an 8-10 year sentence but found the defence's proposed 4-year sentence inadequate due to the absence of mitigating factors such as a guilty plea or remorse.

The accused was sentenced to 6.5 years' imprisonment (reduced for pre-sentence custody), ordered to pay $1,095,668.71 in restitution, and fined $795,668.71 in lieu of forfeiture.

A prohibition order restricting her future employment involving financial authority was also imposed.

The accused, charged with drug trafficking and weapons offences, brought a pre-trial Garofoli application challenging the validity of a search warrant for his cellular telephones.

As part of a sub-facial challenge, the accused sought leave to cross-examine the police affiant of the Information to Obtain (ITO).

The court applied the Garofoli threshold test and granted leave to cross-examine the affiant on specific areas probative of whether the issuing justice was recklessly misled, while excluding cross-examination on widely known facts such as the association of weigh scales with drug trafficking.

The applicant, charged with trafficking cocaine, brought a Rowbotham application seeking a stay of proceedings until the state agreed to fund his legal counsel.

Although he had been denied legal aid, the court found his financial disclosure deficient.

He failed to provide evidence of his recent employment income, the value of his vehicle, or a logical explanation for transactions in his girlfriend's bank account.

The application was dismissed as the applicant did not prove on a balance of probabilities that he could not afford to retain private counsel.

Marcia Motayne, charged with fraud, brought a late Section 8 Charter challenge to exclude a roofing invoice and employee records, claiming a privacy interest.

The court dismissed the application summarily, finding no reasonable expectation of privacy as the documents were already in the public domain through prior civil proceedings.

The court also emphasized the trial judge's power to dismiss unmeritorious applications to prevent delay.