Bail conditions

Michael Malabre was convicted following a jury trial of possessing cocaine and fentanyl for the purpose of trafficking and possessing the proceeds of crime under $5,000.

The Crown sought a penitentiary sentence of five to seven years, while the defence requested a conditional sentence of 18 to 24 months, citing pre-trial custody conditions and the effects of anti-Black racism.

The court found a conditional sentence inappropriate, imposing a sentence of four years and nine months incarceration.

The judge considered aggravating factors including the dangerous nature and quantity of drugs (fentanyl), the commercial scale of the trafficking, evidence of prior sales, and the mixing of drugs.

Mitigating factors included the offender's youth, difficult upbringing, and harsh pre-trial detention and stringent bail conditions.

The court found insufficient evidence to connect anti-Black racism to the offender's moral blameworthiness in this specific case.

L.C. pleaded guilty to assault causing bodily harm to his 13-year-old son, who suffered a broken clavicle after being pushed down stairs.

The Crown sought a conditional sentence of four months home incarceration and 18 months probation, emphasizing denunciation and deterrence for child abuse.

Defence sought a conditional discharge and 12 months probation, citing L.C.'s guilty plea, lack of prior record, and rehabilitative efforts.

The court denied a conditional discharge, finding it contrary to public interest given the seriousness of the offence and the need for denunciation and deterrence in child abuse cases.

A suspended sentence with a two-year probation order was imposed, along with a three-year firearms prohibition and a DNA sample order.

The court also considered the collateral consequences of restrictive bail conditions on the family.

The offender, Audley Crooks, was convicted by a jury of multiple Criminal Code offences including two counts of sexual assault, human trafficking, receiving a material benefit from human trafficking, and advertising sexual services.

The offences occurred over a two-week period in August 2020, involving a vulnerable complainant who was already engaged in sex work.

The court considered aggravating factors such as the serious nature of the offences, the victim's vulnerability, the offender's prior conviction for a similar offence, and his lack of insight.

Mitigating factors included the offender's efforts to change his lifestyle while on bail, family support, and the fact that the complainant was already in the sex trade.

The court applied "Duncan credit" for harsh pre-sentence custody conditions and "Downes credit" for strict bail conditions.

The Crown sought a 14-year global sentence, while the defence sought 3-5 years.

The court imposed a global sentence of eight years imprisonment before credit, which was reduced to six years after accounting for 24 months of pre-sentence and bail credit.

Ancillary orders included a DNA order, a lifetime weapons prohibition, a 20-year SOIRA order, and a non-communication order.

The appellant, Robert Rouse, appealed his sentence, arguing that the sentencing judge failed to adequately consider the negative impact of his time spent on house arrest.

The Court of Appeal found that the strict conditions of house arrest, which required the appellant to be supervised by his full-time working surety, did indeed have a significant impact on his liberty and ability to carry out normal activities.

The Court concluded that this impact should have mitigated his sentence.

Leave to appeal was granted, and the appeal was allowed, resulting in a 7.5-month reduction to the appellant's sentence.

Joshua Auld pleaded guilty to two counts of robbery and one count of assault causing bodily harm.

The Crown sought a 10-year global sentence, while the defence proposed five years.

The court considered aggravating factors, including the use of a handgun and planning, and significant mitigating factors such as Mr. Auld's guilty plea, mental health issues, substance abuse recovery, challenging personal history rooted in systemic anti-Black racism, and onerous bail conditions.

Applying the principle of totality and considering the impact of anti-Black racism on moral culpability and rehabilitation potential, the court found a six-year and three-month aggregate sentence unduly harsh.

A global sentence of five years was imposed, with specific terms for each count and credit for pre-sentence custody.

Michael Bennett and Dylan Griggs were found guilty after trial of possession of fentanyl and crystal methamphetamine for the purpose of trafficking, and possession of proceeds of crime.

The court considered the serious nature of the drugs, the profit motive, the large quantities involved, and the fact that both were first offenders without drug dependence issues.

Credit for pre-sentence custody and bail conditions (house arrest, curfew) was factored into the sentences.

Bennett was sentenced to a total of five years in penitentiary, and Griggs was sentenced to a total of eleven years in penitentiary.

Automatic weapons prohibitions, DNA orders, and victim surcharges were also imposed, and seized cash and offence-related property were ordered forfeited.

This case addresses the intersection of mental illness and criminal law, involving charges against the accused for carrying a weapon for a dangerous purpose and multiple breaches of a release order.

The court found that the accused, suffering from a significant mental disturbance, was not proven to have an "operating mind" for the voluntariness of her utterances to police, leading to their exclusion.

Furthermore, the court identified breaches of the accused's Charter rights under s. 10(a) (timely information of arrest reason) and s. 10(b) (timely and private access to counsel), leading to the exclusion of further evidence under s. 24(2) of the Charter.

Crucially, the court determined that due to the accused's mental state, the Crown failed to prove the mens rea beyond a reasonable doubt for both the fail to comply charges (lack of knowledge of bail conditions) and the weapons dangerous charge (inscrutable purpose).

Consequently, all four charges were dismissed.

The defendant, Kyle Hughes, was convicted of possession of child pornography and making child pornography available.

The Crown sought a three-year prison sentence, while the defence proposed a one-year conditional sentence.

The court emphasized that denunciation and deterrence are paramount in child pornography cases, especially following the Supreme Court's directive in Friesen for increased sentences in child sexual abuse cases.

The court found no exceptional circumstances to warrant a conditional sentence.

Considering aggravating factors such as the large and disturbing collection (over 1,700 images and 22 videos, many depicting prepubescent females and infants in explicit acts) and the defendant's active role as a downloader/uploader on the BitTorrent network, balanced against mitigating factors like being a first-time offender, showing remorse, having no prior record, and a supportive family, the court imposed a global sentence of 30 months.

This was reduced by one month to 29 months due to stringent bail conditions, particularly during the pandemic.

Ancillary orders included a DNA order, a 20-year Sex Offender Information Registration Act order, and a 10-year s. 161 Criminal Code prohibition order, but a s. 109 weapons prohibition was not imposed as the actus reus of the offences did not involve violence.

A victim surcharge of $200 was also ordered.

Tyrone Joseph pleaded guilty to aggravated assault after stabbing Cassandra Cole multiple times, causing grievous injuries.

The court considered mitigating factors, including his guilty plea, genuine remorse, and efforts towards rehabilitation, alongside aggravating factors such as the severity and unprovoked nature of the attack, the profound victim impact, and the offender's cognate criminal record and alcohol abuse.

The decision applied "Downes credit" for stringent bail conditions, "Summers credit" for pre-trial custody (1.5:1), and "Duncan credit" for harsh detention conditions (lockdowns, triple-bunking).

A net sentence of 33¼ months imprisonment was imposed after deducting 502 days for bail and pre-trial custody credits, along with various ancillary orders.

Trevor Clarke pleaded guilty to manslaughter for punching Paul Tonna, who subsequently died from a head injury.

The Crown sought a sentence of seven to nine years' imprisonment, while the defence sought a suspended or conditional sentence.

The court considered the circumstances of the offence, victim impact, and the offender's background, including his Indigenous heritage and significant rehabilitative efforts.

Applying Gladue principles, the court found that while denunciation and deterrence were primary, rehabilitation was a significant objective.

The court imposed a sentence of 28 months' imprisonment, reduced from 30 months due to harsh pre-sentence custody and strict bail conditions, followed by two years of probation.

A conditional sentence was deemed unavailable as a penitentiary sentence was required.

The appellant, Lalendra Desilva, appealed his convictions for possession of controlled substances for the purpose of trafficking and possession of proceeds of crime.

He argued that the trial judge erred in finding reasonable grounds for his arrest, the lawfulness of subsequent searches, and in assessing breaches of his Charter right to counsel (sections 8, 9, and 10(b)).

The Court of Appeal dismissed the appeal, upholding the trial judge's finding of reasonable grounds for arrest and the lawfulness of the searches.

While the Court found an additional breach of the appellant's right to counsel due to a one-hour delay in facilitating access, it concluded that, applying the Grant test, the evidence should not be excluded under section 24(2) of the Charter, given the seriousness of the crime and the minimal impact of the breach on the appellant's protected interests.

The offender, Jonathan Weir, pleaded guilty to manslaughter after killing his best friend with an unlawfully possessed, prohibited machine gun.

The court considered the appropriate sentence, including the four-year minimum for manslaughter with a firearm, and arguments regarding police misconduct during arrest and detention.

The judge found Weir's moral blameworthiness to be high, closer to criminal negligence than a "near accident," due to his reckless handling and storage of firearms and ammunition while intoxicated.

While acknowledging some police misconduct (improper strip searches), the court found it not egregious enough to justify a sentence below the statutory minimum.

The final sentence was 51 months (4¼ years) after credits for pre-sentence custody, rights violations, and strict bail conditions.

M.E.D. was convicted of multiple sexual violence offences, including human trafficking, receiving financial benefit from sexual services, procuring, advertising sexual services, and sexual assault, committed between August 2016 and January 2017.

The Crown sought an eight-year global sentence, while the defence proposed five years.

The court considered aggravating factors such as the profound victim impact, profit motive, victim's attempts to escape, and the sexual assault.

Mitigating factors included the offender's age, difficult upbringing, mental health issues, family support, minimal criminal record, and the harsh conditions of pre-sentence custody and bail, as well as the impact of the COVID-19 pandemic on incarceration.

The court imposed a global sentence of six years imprisonment, with credit for pre-sentence custody, resulting in five years and nine months remaining to serve, along with various ancillary orders including a $10,000 restitution order.

Mark Holland was convicted of sexual assault from 2008.

The sentencing was significantly delayed due to the COVID-19 pandemic.

The Crown sought 16 months imprisonment, while the defence sought "time served" or a conditional sentence.

The court addressed the constitutionality of s. 742.1(f)(iii) of the Criminal Code, which precludes conditional sentences for sexual assault prosecuted by indictment.

The judge found this section to infringe ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and declared it of no force or effect, following R. v. R.S. and R. v. Sharma.

Considering aggravating and mitigating factors, including the extraordinary delay, the court imposed an eight-month conditional sentence, to be served in the community, along with other standard orders (DNA, SOIRA, weapons prohibition).

Marcus Cumsille was found guilty of offering to transfer a firearm.

The court considered sentencing principles, aggravating and mitigating factors, including the impact of anti-Black racism and trial delay.

Despite the Crown seeking a three-year prison sentence and the defence seeking a suspended sentence, the court imposed a 17-month sentence, reduced to a 75-day conditional sentence after credit for pre-sentence custody and stringent bail conditions.

The decision emphasized balancing denunciation, deterrence, and rehabilitation, and considered the practical realities of the COVID-19 pandemic on incarceration.

C.C. appealed his 6-year global sentence for human trafficking, assault, and child pornography, arguing for a reduction based on harsh pre-trial bail conditions (Downes credit) and fresh evidence of rehabilitation.

The Court of Appeal granted leave to appeal but dismissed the appeal, finding the trial judge properly exercised discretion regarding bail conditions and that the fresh evidence, while commendable, did not warrant a sentence reduction given the gravity of the offences.

The offender, Michael Johnson, pleaded guilty to two counts of impaired operation causing death, two counts of dangerous operation causing death, one count of impaired driving causing bodily harm, and one count of dangerous operation causing bodily harm.

These charges stemmed from a high-speed collision (161 km/h in a 50 km/h zone) while impaired (BAC 1.5-2x legal limit) that resulted in the deaths of two pedestrians and serious injury to a third.

The defence argued that the offender's suicidal ideation at the time of the collision should be a mitigating factor, while the Crown argued it was an aggravating factor due to the foreseeable risk to public safety.

The court found the offender's moral blameworthiness to be significant, emphasizing general deterrence and denunciation.

The court concluded that driving recklessly with suicidal intent on a public street constitutes an aggravating factor.

A sentence of six years imprisonment was imposed, along with a 10-year driving prohibition and a DNA order.

The Crown, supported by the defence, applied to vary the respondent's undertaking conditions to facilitate his participation in a Partner Assault Response (PAR) program.

A Justice of the Peace had previously declined similar variations, citing *R. v. Valentine*.

The court, disagreeing with *Valentine*, found the proposed consent bail conditions necessary, reasonable, and sufficiently linked to public protection under s. 515(10) of the *Criminal Code*, particularly in domestic violence cases.

The application was granted, varying the bail terms to allow PAR program participation and conditional contact with the complainant.

The Crown and the accused jointly sought to vary the accused's release conditions to allow unrestricted contact with the complainant and participation in a Ministry of the Attorney General-approved Partner Assault Response (PAR) program, with the understanding that the assault charge would be withdrawn upon successful completion and entry into a peace bond.

Justice Moore critically examined the "standard" PAR conditions proposed, finding them inconsistent with the Supreme Court of Canada's decision in *R. v. Zora*.

The court ruled that such conditions were not justified to ensure court attendance or public safety, inappropriately delegated judicial authority, were not tailored to the individual, were overly onerous, and attempted to enforce civil debt through criminal sanction.

The application for variation was granted, but with the court's substituted, less restrictive conditions for the PAR program.

The appellant was convicted of counselling the commission of an indictable offence (murder) and appealed her conviction, the dismissal of her entrapment application, and her sentence.

The Court of Appeal dismissed all appeals, upholding the trial judge's findings that the appellant intended the offence and was not entrapped, and that the sentence was fit.