fair trial

This decision addresses whether a Crown witness, Constable Emmanuelle Boucher, may testify remotely via videoconference at trial under section 714.1 of the Criminal Code.

The accused, Ashley Russell, faces a charge of operating a conveyance while prohibited.

The Court balanced factors including the witness's location, costs, the nature of the offence, and the accused’s right to a fair trial.

The Court found that the presumption of in-person testimony was overcome, permitting remote testimony by Zoom with conditions to ensure fairness and integrity of the evidence.

This decision addresses a motion for directions regarding the transportation and housing of an in-custody accused, Matthew McQuarrie, during his murder trial in Owen Sound, Ontario.

The court details the significant logistical and fairness challenges posed by the closure of the local jail, resulting in daily lengthy and inhumane commutes from the Central North Correctional Centre.

The ruling describes the evidence on transportation, alternate housing, and access to disclosure, and ultimately orders exceptional accommodations to ensure the accused’s right to a fair trial, including direct transport, access to disclosure, and use of technology.

The court ordered a mistrial in a sexual assault case after finding that the accused, RE, did not receive effective assistance of counsel.

The trial judge found that defence counsel's lack of competence in questioning, knowledge of law, and submissions resulted in an unfair trial and compromised the reliability of the verdict.

The decision details the evidence, procedural history, and legal principles regarding the right to a fair trial and effective assistance of counsel, ultimately concluding that no remedy short of a new trial could address the prejudice to the accused.

The decision grants the motion of Saad Khalid S. Al Jabri for leave to issue a commission and letters of request to obtain evidence from witnesses outside Ontario for use at trial.

The court finds that the anticipated evidence of the proposed witnesses is material to issues in the action, and that the request is bona fide.

The ruling addresses the test for issuing commissions and letters of request, emphasizing the importance of a fair and full trial, and applies the test to several categories of proposed witnesses, including alleged co-conspirators, foreign officials, and counterterrorism experts.

The Ontario Court of Justice dismissed a motion for particulars brought by The Econo-Rack Group Inc. (Konstant Manufacturing) in a prosecution under the Occupational Health and Safety Act (OHSA).

The Applicant sought particulars regarding the alleged offence under section 45(b) of Ontario Regulation 851, arguing that without such particulars they could not adequately prepare a due diligence defence.

The Court held that the charge as drafted, combined with disclosure, the Crown’s opening statement, and the Inspector’s investigative report, provided sufficient detail to ensure a fair trial.

The Court emphasized that particulars concerning the cause of the accident or the means by which the offence was committed are not required under the Provincial Offences Act and that the focus is on the employer’s failure to uphold prescribed safety measures, not on causation narrowly defined.

This decision addresses the application of s. 530 of the Criminal Code regarding an accused's right to a trial in the official language of their choice.

The court held that the Crown met its burden to show that Kevin Nguyen could not have his trial in French due to insufficient proficiency to follow proceedings or instruct counsel in French.

The ruling emphasizes that the right to a French trial requires actual ability to participate meaningfully in that language, not merely a preference or cultural identity.

The decision also clarifies that administrative convenience is irrelevant and that the right to a fair trial may be compromised if the accused cannot follow the proceedings in the chosen language.

The defendant, Mark Andre Dajka, moved to dismiss a six-year-old action for delay under rules 24.01(1)(c) and 48.14(1) of the Rules of Civil Procedure.

The court found that while the delay was inordinate and inexcusable, there was insufficient evidence of prejudice to the defendant’s ability to have a fair trial.

The motion to dismiss was therefore denied, and costs were awarded to the plaintiff.

The court dismissed an application by Alain Bellefeuille for a temporary publication ban regarding information related to a Special Investigations Unit (SIU) investigation.

Bellefeuille, charged with first degree murder and attempted murder, argued that publication of the SIU report could prejudice his right to a fair trial.

The court found the risk to trial fairness was speculative and could be mitigated by jury selection and instructions.

The open court principle and freedom of expression outweighed any potential benefit of a publication ban.

The defendants brought separate motions to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The plaintiffs opposed, citing personal hardships and economic challenges as reasons for the delay.

The court found the six-year delay to be inordinate but excusable given the plaintiff's personal circumstances and found insufficient evidence of substantial prejudice to the defendants.

The motions to dismiss were dismissed, and the court imposed a strict timetable for the action to proceed to trial.

The defendant, S.K., facing sexual assault and sexual exploitation charges, brought a second application for the presiding judge to recuse due to a reasonable apprehension of bias.

The defendant, self-represented, presented evidence including witness testimony and his own perceptions, arguing that the judge had shown bias against him.

The judge, G.P. Renwick, acknowledged several factors contributing to a reasonable apprehension of bias, including a former counsel's comment about the judge's perceived pro-Crown tendency, the judge's failure to adequately explain procedural matters to the self-represented defendant, and the defendant's genuine belief of bias.

The judge granted the application, recusing himself to ensure the appearance of justice and a fair trial.

The accused, G.M., charged with sexual assault and extortion, applied for his seven-day trial to be conducted remotely from Toronto, citing cost savings and his right to counsel of choice.

The Crown opposed the application, arguing it was late, premature, and that in-person trials are the norm.

The court, applying sections 715.21 and 715.23 of the Criminal Code, dismissed the application.

The judge emphasized the presumption of in-person trials, the lack of compelling reasons beyond counsel's convenience, and the practical difficulties and potential jurisdictional issues associated with remote criminal trials, especially for serious and lengthy matters.

Kristen Nagle appealed her conviction and $10,000 fine for attending a religious observation with more than ten persons, an offence under the Reopening Ontario Act during the Covid-19 pandemic.

She argued that the Justice of the Peace failed to provide reasonable assistance to her as an unrepresented accused and failed to raise a Charter issue.

The court dismissed the conviction appeal, finding that the trial justice's assistance was reasonable given Nagle's deliberate use of Organized Pseudo-legal Commercial Arguments (OPCA) tactics, and that no miscarriage of justice occurred.

However, the court allowed the sentence appeal, reducing the fine to $3,750 (plus costs and surcharges), finding the original reasons for sentence insufficient for meaningful review and considering new biographical information and aggravating factors.

The Crown brought an application for two orders under the Criminal Code: to allow the complainant to testify outside the courtroom via closed-circuit television or Zoom, and to permit a court support dog to be present during her testimony.

The complainant, a victim of kidnapping, sexual assault, and torture, expressed significant anxiety about testifying in court.

The court granted both orders, finding that these testimonial aids would facilitate a full and candid account from the complainant and were in the interest of the proper administration of justice, balancing the truth-seeking function with the accused's right to a fair trial.

The accused, Jeremy Menary, brought a motion to sever three criminal charges on an indictment: possession of fentanyl for the purpose of trafficking (Count 2), possession of cocaine for the purpose of trafficking (Count 1), and possession of a loaded prohibited firearm (Count 3).

Menary sought a jury trial only on the fentanyl charge, intending to not contest the cocaine and firearm charges by filing an agreed statement of facts to preserve his right to appeal a prior Charter application ruling.

The court granted the severance, finding that the prejudice to the accused outweighed the public interest in a single trial, particularly given the accused's desire to testify on one count but not others, and the simplification of the jury trial on the contested count.

The court ordered that the findings of guilt on the uncontested counts would be entered before the jury trial on the fentanyl charge commenced.

Patrick King, charged in connection with the "Freedom Convoy," applied for a change of venue from Ottawa, arguing he could not receive a fair trial due to local prejudice and extensive prejudicial media coverage.

The court dismissed the application, citing the principle of judicial comity and deferring to a prior decision in R v. Bauder, 2023 ONSC 996, which addressed similar concerns regarding pretrial publicity and local bias for "Freedom Convoy" cases.

The court affirmed that standard procedural safeguards during jury selection are sufficient to ensure a fair trial.

The accused, Nathan Johnson, faced charges including child luring, communicating for sexual services, and distributing sexually explicit material.

The court heard a Charter application for a stay of proceedings due to lost evidence (chatlogs from a dating site).

The chatlogs, crucial for establishing the alleged victim's age as under 18, were deleted from the officer's device and the platform due to police inaction and delay in preservation efforts.

The court found the police officer's failure to preserve the evidence constituted unacceptable negligence, breaching the accused's Section 7 and 11(d) Charter rights to disclosure and a fair trial.

Consequently, the proceedings were stayed.

The appellant appealed his sexual assault conviction, arguing the trial judge erred by using s. 633 of the Criminal Code to stand aside two male jurors for gender diversity, which was done in the presence of the jury.

The Court of Appeal found this was a legal error, as the judicial stand-aside power cannot be used to actively promote diversity on the petit jury, citing R. v. Chouhan.

The court further held that this error was not curable by the proviso under s. 686(1)(b)(iv) of the Criminal Code because it prejudiced the appellant's right to a fair trial and undermined public confidence in the administration of justice, particularly given the jury witnessed the defence's objection.

A new trial was ordered.

The accused, R.(A.), applied to continue his criminal trial for sexual assault virtually via Zoom, a request joined by the Crown.

The court considered the application in light of ongoing COVID-19 health concerns, the presumption of in-person criminal trials, and the provisions of the Criminal Code (ss. 715.25, 715.26) governing virtual participation.

The judge balanced the convenience and health considerations for counsel against the traditional solemnity and observability of in-person proceedings.

Despite acknowledging the "abstraction" of virtual trials, the court granted the application, noting the trial's prior virtual proceedings and the serious nature of the charges, while reserving the right to revise the ruling if virtual frailties arose.

The appellant appealed convictions for non-consensual distribution of intimate images, criminal harassment, extortion by libel, and mischief to computer data.

The appellant, who was self-represented at trial, argued that the trial judge failed to provide sufficient assistance and erred by allowing the trial to proceed without counsel.

The Court of Appeal dismissed the appeal, finding that the trial was fair, the judge provided adequate assistance, and the appellant's actions suggested an attempt to delay proceedings rather than a genuine inability to secure counsel.

The Crown brought an omnibus application in an in-person criminal trial seeking orders to permit two civilian witnesses to testify remotely under section 714.1 of the Criminal Code and for the prosecutor to participate remotely under section 715.25(2) of the Code.

The court granted the applications, finding that the Crown had met its onus, considering the ongoing COVID-19 pandemic, the witnesses' health and fear of the accused, and the capacity for remote testimony to ensure a fair and efficient proceeding.