fair trial

The applicant, Sharon Cayuga, brought a Rowbotham application seeking a conditional stay of criminal proceedings pending the Attorney General funding defence counsel at legal aid rates.

The court found the application premature because the applicant had not completed the prerequisite steps of formally applying for Legal Aid, being refused, and exhausting all appeals for reconsideration of eligibility.

The application was adjourned, and the conditional stay extended for 30 days, contingent on the applicant taking the appropriate steps with Legal Aid.

The appellant was convicted of sexual assault and sexual interference.

On appeal, the appellant argued that the trial judge erred in failing to provide a corrective instruction after the Crown's closing address invited the jury to engage in impermissible reasoning, specifically by linking the absence of a motive to fabricate with the reliability of the complainant's testimony.

The Court of Appeal found that the Crown's closing improperly invited the jury to equate the complainant's good relationship with the appellant and lack of motive to fabricate with the reliability of her evidence.

The court held that a corrective instruction was required, and its absence compromised the appellant's right to a fair trial.

The convictions were set aside, and a new trial was ordered.

The accused brought a motion seeking leave to communicate with defence counsel between the completion of the Crown's cross-examination and the commencement of re-examination, contrary to the presumptive Ontario Rules of Professional Conduct.

The court granted the motion, finding that the constitutional rights to a fair trial and full answer and defence, coupled with the gravity and complexity of the charges (four counts of first-degree murder and one of attempted murder) and the extensive nature of the accused's testimony, justified a departure from the rule.

The ruling permits counsel and client to discuss both the decision to re-examine and the proper scope of re-examination.

The accused, Cameron Ortis, brought an application for a stay of proceedings under section 38.14 of the Canada Evidence Act, arguing that non-disclosure of highly classified information by the Crown compromised his right to a fair trial and full answer and defence.

The court dismissed counts 5 to 8 of the indictment, finding that the prohibited classified information was of immense importance to Ortis's defence regarding the mens rea element of those charges, making the national security interests and fair trial rights irreconcilable.

However, the court denied the stay for counts 1 to 4, 9, and 10, determining that the non-disclosure did not sufficiently impact Ortis's ability to present his defence for those charges.

The applicant, Menna Nasr, sought an order for state-funded counsel (a Rowbotham order) after being denied legal aid and exhausting all available remedies.

She faced serious criminal charges in two jurisdictions, including dangerous driving, flight from police, and impaired operation, with potential for significant jail time.

The court applied the three-part Rowbotham test, finding that Nasr was financially unable to retain private counsel and that counsel was essential for her to receive a fair trial, given the seriousness and complexity of the charges, the voluminous disclosure, the number of witnesses, and her significant mental health diagnoses affecting her ability to participate meaningfully in her defence.

The application was granted, with a requirement for the applicant to contribute $2000 towards her counsel's funding.

The accused, facing charges of assault and sexual assault, brought a motion for a Rowbotham order, seeking state-funded counsel.

The court found that Legal Aid had refused his application and that he lacked the financial means to retain counsel, despite earning too much to qualify for Legal Aid.

Crucially, the court determined that representation by counsel was essential for the accused to receive a fair trial, given his limited education, lack of litigation experience, and poor oral communication skills, which would hinder his ability to make full answer and defence in an eight-day jury trial.

The court ordered a stay of proceedings unless the Ministry of the Attorney General arranged for counsel.

In a first-degree murder trial, the defence brought a motion for a mistrial, alleging numerous instances of prosecutorial misconduct during the Crown's closing address to the jury.

The alleged errors included misstating evidence, introducing unelicited evidence, mocking defence counsel and witnesses, and improperly commenting on the burden of proof.

The court reviewed each alleged impropriety, finding some instances of improper conduct but concluding that, individually or cumulatively, they did not fatally wound the trial process or deprive the accused of a fair trial to the extent that a mistrial was warranted.

The motion was dismissed, with the court indicating that corrective instructions would be given to the jury.

The appellant, Shawn Clyke, appealed his convictions for assault and assault causing bodily harm, arguing that the Crown's closing submissions at trial contained serious improprieties that rendered his trial unfair.

The Court of Appeal found that the Crown's closing submissions improperly invited the jury to engage in propensity reasoning, used inflammatory language to evoke sympathy for the complainant and revulsion for the accused, and attempted to bolster the complainant's credibility through unsupported theories and personal endorsement.

Despite the trial judge's corrective instructions, the cumulative effect of these improprieties was deemed to have prejudiced the appellant's right to a fair trial, particularly given the non-overwhelming nature of the Crown's case.

The appeal was allowed, convictions were quashed, and a new trial was ordered.

The applicant, Richard Ireland, jointly charged with second-degree murder and attempted murder alongside Trayon Johnson, sought to sever his trial from Johnson's.

Ireland argued that Johnson's police statement, which heavily implicated Ireland and expressed fear of him, would cause incurable prejudice despite excisions of prior discreditable conduct.

The Crown opposed the severance.

The court dismissed the application, emphasizing the presumption of joint trials for co-accused, even with "cut-throat" defences.

It held that proper jury instructions could mitigate any prejudice, and that the interests of justice, including efficiency and avoiding inconsistent verdicts, favoured a joint trial.

In a criminal trial for wilfully promoting hatred, the Crown sought to introduce various blog posts and internet articles as "proposed motive evidence" to demonstrate the accused's animus towards gay people.

The court dismissed the Crown's application, finding that the proposed evidence was not capable of demonstrating the intense and extreme hatred required for motive.

The court ruled that the prejudicial effect of admitting such evidence, which risked distracting the jury with debates over the accused's political and religious views rather than the elements of the offence, significantly outweighed its limited probative value.

The defendants moved to dismiss the plaintiff's action for delay under Rule 24.01(1)(c), arguing the plaintiff failed to set the action down for trial within six months of the close of pleadings.

The court found an inordinate and inexcusable 2.5-year delay.

This delay resulted in substantial prejudice to the defendants' ability to defend the action due to the death of Albert Gilbert, a crucial witness whose oral promises formed the basis of the plaintiff's claim.

The motion was granted, and the action was dismissed.

The appellant appealed his conviction for impaired driving, raising five grounds: the trial judge's handling of a Charter application, alleged misapprehension of evidence regarding vehicle damage, judicial interventions during cross-examination, the use of the appellant's statements to a breath technician, and the sufficiency of reasons for credibility assessment.

The appeal court found no error in the trial judge's dismissal of the Charter application due to the appellant's procedural failures, nor in the inference of a collision based on witness testimony.

The court also determined that the trial judge's interventions did not create an unfair trial or apprehension of bias, and that the appellant's statements, once introduced by the defence, were available for credibility analysis.

The trial judge's reasons for rejecting the appellant's testimony were deemed sufficient.

The appeal was dismissed, and the appellant was ordered to surrender into custody.

A trial judge declared a mistrial during jury selection for a sexual assault and sexual interference case.

A prospective juror, during a *Parks* challenge, revealed a personal history of sexual assault and stated she could not be impartial.

Despite the triers finding her acceptable and Crown counsel being content, the judge intervened and deferred the juror.

Concerned about potential reversible error in the jury selection process, particularly regarding the court's jurisdiction to excuse the juror at that stage and the impact on already seated jurors, the judge invited submissions on a mistrial.

Defence counsel requested a mistrial, citing the risk to a fair trial.

The judge granted the mistrial, emphasizing the importance of a fair trial and avoiding a successful appeal based on procedural errors in jury selection.

The defendants brought motions to dismiss two actions for delay, arguing that the plaintiff's delay of over five years was inordinate and inexcusable, and that the death of a key defendant prejudiced their ability to have a fair trial.

The court found the delay to be inordinate and inexcusable.

However, the court was not persuaded that the death of the defendant, Dennis Chedli, would compromise the defence, particularly given the nature of the defences and the availability of other evidence.

The plaintiff successfully rebutted the presumption of prejudice under Rules 24.01(2) and 48.14(1)1.

The motions to dismiss for delay were dismissed.

The applicant sought a stay of proceedings or a stay of dangerous/long-term offender proceedings, alleging that the Ottawa Police Service's inadequate investigation, failure to gather and preserve evidence, and alleged destruction of evidence violated his s. 7 (right to full answer and defence, fair trial) and s. 11(b) (right to trial without delay) Charter rights.

The court dismissed the application, finding no Charter breach, as the applicant had access to other probative evidence for his defence, and the alleged police misconduct did not meet the high threshold for an abuse of process or actual prejudice to a fair trial.

The court also declined to conduct a s. 11(b) analysis without proper submissions on delay components.

The applicant, Givan Iusein, sought to stay extradition proceedings to Romania, where he was convicted of murder and sentenced to 18 years imprisonment, from which he fled.

He argued abuse of process based on alleged police violence, torture, sexual assault, an unfair trial, delay in the extradition process, and deliberate attempts by Romanian authorities to mislead Canadian authorities.

The court found that while there was likely some limited police violence immediately after his arrest, the claims of extensive torture, sexual abuse, and unfair trial were largely fabricated and uncorroborated by medical evidence.

The court also found that the applicant's exculpatory statements were not coercively obtained and that he had legal representation and the opportunity to testify at his trial.

The delays in the extradition process were largely attributable to the applicant.

The court dismissed the application to stay, concluding that the high threshold for abuse of process was not met and that alternative remedies were available through the Minister of Justice or civil action.

The applicant was committed for extradition.

The Crown applied under s. 486.2(2) of the Criminal Code for a testimonial aid (screen) for the complainant, A.F., in a historical sexual assault trial.

The complainant expressed extreme fear and emotional distress at the prospect of facing the respondent, citing panic attacks, sleepless nights, flashbacks, and increased alcohol consumption after the preliminary hearing.

The respondent opposed the application, asserting his common law right to face his accuser and arguing that the Crown had not provided persuasive evidence that the screen was necessary to obtain a full and candid account from the witness.

The court granted the application, finding that the screen would facilitate a full and candid account from the witness, considering her age, diagnosis of post-traumatic stress disorder by her family physician, and the nature of the allegations.

The court also emphasized society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process.

Olanrewaju Lisboa sought a Rowbotham order for state-funded counsel in a complex criminal trial involving drug trafficking charges.

While the parties agreed on the complexity of the matter and the applicant's exhaustion of Legal Aid appeals, the court dismissed the application.

The court found that the applicant failed to meet the indigence test, primarily due to insufficient, inconsistent, and unreliable financial disclosure, and a lack of effort to plan for legal costs.

The court also noted that the applicant's own conduct in failing to provide complete information to Legal Aid Ontario disentitled him to funding.

The applicant, Kevin Ekow Plange, sought a state-funded counsel order (Rowbotham order) under s. 24(1) of the Charter, alleging a violation of his ss. 7 and 11(d) rights without representation.

The Crown opposed the application.

The court dismissed the application, finding that Plange failed to satisfy the first criterion for a Rowbotham order, as he had not been forthright with Legal Aid Ontario (LAO) regarding his financial information, leading to the refusal of legal aid.

The court also noted that such orders are exceptional at the preliminary hearing stage and found no exceptional circumstances here, nor was it satisfied that Plange lacked the means to employ counsel.

The defendants brought motions to dismiss the plaintiff's action for delay and for breach of a prior consent order.

The court declined to enforce the consent order's limitation on opposition, finding it would cause a clear injustice to the plaintiff due to counsel's failures.

However, the court found inordinate and inexcusable delay by the plaintiff's counsel over a period of six years, which created a substantial risk that a fair trial would no longer be possible.

The plaintiff failed to rebut the presumption of prejudice arising from the lengthy delay and the age of the underlying transactions (15-20 years old).

Consequently, the action was dismissed for delay.