Kim Schofield

The applicant, Shaji Bashir Ahmad, sought a stay of proceedings under s. 24(1) of the Charter, alleging a breach of his s. 11(b) right to be tried within a reasonable time.

The total delay from arrest to the anticipated end of trial was 46 months, exceeding the 30-month Jordan ceiling.

The Crown argued that defence delay accounted for the excess, while the defence contended the delay was due to the Crown's late and incomplete disclosure of cell phone search warrants, ITOs, and extracted data.

The court found that the defence's waivers of delay were uninformed due to the Crown's disclosure failures, which included police oversight in not informing the Crown of the warrants and the Crown's erroneous assertion that the data was unreadable.

The court attributed significant portions of the delay to the Crown and found that the Crown failed to rebut the presumption of unreasonable delay.

The application for a stay of proceedings was granted.

Motaz Haj pleaded guilty to two counts of fentanyl trafficking, one to an undercover officer and one as a party to a sale that resulted in a fatal overdose.

The court considered a joint submission for a six-year sentence, with the primary issue being the credit for pre-sentence custody, particularly concerning harsh conditions at the Toronto South Detention Centre during the COVID-19 pandemic.

The court emphasized the devastating impact of fentanyl and the victim's death as aggravating factors, balanced against the guilty plea, remorse, and difficult custody conditions.

The judge ultimately accepted the joint submission for a six-year sentence, crediting the offender with time served, including enhanced credit for pre-sentence custody and a further credit for harsh conditions, followed by a two-year probation period.

The offender pleaded guilty to two counts of armed robbery of jewelry stores and one count of fraud over $5,000 relating to a staged accident.

The court found the robberies were well-planned, sophisticated, and involved serious violence and risk to the public.

After considering the aggravating and mitigating factors, including the offender's relative youth and prospects for rehabilitation, the court imposed a global sentence of 7 years' imprisonment before credit.

The court granted enhanced credit for harsh pre-sentence custody conditions during the COVID-19 pandemic and credit for time spent on strict bail, resulting in a net sentence of 44.5 months to serve.

The accused was charged with multiple firearm offences after police found a loaded handgun in his pants during a takedown of a motor vehicle.

The accused testified that the front passenger suddenly dropped the gun onto his lap when police approached, and he instinctively shoved it down his pants in a panic.

The court accepted the accused's evidence and applied the 'hot potato' defence, finding that his brief, hasty handling of the firearm lacked the necessary control and mens rea to constitute culpable possession.

The accused was acquitted of all charges.

The Crown sought to admit four statements from a deceased witness (J.T.) at a preliminary hearing under s. 540(7) of the Criminal Code.

The court applied the "prima facie air of reliability" test to determine admissibility.

It found the portions of J.T.'s statements related to the kidnapping credible and trustworthy due to corroborating evidence, despite procedural deficiencies in statement-taking.

However, the portions related to drug possession and the identification of "Z" were deemed unreliable and were excised, as J.T.'s account was inconsistent and self-serving regarding her involvement with drugs.

The court affirmed its power to excise unreliable portions of a statement.

The appellants, Zhang Jian Fan and Jian Ling, appealed their convictions and sentences for large-scale cannabis production offences under the Controlled Drugs and Substances Act.

They asserted a defence of honest but mistaken belief that their operation was properly licensed.

The trial judge rejected their credibility and found their mistake was one of law, not fact.

The Court of Appeal upheld the trial judge's finding that the appellants' belief was not credible and, alternatively, that their mistake was one of law regarding the scope and application of the licences, not a mistake of fact about the existence of a licence.

The Court also upheld the sentences, finding them proportionate, while setting aside victim surcharges.

The accused, facing serious charges for trafficking carfentanil and possessing numerous firearms, applied for a second bail review under s. 520 of the Criminal Code.

The accused proposed a novel release plan involving 24/7 physical surveillance by a private security firm, GPS monitoring, and strict house arrest with multiple sureties.

The court found that this enhanced plan, combined with the severe difficulties the accused faced in preparing for trial due to COVID-19 restrictions in custody, constituted a material change in circumstances.

The court concluded that the stringent conditions sufficiently attenuated the primary, secondary, and tertiary ground concerns, and ordered the accused's release.

The accused, charged with first-degree murder for allegedly shooting an innocent bystander during a drive-by shooting, applied for bail.

The court found the Crown's case to be extremely strong and noted the accused's extensive criminal record, including numerous bail breaches and violent offences.

The court dismissed the application, concluding the accused failed to meet his onus on the primary, secondary, and tertiary grounds, as he posed a significant risk to public safety and his release would undermine confidence in the administration of justice.

On a pre-trial Charter motion arising from a firearm arrest in a parking lot, the applicant alleged racial profiling, unlawful investigative detention, unlawful search, and breaches of the right to counsel.

The court found that racial profiling played a role in the officer’s detention decision, rendering the detention contrary to s. 9 and the satchel search contrary to s. 8, while finding no s. 10(a) breach and a qualified s. 10(b) breach.

Applying the Grant framework, the court held the Charter-infringing conduct was serious, had a serious impact on the accused’s protected interests, and required exclusion of the firearm and ammunition evidence despite society’s interest in adjudication on the merits.

With the Crown electing to call no evidence, the charges were dismissed.

This is a ruling on stage one of a third-party records application brought by the defence in a criminal proceeding.

The accused sought records from the Toronto Police Service's Professional Standards Unit concerning an investigation into the unauthorized public release of an in-car camera video of the accused.

The court found that the defence discharged its onus on stage one, establishing that the records were likely relevant to issues at trial, including potential animus of arresting officers and the evidentiary foundation for a Charter application.

The court ordered the records to be produced for judicial review to determine stage two of the application.

The Crown and the accused brought six pre-trial motions relating to a joint trial for murder and accessory after the fact.

During the hearing, the accused Osman failed to appear, and the court found he had absconded under s. 475 of the Criminal Code, allowing the motions to proceed in his absence.

The court granted a consent order protecting the identities of three victim witnesses.

The court ruled that evidence of the accused's after-the-fact conduct, including flight and a subsequent meeting, was admissible for limited purposes.

Osman's s. 11(b) Charter application for unreasonable delay was dismissed, as the delay caused by the COVID-19 pandemic was reasonably mitigated by the Crown.

Khiar's s. 8 Charter application to exclude video surveillance obtained from his condominium's property manager without a warrant was dismissed, as he had a low expectation of privacy in the common areas.

Finally, the court admitted the expert opinion evidence of a forensic video analyst, subject to limitations on tracking and comparing clothing characteristics.

The offender pleaded guilty to possession of cocaine and marijuana for the purpose of trafficking.

The Crown sought a four-year sentence, while the defence sought a conditional sentence or two years.

The court found that a four-year sentence was appropriate given the significant quantities of drugs involved.

However, the court granted enhanced credit for pre-sentence custody, strict bail conditions, a s. 10(b) Charter breach regarding the right to counsel, and the harshness of serving a sentence during the COVID-19 pandemic.

The final sentence imposed was three years in custody.

The court ruled on the admissibility of a statement made by the accused following a search warrant execution at his condominium.

The accused was violently abducted and subsequently rescued.

Police executed a search warrant at his residence and found controlled substances.

When the accused later contacted police to retrieve his key, an officer met him at a Tim Hortons and obtained identification information linking him to the premises.

The Crown sought to admit this identification and the accused's statements as evidence of ownership and control.

The court found the statements inadmissible as involuntary, holding that the accused was denied a meaningful choice to remain silent and did not appreciate the jeopardy he faced.

The applicant sought a bail review under Section 520 of the Criminal Code after being denied bail on secondary grounds.

The court found that the proposed new sureties and electronic monitoring constituted admissible new evidence, representing a material change in circumstances.

Applying the Palmer criteria, the court determined that the comprehensive release plan, including house arrest, strict supervision by credible sureties, and GPS monitoring, adequately addressed the secondary ground concerns regarding the likelihood of the applicant committing further offenses or interfering with the administration of justice.

Consequently, the detention order was set aside, and judicial interim release was granted with strict conditions.

The accused was charged with multiple drug and Criminal Code offences.

The case proceeded as a blended Charter proceeding and trial.

The court found that the police used the Highway Traffic Act as a ruse to conduct a criminal investigation, thereby breaching the accused's section 9 Charter right against arbitrary detention.

Although the court found the police officers acted in good faith and the evidence was reliable, the seriousness and deliberate nature of the Charter breach, and its significant impact on the accused's rights, led to the exclusion of all evidence under section 24(2) of the Charter.

Consequently, with no evidence, the accused was found not guilty of all charges.

The applicant, Jehroomien Rajendram, sought a bail review under s. 520 of the Criminal Code, challenging his detention by a Justice of the Peace on secondary and tertiary grounds.

He argued legal errors in the initial detention and, alternatively, a material change in circumstances due to a new supervision plan and the COVID-19 pandemic.

The court found no legal error in the Justice of the Peace's assessment of the sureties or the supervision plan.

Regarding the material change, the court acknowledged the new sureties and enhanced electronic monitoring but found them insufficient to mitigate the substantial likelihood of reoffending, given the serious allegations (discharging a firearm, breaching prior orders, threatening text messages) and the applicant's criminal record.

While acknowledging the enhanced risk of COVID-19 in prisons, the court concluded it did not tip the scale in favor of release, especially as the applicant had no pre-existing medical conditions and there was no significant outbreak at the correctional facility.

The application for bail review was denied.

The defendant, Ho Ting Char, was charged with conspiracy, unlawful production of methamphetamine, and unlawful production of ketamine.

The Crown's case relied entirely on circumstantial video surveillance evidence of the defendant's non-verbal conduct at various locations associated with clandestine drug laboratories.

The court found the evidence, while suspicious, did not unequivocally prove beyond a reasonable doubt that the defendant knew he was participating in drug production or was part of a conspiracy, as innocent explanations for his conduct could not be excluded.

Consequently, the defendant was acquitted on all counts.

The applicant sought a bail review to vacate a prior detention order and be released under revised terms, citing the COVID-19 pandemic as a material change in circumstances.

The court found the pandemic constituted a material change, warranting a de novo hearing.

However, the application was dismissed as the applicant failed to demonstrate that his continued detention was not necessary on both secondary and tertiary grounds, given his history of non-compliance, the unsuitability of proposed sureties, the strength of the Crown's case, and the gravity of the offences.

The court also found that the pandemic circumstances did not sufficiently mitigate the risks to public safety or confidence in the administration of justice.

The applicant, J.R., charged with serious firearms and drug offences, sought a bail review under s. 525 of the Criminal Code after being detained for over 90 days.

The court considered the secondary and tertiary grounds for detention, particularly in light of the COVID-19 pandemic and the passage of time.

The court found no substantial likelihood of the applicant committing further offences given the proposed electronic monitoring and sureties.

On the tertiary ground, the court emphasized the public health implications of incarceration during the pandemic, relying on expert evidence, and noted the Crown's unreasonable delay in disclosure.

The court concluded that continued detention was not justified and ordered the applicant's release on strict conditions.

The applicant sought a bail review under section 520(1) of the Criminal Code, requesting vacation of a prior detention order.

The application was based on two alleged material changes in circumstances: a new release plan with different sureties (uncle and aunt) and the prevalence of COVID-19 in society and jails.

The court dismissed the application, finding that neither the new release plan nor the COVID-19 pandemic, without specific medical evidence for the applicant, constituted a material change sufficient to warrant release on secondary or tertiary grounds.

The court emphasized the escalating gravity of the alleged firearm and drug offences and the applicant's history of breaching bail conditions.