Kristen J. Mohr

The applicant, Lachlan MacGregor, sought a stay of proceedings under s. 24(1) of the Charter, alleging a breach of his s. 7 and s. 12 Charter rights.

The breach arose from police administering a taser in drive stun mode to his thigh after he was arrested, handcuffed, and not demonstrating violence, while exhibiting signs of impairment.

The court found that the force used was unreasonable and excessive, constituting a breach of s. 7 and s. 12 of the Charter.

However, the court declined to grant a stay of proceedings, determining that the case did not meet the 'clearest of cases' threshold required for such a drastic remedy, as there was no prejudice to the accused's right to a fair trial and alternative remedies existed.

The applicants were charged with drug offences under the Controlled Drugs and Substances Act and Criminal Code arising from the alleged sale of fentanyl.

They sought leave to cross-examine the affiant who swore the Information to Obtain in support of a search warrant at a preliminary inquiry.

The court addressed standing issues for one applicant and applied the Dawson/Garofoli framework to determine which proposed cross-examination questions would be permitted.

The court balanced the narrow scope of cross-examination at a preliminary inquiry against the need to protect confidential informer privilege and the requirement for full and frank disclosure by the affiant.

A licensed pharmacist was convicted after trial of trafficking over 5,000 fentanyl patches over a two-year period, public mischief for staging a false robbery to cover up inventory discrepancies, and fraud against his insurance company.

The offender, who owned three pharmacies, ordered fentanyl from licensed suppliers and distributed the vast majority of patches illegally through false prescriptions and to a co-conspirator.

When the discrepancy was discovered by an employee, the offender staged a robbery with the co-conspirator, reported it to police, and defrauded his insurance company of over $36,000.

The court imposed a sentence of 14 years imprisonment for trafficking, with concurrent five-year sentences for public mischief and fraud.

The defendant, Travis Garth Gordon, pleaded guilty to participating in a criminal organization for drug trafficking purposes, contrary to s. 467.11(1) of the Criminal Code.

This offence was predicated on earlier convictions for trafficking oxycodone and possession of proceeds of crime.

The Crown sought 6-9 months incarceration, while the defence argued for a conditional sentence of 6 months, citing the defendant's significant positive lifestyle changes, steady employment, stable family life, and abstinence from illicit drugs over four years.

The court considered denunciation and deterrence as primary sentencing objectives.

While acknowledging the defendant's rehabilitation, the court found a conditional sentence inappropriate due to the problematic nature of supervision and enforcement given the defendant's potential need to work out of province.

A four-month period of incarceration was imposed.

The accused was charged with conspiracy to traffic in cocaine and marijuana, trafficking, and participating in a criminal organization.

The Crown's case relied heavily on police surveillance, tracking devices, and intercepted messages from an encrypted PGP cellphone.

The court found that the accused used specific monikers in the encrypted communications to coordinate the shipment of drugs and money.

The court concluded that the accused actively assisted both the seller and purchaser in drug transactions and contributed to the activities of a structured criminal organization.

The accused was found guilty on all counts.

This is a pre-trial application by the Crown in a criminal proceeding against Keith Ritchie, who is charged with drug trafficking and criminal organization offenses.

The Crown sought to admit the sworn statement of Salvatore Larizza, a deceased witness, and the transcript of a guilty plea entered by co-accused Frank Muzzi.

The court applied the principled approach to hearsay, finding that the Larizza statement met the criteria of necessity (due to death) and threshold reliability (due to circumstances of making and corroborative evidence).

However, while the fact of Muzzi's guilty plea was admissible, the underlying facts from its transcript were not, as the Crown failed to establish necessity for Muzzi's testimony.

The application to admit the Larizza statement and the fact of Muzzi's guilty plea was allowed, but the transcript of Muzzi's plea facts was dismissed.

The applicant, charged with drug and criminal organization offences, brought a pre-trial application seeking a stay of proceedings or exclusion of evidence under s. 24(1) of the Charter, alleging his s. 7 rights were violated due to lost police surveillance video.

The video was automatically erased by a recording device's factory default setting.

The court applied the framework for lost evidence, finding the Crown met its burden to show the loss was not due to unacceptable negligence.

The court also found no abuse of process and no irreparable prejudice to the applicant's right to a fair trial, as the video's value was speculative and alternative evidence (officer notes) was available.

The application was dismissed.

The applicant sought to excise paragraphs from an Information to Obtain (ITO) a Production Order and search warrant for his residence.

The applicant argued that the information was obtained through an unlawful search of a third party's cell phone, which had previously been ruled a breach of the third party's s. 8 Charter rights.

The court dismissed the application, holding that an accused must establish an independent privacy interest in the evidence to have standing to seek excision based on a Charter breach.

Since the applicant had no expectation of privacy in the messages on the third party's phone, he could not rely on the third party's s. 8 breach to seek a remedy under s. 24(2).

On a voir dire in a drug prosecution, the accused sought to exclude evidence obtained from a BlackBerry device seized by police, alleging a breach of s. 8 of the Charter.

The Crown argued the accused lacked a reasonable expectation of privacy and alternatively had abandoned the device when he removed the battery and threw it to the ground during a police approach.

The court held that while possession alone is insufficient, the accused established a reasonable expectation of privacy through possession, knowledge of the password, and prior use of the device.

The court further held that the act of removing the battery and throwing the device did not amount to abandonment but was more consistent with an attempt to preserve privacy.

The accused therefore retained a reasonable expectation of privacy in the device and its contents.