Laura J. Metcalfe

The appellant, D.S., appealed convictions for two counts of sexual assault and two counts of sexual interference involving his niece, T.S. The appeal raised four grounds: the trial judge's reliance on similar fact evidence, misapprehension of the complainant's credibility, illogical reasoning in rejecting the appellant's evidence, and the unreasonableness of the convictions.

The Court of Appeal dismissed the appeal, affirming the trial judge's proper application of similar fact evidence principles from R. v. Handy and upholding the credibility findings, noting the high bar for appellate intervention on such matters as per R. v. Kruk.

This appeal concerns a partial stay of proceedings granted by a trial judge due to Charter violations arising from an unauthorized "no-knock" police entry into the accused's residence to effect an arrest.

The Court of Appeal found the trial judge erred in granting a partial stay based on a factual misapprehension and in rejecting alternative remedies.

The Court concluded that while the police misconduct was serious, a stay was not warranted given the lack of evidence of a systemic problem and the availability of alternative remedies like a strong judicial reprimand and potential sentence reduction.

The Crown's appeal was allowed, vacating the stay, and the accused's cross-appeal was dismissed.

The accused, Rodney Nichols, charged with murder, sought a further extension of his fitness assessment beyond the statutory 60-day limit under the Criminal Code.

The defence argued for a liberal interpretation of the provisions to ensure a full answer and defence, citing the complexity of the psychiatric issues and the need for specialized testing.

The Crown did not oppose the request.

The court, adopting the reasoning from R. v. Reimer, held that it had jurisdiction to grant a new assessment order even after the 60-day period, interpreting the statutory time limits as directory rather than mandatory to prevent injustice and achieve the objectives of the mental disorder scheme.

The court granted a new 30-day fitness assessment order.

The applicant, Daveion Brown, sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay, arguing the total delay of 797 days (26 months and 6 days) exceeded the Jordan ceiling.

The Crown contended that defence delay and exceptional circumstances (discrete events, case complexity) justified the delay.

The court found 92 days of defence delay, resulting in a net delay of 705 days (23.2 months), which still exceeded the 18-month presumptive ceiling.

While acknowledging the case's complexity, the court rejected the Crown's arguments for discrete events and found the Crown's prosecution plan, despite a significant conflict-of-interest issue, was not unreasonable in minimizing delay for this complex case.

The application for a stay of proceedings was dismissed.

The applicant, facing drug and firearm charges, brought a Charter application alleging violations of sections 7, 8, 9, and 10(b) during his arrests.

The Crown conceded violations of sections 8 and 9 regarding the "no-knock" entry during the second arrest but argued the delay in access to counsel was reasonable.

The court found that the police's unannounced entry into the applicant's home to execute a Feeney warrant, without judicial authorization for such entry and without exigent circumstances, violated his section 7 and 8 Charter rights.

The court found the delay in access to counsel was not unreasonable in the circumstances of both arrests.

As a remedy for the Charter violations related to the Feeney warrant execution, the court granted a partial stay of proceedings, specifically staying the firearm-related charges, but allowed the drug trafficking charges to proceed.

D.D. appealed his conviction for sexual interference and sexual assault.

The Court of Appeal allowed the appeal, finding that the trial judge erred in assessing the credibility of the adult complainant.

The trial judge improperly evaluated the complainant's testimony, given when she was 18, as if she were a child, inferring truthfulness from "childlike details" rather than applying adult credibility criteria while considering the childhood context of the events.

The appellant, Hubert Nathanial Shilling, appealed his convictions for two counts of sexual interference and sought leave to appeal his four-and-a-half-year sentence.

The appeal challenged the trial judge's assessment of the complainant's credibility, the rejection of a motive to fabricate, and the use of corroborating evidence.

The appellant also brought a fresh evidence motion, citing his contraction of COVID-19 and a PTSD diagnosis during incarceration, seeking a reduced sentence.

The Court of Appeal dismissed the fresh evidence motion, the conviction appeal, and the sentence appeal, finding no errors in the trial judge's reasoning or the fitness of the sentence.

The accused, Rene Hamouth, faced charges of possessing firearms without a license.

Police executed a search warrant at his residence, finding multiple firearms and ammunition.

The defence argued for the exclusion of evidence under Charter s. 24(2) due to alleged s. 10(b) infringements, including delayed access to counsel and breaches of the "hold-off" duty.

The court found multiple s. 10(b) breaches by the police, citing lack of diligence in facilitating counsel access and improper questioning.

However, applying the Grant test, the court determined that the seriousness of the violations and their impact on the accused's Charter rights did not outweigh society's interest in a trial on the merits, especially given the lawful seizure of reliable evidence prior to the breaches.

Consequently, the firearms and ammunition were admitted.

The court then found the accused guilty on all counts, concluding that the prosecution proved constructive possession beyond a reasonable doubt.

Four appellants appealed their convictions, arguing that their Charter s. 11(b) rights to be tried within a reasonable time were violated due to unreasonable delay.

The application judges had dismissed their s. 11(b) applications, finding that despite delays exceeding the Jordan ceiling (18 months), the Crown had demonstrated the cases were complex and had a concrete plan to minimize delay.

The Court of Appeal upheld the application judges' decisions, finding no reversible error in their assessment of the Crown's plan and the complexity of the cases.

The appellant appealed his conviction for an "over 80" offence, alleging a s. 9 Charter violation (arbitrary detention/overholding) and a s. 11(b) Charter violation (unreasonable delay).

The court found a s. 9 breach due to police "benign neglect" in assessing continued detention but determined that breath samples should not be excluded under s. 24(2) as the breach was too remote from the evidence gathering.

However, the court found a s. 11(b) breach, concluding that judicial deliberation time for interlocutory motions counts towards the Jordan ceiling, and the net delay of 20.5 months exceeded the 18-month presumptive ceiling without exceptional circumstances.

A stay of proceedings was granted.

The defendants, Michael and Christian Theriault, were charged with aggravated assault and attempting to obstruct justice following an altercation with Dafonte Miller, which resulted in Miller losing an eye.

The court found that Miller and his friends were "car hopping" and were caught by the Theriaults.

While the initial interaction and struggle were complex, the court found that Michael Theriault committed an unlawful assault when he struck Miller with a metal pipe after Miller was in retreat and seeking help.

The court found Michael Theriault not guilty of aggravated assault but guilty of the lesser included offense of assault.

Christian Theriault was found not guilty on both counts.

The charges of attempting to obstruct justice against both defendants were dismissed due to reasonable doubt regarding intent and the context of their statements to police.

The appellant appealed a sentence of seven years imposed for four counts of providing immigration advice without a license contrary to s. 91(1) of the Immigration and Refugee Protection Act and one count of counselling misrepresentation in an immigration application contrary to s. 126 of the IRPA.

The Court of Appeal dismissed the appeal, finding no error in law or principle by the trial judge.

The court upheld the trial judge's decisions regarding denial of enhanced credit for pre-sentence custody due to delay caused by the appellant, reliance on victim impact statements, consideration of future risk, imposition of maximum sentences, consecutive sentencing, and failure to address bail conditions as a mitigating factor.

The applicants, two firefighters charged with fraud, money laundering, and obstruction of justice, brought an application for a stay of proceedings under s. 11(b) of the Charter.

The total delay from the date of the charges to the anticipated end of the trial was 35 months and one week.

After deducting three months of conceded defence delay, the net delay was 32 months and one week, exceeding the 30-month presumptive ceiling established in Jordan.

The Crown argued that additional periods, including a two-month delay for a judicial pre-trial, a two-month adjournment of the preliminary inquiry, and a seven-week judicial reserve period, should be deducted as defence delay or exceptional circumstances.

The court rejected the Crown's arguments, finding that the delays were not caused by the defence and that the Crown failed to take proactive steps to mitigate them.

The court concluded that the delay was unreasonable and granted a stay of proceedings.

The defendant was charged with impaired operation of a motor vehicle and refusal to provide a breath sample.

The Crown conceded the impaired operation charge.

The defendant challenged the refusal charge on Charter grounds, arguing a violation of his right to counsel under s. 10(b) and seeking exclusion of evidence under s. 24(2).

The court found no Charter breach, concluding that the defendant failed to exercise reasonable diligence in attempting to contact counsel of his choice and deliberately delayed the investigative process.

The defendant was convicted of refusal to provide a breath sample.

The accused was charged with 26 offences related to fraudulently obtaining and possessing multiple driver's licences under various aliases.

The Crown's case relied primarily on photo-comparison technology and visual identification from driver's licence photographs and booking hall videotapes to establish that the accused was the same person responsible for obtaining licences under seven different names.

The court found that the identification evidence was insufficient to prove guilt beyond a reasonable doubt, as no police officer who had investigated or dealt with the accused in connection with prior incidents was able to identify him as the person they had encountered.

The court acquitted the accused of all charges, finding that relying solely on the judge's own visual comparison of photographs and videotapes, without corroborating eyewitness identification, would be manifestly unsafe given the inherent frailties of identification evidence.

The applicant challenged a police search of the Ministry of Transportation (MTO) driver licence database under section 8 of the Canadian Charter of Rights and Freedoms.

The police used facial recognition technology to search the database and identify the applicant as the holder of multiple fraudulently obtained driver's licences.

The applicant argued that the search violated his reasonable expectation of privacy in his photograph and personal information submitted for driver's licence purposes.

The Crown argued that no reasonable expectation of privacy exists in information voluntarily submitted to obtain a driver's licence, which is a regulated privilege.

The court dismissed the applicant's challenge, finding that driver's licence applicants have neither a subjective nor an objectively reasonable expectation of privacy in the information contained in the MTO database.

The accused was charged with care and control of a motor vehicle while impaired and over the legal limit, resisting arrest, and assault with intent to resist arrest, following her arrest at a banquet hall parking lot.

The Crown alleged the accused was found behind the wheel of her vehicle after leaving a Christmas party.

The accused applied for Charter relief alleging breaches of sections 7, 8, and 9 of the Charter.

The trial judge dismissed the Charter applications but acquitted the accused on the impaired and over 80 charges, finding she had rebutted the statutory presumption of care and control and that no realistic risk of danger existed.

The accused was convicted of resisting arrest but acquitted of assault with intent to resist arrest.

The appellant was convicted of aggravated assault by wounding but acquitted of assault with a weapon arising from an incident where she struck her sister-in-law in the face with a glass during an escalated argument.

The appellant appealed on the grounds that the verdicts were inconsistent and unreasonable.

The Court of Appeal found that the verdicts were logically inconsistent as a matter of law, since both charges arose from the same conduct and the only contested issue was whether the blow was reflexive or intentional.

The court allowed the appeal, set aside the conviction for aggravated assault, and entered an acquittal.