Caroline A. McKenna

This ruling addresses a proposed jury instruction in a sexual interference trial concerning the complainant's memory.

The defence challenged the complainant's credibility based on memory inconsistencies, arguing that judicial notice of traumatic memory principles should be limited.

The Crown sought an instruction to provide the jury with an alternative explanation for memory problems in traumatic contexts.

The court ruled to include the instruction, finding it necessary for the jury to properly evaluate the complainant's credibility and reliability, particularly regarding how traumatic experiences can affect perception and recall, and that such principles are properly subject to judicial notice based on established appellate case law.

A young person, M.W., was charged with murder, aggravated assault, and assault with a weapon following a group attack.

The Crown's case relied heavily on video identification, comparing high-quality surveillance footage of the accused from his residence with a low-quality cellphone video of the attack.

The court found that while the accused was clearly identifiable in the surveillance video, the clothing in the cellphone video only resembled, but could not definitively be identified as, the clothing worn by the accused.

Other circumstantial evidence, such as phone calls and post-attack behaviour, was deemed insufficient to corroborate participation beyond a reasonable doubt.

The court acquitted the accused of all charges due to the Crown's failure to prove identification beyond a reasonable doubt.

The defendant, a young person identified as M.W., applied for a stay of proceedings under section 11(b) of the Charter of Rights and Freedoms, alleging an unreasonable delay in bringing the case to trial.

The total delay from charge to anticipated trial completion was 20.8 months, exceeding the 18-month presumptive ceiling established by R. v. Jordan.

The court analyzed the delay, specifically identifying periods attributable to the defence.

It found that the defence's rejection of earlier trial dates without providing alternative availability constituted defence-caused delay.

After subtracting 9 months and 16 days of defence-caused delay, the net delay was calculated at 11 months and 3 days, which is well below the Jordan ceiling.

The court further determined that the defence failed to demonstrate a sustained effort to expedite proceedings or that the case markedly exceeded its reasonable time requirements, as required for delays below the presumptive ceiling.

Consequently, the application for a stay of proceedings was denied.

The defendants, Jason Mercuri and Justin Silva, brought a Charter application to exclude evidence (drugs and a loaded handgun) found in a vehicle following a traffic stop and subsequent searches.

They alleged violations of sections 8 (unreasonable search), 9 (arbitrary detention), and 10 (right to counsel) of the Charter.

The court found the initial traffic stop was lawful, being for a legitimate dual purpose (regulatory and criminal suspicion), and the subsequent searches were justified under the Liquor Licence Act due to the observation of open alcohol.

While an admitted breach of section 10 (delayed right to counsel) occurred, the court determined it was not causally linked to the discovery of the evidence and, applying the Grant analysis under section 24(2), found that the seriousness of the breach and its impact on the defendants' rights did not outweigh society's interest in the adjudication of serious offences on their merits.

The application to exclude the evidence was denied.

This is an application by the young person, Y.D., for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of his right to a trial within a reasonable time under section 11(b).

The total delay from the laying of the information to the anticipated end of the trial was 764 days (approximately 25 months), exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The Crown argued that the complexity of the case and the COVID-19 pandemic constituted exceptional circumstances to rebut the presumption of unreasonableness.

The court found no defence delay and determined that the Crown failed to provide sufficient evidence to establish that the case's complexity or the pandemic justified the additional 7 months of delay beyond the ceiling.

The court noted a lack of concrete steps by the Crown to minimize delay, including frequent changes in Crown attorneys and a general "culture of complacency." Consequently, the application was granted, and a stay of proceedings was entered.