Chris Sewrattan

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

The accused, Alaelddein Alhajsalem, brought an application for a stay of proceedings due to a 17-day delay in his bail hearing, arguing a violation of sections 7, 9, and 11(e) of the Charter.

The Crown conceded a breach of section 11(e) but argued against a stay.

The court found the delay was caused by systemic issues in the Newmarket Bail Court, not related to the pandemic, and that a judicial admonition or sentence reduction would be inadequate.

Balancing the seriousness of the charges against the persistent systemic problem and the flagrant Charter breach, the court granted a stay of proceedings.

J.T. appealed convictions for possessing and making child pornography available, arguing two errors by the trial judge: admitting expert evidence without qualification regarding file downloading, and committing a Sekhon error by relying on anecdotal evidence that child pornography does not automatically appear on computers.

The Court of Appeal dismissed the appeal, finding the first point did not require expertise as it was mundane factual evidence, and the second was not a Sekhon error as the testimony explained technical operation, not guilt, and did not reverse the burden of proof.

The appellant, a real estate agent, was convicted of fraud in relation to three real estate transactions.

She appealed her convictions on the sole ground that the trial judge impermissibly intervened during her cross-examination, creating a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the trial judge's interventions were primarily questions seeking clarification of confusing evidence and did not compromise the appellant's right to a fair trial.

The appellant was convicted of possession of crack cocaine for the purpose of trafficking after a judge-alone trial.

He appealed, claiming the verdict was unreasonable, arguing he may have unwittingly sat on the cocaine.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude beyond a reasonable doubt that the appellant had physical possession and knowledge of the crack cocaine.

The court noted the appellant's failure to testify and the implausibility of the "unknowingly sitting" explanation, which was not raised by trial counsel.

The appellant, Justice Okojie, appealed his convictions for importing and possessing heroin for the purpose of trafficking.

The primary ground of appeal concerned when the offence of importing is complete, particularly in controlled delivery scenarios, arguing it was complete before his involvement.

The second ground challenged the reasonableness of the verdict, asserting that his knowledge of the package containing a controlled substance was not the only reasonable inference.

The Court of Appeal dismissed both appeals, clarifying that importing is complete when the contraband is no longer under the control of customs authorities, and upholding the trial judge's finding of knowledge based on circumstantial evidence.

The applicant, Jamal Daye, sought re-release pending appeal after his initial bail was revoked due to new firearms and breach charges.

He had previously been convicted of narcotics trafficking and sentenced to 5.5 years.

The Crown opposed his re-release on tertiary grounds, arguing that his detention was necessary to preserve public safety and confidence in the administration of justice.

The court found that while the appeal was not frivolous, its strength did not outweigh the public interest concerns, particularly given the seriousness of the new alleged offences and the breach of bail conditions.

The application for re-release was denied.

The accused applied to sever counts on an indictment charging him and a co-accused with a home invasion and firearms offences.

The accused sought separate trials so he could testify regarding the firearms charges without implicating himself in the home invasion.

The court dismissed the application, finding that the counts were closely connected factually and legally, and that the desire to testify on some counts but not others did not outweigh the policy against a multiplicity of proceedings.

The Attorney General for Ontario and the Criminal Lawyers' Association of Ontario (CLA) sought leave to intervene in an upcoming appeal concerning the scope of the actus reus of importing contraband.

The Attorney General sought to argue the impact of the definition on provincial prosecutions of importing firearms and child pornography.

The CLA sought to argue that extending the actus reus beyond the immediate entry point disproportionately impacts racialized communities, relying on social context evidence.

The court granted both applications for leave to intervene, finding the proposed arguments and materials relevant and non-controversial.

The appellants were convicted by a jury of importing cocaine and possession for the purpose of trafficking after a controlled delivery of a package containing cocaine hidden in food items.

On appeal, they argued the verdicts were unreasonable because the importation was complete before they handled the package, and that the circumstantial evidence did not prove they knew the package contained drugs.

They also argued the trial judge erred in leaving wilful blindness with the jury.

The Court of Appeal dismissed the appeals, finding that the ultimate domestic recipient was the importer, the circumstantial evidence supported the jury's inference of knowledge, and the inherently suspicious circumstances justified the wilful blindness instruction.

The appellant appealed her conviction for importing cocaine, arguing the trial judge erred by relying on wilful blindness when there was no air of reality to it on the record.

The Crown conceded there was no air of reality to wilful blindness but argued the trial judge found actual knowledge, or alternatively, that the curative proviso should apply.

The Court of Appeal allowed the appeal, finding the trial judge's repeated references to wilful blindness suggested he may have had a reasonable doubt about actual knowledge.

The court declined to apply the curative proviso, as the error was not minor and the prosecution's case was not overwhelming, and ordered a new trial.

The appellant appealed a jury conviction for sexual assault, alleging that improper Crown submissions during closing argument and inadequate corrective instructions deprived him of a fair trial.

He also argued the trial judge improperly limited the jury’s ability to rely on the absence of evidence when responding to a deliberation question about blood‑alcohol testing.

The Court of Appeal held the Crown’s submissions did not misstate the law or invite an improper credibility contest and that the jury was properly instructed using the W.(D.) framework.

The trial judge’s response to the jury correctly distinguished between drawing reasonable doubt from evidentiary gaps and speculating about uncalled evidence.

The appeal was dismissed.

The appellant appealed his convictions for assault and assault causing bodily harm against his father and sister.

The appeal was based on the trial judge's erroneous application of the rule in Browne v. Dunn and an impermissible adverse inference drawn from the appellant's exercise of his right to silence when questioned by police about his injuries.

The Crown conceded the Browne v. Dunn errors but argued the curative proviso should apply.

The Summary Conviction Appeal Court allowed the appeal and ordered a new trial, finding the errors were not harmless or trivial and the evidence was not so overwhelming as to make a conviction inevitable.

The appellant appealed a conviction for sexual assault, arguing that the trial judge erred by failing to consider the absence of evidence that anyone heard the alleged assault.

The appellant contended that given the complainant's evidence, it was implausible that no one would have heard anything if the assault had actually occurred.

The Court of Appeal dismissed the appeal, finding that the trial judge understood and correctly applied the law regarding absence of evidence and reasonable doubt, and that the trial judge's thorough reasons demonstrated a clear path to conviction based on the facts found.

The appellant appealed both conviction and sentence from a trial decision.

The conviction appeal challenged the trial judge's conclusion on a Garofoli application regarding a CDSA warrant for a warehouse search.

The appellant argued that the affiant failed to disclose relevant information, included inappropriate opinion, intentionally misled the authorizing judge, and that insufficient grounds existed that marijuana would be found in the warehouse.

The Court of Appeal found the ITO provided ample evidentiary basis for the conclusion that marijuana would be found at the warehouse and saw no basis to find the affiant was untruthful or provided inappropriate opinion.

The appeal from conviction was dismissed.

The sentence appeal was also dismissed as the sentence imposed did not reflect an error in principle or was otherwise unfit.

The appellant appealed his conviction for drug trafficking and his sentence.

The appeal raised two grounds: first, that the trial judge failed to indicate she was not relying on improper expert opinion evidence regarding drug quantities; and second, that the trial judge erred in her section 24(2) Charter analysis by admitting evidence obtained following a section 10(a) breach.

The Court of Appeal dismissed both grounds, finding that the trial judge was not required to explicitly reference the improper evidence and that the trial judge properly analyzed the causative link between the breach and the evidence as real evidence rather than conscriptive statements.

The appellants were convicted by a jury of conspiracy to traffic in cocaine and possession of proceeds of crime.

They appealed their convictions on the grounds that jurors were exposed to extrinsic information (including internet searches and old newspaper articles) during the trial, and that the trial judge erred in her instructions on the co-conspirator hearsay exception.

The Court of Appeal dismissed the appeal, finding no reasonable possibility that the extrinsic information affected the verdict given the trial judge's instructions and the nature of the information.

The court also upheld the trial judge's conspiracy instructions as compliant with the Carter and Mapara framework.

The accused was pulled over for using a cell phone while driving.

A search of the vehicle revealed cocaine, marijuana, and drug trafficking paraphernalia.

The accused claimed he was driving his mother's car in an emergency to help his injured wife and denied knowledge of the drugs.

The court rejected the accused's explanation as incredible, noting inconsistencies in his testimony and the fact that he was driving in the opposite direction of the alleged emergency.

The court inferred knowledge and control from the surrounding circumstances and found the accused guilty of possession for the purpose of trafficking.

The applicant sought exclusion of evidence obtained after police entered his home following an emergency report that his young child had wandered onto a major roadway.

The court held the initial entry and protective sweep were authorized under the common law police duty framework applied in emergency child safety situations, but found later Charter breaches when the applicant was detained and questioned without being advised of his right to counsel and when the search continued after the focus shifted to criminal investigation.

Applying the s. 24(2) framework, the court found the breaches were not sufficiently serious or impactful to justify exclusion.

The application to exclude the grow operation evidence was dismissed.

The applicant sought a stay of robbery-related charges on the basis that the anticipated 30-month period from charge to trial breached s. 11(b) of the Charter.

Applying the Morin framework, the court found that 14.2 months of delay was institutional, 10.8 months was inherent, 4.25 months was attributable to the Crown, and 0.75 months was attributable to the defence.

The court rejected most claims of actual prejudice, inferred only modest prejudice from the overall delay, and gave weight to the seriousness of the armed robbery charge.

Balancing all factors, the court held the applicant had been brought to trial within a reasonable time and dismissed the stay application.