Daisy McCabe-Lokos

The Crown appealed the acquittal of one respondent and the sentence of another, while the second respondent appealed his conviction.

Both cases involved border officers searching the respondents' digital devices under s. 99(1)(a) of the Customs Act, leading to the discovery of child pornography.

The Court of Appeal held that s. 99(1)(a) violates s. 8 of the Charter because it authorizes highly intrusive searches of digital devices without reasonable suspicion.

The law was declared unconstitutional with a six-month suspension.

However, applying the Grant framework, the Court admitted the evidence for both respondents due to the officers' good faith reliance on existing law and the serious nature of the offences.

The first respondent's acquittal was overturned and a new trial ordered.

The second respondent's conviction was upheld.

The Court also established a new sentencing range for child pornography possession, finding the second respondent's conditional sentence demonstrably unfit and stating a three-year sentence was appropriate, though it declined to incarcerate him given the time already served on house arrest.

The accused was tried for robbery, aggravated assault, and weapons offences following a violent attack on a man who had arranged to purchase sexual services from a 15-year-old girl.

The victim was stabbed and robbed in his car.

The Crown's case on identity was entirely circumstantial, relying on the accused's relationship with the girl and his presence near the scene.

The trial judge rejected the exculpatory evidence of the accused and the girl due to significant credibility concerns.

However, due to inconsistencies in the victim's evidence regarding how the assailant entered the vehicle, the court found the Crown failed to prove identity beyond a reasonable doubt.

The accused was acquitted on all counts.

The applicant, charged with aggravated assault and weapons offences, brought an application to stay the proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total time from charges to the anticipated end of trial was approximately 37.5 months.

The court deducted periods of delay caused by the applicant's change of counsel and the exceptional circumstances of the COVID-19 pandemic, bringing the net delay to 26.5 months, below the 30-month presumptive ceiling.

The court found the Crown took reasonable steps to mitigate delay and concluded the case did not take markedly longer than it reasonably should have.

The application was dismissed.

The applicants, who were charged with child pornography offences following searches of their digital devices at the border, brought a constitutional challenge against s. 99(1)(a) of the Customs Act.

They argued that the provision, which allows customs officers to search imported goods without any legal threshold, violates the right to be free from unreasonable search and seizure under s. 8 of the Charter when applied to personal digital devices.

The Superior Court of Justice agreed, finding that the profound privacy interests in digital devices require a legal threshold for searches.

The court held that the provision violates s. 8 and is not saved by s. 1, declaring it of no force or effect with respect to digital devices, but suspended the declaration of invalidity.

The accused, charged with first-degree murder, brought an application to exclude his post-arrest statement to police, alleging breaches of ss. 7 and 10(b) of the Charter and arguing the statement was involuntary.

The court found a minor s. 10(b) breach occurred when an officer questioned the accused en route to the station before he spoke to counsel, but admitted the subsequent 13-hour interview statement under s. 24(2).

The court dismissed the remaining Charter claims and found the statement voluntary, concluding the accused was not overborne by the length of the interview or the officer's use of the Reid technique, but rather chose to speak after being confronted with overwhelming incriminating evidence.

During a murder trial, the accused brought a mid-trial application to admit an additional portion of a deceased witness's video-recorded statement under the principled exception to the hearsay rule.

The Crown opposed the admission.

The court found that while necessity was established, the statement lacked threshold reliability due to unmitigated hearsay dangers related to perception and narration.

The application was dismissed and the evidence was ruled inadmissible.

The applicant applied to reopen and reconsider a prior ruling that his post-arrest confession to two murders was voluntary.

The application was based on the subsequent exclusion of internet search queries under s. 24(2) of the Charter, which had been put to the applicant during his police interview.

The court dismissed the application, finding no material change in circumstances because the police acted in good faith using a presumptively valid warrant at the time of the interview.

The court concluded that the subsequent inadmissibility of the evidence did not render the police conduct oppressive or affect the voluntariness of the statement.

The applicants brought a pre-trial application to excise certain passages from transcripts of intercepted private communications, arguing the audio was inaudible and the transcripts would prejudice the jury.

The court dismissed the application, applying established law that the audio recordings are the evidence and the jury may use the transcripts as an aid.

The court found that the jury, properly instructed, could resolve disputes about the accuracy of the transcripts by listening to the recordings and considering cross-examination.

The co-accused applied to sever a second-degree murder count from two first-degree murder counts on the same indictment.

The co-accused argued that the stronger evidence on the first two counts, including a confession, would cause moral and reasoning prejudice on the third count, where the cause of death was disputed.

The court dismissed the application, finding a strong factual and legal nexus between the counts, as all three deceased were members of the same family involved in an ongoing child custody dispute.

The court also found that count-to-count similar fact evidence was likely admissible to prove identity, and that the interests of justice, including avoiding a multiplicity of proceedings, favoured a joint trial.

The applicants, charged with first-degree murder, brought an omnibus motion under s. 24(2) of the Charter to exclude three categories of evidence obtained through various s. 8 Charter breaches: a PDF of a lock found on a cellphone, banking records, and internet search queries found on a laptop.

The court applied the Grant framework to each category.

The court admitted the PDF evidence, finding the police acted in good faith and the breach was at the lower end of the seriousness scale.

The court excluded the banking records, finding the production order was overbroad and based on a misleading Information to Obtain (ITO).

The court also excluded the internet search queries, finding a pattern of police misconduct, including misleading testimony, alteration of investigative records, and failure to disclose unauthorized access to the applicants' email accounts, which severely impacted the applicants' Charter-protected interests and would bring the administration of justice into disrepute if admitted.

The offender was found guilty by a jury of one count of sexual assault against his former domestic partner.

The court found as fact that the offender engaged in non-consensual digital penetration, forced fellatio, and attempted intercourse.

The offender, a permanent resident and pastor, faced deportation without a right of appeal if sentenced to more than six months.

The court held that while immigration consequences are relevant, they cannot dominate the sentencing process.

The court sentenced the offender to 20 months' incarceration, finding a reformatory sentence appropriate given the gravity of the offence and the offender's lack of criminal record.

The applicants, charged with first-degree murder, brought a preliminary screening motion to determine whether they could adduce evidence of additional alleged Charter violations on their upcoming s. 24(2) application.

They sought to introduce evidence of violations of third parties' rights, other violations of their own rights, and unconstitutional police practices in unrelated investigations to establish a 'pattern of abuse' under Grant.

The court held the applicants lacked standing to assert third-party rights and rejected evidence of unrelated police practices.

For the applicants' own rights, the court permitted evidence of additional violations only where they met the Goldhart nexus test or had sufficient probative value to demonstrate a pattern of abuse without consuming disproportionate judicial resources.

The applicants, charged with first-degree murder, brought a Charter application alleging s. 8 violations regarding the search of a trailer on their property and the subsequent warrantless seizure and technological examination of laptops and USB drives found inside.

The court held that the initial search of the trailer was lawfully executed because police took control of the premises within the time specified in the warrant.

The warrantless seizure of the electronic devices was justified under s. 489 of the Criminal Code as the officers had reasonable grounds to believe they would afford evidence.

However, the court found s. 8 violations occurred when an officer conducted a warrantless preview of a USB drive, when the subsequent search warrant failed to authorize a technological examination, and when detention orders were improperly extended.

The applicants, charged with first-degree murder, brought an application to exclude evidence obtained by police from Walmart and CIBC.

The police obtained CCTV footage and a transaction receipt from Walmart without a warrant, and basic account information from CIBC prior to obtaining a production order.

The court found the applicants had no reasonable expectation of privacy in the CCTV footage, the transaction receipt, or the limited banking information provided to police.

However, the court found the subsequent production order issued to CIBC was overbroad and invalid.

The court declined to sever the valid portions of the production order, concluding that the records produced by CIBC were obtained in violation of s. 8 of the Charter.

The accused, charged with first-degree murder, brought a pre-trial motion to exclude evidence obtained from a cell phone seized from one of the accused without a warrant during a police interview.

The accused alleged violations of ss. 8 and 10(b) of the Charter.

The court found that the accused was not detained during the interview, so s. 10(b) was not violated.

The warrantless seizure of the cell phone was lawful under s. 487.11 of the Criminal Code due to exigent circumstances.

The court also held that the accused lacked standing to challenge searches of the deceased's cell phone and email, and had no reasonable expectation of privacy in basic subscriber information.

However, the court found that the search warrant subsequently obtained to examine the contents of the seized cell phone was facially invalid because it did not authorize a technological search, resulting in a s. 8 violation.

The court concluded that the Information to Obtain (ITO) was sufficient to have supported a proper warrant.

The determination of whether to exclude the evidence under s. 24(2) was deferred.

The applicants brought a motion to exclude evidence obtained from a warrantless seizure of their garbage, which included items containing DNA evidence.

The applicants argued they had a reasonable expectation of privacy in the garbage and, alternatively, in the DNA information embedded on the items.

Applying the totality of the circumstances test, the court found that the applicants had abandoned the garbage by placing it out for municipal collection.

The court further held that the abandonment of the garbage effectively constituted the abandonment of any privacy interest in the DNA information it contained.

The application to exclude the evidence under section 8 of the Charter was dismissed.

The Crown sought to admit ante-mortem statements made by two deceased victims in a first-degree murder trial.

The statements were evaluated under the principled exception to the hearsay rule.

The court ruled that three statements made by one victim were inadmissible because necessity was not established, as better quality evidence was available, and their prejudicial effect outweighed their probative value.

However, a statement made by the second victim was ruled admissible, as it met the requirements of necessity and threshold reliability without undue prejudicial effect.