Iona Jaffe

The Crown applied under s. 521 of the Criminal Code to review a justice of the peace’s decision granting judicial interim release to the accused on serious drug and firearms conspiracy charges.

The Crown argued the justice of the peace misapprehended the seriousness of the offences, underestimated the risk of reoffending, and improperly accepted a proposed surety.

Applying the standard from R. v. St. Cloud, the court held that a reviewing judge may intervene only if the decision contains an error of law, fresh evidence, or is clearly inappropriate.

The court found no such error and held the justice of the peace reasonably assessed the secondary and tertiary grounds and the proposed plan of release.

The bail review application was therefore dismissed.

The accused, charged with terrorism offences, brought a motion for a stay of proceedings, arguing that his right to make full answer and defence under s. 7 of the Charter was breached because an undercover officer deleted text messages and the police failed to retrieve data from the officer's phone.

The court dismissed the motion, finding that the police conduct did not amount to unacceptable negligence and that the accused suffered no actual prejudice, as the text messages were innocuous and fully transcribed in the officer's notes.

The court concluded that a stay of proceedings was not warranted as there was no irreparable harm to the justice system or the accused's rights.

After a jury conviction for terrorism offences related to attempting to participate in and counselling participation in the activities of Al‑Shabaab, the accused brought a motion seeking a stay of proceedings for abuse of process.

The accused alleged entrapment by an undercover officer, improper prolongation of the police investigation, and police misconduct in creating a credibility contest through delayed wiretap authorization and deletion or loss of text messages.

Applying the entrapment framework from R. v. Mack, the court held that police merely opened dialogue and did not provide an opportunity to commit an offence until after reasonable suspicion existed.

The court rejected arguments that the investigation was improperly prolonged or that police deliberately engineered evidentiary prejudice.

The application for a stay was dismissed.

During an ongoing criminal terrorism trial, a media organization requested access to an audio exhibit consisting of recorded conversations between the accused and an undercover police officer obtained under a consent wiretap authorization.

The court had previously issued a non-publication order protecting the identity of the undercover officer to preserve his ability to continue working undercover.

The court held that the order extended to the officer’s voice because broadcasting it could reveal his identity.

The media organization was permitted to obtain a copy of the audio recording subject to signing an undertaking and complying with the prohibition on broadcasting or transmitting the officer’s voice.

In a terrorism prosecution, the accused sought to introduce expert evidence from a sociologist regarding the prevalence of Islamophobia and the tendency to associate Muslims with terrorism.

The defence argued the evidence would assist the jury in interpreting conversations with an undercover officer and in assessing evidence of the accused’s online searches relating to terrorism.

Applying the admissibility framework for expert evidence under R. v. Mohan and the two‑stage analysis described in R. v. Abbey, the court found the proposed testimony unnecessary and highly speculative.

The expert had no knowledge of the accused or the undercover officer and could not meaningfully link general social attitudes to the facts of the case.

The court concluded the evidence would provide little probative value and risk confusing the jury, and therefore excluded it.

The accused applied to exclude recorded conversations obtained through a consent wiretap authorization under s. 184.2 of the Criminal Code in a terrorism prosecution alleging attempted participation in, and counselling participation in, a terrorist organization.

The accused argued the supporting affidavit failed to establish reasonable grounds and improperly relied on Islamophobic assumptions.

The court held that the affidavit, read as a whole, provided ample grounds to believe offences under s. 83.18 had been or would be committed and that relevant information would be obtained through interception.

The judge also rejected the claim that investigative conclusions were improperly influenced by discriminatory assumptions.

The application to exclude the intercepted communications was dismissed.

The accused brought a pre‑trial motion seeking to exclude documents and internet search evidence recovered from a laptop seized at the time of his arrest on terrorism charges relating to alleged attempts to join the group Al‑Shabaab and counselling another person to do so.

The court conducted a voir dire addressing the relevance and admissibility of ideological, military, and internet‑search material found on the computer.

Applying the principles governing relevance, bad character evidence, and the balancing of probative value against prejudicial effect, the court held that documents found in an accused’s possession may be admissible circumstantial evidence of knowledge or intent even without proof the accused read or adopted their contents.

The court admitted certain materials and internet search terms relevant to motive, knowledge, and intent, while excluding or limiting others whose prejudicial effect outweighed their probative value.

The court also rejected the argument that admission of the evidence violated the accused’s Charter freedoms of religion or expression.

The accused, charged with terrorism offences for attempting to participate in and counselling participation in the terrorist group Al‑Shabaab, brought a motion under s. 587 of the Criminal Code seeking further particulars regarding the alleged mode and means of participation.

The court considered whether the indictment and disclosure provided sufficient information to permit full answer and defence.

The court held that the counts already specified the relevant time period, location, statutory provisions, and the terrorist group involved, and that defined statutory terms and extensive disclosure further clarified the allegations.

The Crown was not required to particularize the precise mode of participation or disclose its theory of the case.

The motion for further particulars was dismissed.

In a terrorism prosecution, the accused sought to exclude evidence that he had expressed sympathy for individuals associated with terrorism, including Omar Khadr, members of the Toronto 18, and persons detained under security certificates.

The court assessed the admissibility of the statements by balancing probative value against moral and reasoning prejudice.

Evidence relating to the accused’s comments about Khadr and the Toronto 18 was excluded because it carried significant risk of prejudice and would require lengthy contextual evidence that could confuse the jury.

However, a brief conversation concerning security certificates was admitted because it was relevant to the accused’s fear of surveillance and was not unduly prejudicial.

The court also declined to permit an additional challenge for cause question relating to the accused’s views on the security certificate process.

The accused in a terrorism prosecution brought motions challenging the constitutionality of s. 577 of the Criminal Code, which permits the Attorney General to prefer a direct indictment, and alleging abuse of process arising from the loss of a preliminary inquiry.

The accused argued that bypassing the preliminary inquiry deprived him of judicial screening and the opportunity to cross-examine a key undercover officer.

The court held that longstanding appellate authority confirms the constitutionality of s. 577 and that there is no constitutional right to a preliminary inquiry or to discovery through that process.

The preferment of a direct indictment is an exercise of core prosecutorial discretion reviewable only for abuse of process or Charter violations.

Given the extensive disclosure provided and the absence of evidence of misconduct, the accused failed to demonstrate any infringement of Charter rights.

The accused brought a constitutional motion challenging the validity of several anti‑terrorism provisions of the Criminal Code, including the definitions of “terrorist group” and “terrorist activity” in s. 83.01 and the participation offence in s. 83.18.

The accused argued the provisions were overbroad, vague, and violated the presumption of innocence and Charter freedoms by criminalizing attempts and counselling related to participation in terrorist groups.

The court held that s. 83.18 creates a substantive offence requiring proof of both participation and a specific intent to enhance a terrorist group’s ability to carry out terrorist activity.

Relying on appellate authority including Khawaja and Nadarajah, the court found the provisions neither vague nor overbroad and concluded that the mens rea requirements significantly limit the reach of the offence.

The constitutional application was dismissed in its entirety.

In a terrorism prosecution alleging attempted participation in and counselling participation in the activities of Al‑Shabaab, the Crown sought to call an expert on Somalia and the organization’s history, structure, ideology, and recruitment practices.

Following a voir dire, the court applied the admissibility framework for expert evidence from Mohan and the two‑step analysis in Abbey.

The court found the proposed testimony concerned subject matter beyond the knowledge of a typical Canadian jury and was logically relevant to issues of knowledge, intent, and interpretation of internet activity and recorded conversations.

The expert was held to be properly qualified and not shown to be biased, and the probative value of the contextual evidence outweighed any potential prejudice.

The court therefore permitted the expert evidence, with caution against using “consistent with” language suggesting ultimate issue conclusions.

The accused brought an application to exclude evidence of drugs found during a vehicle search, arguing his arrest was arbitrary and the search violated his s. 8 Charter rights.

The police had intercepted communications and conducted surveillance indicating the accused was transporting drugs.

The court found the police had reasonable and probable grounds to arrest the accused based on this evidence.

The subsequent search of the vehicle was a valid search incident to arrest, and as a passenger, the accused had no reasonable expectation of privacy in the vehicle.

The application to exclude evidence was dismissed.

The accused brought a motion to sever multiple drug trafficking and possession for the purpose of trafficking counts so that each would be tried separately before a jury.

The defence argued that the accused intended to testify on some counts but not others and that a joint trial would undermine the right to remain silent by exposing the accused to cross‑examination on all counts.

Applying the interests of justice framework from R. v. Last, the court considered both the accused’s fair trial rights and society’s interest in efficient proceedings.

The court concluded that trying the possession counts together with the earlier trafficking counts could create unfairness if the accused chose to testify on some counts but not others.

Counts 3 and 4 were severed from counts 1 and 2, while counts 1 and 2 remained joined for trial.