Jag Virk

The Crown appealed stays of proceedings granted to two respondents charged in a massive cross-border drug trafficking investigation.

The application judge had found the delay exceeded the Jordan ceiling and declined to deduct time for joint-trial scheduling or find the case exceptionally complex.

The Court of Appeal allowed the appeal, holding that the 107 days of joint-trial scheduling delay should have been deducted as a discrete exceptional circumstance.

Furthermore, the overarching complexity of the multi-agency project prosecution, which involved voluminous disclosure, justified the remaining modest delay above the ceiling.

The stays were set aside and the matters remitted for trial.

The applicant, charged with firearm offences, applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms on the basis that the trial had not been held within a reasonable time.

The charges were laid on January 16, 2022, with trial scheduled for December 2025, representing a delay of nearly four years.

The Crown had originally charged the applicant with both firearm offences and a possession for the purpose of trafficking charge, which was withdrawn on May 30, 2024.

The court found that the Crown's handling of the drug charge—including indecision about withdrawal, tentative communications, and delays in actually withdrawing the charge—constituted Crown delay that exceeded the Jordan ceiling of 30 months for two-stage proceedings.

The court calculated net delay at approximately 37 months and granted the stay of proceedings.

This sentencing decision addresses the conviction of David Grant for two counts of uttering death threats and one count of causing a disturbance on a TTC bus, motivated by bias against young Muslim women.

The court found the offences were hate-motivated, emphasizing the aggravating factors of targeting vulnerable victims and the significant emotional harm caused.

The judge imposed a conditional sentence order with house arrest and probation, balancing the offender’s rehabilitative prospects and the need for denunciation and deterrence.

The decision highlights the importance of sentencing that reflects societal values against hate crimes and the rise of such offences in recent years.

The accused, S.J., was charged with sexually assaulting his former employee and friend, M., contrary to section 271 of the Criminal Code.

The trial was completed in less than a day, with only the complainant and the accused testifying.

The Crown invited the court to acquit, and the court did so, providing reasons.

The court found the accused’s denials unequivocal and unshaken, and even if not accepting the accused’s evidence, found the complainant’s evidence unreliable due to memory gaps and other concerns.

The decision discusses the distinction between credibility and reliability, referencing several appellate authorities.

The accused, Ismet Bajcinca, brought an application for a stay of criminal proceedings due to unconstitutional delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The court found that almost twenty-seven months passed between the laying of the charge and the anticipated end of trial, significantly exceeding the 18-month ceiling for the Ontario Court of Justice.

The primary cause of delay was identified as the Crown's complacent approach to disclosure and case management, despite some leisurely conduct by the defence.

After calculating the net delay, which was well above the ceiling, and finding no exceptional circumstances, the court granted the stay of proceedings.

The offender, Alan Kumar, sought to reopen his application to stay his conviction or reduce his sentence, alleging excessive force by the arresting officer and a subsequent police cover-up during a 2018 home invasion arrest.

The original application was dismissed by Barnes J. in 2020.

Kumar based his request on newly disclosed McNeil Reports concerning Constable Osborne, the officer in charge, revealing disciplinary actions including a guilty plea to assault and resignation.

The court, Trimble J., dismissed the application to reopen, finding that the new evidence regarding Officer Osborne's misconduct would not have reasonably affected Barnes J.'s original conclusions regarding the use of excessive force or the alleged police collusion, as there was no evidence Osborne was present during the arrest or influenced the arresting officer's actions.

The defendant, Manuel Gomes, brought an application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time as guaranteed by s. 11(b).

The total delay from the swearing of the Information to the anticipated end of trial was 817 days (26.8 months).

The court deducted 112 days for an exceptional circumstance (time between Information sworn and arrest while Gomes was abroad), 28 days for defence delay, and 90 days for the continuing impact of the COVID-19 pandemic.

After these deductions, the net delay was 19.3 months, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The application for a stay of proceedings was granted, and the charge was stayed.

The applicant sought a stay of proceedings under sections 11(b) and 24(1) of the Charter due to unreasonable delay in a sexual assault case.

The total delay was 1,407 days (46 months and 7 days), exceeding the 30-month Jordan ceiling.

The court found the primary cause of delay was the Crown/police's failure to timely provide cellphone extraction reports or return the applicant's phone, which was crucial for the defence.

Despite some periods of defence unavailability, the court determined the state delay was significant and the defence acted reasonably.

The application was granted, and a stay of proceedings was ordered.

The applicants, Lakhpreet Brar and Sukhvir Singh, sought a stay of proceedings under section 24(1) of the Charter due to a breach of their section 11(b) right to be tried within a reasonable time.

The court applied the Jordan framework, calculating the total delay for Brar as 22 months and 10 days, and for Singh as 24 months and 8 days, both exceeding the 18-month Provincial Court ceiling.

The court found minimal defence delay (3 days for Brar, 4 days for Singh) and rejected arguments that COVID-19 or the case's complexity constituted exceptional circumstances justifying the delay.

Consequently, the court found a breach of the applicants' Charter rights and ordered a stay of proceedings for both.

The accused, D.M., was charged with historical sexual exploitation and sexual assault of his 16-year-old niece.

The court applied the principles of R. v. W.(D.) regarding credibility and reasonable doubt.

The complainant's evidence was found credible and reliable despite defence challenges.

The court found the accused guilty of sexual assault, concluding that the Crown proved intentional application of force, lack of consent, knowledge of non-consent, and sexual nature of the act beyond a reasonable doubt.

However, the accused was acquitted of sexual exploitation, as the Crown failed to prove beyond a reasonable doubt that the accused was in a position of trust or authority towards the complainant.

The accused, a bicycle courier, was charged with assault with a weapon, assault causing bodily harm, and mischief under $5,000 following a road rage altercation with a motorist.

After the accused crossed an intersection against a red light and kicked the motorist's car, the motorist exited his vehicle and aggressively confronted the accused.

The accused struck the motorist's raised hand with a bicycle lock and pulled him to the ground.

The court acquitted the accused of mischief due to a lack of evidence that his kick caused the alleged damage.

The court also acquitted the accused of the assault charges, finding that the Crown failed to disprove self-defence under s. 34 of the Criminal Code, as the accused reasonably feared for his safety and his response was proportionate.

The Crown brought an application under s. 714.1 of the Criminal Code to allow the complainant to testify remotely by videoconference from British Columbia.

The defence opposed the application and objected to its late service.

The court granted the Crown leave to proceed despite the late service but dismissed the application on its merits.

The court found that the Crown's supporting affidavit, sworn by a police officer, relied on inadmissible hearsay regarding the complainant's employment and financial hardship, leaving an insufficient evidentiary basis to grant the order.

The Crown brought a pretrial application under section 714.2 of the Criminal Code to allow the complainant to testify remotely from Mexico, or alternatively, for an adjournment of the trial.

The complainant, who was unvaccinated against COVID-19, travelled to Mexico shortly before the scheduled in-person jury trial and refused to return due to fears of being forced into vaccination.

The court dismissed the remote testimony application, finding it would be contrary to the principles of fundamental justice given the complainant's voluntary travel, the poor quality of the internet connection, and non-compliance with notice requirements.

However, the court granted the Crown's alternative request for an adjournment to allow the serious sexual allegations to be tried on their merits.

The applicant, charged with offences related to a home invasion, brought an application alleging that the arresting officer used excessive force by smashing his head into the ground five times, in breach of his rights under ss. 7 and 12 of the Charter.

The applicant sought a stay of proceedings or a reduction in sentence.

The court found that the applicant embellished his injuries and the degree of force used, and that the medical evidence did not support his claims.

The court concluded that the officer's conduct was objectively reasonable in the exigent circumstances of the arrest.

The application was dismissed.

The applicant, one of four co-accused charged with a home invasion, brought an application to sever his trial from his co-accused.

The joint trial was scheduled for a date when the applicant's counsel of choice was unavailable, largely due to the court's efforts to schedule the trial within the Jordan ceiling.

The applicant agreed to waive his s. 11(b) Charter rights if severance was granted.

The court granted the severance, finding that forcing the applicant to proceed without his counsel of choice, when he was not responsible for the scheduling conflict, would violate principles of fairness and the interests of justice.

This is a ruling on committal for three accused charged with a brazen daytime shooting in Regent Park on May 28, 2018, allegedly in retaliation for a shooting in Vanauley Walk the previous day.

The Crown alleges the accused are members of Menace Gang, a junior gang associated with the Project Originals criminal organization.

The accused are charged with numerous offences including possession and discharge of firearms, dangerous driving, and committing these offences for the benefit of a criminal organization.

The court examined party liability under sections 21(1) and 21(2) of the Criminal Code, the admissibility of rap music videos as evidence of criminal organization status, and the distinction between acts that have the effect of benefitting a criminal organization versus acts done for that purpose.

The appellant appealed his conviction for 'Over 80', arguing the trial judge erred by not excluding breathalyzer results under s. 24(2) of the Charter after finding a s. 8 breach and that samples were not taken 'as soon as practicable'.

The Summary Conviction Appeal Court held that failing to take breath samples as soon as practicable deprives the Crown of the statutory presumption of identity but does not automatically violate s. 8 of the Charter.

The court upheld the trial judge's s. 24(2) analysis, finding the impact of the breach was minimal and society had an interest in adjudication on the merits.

The appeal was dismissed.

The defendant was charged with refusing to provide a breath sample for an approved screening device (ASD) contrary to section 254(5) of the Criminal Code.

The charge arose from a 911 call regarding an intoxicated woman in a parking lot near a vehicle.

The defendant's passenger was intoxicated and arrested for public intoxication.

The defendant was subjected to an ASD demand after the officer formed reasonable suspicion based on observing alcohol in the vehicle and smelling alcohol on the defendant's breath.

The defendant was given eight opportunities to provide a suitable breath sample over approximately eight minutes but failed to do so.

The defendant testified that he was attempting to comply but was too nervous and scared.

The court found the defendant guilty, determining that the ASD demand was valid and made forthwith, and that the defendant intentionally refused to provide a sample.

The appellant, an adult, was convicted of robbery with a weapon and use of an imitation firearm after acting as a lookout or driver for five young offenders who robbed a gas station.

He appealed his convictions and his 18-month sentence, arguing the trial judge misapprehended evidence, failed to give a Vetrovec caution for a defence witness, and imposed a disparate sentence compared to his co-accused.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's assessment of the evidence or application of party liability, and concluding the sentence disparity was justified by the appellant's adult status and conviction for the firearm offence.