Leo A. Kinahan

The appellant, Jack Stelwagen, appealed his conviction for sexual assault, arguing that comments made by the trial judge during scheduling proceedings about his ability to hear a section 11(b) Charter application gave rise to a reasonable apprehension of bias and that a mistrial should have been declared.

The Superior Court of Justice reviewed the history of the case, including prior applications and appeals, and concluded that the trial judge’s comments did not demonstrate bias or a closed mind.

The appeal was dismissed.

This is a Crown appeal concerning a stay of proceedings entered by a summary conviction appeal judge due to unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The respondent's sexual assault conviction was quashed by the lower court.

The Court of Appeal found that the summary conviction appeal judge erred in calculating the net delay by mischaracterizing certain periods.

Specifically, the Court determined that a significant period of delay, previously attributed to the trial judge's unavailability or defence delay, should be considered discrete exceptional circumstances arising from an unforeseen witness issue and the Crown's reasonable efforts to mitigate.

The Court concluded that the net delay, when properly calculated, fell below the Jordan ceiling of 18 months for matters in the Ontario Court of Justice.

The appeal was allowed, the stay of proceedings was set aside, the conviction was reinstated, and the matter was remitted to the Superior Court for determination of other outstanding issues.

This is a sentencing decision for Jeffrey Smith, a police officer, who was found guilty of assault (a lesser included offence of assault causing bodily harm).

The court considered the circumstances of the offence, the impact on the victim (an Indigenous individual), and the offender's background, including his exemplary character and lack of prior disciplinary history.

The Crown sought a conditional sentence of 30-60 days, while the defence proposed a conditional discharge.

The court emphasized the heightened principles of denunciation and general deterrence for police officers, but also the individualized nature of sentencing and the importance of proportionality.

The judge found that Smith acted in good faith, believing he had grounds for arrest, and the force used was not excessive, though unlawful.

Considering mitigating factors such as his good character, lack of criminal record, and collateral consequences, the court granted a conditional discharge with a 12-month probation order, including community service and a non-communication term with the victim.

The appellant, Jack Stelwagen, appealed his sexual assault conviction on the ground of unreasonable delay under s. 11(b) of the Charter.

The trial judge had dismissed the s. 11(b) application, finding no breach.

The appellate court found that the trial judge made several analytic and computational errors in assessing defence delay and exceptional circumstances under the R. v. Jordan framework.

Specifically, the trial judge incorrectly attributed significant periods of systemic delay (due to judicial unavailability and per diem judge scheduling issues) to the defence or as exceptional circumstances.

The appellate court recalculated the delay, finding that after subtracting only two weeks of defence delay and approximately seven months of COVID-19 related exceptional circumstances, the total delay of approximately 19 months and 1 week still exceeded the 18-month presumptive ceiling for provincial court trials.

Consequently, the court found a breach of the appellant's s. 11(b) Charter rights, quashed the conviction, and entered a stay of proceedings.

The applicant, Zosia Ruchlewicz, charged with impaired driving and "80 plus," sought a stay of proceedings under s.11(b) of the Charter, alleging a violation of her right to a trial within a reasonable time.

The total delay was approximately 26 months.

The court analyzed the delay using the R. v. Jordan framework, deducting defence delay and delay attributable to the COVID-19 public health crisis as a discrete event.

The net delay, after deductions, was found to be below the 18-month presumptive ceiling.

The court also found that the case did not take "markedly longer" than it reasonably should have, despite some defence inaction regarding disclosure.

The application for a stay of proceedings was denied.

The defendant, Noah Poisson, was convicted of impaired driving causing death after his vehicle veered off the road, resulting in the death of his passenger, Parker Pautsch.

The defendant's blood alcohol concentration was between 129 to 171 mg of alcohol in 100 ml of blood at the time of the accident.

At the sentencing hearing, the Crown sought a 7-year jail sentence, while the defence argued for 2-3 years, citing the defendant's youth, remorse, and community support.

The court emphasized denunciation and general deterrence as paramount sentencing objectives for impaired driving offences, acknowledging the increasing range of sentences for such crimes.

While considering mitigating factors like the defendant's youth and genuine remorse, the court found that these could not outweigh the serious nature of the offence and the tragic loss of life.

A sentence of 5 years in custody was imposed, along with a DNA sample order and a 7-year driving prohibition.

This ruling addresses six substantive pre-charge issues in a manslaughter jury trial.

The court decided to leave the defence of consent to fight with the jury for the accused Zenczuk, but excluded evidence of his post-offence laughter as it lacked probative value and carried high prejudice.

For accused Clare, the court declined to instruct the jury on aiding or on s. 21(2) liability due to insufficient evidence of a common intention to commit a group assault.

The court also clarified the instruction regarding the inference of encouraging words uttered by Clare and limited the admissibility of the victim's criminal record to only the most recent assault conviction, deeming older convictions too remote to be probative of current disposition.

This ruling addresses the appropriate jury instruction when directed verdicts of acquittal and stays of proceedings are granted against some, but not all, defendants in a joint criminal trial.

The court considered arguments from defence counsel, who sought to withhold reasons for the defendants' departure, and the Crown, who advocated for instructions consistent with R. v. Rowbotham.

The judge decided to instruct the jury on the directed verdicts and stays, have the Crown enter stays in the jury's presence, and provide a cautionary instruction to prevent speculation and ensure individual assessment of guilt for the remaining defendants.

This decision provides supplemental reasons for directed verdict applications in a criminal trial involving charges of manslaughter, assault with a weapon, and assault causing bodily harm.

The Crown sought to rely on s. 21(2) of the Criminal Code to establish liability for manslaughter against all defendants, clarifying a previous misunderstanding of their position.

The court, however, found that even with the application of s. 21(2), there was insufficient evidence to establish a common intention among the defendants to commit a group assault on the pedestrians, which is a prerequisite for extended liability under s. 21(2).

Consequently, the earlier directed verdicts of acquittal for manslaughter against two defendants and assault causing bodily harm against two others remained undisturbed.

The court ruled on directed verdict applications for four defendants charged with manslaughter, assault with a weapon, and assault causing bodily harm following a fatal altercation.

The judge dismissed the assault with a weapon charge for all defendants due to insufficient evidence.

Manslaughter charges were dismissed for two defendants (Ampadu and Paniccia) but proceeded for two others (Clare and Zenczuk).

Assault causing bodily harm charges proceeded for two defendants (Ampadu and Paniccia) but were dismissed for the other two (Clare and Zenczuk).

The court found insufficient evidence for a common intention to attack all pedestrians, requiring individual assessment of party liability.

The Crown sought to exclude cell phone copies of surveillance video in a manslaughter trial, arguing they were unreliable due to unexplained differences from the original and violated the best evidence rule.

The defence contended the cell phone copies offered superior clarity and had been used without objection in a prior mistrial.

The court dismissed the Crown's application, finding the cell phone copies met the threshold for reliability, provided the clearest images, and thus satisfied a common sense application of the best evidence rule, emphasizing that "original" does not always mean "better" in terms of evidence quality.

The defendants, jointly charged with manslaughter and assault, brought a motion seeking further disclosure from the Crown.

The applications concerned two areas: notes taken by police officers during witness preparation meetings with the Crown, and materials the Crown intended to use to cross-examine a proposed defence expert witness (a toxicologist) on the issue of bias.

The Crown opposed both applications, arguing that the notes contained no new relevant information and were subject to litigation privilege, and that the expert's prior testimony transcript was a matter of public record and not part of the "fruits of the investigation." The court ruled that the Crown was obliged to disclose both the officers' notes, finding them relevant and not privileged, and the transcript of the expert's prior evidence, as it related to the expert's impartiality and the accused's constitutional right to make full answer and defence.

The court emphasized the Crown's role as a minister of justice, prioritizing the proper administration of justice over tactical litigation advantages.

The request for "will-say" statements from officers who did not take notes was denied, as it would amount to creating evidence rather than disclosing existing material.

The Crown brought an application to relitigate two prior evidentiary rulings made during an initial trial that ended in a mistrial.

The rulings concerned the admissibility of a witness's statement and the scope of cross-examination regarding an alleged attempt to influence testimony.

Applying s. 653.1 of the Criminal Code and the "interests of justice" factors from R. v. Victoria, the court found that the prior rulings were not clearly wrong and that no new evidence or arguments were presented to justify relitigation.

The application was dismissed, affirming the binding nature of the previous evidentiary decisions for the re-trial.

The applicant sought to exclude medical records, blood, and urine samples seized by police with a warrant in an impaired driving investigation.

The applicant argued the Information to Obtain (ITO) contained omissions and mischaracterizations, and that blood was drawn without permission in contravention of Charter rights.

The court found minor, unintentional errors in the ITO that did not affect warrant issuance, and that the blood was drawn for medical purposes, not at police behest, thus no Charter breach occurred.

Even if a breach existed, the evidence would be admitted under s. 24(2) of the Charter due to the low seriousness of state conduct, high privacy interest, and strong societal interest in adjudication on the merits of a serious offence.

The application was dismissed.

The accused sought a stay of proceedings or, alternatively, an exclusion of evidence (blood samples and medical records) due to an alleged violation of his Section 7 Charter right to a fair trial.

The application was based on the conduct of two Crown witnesses who communicated with each other in breach of a court order excluding witnesses.

The court dismissed the application, finding that the accused's Section 7 rights were not violated.

The judge determined that while the communication was improper, it was not subversive or contemptuous, did not materially affect the witnesses' credibility or the reliability of their evidence, and did not warrant a stay of proceedings or exclusion of evidence, particularly as there was no Crown or police involvement in the alleged impropriety.

The accused was charged with impaired driving causing death, excess blood alcohol causing death, and dangerous driving causing death following a fatal motor vehicle collision.

The Crown successfully applied to amend the indictment to remove a reference to "drug" from the impaired driving charge, which the court granted, emphasizing substance over form and the absence of prejudice.

The court found the accused was the driver, established continuity of blood samples, and concluded that the accused was impaired by alcohol, which materially contributed to the accident and the victim's death.

The accused was convicted of impaired driving causing death, with the other two counts conditionally stayed under the *Kienapple* principle, as the wrongful conduct for all charges was deemed to overlap.

The Crown appealed the trial judge's decision to grant a directed verdict of acquittal on charges of aggravated assault and obstruction of justice.

The respondent was accused of pushing the complainant down exterior stairs at a bar.

The trial judge found that the Crown had not met its burden of proof beyond a reasonable doubt based on circumstantial evidence from security camera footage that did not capture the critical moment.

The Court of Appeal found that the trial judge erred in applying the test for directed verdict by weighing inferences rather than determining whether any evidence existed upon which a reasonable jury could convict.

The appeal was allowed, the acquittals were set aside, and a new trial was ordered.

The accused was charged with sexual assault and sexual interference of a 10-year-old child.

The Crown alleged that the accused touched the victim's breasts while tickling her in his bedroom and again at the top of the stairs, warned her not to tell anyone, and touched her buttocks.

The accused admitted to physical contact but denied sexual assault.

The court found that the Crown proved the physical and mental elements of sexual assault beyond a reasonable doubt based on the victim's credible testimony, the accused's admissions and contradictions, and the circumstances of the touching.

However, the court found a reasonable doubt as to whether the accused's subjective motivation was for a sexual purpose, acquitting on the sexual interference charge.

The offender, Mitchell Irwin, pleaded guilty to dangerous driving causing death, failing to stop, and failing to comply with a recognizance.

The Crown and defence presented a joint submission for a four-year and fourteen-day term of imprisonment, which the court accepted.

The primary contested issue was the length of the driving prohibition.

Considering aggravating factors such as excessive speed, aggressive driving, prior infractions, and leaving the scene to dispose of evidence, alongside mitigating factors including youth, prior good character, and remorse, the court imposed a total sentence comprising the agreed imprisonment, a 6-year driving prohibition (effective 8 years), a DNA order, a no-contact order, and a 10-year weapons prohibition.

The appellant appealed the imposition of a peace bond following an acquittal on a charge of breach of recognizance.

The trial judge imposed the peace bond without giving notice that such an order was being contemplated and without allowing the accused to make submissions or call evidence on whether it should be imposed.

The appeal court held that imposing a peace bond without affording the accused an opportunity to be heard breached principles of natural justice and procedural fairness.

The court also found there was no evidentiary basis for the peace bond, as the trial judge relied on speculation and irrelevant considerations rather than evidence establishing a risk of future breach of the peace.

The peace bond was quashed.