Leora Shemesh

Following a conviction for indecent assault, the applicant brought a post-conviction motion seeking a mistrial or leave to reopen the trial.

The applicant argued the court misapprehended evidence about the nature of the touching and failed to find that a prior inconsistent statement by the complainant was a deliberate lie.

The court held it did not misapprehend the evidence and declined to provide further clarification.

The court found the defence made a tactical decision at trial not to recall the witness to cross-examine on the inconsistency, relying instead on an Agreed Statement of Fact.

Applying the Palmer test and principles from Kowall, the court declined to reopen the trial or order a mistrial based on this tactical choice.

In a judge-alone historic sexual assault trial involving multiple complainants and allegations spanning several decades, the court acquitted on most counts but convicted on one count of indecent assault and one count of sexual assault.

The court held that count-to-count similar fact evidence was inadmissible because the proposed similarities were generic, one complainant's evidence was incapable of belief, and the overall probative value did not outweigh prejudice.

The abuse of process application was not pursued to a stay at the close of the case, and the court treated the investigative shortcomings as matters potentially bearing on reliability rather than as grounds for terminating the proceedings.

Applying orthodox principles of credibility, reliability, consent, and mens rea in historic sexual assault cases, the court found two complainants reliable on the central acts alleged and found the remaining allegations too uncertain to meet the criminal standard.

The accused brought a Charter application seeking the exclusion of a loaded firearm discovered during a search incident to arrest for impaired driving.

The accused was found unresponsive in a running vehicle in the middle of an intersection.

The court found that the initial investigative detention and subsequent arrest were lawful, and that the police complied with their obligations under ss. 10(a) and 10(b) of the Charter.

The court concluded there were no Charter breaches, and alternatively, that the evidence would not be excluded under s. 24(2).

The application was dismissed.

The defendant/applicant brought a certiorari application to quash his committal for trial on a charge of rape contrary to the former s. 144 of the Criminal Code, alleged to have occurred between July 1980 and July 1981.

The complainant testified she had no memory of events between being at a bar and waking up during intercourse with the accused, and stated she would not have consented.

The applicant argued the preliminary inquiry judge failed to engage in the limited weighing of circumstantial evidence required by Arcuri.

The reviewing court held that the preliminary inquiry judge correctly applied the committal test, finding available circumstantial evidence sufficient to support an inference favourable to the Crown, and that the existence of competing inferences was irrelevant at this stage.

The application was dismissed.

The accused, charged with first-degree murder, sought disclosure of the contents of cell phones seized from the victims' vehicle.

The Crown had categorized the contents and withheld certain materials as clearly irrelevant.

The trial judge declined to personally review the voluminous digital materials, holding that where the defence articulates an issue to which a category of materials might be relevant, the Crown fails to discharge its burden of proving clear irrelevance.

The court ordered the disclosure of most disputed categories, limited to the four-week period authorized by the search warrants.

The appellant, Jomal Brown, appealed his convictions for possession of various illicit drugs for the purpose of trafficking, possession of proceeds of trafficking, and several firearm offences.

The appeal also challenged the application judge’s dismissal of his Charter application, which was denied on the basis that Brown had no reasonable expectation of privacy in the unit where the items were seized.

During appeal preparation, Crown counsel identified a trial fairness issue: the Crown had taken inconsistent positions regarding Brown’s residence in the unit at different stages of the proceedings.

With the consent of both parties, the Court of Appeal allowed the appeal, set aside the convictions and Charter ruling, and ordered a new trial on all issues.

The decision addresses an application by Tenzin Palden to exclude evidence of cocaine seized during his arrest, on the basis of alleged violations of sections 7, 8, 9, and 10(b) of the Charter.

The court finds that while there was no breach of sections 8 or 9, and no breach of section 7 regarding body-worn cameras, there was a breach of section 10(b) due to delay in access to counsel.

However, the evidence is not excluded under section 24(2) of the Charter, as the breach was not sufficiently serious to bring the administration of justice into disrepute.

The defendant brought a pre-trial motion to exclude evidence obtained from a dash camera and its memory card, arguing a violation of section 8 of the Charter due to a warrantless search.

The court found that while the dash camera was lawfully seized under s.489(1)(c) of the Criminal Code, the subsequent search of its memory card was warrantless and violated the defendant's section 8 Charter rights, as the search warrant did not explicitly cover such a device.

However, applying the Grant test under section 24(2) of the Charter, the court determined that the police acted in good faith based on an understandable mistake, the evidence was inevitably discoverable, and its admission was crucial for the truth-seeking function of the trial, particularly regarding the defendant's statements about the altercation.

Consequently, the motion to exclude the evidence was dismissed, and the audio and video recordings were deemed admissible.

The defendant was charged with possession of cocaine for the purposes of trafficking.

The Crown's case relied on circumstantial evidence, including the defendant operating his vehicle where cocaine was found in the centre console.

The court applied the principles of reasonable doubt and constructive possession, emphasizing that vehicle ownership does not create a presumption of knowledge or possession.

Due to numerous gaps in the prosecution's evidence, including lack of forensic links, inconsistent vehicle control, and insufficient investigation into other potential users, the court found reasonable doubt regarding the defendant's knowledge and control of the cocaine.

The defendant was acquitted.

The applicant brought a pre-trial motion alleging violations of his Charter rights under ss. 8 and 10(b) and seeking the exclusion of cocaine and cash seized from his residence.

The court found a minor s. 10(b) breach due to a brief delay in advising the applicant of his right to counsel upon arrest.

However, the court dismissed the s. 8 claims, finding that exigent circumstances justified the initial warrantless entry to freeze the residence, and that the subsequent search warrant was valid despite errors in the Information to Obtain.

Applying the Grant framework, the court concluded that the admission of the evidence would not bring the administration of justice into disrepute and dismissed the application to exclude the evidence.

The defendant, Shamal Searchwell-Beals, subpoenaed D.C. Graham for a Charter application.

D.C. Graham sought to be excused from testifying under s. 700(2) of the Criminal Code due to medical grounds (PTSD).

The court applied a modified four-part test from R. v. N.S., considering whether the witness's health would be seriously jeopardized, if excusing them would risk trial fairness, if accommodation was possible, and if salutary effects of testifying outweighed deleterious effects.

The court found D.C. Graham's health would be seriously jeopardized, excusing him would risk trial fairness for the defendant, but no effective accommodation was possible.

Ultimately, the court concluded that the salutary effects of compelling testimony did not outweigh the deleterious effects on the witness's health, especially given the potential unreliability of his testimony and the existence of alternative evidence.

D.C. Graham was excused from testifying.

In a first-degree murder trial, the Crown sought pretrial rulings on the admissibility of two pieces of evidence: photos of gas cans found on the respondent's phone and in his residence, and a text exchange between the respondent and an unidentified individual.

The respondent admitted to driving the vehicle involved in the shooting and the presence of his DNA on a glove near the later-burned vehicle.

The court ruled the gas can evidence moot for admissibility purposes after the respondent testified at trial that he urged the alleged shooter to destroy the vehicle.

The text exchange was deemed inadmissible as it was speculative and lacked sufficient context to establish that the ultimate victim was targeted.

All contentious evidence was ruled inadmissible.

The accused brought a Charter application to exclude evidence obtained by police during a murder investigation, alleging breaches of various Charter rights, including those related to search and seizure and rights upon detention.

The court analyzed the validity of production orders for banking records, warrantless review of surveillance video, the lawfulness of detention and seizure of electronic devices, and the validity and execution of a search warrant for cellphones.

The decision outlines specific findings on each alleged breach, determining some police actions were lawful while others violated the accused's Charter rights.

Michael Dalia was convicted of drug offences, including possession of fentanyl and cocaine for the purpose of trafficking.

The Crown sought a 16-year sentence for fentanyl-related counts, while the defence requested a global sentence of 10 years, arguing Dalia was a mid-level trafficker with significant mitigating factors, including harsh pre-sentence custody conditions.

The court considered the gravity of the offences, the offender's criminal record, and the impact of fentanyl trafficking, applying principles of denunciation and deterrence.

The court also applied a "Duncan credit" for the unduly harsh conditions of Dalia's pre-sentence custody.

Ultimately, a 13-year sentence for the fentanyl count was imposed, reduced to 10 years after the Duncan credit, with concurrent sentences for other counts.

The applicant, Maisum Ansari, brought an application under s. 11(b) of the Charter, seeking a stay of proceedings due to alleged unreasonable delay in the delivery of the trial judge's reasons for conviction.

The original trial judge was medically unable to continue, and the application was heard by a different Regional Senior Justice.

The court found that the period of judicial delay in delivering reasons was 7.2 months, calculated from the completion of all submissions after the re-opened trial.

Applying the test from R. v. K.G.K., the court determined that the delay was not "markedly longer than it reasonably should have in all of the circumstances" and that the applicant failed to rebut the presumption of judicial integrity.

The application for a stay of proceedings was dismissed.

The applicants, charged with robbery of a firearm, brought a Charter motion challenging the validity of search warrants executed at their residences.

The police had obtained the warrants based on an Information to Obtain (ITO) that linked the applicants' vehicles to the robbery, but relied on generalized assumptions to conclude that evidence would be found in their homes over two months later.

The court found that the ITO lacked case-specific evidence connecting the residences to the offence, rendering the searches a violation of section 8 of the Charter.

Applying the Grant framework, the court concluded that the serious impact on the applicants' privacy rights and the sloppy police conduct warranted the exclusion of the evidence under section 24(2).

This criminal trial addressed charges of impaired driving and refusal to provide a breath sample, alongside a Charter s. 9 application alleging arbitrary detention due to an 'over-hold' in police custody.

The court found the defendant was severely intoxicated and that the detention, lasting nearly six hours, was justified for public safety and was continuously monitored.

The s. 9 Charter application was dismissed, and the defendant was found guilty of both impaired driving and refusal to provide a breath sample.

The accused was found guilty of possession of a restricted firearm, possession of a weapon for a purpose dangerous, and being an occupant in a motor vehicle knowing there was a prohibited firearm, following a shootout where he was severely injured.

The Crown sought a further 18 months in custody, while the defence sought a conditional sentence due to the accused's severe injuries, lack of criminal record, and strict compliance with bail conditions for 34 months.

The court emphasized the need for denunciation and deterrence but found that the accused's unique circumstances, including his traumatic background and life-altering injuries, warranted a non-custodial sentence.

The accused was sentenced to a conditional sentence of two years less a day, followed by three years of probation.

The accused, Steven Karapetrov, was on trial for attempted murder, discharge firearm, and related offences following a shootout captured on video.

The Crown conceded the attempted murder charge.

The court had to determine if Karapetrov fired shots, if they were accidental, and if self-defence applied.

The court found Karapetrov did fire shots, rejected the accidental discharge claim, but found that self-defence applied to some charges due to the imminent lethal threat he faced.

He was acquitted of pointing a firearm and reckless discharge, but convicted of possession of a restricted firearm, possession of a weapon for a dangerous purpose, and being an occupant in a vehicle with a prohibited firearm.

The accused, Marko Tubic and Kenneth Clifford, were charged with first-degree murder.

The Crown's case relied heavily on the testimony of a Vetrovec witness, Abdul-Aziz Ahmed, corroborated by forensic and surveillance evidence.

The court found the Vetrovec witness's testimony required extreme caution due to inconsistencies and motives to lie.

However, independent confirmatory evidence supported material aspects of his testimony regarding a physical altercation and the disposal of the victim's body.

The court found reasonable doubt as to whether the victim was alive when thrown over the bridge, thus precluding a first-degree murder conviction based on that specific act.

However, considering Tubic's extensive post-offence conduct (cleaning, disposing of body, hiding evidence, attempting to use victim's bank card), the court inferred intent to cause death or serious bodily harm, finding Marko Tubic guilty of second-degree murder.

Kenneth Clifford was found not guilty, as there was reasonable doubt regarding his involvement in the death or the plan to dispose of the body, and his post-offence conduct indicated distress rather than complicity.