Leora Shemesh

The accused, charged with first-degree murder and attempted murder, sought review of a single judge's decision denying bail pending his application for leave to appeal to the Supreme Court of Canada from a Court of Appeal detention order.

The Court of Appeal panel dismissed the application, holding that s. 679(1)(c) of the Criminal Code does not apply to bail pending leave to appeal from a bail decision under s. 680, but rather to appeals from conviction/sentence.

While the Court could exercise its power under s. 65.1 of the Supreme Court Act to stay the detention order, the original release plan, which relied on specific sureties, could no longer be met, and substituting new sureties would constitute a significant refashioning of the original order, which was characterized as a "close call."

The applicant sought a stay of charges for unreasonable delay under section 11(b) of the Charter, arguing the 42-month delay exceeded the 30-month Jordan threshold.

The Crown contended that defence delay and the COVID-19 pandemic, an exceptional circumstance, reduced the net delay below the threshold.

The court dismissed the application, finding that after deducting 42 days for defence unavailability in setting the preliminary inquiry and 8 months for the defence's waiver of 11(b) rights, plus 5.5 months for pandemic-related delay, the net delay was approximately 27 months and one week, which was reasonable and below the presumptive ceiling.

Following a successful Crown application to review the accused's release on bail under s. 680 of the Criminal Code, the Court of Appeal posted its reasons online.

Both the Crown and the accused raised concerns that the reasons should be withheld or edited due to a publication ban under s. 517.

The Court held a hearing and determined that the reasons must be published in full.

The Court found no express statutory authority applying s. 517 to s. 680 reviews, noted that the original bail judge's reasons were already widely available online, and concluded that publishing edited reasons would be unintelligible and contrary to the open court principle.

The Crown applied for a review of a second bail judge's decision to release the accused, who was charged with first-degree murder and conspiracy.

The second bail judge had found a material change in circumstances based on new evidence regarding the identity of a purchaser of GPS trackers and the onset of the COVID-19 pandemic.

The Court of Appeal allowed the Crown's application, finding that the second bail judge made a palpable and overriding error in assessing the strength of the Crown's case and erred in law by treating the pandemic as an automatic material change without considering it in the context of the first bail judge's findings.

The accused was ordered detained pending trial.

The Crown applied to quash a subpoena issued by the respondent to an assistant Crown attorney.

The respondent, who was facing murder charges, sought to compel the prosecutor to testify at a hearing regarding alleged prosecutorial misconduct, after a witness claimed the prosecutor had coached him to change his evidence.

The court granted the application to quash the subpoena, finding that the respondent failed to meet the stringent test of demonstrating that the prosecutor's evidence was necessary, as another police officer was present during the relevant meetings and could testify to the events.

This decision provides reasons for an inquiry into an incident where the accused, David Baichoo, appeared in a security gown, naked underneath, on the first day of his first-degree murder trial.

The incident, which led to the loss of a trial day and compromised the dignity of the proceedings, was attributed to the Toronto South Detention Centre (TSDC).

The court found that the TSDC's reliance on unreliable body scans for contraband and the indifference of staff, particularly Sgt. Polanski, led to the deplorable situation.

Despite the subsequent abandonment of the defence's application for costs, the court issued these reasons to highlight systemic failures in the treatment of accused persons and to ensure accountability.

The applicant sought review of a detention order made by a Superior Court judge under s. 680(1) of the Criminal Code.

The applicant was charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder.

The Court of Appeal found no error of law, principle, or palpable and overriding error in the application judge's factual findings regarding the primary and secondary grounds for detention.

The court upheld the detention order, finding the application judge's conclusions about the strength of the Crown's case and the fragility of the proposed release plan to be reasonable.

The defendant brought a bail review application seeking release from custody on charges of unauthorized possession of a loaded restricted handgun, possession of over-capacity magazines, and possession of ammunition.

The defendant had been in custody since August 17, 2018.

The Crown opposed release, emphasizing the serious nature of the firearm offences, the presence of ammunition, evidence of children in the home, and concerns about the sureties' ability to monitor.

The defence argued for release based on a material change in circumstances, including the withdrawal of a reverse-onus charge, the proposed supervision plan with three sureties, and concerns about pre-trial custody approaching sentence length.

The court found the defendant had not met the onus to demonstrate a substantial or material change in circumstances but left the door open for renewal in August after trial proceedings.

This ruling addresses the admissibility of foot impression evidence in a first-degree murder trial.

The Crown sought to introduce expert testimony and circumstantial evidence linking the accused's shoes to an impression found at the crime scene.

The defence objected, challenging the expert's qualifications and the relevance of the evidence due to perceived weaknesses in the chain of reasoning and lack of uniqueness of the shoe tread.

The court found the forensic identification officer qualified as an expert in foot impression analysis and deemed the evidence sufficiently necessary and relevant, ruling it admissible.

The applicant challenged the validity of search warrants for a residence and motor vehicle on section 8 Charter grounds, arguing insufficient credible and reliable evidence supported the issuance of the warrants.

The court found that the Information to Obtain contained misleading statements, material omissions, and insufficient indicia of informant credibility and reliability.

After excising erroneous information and considering unredacted portions under the Garofoli "Step Six" process, the court determined there were insufficient grounds establishing a credibly based probability that evidence would be found at either location.

The court excluded all evidence seized from both the residence and motor vehicle under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was found guilty of manslaughter by a jury after fatally stabbing an unarmed, inebriated victim.

The jury rejected the accused's claim of self-defence.

The sentencing judge found that the accused had a safe avenue of escape and used excessive force, but noted mitigating factors including the accused's youth, lack of prior record, remorse, and an element of provocation by the victim.

The accused was sentenced to 6 years' imprisonment, less credit for pre-trial custody.

The Crown applied for an order quashing a preliminary inquiry judge's discharge of the respondent on drug possession charges and seeking mandamus to commit him to trial.

The Crown argued the preliminary inquiry judge committed jurisdictional error by improperly weighing circumstantial evidence and failing to consider the whole of the evidence regarding the respondent's knowledge and control of drugs found in a condominium.

The Superior Court dismissed the application, finding that the preliminary inquiry judge properly applied the test for committal and that any error made was regarding the sufficiency of the evidence, which falls within her jurisdiction and is not subject to certiorari.

The defendant was convicted after trial of impaired (by drug) driving causing bodily harm contrary to s. 255(2) of the Criminal Code and failure to comply with a demand for a urine sample contrary to s. 254(5) of the Criminal Code.

The defendant was found stopped in a driveway while impaired and, when police arrived, his vehicle backed up slowly and struck a police officer, causing bodily harm to the officer's knee.

The defendant refused a lawful demand to provide a urine sample.

At sentencing, the Crown sought 7 months imprisonment and a 3-year driving prohibition, while the defendant sought a suspended sentence with a fine and increased licence suspension.

The court imposed a custodial sentence of 60 days for the impaired driving causing bodily harm and 30 days for the failure to provide a urine sample, to run consecutively, plus a 2-year driving prohibition.

During a trial for importing cocaine, the defence applied to admit the accused's videotaped statement to the RCMP as evidence of her reaction and consistency under the Edgar exception.

The accused had been arrested by the CBSA after cocaine was found in her luggage and was interviewed by the RCMP over seven hours later.

The court dismissed the application, finding that the statement was neither made when the accused was first confronted with the accusation nor spontaneous, as she had been in custody for several hours and had time to reflect.

The accused entered a guilty plea to possession of a loaded prohibited firearm and possession of methylenedioxyethylvalerone (bath salts) for the purpose of trafficking.

The plea was entered shortly after the Supreme Court of Canada struck down the mandatory minimum sentence in R. v. Nur.

The accused subsequently sought to have the plea struck, arguing ineffective assistance of counsel.

The court struck the plea, but not on the basis of ineffective assistance.

Rather, the court found that the accused did not fully understand the ramifications of entering the plea, particularly that Charter violations could no longer be argued post-plea.

The court noted the accused's tendency to hear what he wanted to hear and the difficulty in assessing his true comprehension of the proceedings.

The defendant was charged with impaired driving by drug causing bodily harm and refusal to provide a bodily substance sample.

The defendant drove his vehicle into a stranger's driveway and fell asleep at the wheel.

When police attended, the defendant's vehicle rolled backward, pinning an officer between the two vehicles and causing injury to the officer's knee.

A drug recognition expert concluded the defendant was impaired by cannabis and a central nervous system depressant.

The defendant was found guilty of impaired driving causing bodily harm and refusal to comply with a demand for a bodily substance sample.

The court rejected the defendant's Charter s. 10(b) application, finding his rights to counsel were properly upheld and that no second consultation with counsel was required before the bodily substance demand.

During a murder trial, the defence applied for a mistrial based on alleged misrepresentations and misstatements made by the Crown in its closing address to the jury.

The defence argued that the Crown's comments regarding DNA evidence, witness immunity, and the accused's testimony fatally wounded the trial process.

The court reviewed the eight alleged errors and concluded that while some statements were inaccurate or lacked an evidentiary basis, they did not individually or cumulatively constitute a fatal wounding of the trial process.

The court dismissed the application, finding that the errors could be adequately addressed through limiting instructions to the jury.

During a jury trial for second degree murder, the accused sought an order permitting the jury to view the alleged stabbing scene to assess the eyewitness evidence.

Applying the interests of justice standard under s. 652 of the Criminal Code and the framework articulated in prior authority, the court held the accused had not shown a very real and demonstrable advantage from a view.

The court found that photographs, surveillance video, maps, and available distance evidence adequately conveyed the relevant information, while a site visit risked introducing untested extrinsic evidence and posed logistical and security concerns.

The application was denied.

The applicant, charged with second degree murder, brought a pre-trial motion to admit evidence of the deceased's disposition for aggressive and provocative behaviour when intoxicated.

The applicant intended to argue self-defence at trial.

The court considered whether evidence of the deceased 'beaking off' to strangers was logically relevant to the issue of who was the aggressor in the fatal confrontation.

The court ruled the evidence admissible, finding it minimally supportive of the deceased's aggressive nature when drinking and concluding its probative value was not substantially outweighed by potential prejudice.

This decision concerns a bail recognizance estreatment hearing following the accused's breach of a house arrest condition.

The accused, Mark Meulendyks, breached his $50,000 recognizance, for which his father, John Meulendyks, acted as sole surety.

The Crown sought forfeiture of the full amount.

The court found the accused solely at fault for the breach but declined to order forfeiture against him due to undue hardship and inability to pay.

Despite the surety's diligence in monitoring the accused, the court ordered the surety to forfeit $25,000, emphasizing the importance of the moral pressure exerted by the recognizance and the surety's role as an assurance of compliance.