Leora Shemesh

The applicant brought a motion under s. 11(b) of the Charter alleging a violation of his right to be tried within a reasonable time.

The total delay from charge to the anticipated end of trial was 34 months, exceeding the 30-month presumptive ceiling established in Jordan.

After deducting 56 days of defence delay, the net delay remained above the ceiling.

The Crown argued that the adjournment of the preliminary inquiry due to a co-accused's retainer issues constituted an exceptional circumstance.

The court rejected this argument, finding the Crown could have remedied the delay by severing the accused.

The court found a violation of s. 11(b) and stayed the charges.

The accused, Mr. Wu, brought a Charter application to exclude evidence in his second trial for drug trafficking and possession of crime proceeds, alleging violations of his right to counsel under s. 10(b).

The Crown conceded a s. 10(b) breach but argued for the admission of evidence.

The court found multiple and serious s. 10(b) violations, including an 11-hour delay in providing access to counsel, unrecorded interviews conducted during the suspension of rights, and misleading testimony by the investigating officer at the first trial.

Applying the R. v. Grant s. 24(2) analysis, the court concluded that the seriousness of the state conduct and the impact on the accused's Charter interests significantly outweighed society's interest in an adjudication on the merits.

Consequently, all evidence seized during the related investigation was excluded.

The offender was found guilty of production of marijuana and possession for the purpose of trafficking after police discovered 818 marijuana plants in a residential grow operation.

The offender, who acted as a caretaker or gardener, challenged the constitutionality of the two-year mandatory minimum sentence under s. 7(2)(b)(v) of the Controlled Drugs and Substances Act.

The court found that while the mandatory minimum was not grossly disproportionate for this specific offender, it violated s. 12 of the Charter based on reasonably foreseeable hypothetical scenarios involving licensing infractions.

The mandatory minimum was struck down, and the offender was sentenced to 12 months' imprisonment.

The accused was charged with drug-related offences following a search warrant executed at his residence.

The defence brought an application to exclude evidence seized during the search, arguing that the Information to Obtain (ITO) supporting the warrant contained erroneous and misleading information and that the search breached section 8 of the Charter.

The Crown argued that the ITO contained sufficient reliable grounds to support the warrant's issuance.

The court conducted a detailed review of the warrant application, examining allegations of errors in the ITO regarding surveillance observations, and determined that despite certain inaccuracies, the warrant was supported by reliable grounds and that any breach would not warrant exclusion of evidence under section 24(2) of the Charter.

The applicants, Aaron Kennedy and Sean McDermott, sought a stay of proceedings under s. 24(1) of the Charter, alleging a breach of their right to be tried within a reasonable time under s. 11(b).

The court applied both the R. v. Morin and the new R. v. Jordan frameworks for assessing delay.

While acknowledging significant Crown delay due to late disclosure, the court found that the total delay, after accounting for defence-attributable delays (such as Mr. McDermott's vacation choice), fell below the presumptive ceiling established in Jordan.

The court also considered the prejudice to the accused, noting Mr. Kennedy's continued detention, but ultimately dismissed both applications, finding no Charter breach.

This is Mr. Kennedy's seventh bail application, seeking release on a bail review.

He is facing multiple serious charges including kidnapping, assault causing bodily harm, unlawful confinement, extortion, and uttering death threats, along with a probation breach.

The applicant proposed release to a surety with conditions, including an ankle bracelet.

The court dismissed the application, finding a substantial likelihood of him committing another offence if released, based on his lengthy and violent criminal record, including an assault conviction while in custody on the current charges, and the serious nature of the pending allegations.

The accused, Aaron Kennedy, brought a further bail review application after previous applications were dismissed.

The application was based on alleged material changes in circumstances, including trial delay, new evidence undermining the complainant's credibility (extortion attempts, phone records inconsistent with alleged confinement), and a new proposed release plan incorporating regular police reporting and ankle monitoring.

The court found a material change in circumstances but ultimately dismissed the application, determining that detention remained necessary on the secondary ground due to Kennedy's extensive criminal record, history of breaching court orders, and committing an assault while in custody.

The proposed release plan was deemed insufficient to mitigate the substantial likelihood of re-offending.

The applicant brought a Charter motion under sections 8 and 24(2) to quash a search telewarrant and exclude evidence seized from his residence.

The warrant was based on information from a confidential informant.

After applying the Step Six procedure from Garafoli to review redacted portions of the Information to Obtain, the court assessed the informant's tips based on their compelling nature, credibility, and police corroboration.

The court found the information sufficient to justify the warrant.

The court also dismissed the applicant's argument that the police improperly used a telewarrant, finding that personal attendance before a justice was impracticable under the circumstances.

The application was dismissed.

The accused, charged with kidnapping for ransom and related offences, applied for a bail review after being detained on secondary and tertiary grounds.

The reviewing judge found that the original bail judge erred in disqualifying the accused's mother as a surety simply because she believed in his innocence.

With a bolstered release plan including a larger financial pledge, an additional surety, and electronic monitoring, the court concluded the secondary and tertiary concerns were adequately addressed.

The application was granted and the accused was released on strict conditions.

The applicant challenged the validity of a search warrant issued under section 8 of the Canadian Charter of Rights and Freedoms, seeking to exclude evidence of a marijuana grow operation discovered at 277 Birkdale Road in Toronto.

The warrant was based on a Crime Stoppers tip, hydro consumption records showing a cyclical pattern consistent with indoor cultivation, police observations including a snow-free roof patch, and information that the applicant previously held a medical marijuana production license.

The court dismissed the application, finding that reasonable and probable grounds existed for the warrant's issuance based on the totality of the circumstances, particularly the distinctive cyclical hydro consumption pattern corroborated by police investigation.

The accused was charged with several firearms offences after taking a firearm and ammunition from a vehicle and delivering them to an acquaintance for safekeeping.

The defence argued that the accused acted under duress arising from threats of death or serious bodily harm by an abusive partner with a violent criminal history.

The court assessed the common law defence of duress using the framework from Supreme Court of Canada authorities and considered evidence of threats, fear, the accused’s circumstances including drug dependency and abuse, and whether a safe avenue of escape existed.

The court concluded that the threats were credible, temporally connected to the accused’s conduct, and reasonably believed by the accused.

Although alternatives may have existed objectively, the accused’s circumstances undermined the availability of a safe avenue of escape, and the proportionality requirement was satisfied.

The applicant sought a second bail review after his initial release was revoked by a Superior Court judge.

The applicant argued the reviewing judge erred in law by giving insufficient weight to the proposed plan of release under the secondary and tertiary grounds for detention, and by denying natural justice.

The court dismissed the application, finding no errors of law or inappropriate weighing of factors by the reviewing judge, who had properly concluded the applicant posed a substantial risk of reoffending and would not abide by any plan of release.

The Crown brought a bail review application under the Criminal Code after a justice of the peace ordered the accused released pending trial on serious charges including kidnapping, extortion, unlawful confinement, assault causing bodily harm, and uttering threats.

The reviewing judge held that the justice of the peace erred by giving insufficient weight to the accused’s extensive violent criminal record and excessive weight to the proposed surety.

The accused had a lengthy history of violent offences, breaches of court orders, and further violent conduct while in custody.

Applying the secondary and tertiary grounds under s. 515(10) of the Criminal Code and the guidance from R. v. St. Cloud, the court concluded there was a substantial likelihood the accused would commit further offences if released and that detention was necessary to maintain confidence in the administration of justice.

The prior release order was therefore clearly inappropriate.

The accused was charged with failing to comply with a demand for a breath sample into an approved screening device contrary to section 254(5) of the Criminal Code, arising from a R.I.D.E. check stop.

The central issue was whether the Crown proved beyond a reasonable doubt that the accused intentionally failed to comply with the breath demand.

The court found that the accused was cooperative throughout the process, made nine attempts to provide a sample within approximately four minutes, and was given minimal initial instruction and demonstration.

The court concluded that the rapid escalation of the situation, conflicting instructions from two officers, lack of clear feedback on why samples were unsuccessful, and the accused's repeated requests to try again after arrest created a reasonable doubt as to whether the failure was willful or intentional.

The accused was acquitted.

The accused was charged with production of marihuana and possession of marihuana for the purpose of trafficking after police discovered a large commercial grow operation in a residence.

The prosecution relied primarily on circumstantial evidence, including surveillance showing the accused attending the premises multiple times and possessing keys to the residence.

The defence argued the accused merely attended the home to check on a tenant and had no knowledge of the grow operation.

The court rejected the defence evidence as implausible and found that the accused had knowledge and a measure of control over the premises, supporting constructive possession and party liability for production.

The accused was convicted on both counts.

The applicant, charged with drug offences and theft of electricity related to a marijuana grow operation, sought to exclude house keys seized by police during his arrest outside the residence.

The applicant argued the keys were obtained through an unlawful arrest and warrantless search, breaching his ss. 8, 9, and 10(b) Charter rights.

The court found that the applicant had abandoned the keys by tossing them onto the lawn upon seeing the police, meaning no search occurred and no s. 8 rights were violated.

The court further held that even if the arrest was arbitrary and a breach occurred, the evidence would be admissible under s. 24(2) of the Charter, as the police conduct was not deliberate and the evidence was highly reliable real evidence essential to the prosecution.

The application to exclude the evidence was dismissed.

The accused brought a pre-trial application to exclude evidence obtained through covert police entries and searches authorized by a general warrant in a drug trafficking investigation.

The court applied the confidential informant framework and held that the tip was sufficiently compelling, the informant had some demonstrated credibility, and police investigation provided adequate corroboration.

Although parts of the ITO were excised and certain omissions and inclusions were criticized, the court found the remaining record still provided a sufficient basis for the issuing justice to authorize the warrant.

No s. 8 Charter breach was established, and the exclusion application was dismissed.

The applicants, an accused and his common-law wife, brought an application for the return of funds held in trust following the sale of their matrimonial home.

The Crown had placed a lien on the property to protect a potential bail estreatment claim.

The Crown brought a preliminary motion to remove the applicants' counsel, arguing she was in a conflict of interest because she represented both the accused and the wife, and had a personal interest in recovering her legal fees from the funds.

The court dismissed the motion, finding no disqualifying conflict of interest.

The wife had received independent legal advice, understood the potential conflict, and maintained that the funds were jointly owned.

In a criminal prosecution for importation, conspiracy, and possession of heroin for the purpose of trafficking, the accused brought a mid-trial application for a mistrial based on late disclosure and non-disclosure of documentary evidence and a civilian witness statement.

The court held that the Crown failed its duty to provide full and timely disclosure, particularly where hundreds of pages of documents intended to connect the accused to a searched apartment were produced only immediately before tendering, and where the civilian witness statement was obtained and disclosed only on the day of testimony.

The court rejected the submission that defence counsel had made a tactical decision to remain passive and found a real danger of prejudice to the accused's right to make full answer and defence.

Given the stage of the trial and the evidence already received, an adjournment was not a viable remedy.

A mistrial was declared.

On a bail review under s. 520 of the Criminal Code, the applicant challenged a detention order arising from drug trafficking and firearm-related charges after searches of his residence and his father's residence.

The court found the justice of the peace materially erred by adopting exaggerated Crown submissions that overstated the nexus between the evidence and authorities involving mid-to-high level trafficking and loaded firearms.

The court also found a material change in circumstances based on the first-time suretyship offered by the applicant's mother.

Applying the secondary and tertiary ground analyses, the court held detention was not necessary and ordered release on a recognizance with strict house arrest and communication conditions.