Lisa Jacek

Sentencing decision following convictions for gang sexual assault of an unconscious complainant captured on surveillance video, together with related breach offences.

The court held that denunciation and general deterrence were paramount given the planned, degrading, prolonged sexual violence against a highly vulnerable victim, the joint participation of multiple offenders, and the offenders' extensive criminal records.

The court rejected submissions for substantially lower sentences, found almost no mitigating factors beyond harsh pre-sentence custody conditions and limited personal circumstances, and imposed nine-year penitentiary terms for the gang sexual assault count.

Consecutive sentences were added for the breach offences, yielding total terms of 10 years for one offender and 10 years and 6 months for the other, less Summers credit.

The Crown sought a long-term offender (LTO) declaration and a 10-year long-term supervision order (LTSO) against the offender, Jeffrey Bluecloud, following his conviction for multiple bank robberies and associated charges.

The offender conceded LTO status but sought a lower reformatory sentence and a 5-year LTSO.

The court designated the offender as an LTO, imposing a further sentence of 15 months in a provincial reformatory and a 7-year LTSO.

The decision emphasized public safety through rehabilitation, considering the offender's Indigenous background and the unsuitability of a federal penitentiary sentence due to likely segregation preventing access to programming.

This criminal trial concerned charges of sexual assault causing bodily harm, assault, and forcible confinement.

The central issue was consent, with conflicting testimony from the complainant and the defendant.

The court found the complainant generally credible but noted issues with her testimony regarding intoxication and the sequence of events.

While the defendant's character was poor, his testimony on consent was clear and precise.

Applying the W.(D.) test, the court found a reasonable doubt regarding the absence of consent for sexual assault and the elements of assault and forcible confinement.

Consequently, the defendant was acquitted on all counts.

The accused, Agyei De Roche, was charged with sexual assault following a sexual touching of the complainant, R.D., after a recording session.

The defence argued mistaken belief in communicated consent.

The court examined the interactions between the accused and the complainant, both online and during the podcast recording, and found that the accused failed to take reasonable steps to ascertain consent.

The court determined that the accused relied on ambiguous conduct and ignored explicit rejections, making the defence of mistaken belief in consent unavailable.

Consequently, the accused was found guilty of sexual assault.

The offender was found guilty of sexual assault with a weapon after inserting a vibrator into the unconscious or sleeping victim.

At sentencing, the court considered the constitutionality of s. 742.1(f)(iii) of the Criminal Code, which prohibits conditional sentences for sexual assault.

Following recent precedent, the court declared the provision unconstitutional under ss. 7 and 15 of the Charter.

Weighing the paramount objectives of denunciation and deterrence against the offender's significant rehabilitation and lack of prior record, the court imposed a conditional sentence of two years less a day, followed by one year of probation, and ordered $5,000 in restitution to the victim.

Sentencing decision following convictions for sexual assault causing bodily harm and threatening death arising from a violent sexual assault by a male roommate against a young woman in her bedroom and kitchen.

The defence advanced cannabis intoxication and major depressive disorder as mitigating factors through social work and psychiatric opinion evidence, but the court rejected those positions because the offender's self-reporting was inconsistent and unreliable.

The court emphasized denunciation and deterrence in light of the violent invasion of the victim's living space, bodily harm to her wrists, threats to kill her into silence, and lasting psychological harm.

A suspended sentence or conditional sentence was held to be manifestly unfit, and a global penitentiary sentence of three years was imposed with ancillary DNA, firearm prohibition, SOIRA, and no-contact orders.

The applicant brought a motion for a stay of proceedings under s. 24(1) of the Charter, alleging his right to be tried within a reasonable time under s. 11(b) was infringed.

The total delay from the charge to the anticipated end of the trial was nearly 35 months.

The court analyzed the periods of delay, particularly focusing on delays caused by the applicant's change of counsel.

The court concluded that the deductible defence delay reduced the net delay to below the 30-month presumptive ceiling established in Jordan.

Furthermore, the applicant failed to demonstrate a sustained effort to expedite the proceedings.

The application for a stay was dismissed.

Following a preliminary inquiry, the court considered whether the two accused should be committed to stand trial for first-degree murder in a stabbing death.

The Crown argued the murder was planned and deliberate or occurred during a forcible confinement.

The court found no evidence of planning or deliberation, and concluded any confinement was inherent in the act of killing rather than a distinct act.

The accused were committed to stand trial for second-degree murder.

The accused was tried on a historical indecent assault charge arising from allegations that he sexually assaulted a child family member in the mid-1960s and again at a separate residence in 1968.

The court reviewed the evidence through the W.(D.) framework, emphasized the presumption of innocence, and recognized that myths about delayed disclosure and avoidant behaviour could not ground an adverse credibility finding.

However, the court found material internal inconsistencies in the complainant’s evidence, inconsistencies with other accepted evidence, and significant plausibility concerns about key aspects of the allegations.

While the accused’s evidence was not free from concern, it was sufficient, together with the deficiencies in the Crown’s case, to leave the court with a reasonable doubt.

The accused was acquitted.

A young person charged with second degree murder sought a review of his detention order based on material change in circumstances.

The Crown opposed release.

The court addressed significant jurisdictional issues regarding bail review procedures for young persons charged with section 469 offences under the Youth Criminal Justice Act.

The court found that while section 33(9) of the YCJA provides for appellate review through section 680 of the Criminal Code, section 28 of the YCJA incorporates section 523(2)(c)(iii) of the Criminal Code, which permits applications to vacate detention orders in the court where the accused is to be tried.

The court held that the youth justice court has jurisdiction to hear bail review applications based on material change in circumstances, and granted the application for release on surety bail with conditions.

The offender was convicted of aggravated assault after attacking a 'good Samaritan' who intervened in a bar fight to help an unconscious victim.

The offender kicked the victim to the ground and continued to assault him while he was in a fetal position, causing serious injuries including a torn ACL and fractured foot bones.

The Crown sought 18-24 months imprisonment, while the defence sought a non-custodial or intermittent sentence.

The court sentenced the first-time offender to 9 months imprisonment followed by 3 years of probation, balancing denunciation and deterrence with the offender's remorse, ADHD diagnosis, and rehabilitative prospects.

The 14-year-old accused was charged with second degree murder as a party to a fatal stabbing.

The Crown sought his detention under the Youth Criminal Justice Act.

The court found that while the accused had no prior record, there was a substantial likelihood he would commit a serious offence if released, given a recent history of severe, uncharged violence against his mother.

The court concluded that no conditions of release, including house arrest with sureties, would adequately protect the public.

The court also declined to place the accused with a responsible person under section 31 of the YCJA, finding the proposed persons unable to exercise sufficient control over him.

Detention was ordered.

A fourteen-year-old youth was charged with second degree murder as a party to the offence (instigator) in connection with the stabbing death of a fifteen-year-old victim.

The Crown sought detention under section 29(2) of the Youth Criminal Justice Act.

The court found that while the youth had no prior criminal record, extensive Children's Aid Society records documented a pattern of severe and escalating violence toward his mother since May 2017, including assaults with weapons, threats, and dangerous behavior.

The court determined that detention was necessary for public protection and the safety of the victim (the mother), finding a substantial likelihood the youth would commit serious offences if released.

The court rejected the proposed release plan involving the mother and family members as sureties, finding they could not adequately control the youth's violent behavior and impulsivity.

The applicant, Zekrollah Walizadah, sought an order under s. 745.6 of the Criminal Code to reduce his period of parole ineligibility for first-degree murder.

The pre-screening judge applied the "substantial likelihood" threshold, considering the applicant's character, conduct while serving the sentence, the nature of the offence, victim information, and remorse.

Despite positive conduct in custody, the applicant's continued failure to fully accept responsibility for the planned and deliberate nature of the murder and the extreme violence inflicted was a significant negative factor.

The application was dismissed, as the court was not satisfied there was a substantial likelihood that a jury would unanimously agree to reduce the parole ineligibility period.

The Crown appealed a trial judge's decision to stay impaired driving charges against the respondent due to a violation of s. 11(b) of the Charter.

The trial judge had found seven weeks of Crown delay related to disclosure and six and a half months of institutional delay, along with actual prejudice.

The Superior Court of Justice allowed the appeal, finding that the trial judge erred in characterizing the delay periods, which should have been classified as neutral inherent time requirements or defence delay.

The court also found palpable and overriding factual errors in the trial judge's assessment of prejudice, noting the respondent's own conduct caused substantial delays.

The stay of proceedings was set aside and the matter remitted for trial.