Louise A. Botham

The applicant, Phi Ho, challenged the lawfulness of searches conducted at a StorageMart locker, a residential address (Moody Drive), and a Mercedes vehicle, as well as the issuance of five production warrants and three tracking warrants.

The applicant sought to exclude evidence obtained from these searches, arguing that the Informations to Obtain (ITOs) contained flaws, including insufficient detail in redacted portions and inaccuracies or carelessness by the affiant.

The court reviewed the unredacted ITOs and the judicial summary, finding that the applicant was sufficiently informed to challenge the material.

The court addressed specific alleged errors, such as mischaracterizations of ownership and discrepancies in GPS data, ordering some excisions and amplifications to the ITOs.

Ultimately, the court found that even with the amended record, there were reasonable grounds to support the issuance of all judicial authorizations.

The court also considered whether the affiant's conduct amounted to "blatant dishonesty" subverting the judicial process, concluding that while some errors were concerning, they did not rise to that level, nor did they undermine the integrity of the pre-authorization process.

The application to exclude evidence and invalidate the warrants was dismissed.

This ruling addresses an application by Devante Moores to exclude evidence seized following the execution of a search warrant and his arrest, alleging breaches of his Charter rights under sections 8 (unreasonable search and seizure) and 9 (arbitrary detention).

The applicant challenged the validity of the search warrant, arguing the judicial summary of redacted information was insufficient, and the lawfulness of his arrest.

The court clarified the onus of proof, stating the Crown bears the onus for warrantless searches incident to arrest, while the applicant bears the onus for challenging a presumptively valid search warrant.

The court found the judicial summary sufficient and determined that police surveillance, combined with information from a reliable confidential source, provided reasonable grounds for the search warrant.

Furthermore, the court concluded that the arresting officer had subjective and objective reasonable and probable grounds for the arrest for possession for the purpose of trafficking, making the subsequent search incident to arrest lawful.

Consequently, the applications to exclude the seized evidence were dismissed.

The applicants challenged the lawfulness of a search conducted pursuant to a warrant, specifically contesting the Crown's assertion of informant privilege over redacted materials related to a source.

The court conducted a *Basi* hearing, including *viva voce* evidence, to assess the privilege claim.

The application for further disclosure was dismissed, with the court upholding the Crown's claim of privilege for Source #1.

The Crown applied for an assessment order under section 752.1 of the Criminal Code, seeking to determine if the respondent should be declared a dangerous or long-term offender following convictions for serious personal injury offences, including voyeurism and child pornography charges.

The respondent conceded most elements but disputed the likelihood of future reoffending.

The court found reasonable grounds for the assessment, citing the repetitive and protracted nature of the respondent's offending conduct across two distinct periods (1993 and 2022), which involved similar victims and abuse of trust.

The application for assessment was granted.

This ruling addresses the sufficiency of a judicial summary provided by the Crown in place of a heavily redacted Information to Obtain (ITO) a search warrant.

The applicant challenged the adequacy of the summary, arguing it did not provide enough information to allow for a proper challenge.

The court, applying principles from Crevier, 2015 ONCA 619, found the judicial summary sufficient, noting that it must inform the accused of the general nature of the redacted details without revealing privileged information.

The court dismissed the applicant's challenge, stating that the summary was adequate to allow the applicant to challenge the excised material.

The Crown applied under s. 714.1 of the Criminal Code for an order permitting a key witness, residing in Nova Scotia, to testify by video conference at the trial.

The respondent opposed, arguing mere inconvenience was insufficient to displace the presumption of in-person testimony.

The court granted the application, finding that despite the witness's convenience being the primary reason, the evidence was constrained, safeguards could be implemented, and significant court staffing shortages in Toronto justified the order to prevent further delays, especially given the accused was in custody.

The order was conditional on the witness testifying from a courthouse to preserve solemnity.

The applicant, Phi Ho, sought leave to cross-examine two affiants, DC Deston and DC Seville, regarding Informations to Obtain (ITOs) for a tracking warrant and a general warrant.

The applicant challenged assertions in the ITOs, including the necessity of a tracking warrant, the characterization of observed meetings, and alleged inaccuracies regarding property ownership and confidential informant information.

The court dismissed the application, finding no basis to grant leave for cross-examination on the challenged issues, as they related to facial validity or were speculative, and additional judicial summaries clarified apparent inconsistencies.

This ruling addresses an application for leave to cross-examine an affiant and sub-affiants concerning a search warrant.

The court granted limited cross-examination on specific factual assertions within the Information to Obtain (ITO), including the association between parties, discrepancies in surveillance observations (e.g., backpack possession), and potential confusion in identification due to similar appearances between individuals.

However, leave was denied for cross-examination on the affiant's characterization of observations as drug trafficking and on the overall reliability of confidential information or the non-charging of other targets, deeming these matters more appropriate for legal argument.

This ruling addresses a motion brought by the accused, Devante Moores, to challenge the lawfulness of a search and seizure of narcotics and currency from a residential unit.

The Crown argued that the accused lacked standing to bring the application, alleging that the lease for the unit was obtained through fraudulent documentation.

The court applied the factors from R. v. Edwards to determine whether the accused had a reasonable expectation of privacy, distinguishing the case from R. v. Van Duong.

The court found that despite the alleged fraudulent lease, the accused demonstrated sufficient indicia of possession, control, and ability to regulate access to establish a subjective and objectively reasonable expectation of privacy, thereby granting him standing to challenge the search.

This criminal trial concerned five charges against Mahesh Bisesar related to child pornography: making, communicating for the purpose of making, arranging to make, possessing, and accessing.

The court dismissed the "making" charges, ruling that directing actions during a live stream did not constitute "making" a visual representation under the Criminal Code.

The court also found reasonable doubt regarding the accused's identity as the Skype chat participant due to shared account access.

However, the accused was convicted of possession and accessing child pornography, as images and videos found on his computer were deemed to be knowingly possessed and accessed by him, rejecting defence explanations of malware, client files, or employee actions as speculative.

The accused, Kugaruban Somasundaram, brought a pre-trial application challenging the admissibility of his blood alcohol readings (BAC) on the grounds that his s. 10(b) Charter rights (right to counsel) were breached.

The court found that the accused's right to consult with counsel was breached because he spoke to a paralegal, not a lawyer, and the police, specifically the booking sergeant, were aware of this but did not inform the accused or facilitate a consultation with a lawyer.

Applying the R. v. Grant factors, the court found the state conduct serious and the impact on the accused's Charter rights significant, leading to the exclusion of the breath test evidence.

The applicant, J.L., sought leave to introduce electronic records and cross-examine the complainant, B.M., regarding their contents, as well as to testify about them, pursuant to section 278.94 of the Criminal Code.

The records included Facebook messages from November 2015 suggesting prior sexual activity, messages from April 2016 discussing sleeping arrangements and having a flirtatious tone before the alleged assault, and messages from April 2016 (the day after the alleged assault) and later, which discussed the sexual encounter and the complainant's departure.

The Crown and complainant's counsel objected to admissibility.

The court found the November 2015 messages relevant as a specific instance of sexual activity and potentially contradictory to the complainant's police statement.

The April 2016 pre-assault messages were found relevant for impeachment value and to provide context for the complainant's decision to come to the applicant's residence.

The April 2016 post-assault messages were deemed relevant as a potential prior inconsistent statement regarding the complainant's departure.

The court applied the factors under s. 276(2) of the Criminal Code, concluding that the records were not being adduced for prohibited inferences, had probative value, were necessary for full answer and defence, and would not prejudice the administration of justice or have a chilling effect.

All three sets of communications were admitted as evidence, and the applicant was permitted to cross-examine the complainant and testify regarding them.

The accused, T.K., charged with sexual interference and sexual assault, brought an application under section 278.4 of the Criminal Code seeking production of the complainant's and witnesses' electronic communications and photos/videos from a specific period.

The defence argued these records were relevant to the accused's belief regarding the complainant's age and consent.

The Crown and witnesses opposed, citing privacy and arguing the records were not necessary for full answer and defence.

The court, applying section 278.5(2) factors, found potential relevance and ordered the records to be produced for judicial review to determine if they are necessary for full answer and defence, balancing privacy interests against the accused's right to defence.

The accused, Bill Thanis, was charged with three counts of uttering threats to cause death and one count of criminal harassment, arising from his interactions with Tax Court of Canada and Canada Revenue Agency (CRA) employees.

The court found that the alleged threats, including statements about a "killing spree" and "shooting people in the streets," did not objectively constitute a threat or were not directed at an "ascertainable group" as required by law.

The criminal harassment charge failed because the alleged threatening conduct was not proven to be a threat, and there was no evidence the complainant felt "harassed" in the legal sense.

The accused was found not guilty on all counts.

The applicant sought to exclude evidence seized under a search warrant and utterances made upon arrest, alleging breaches of s. 8 (unreasonable search) and s. 10(b) (right to counsel) of the Charter.

The court found the Information to Obtain (ITO) for the search warrant contained significant inaccuracies and misleading information regarding the applicant's residence at the searched unit, leading to a s. 8 breach.

A delay in providing access to counsel also constituted a s. 10(b) breach.

Applying the R. v. Grant factors, the court determined that the serious state misconduct and significant impact on the applicant's privacy and counsel rights warranted exclusion of the evidence and utterances.

The defendant sought disclosure of a drug recognition expert's rolling log in an impaired driving by drug case.

The Crown resisted disclosure, arguing that recent amendments to the Criminal Code (Bill C-46) and new statutory provisions prohibiting disclosure of drug evaluation results rendered the earlier decision in R. v. Stipo inapplicable.

The court held that the rolling log remains relevant first-party disclosure and that the statutory prohibition on disclosure does not prevent disclosure to an accused to protect their constitutional right to make full answer and defence.

The application for disclosure of a vetted/anonymized version of the DRE rolling log was granted.

The defendants brought applications under section 8 of the Canadian Charter of Rights and Freedoms to challenge the lawfulness of search warrants executed on three apartment units.

Thanh Nguyen lacked standing to challenge the search of the Sherway location as he had no reasonable expectation of privacy in a unit he was merely permitted to use as a guest.

Catherine Vu and Kevin Tran challenged the search of the Lakeshore location where Vu was the tenant.

The court found the warrant for the Lakeshore location was issued without reasonable grounds to believe evidence would be found there, as the connection between Tran and the residence was insufficient to establish more than occasional guest status.

The search violated section 8 rights.

However, under the R. v. Grant analysis, the evidence was admitted as the police acted in good faith, the state conduct was not improper, and society's interest in adjudication on the merits outweighed the privacy breach.

The applicant challenged the issuance of a DNA warrant on the grounds that the Information to Obtain contained inaccurate information regarding observations of the applicant engaging in drug trafficking activity and exiting a specific unit.

The court found that two aspects of the ITO should be excised as they were not supported by the original surveillance evidence.

However, the court determined that even with these excisions, there remained sufficient basis to authorize the seizure of the applicant's DNA based on other evidence, including CCTV footage showing the applicant using a fob associated with the unit, observations of the applicant leaving with a suspected drug trafficker, and possession of a key to the unit where a firearm was found.

The application was dismissed.

Three defendants applied for orders staying criminal proceedings on the grounds that their right to be tried within a constitutionally tolerable time had been breached.

The applicable ceiling for Ontario Court of Justice cases is 18 months.

The Crown argued that when defence delay periods were subtracted, the total delay did not exceed the ceiling.

The court found that two applicants' delay did not exceed the 18-month threshold after deducting defence delay caused by their decision to change counsel.

For the third applicant, although the delay exceeded the Jordan guidelines by nine days, the court found exceptional circumstances existed that rebutted the presumption of unreasonable delay.

All three applications were dismissed.

The accused was charged with over 80 (impaired driving) following a RIDE stop.

The Crown sought to introduce breath sample evidence.

The defence challenged the admissibility of the evidence on Charter grounds, alleging breaches of sections 8, 9, and 10 of the Canadian Charter of Rights and Freedoms.

The court found that the accused's Charter rights were breached in three respects: (1) the manner of detention in the police cruiser for the roadside screening test was not reasonably necessary; (2) the accused was not adequately facilitated in her right to consult with counsel of her choice, as the police policy effectively channeled her toward duty counsel; and (3) the accused was subjected to an unjustified strip search.

The court excluded the breath sample evidence based on the cumulative effect of these breaches and the serious impact on the accused's Charter-protected interests.