Wailan Low

The applicant, charged with multiple offences including attempted murder, brought a Charter application alleging breaches of ss. 7, 8, and 10(b) during her arrest and the execution of search warrants.

She sought various remedies including setting aside a warrant, a stay of proceedings, and exclusion of evidence.

The court found a breach of the applicant's s. 8 rights due to a warrantless search of her cell phone and a minor informational breach of her s. 10(b) right to counsel.

However, the court found no breach of s. 7 (rejecting claims of an unlawful strip search or denial of dignity/child access) and no implementational breach of s. 10(b).

The court excluded the evidence obtained from the cell phone but dismissed the application to exclude other physical evidence seized under the Criminal Code warrant and denied a stay of proceedings.

The defendant, Charmare Crawford, was convicted of aggravated assault and failure to comply with a release order following a trial.

The sentencing decision considered the primary principles of denunciation, general and specific deterrence, and rehabilitation.

The court noted the unprovoked nature of the knife attack, which resulted in serious injury, but also gave significant weight to the defendant's genuine and successful efforts towards rehabilitation since the offence, including stable employment and distancing himself from past criminal associations.

After reviewing comparable sentencing jurisprudence for aggravated assault, the court imposed a custodial sentence of 3 years and 3 months, with credit for pre-sentence custody.

The defendant was charged with multiple drug trafficking and breach of conditions offences.

The defence brought an application to exclude evidence under s. 10(b) and s. 24(2) of the Charter, arguing a delay in access to counsel.

The court found that the initial delay in access to counsel was justified due to ongoing public and officer safety concerns related to an unrecovered firearm and the need to preserve evidence.

The court also found that the defendant later waived his right to counsel.

Consequently, the application to exclude evidence was dismissed.

The defendant was found guilty of possession of cocaine (lesser included), possession of fentanyl for trafficking, possession of heroin/carfentanil for trafficking, possession of methamphetamine for trafficking, two counts of breach of recognizance, and breach of a weapons prohibition.

The Crown moved for a mistrial in a jury trial for multiple charges of bank robbery due to an unprecedented six-month hiatus caused by the COVID-19 pandemic.

The defence opposed, seeking an adjournment.

The court granted the mistrial, finding that the prolonged interruption compromised the jury's ability to fairly recall oral testimony and engage with the trial, thereby jeopardizing the fairness of the proceedings.

The court emphasized that the interests of expediency could not trump the goal of a fair trial.

The applicant, Dejan Mitrovic, sought a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms due to unreasonable delay.

The charges stemmed from a large criminal organization investigation (Project Sizzle) involving drug trafficking and conspiracy.

The court calculated the gross delay from arrest to projected end of trial as 31 months and 28 days.

After deducting periods attributable to defence delay (unavailability of counsel, failure to complete pre-trial reports, preliminary inquiry scheduling issues) and exceptional circumstances (preliminary inquiry judge's deliberation time), the net delay was found to be 27.5 months, which is below the 30-month presumptive ceiling established in R. v. Jordan.

The applicant failed to demonstrate that he took meaningful steps to expedite the proceedings or that the case took markedly longer than it reasonably should have.

Consequently, the application for a stay was dismissed.

The defendant brought a motion for a directed verdict on a charge of threatening a justice system participant (Justice Bruce Young) with intent to provoke fear and impede duties, contrary to s. 423.1(1)(b) of the Criminal Code.

The court granted the motion, finding that the *actus reus* (non-verbal threat of violence) was ambiguous, as the defendant's actions could plausibly be interpreted as an attempt to escape rather than a threat.

Furthermore, the *mens rea* (specific purpose of impeding duties) was not established beyond a reasonable doubt, as the defendant's actions could have been an expression of anger after a detention order had already been made, and there was no evidence of an intent to impede future duties.

The accused, Joel Coveny, faced charges including intimidation of a judge.

During an interview with police concerning an unrelated robbery, Coveny made statements about the intimidation incident.

The Crown sought to admit these statements.

The defence argued that the police breached Coveny's s. 10(b) Charter rights by failing to re-caution him when the investigation shifted to the intimidation charges.

The court found a breach of s. 10(b) when Detective Lemaitre specifically questioned Coveny about what "set him off" regarding the court incident, as this inquiry realistically expected a self-incriminating response about his state of mind.

Applying s. 24(2) of the Charter, the court excluded the specific utterance regarding Coveny's state of mind (found on page 16 of the transcript), finding that its admission would bring the administration of justice into disrepute, despite the inadvertent nature of the breach.

Other spontaneous utterances were not excluded.

The Crown sought estreatment of bail after the accused absconded prior to sentencing following conviction for conspiracy to traffic GHB.

Two third-party sureties sought relief from forfeiture of their recognizances.

The court applied the discretionary factors governing relief from forfeiture, including the sureties’ diligence, financial means, relationship to the accused, and the circumstances under which the recognizances were entered.

Partial relief was granted to one surety whose supervision had been limited and whose financial circumstances had changed, while the other surety—who was the accused’s spouse and primary beneficiary of his release—was ordered to forfeit the full amount sought.

The accused’s recognizance and cash deposit were ordered forfeited to the Crown.

The accused applied for disclosure relating to police protocols for informants, procedures for after-hours search warrant access to judicial officers, and production of a confidential informant file.

The application was brought to support a proposed Garofoli challenge to search warrants and to explore potential abuse of process allegations including alleged judge shopping and possible police agency by the informant.

The court held that the requested materials were irrelevant to the merits of the prosecution and unsupported by any evidentiary foundation.

The court further held that confidential informant files are prima facie privileged and cannot be compelled absent the innocence-at-stake exception.

The application was characterized as a fishing expedition and dismissed.

Costs determination following a motion for injunctive relief relating to access to data and the payment of invoices between commercial parties.

The court considered the parties’ relative success at different stages of the proceedings.

The defendant succeeded on the initial hearing by requiring the plaintiff to comply with its payment obligations before obtaining equitable relief, while the plaintiff succeeded on the return of the motion by challenging the legitimacy of post-order invoices.

Given the divided success, the court declined to award costs to either party.

Costs decision following an application involving condominium lien rights and priority issues between a condominium corporation, a contractor, and a secured lender.

The court assessed the applicant’s claim for costs against the contractor and found the requested amount disproportionate given the undefended and uncomplicated nature of the proceeding.

Costs were reduced and fixed on a substantial indemnity basis.

Although the lender was successful on the priority issue, the court departed from the general rule that costs follow the event due to the novel and important legal issue raised.

Limited costs were nevertheless awarded to the lender for an adjournment attendance caused by late service.

A condominium corporation applied for declarations and compliance orders requiring a unit owner to pay longstanding common expense arrears and sought to characterize the arrears as damages under s. 134 of the Condominium Act, 1998 so they could be added to common expenses and enforced by a priority lien.

The owner did not dispute that arrears were owed, but a mortgagee intervened, arguing the corporation could not revive expired lien rights after failing to register liens within the three‑month period required by s. 85(2).

The court held that s. 134 cannot be used to circumvent the statutory lien regime or revive expired lien rights in a manner that would prejudice prior mortgagees who had received no notice.

While the owner was ordered to pay the arrears with interest, the court refused to declare the arrears as damages capable of being added to common expenses and enforced by a new priority lien.

The equities favored the mortgagee because the condominium corporation failed to preserve its statutory lien rights.

The court provided reasons for declining to award costs following a consent motion to set aside a default judgment.

The moving defendant established that the statement of claim had not come to his attention and that there had been no personal service, despite a prior order validating service that allowed the plaintiffs to obtain default judgment.

The court held that where a default judgment is irregularly obtained and the defendant had no notice of the proceeding, the judgment must be set aside ex debito justiciae and the defendant should not be required to pay costs.

The court further found the plaintiffs should not recover costs because they continued to oppose the motion despite evidence demonstrating the judgment would inevitably be set aside.

The court also reconsidered an earlier direction awarding costs thrown away and concluded that such costs should not be imposed where the defendant had not actually defaulted due to lack of effective service.

The applicant sought relief from forfeiture after its month‑to‑month commercial tenancy at the Ontario Food Terminal was terminated.

The tenant argued that the landlord lacked cause or a legitimate business reason for termination and that the notice failed to comply with the Commercial Tenancies Act.

The court held that the lease expressly permitted termination by either party on 30 days’ written notice and that the tenancy was properly terminated in accordance with both the agreement and the statute.

The court rejected the argument that the Ontario Food Terminal Board required cause or a legitimate business justification to exercise its contractual termination right.

Relief from forfeiture was therefore unavailable because the lease had been terminated pursuant to its terms rather than forfeited for breach.

A second mortgagee brought an application under s. 39(1) of the Mortgages Act seeking leave to sell property under power of sale without complying with the statutory notice requirements under s. 31.

The applicant had already entered into an agreement of purchase and sale before issuing the required notice of sale and sought to abridge the mortgagor’s 35‑day redemption period.

The court held that the mortgagee must strictly comply with the statutory notice requirements and that s. 39 should not be used to cure the mortgagee’s own failure to comply with the Act.

The evidence filed was also unreliable and raised questions about the alleged lack of equity in the property.

The application was dismissed.

The moving defendants sought a stay of an Ontario action on the basis that the dispute should proceed in Alberta where related litigation concerning unpaid commissions had already been commenced.

The plaintiffs relied on forum selection and governing law clauses in a merger agreement and unanimous shareholders agreement providing for Ontario law and attornment to Ontario courts.

The court held that Ontario had jurisdiction simpliciter and that the contractual forum clauses were entitled to significant weight.

The moving parties failed to demonstrate strong cause to override the forum selection clauses or establish that Alberta was clearly the more appropriate forum.

The motion for a stay based on forum non conveniens was therefore dismissed.

The accused brought a second application seeking a stay of proceedings for abuse of process arising from plea negotiations conducted during a firearms and drug prosecution.

The accused argued that the Crown’s settlement offer—requiring an induced statement recanting prior evidence and implicating defence counsel in knowingly presenting false testimony—constituted prosecutorial misconduct.

The court held that plea negotiation communications were protected by settlement privilege and could not be unilaterally waived by the defence.

The presence of the accused’s father during the discussions did not vitiate the privilege.

Finding no extrinsic evidence of prosecutorial impropriety sufficient to justify piercing the privilege or reviewing the exercise of prosecutorial discretion, the court ruled the evidence of settlement discussions inadmissible and dismissed the application.

The defendants sought an injunction restraining execution of a writ of possession arising from a mortgage default judgment.

They argued enforcement should be delayed while they pursued refinancing and separate litigation concerning a third mortgage that allegedly prevented refinancing.

The court held the defendants failed to establish a serious issue to be tried or identify any legal right being interfered with, as the plaintiffs held a valid judgment for possession and there was no existing forbearance agreement.

The alleged harms from eviction were compensable in damages and did not justify injunctive relief.

The motion was dismissed and costs were awarded to the plaintiffs.

Following the dissolution of ex parte Mareva injunctions obtained by the plaintiffs, the defendant sought costs on a substantial indemnity basis for the motions that resulted in the injunctions being set aside.

The court held that the defendant was the successful party on the motions and was entitled to costs.

However, substantial indemnity costs were not warranted in the circumstances.

The court fixed costs at $6,500 on a partial indemnity basis, payable upon termination of the action, with liability joint between the plaintiffs.

Any damages flowing from the granting of the injunction were left to be determined in future proceedings.

The commercial tenant sought an interim and interlocutory injunction restraining the landlord from terminating the tenancy and re‑entering the premises.

The tenant argued it was an over‑holding tenant on a year‑to‑year tenancy and that the landlord’s notice to quit was invalid.

Applying the RJR‑MacDonald test, the court found a serious issue for trial regarding whether the tenancy was year‑to‑year or month‑to‑month.

The court accepted that immediate eviction would cause irreparable harm by forcing closure of the tenant’s long‑standing restaurant business and loss of employment for staff.

The balance of convenience favoured maintaining the status quo, and an interim injunction was granted with conditions requiring payment of rent and additional funds into court.