Malcolm McRae

The appellant challenged convictions for sexual assault and assault with choking on the basis that recordings secretly made by the complainant should have been excluded under ss. 7 and 8 of the Charter.

The court held that the complainant was not a state agent when she made the recordings because there had been no police contact, direction, or inducement at the time, and her purpose did not alone transform her into a state actor.

The court further held that, although the appellant had a subjective privacy interest in the intimate conversations, he did not have an objectively reasonable expectation of privacy in recordings lawfully made by a participant and voluntarily provided to police in support of criminal allegations.

In the alternative, even if there had been a s. 8 breach, the recordings would have been admitted under s. 24(2) because the law was unsettled, the police acted in good faith, and the evidence was reliable.

The appeal was dismissed.

The Crown sought leave to appeal a conditional sentence of two years less a day, with house arrest, followed by three years of probation, imposed on the respondent for trafficking fentanyl.

The respondent, an addict, had sold a small quantity of fentanyl to a friend who subsequently died.

The Crown argued the sentence was demonstrably unfit, disproportionate, and failed to meet objectives of denunciation and deterrence.

The Court of Appeal granted leave but dismissed the appeal, finding the sentencing judge properly considered significant mitigating factors, including the respondent's extraordinary rehabilitation efforts, early guilty plea, remorse, and strict pre-trial bail conditions, concluding the sentence was not demonstrably unfit despite the gravity of the offence.

The applicant, a Black man, was stopped by police for allegedly using a hand-held device while driving.

After smelling cannabis, the officers searched the applicant and his vehicle, discovering a loaded handgun and drugs.

The applicant brought a Charter motion alleging arbitrary detention and unreasonable search based on racial profiling.

The court found the initial traffic stop was lawful under the Highway Traffic Act and did not violate section 9.

However, the court concluded that the subsequent safety search was not objectively justified and was influenced by implicit racial bias, violating section 8.

Applying the Grant framework, the court excluded the firearm and drugs under section 24(2) of the Charter.

The accused, charged with drug and firearms offences following a traffic stop, brought an application for the production of police records relating to the arresting officers' prior traffic stops and training materials.

The accused argued the records were relevant to an anticipated Charter challenge alleging racial profiling and an unlawful search.

The court dismissed the application, finding the records were neither first-party disclosure as they were not fruits of the investigation, nor subject to third-party production as the accused failed to establish their likely relevance beyond mere speculation.

The accused pleaded guilty to trafficking fentanyl, a Schedule I substance, after a friend died from consuming the drug he sold.

The Crown sought a six-year custodial sentence, emphasizing the victim's death and the dangerous nature of fentanyl.

The defence sought a conditional sentence of two years less a day, highlighting the accused's status as an addict trafficker, his significant rehabilitative efforts, early guilty plea, and compliance with strict bail conditions.

The court imposed a conditional sentence of two years less a day, followed by three years probation, including house arrest, a DNA order, and a 10-year weapons prohibition.

The decision distinguished between commercial traffickers and addict traffickers, emphasizing rehabilitation and the principle of proportionality.

The accused, charged with manslaughter and aggravated assault, sought to exclude two statements made to police on January 3, 2020, and May 4, 2020.

He alleged the statements were involuntary and obtained in violation of his rights under sections 9 and 10(b) of the Charter.

Following a blended voir dire, the court found that the police treated the accused respectfully, no threats or inducements were made, and the accused's Charter rights were not breached during either detention.

Both statements were ruled voluntary and admissible at trial.

The accused, charged with manslaughter and other offences, brought a pretrial application for a stay of proceedings, alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay from the date of the charges to the anticipated completion of the trial was 30 months and 28 days.

The court deducted 4.5 months of defence delay caused by counsel's scheduling inflexibility, bringing the net delay below the 30-month presumptive ceiling.

The court found the defence failed to demonstrate meaningful and sustained steps to expedite the proceeding, and dismissed the application.

The accused, an inmate and server in a detention facility, distributed a fentanyl/carfentanil mixture to other inmates, leading to the fatal overdose of one inmate and overdoses in others.

The accused was charged with trafficking and unlawful act manslaughter.

The defence argued that the accused acted as an 'agent for the purchaser' or 'co-purchaser' and that his actions were induced by duress from the inmate hierarchy.

For the manslaughter charge, the defence claimed a lack of factual or legal causation due to alleged intervening acts (suicide, correctional authorities' failure, additional drug intake, voluntary consumption).

The court found the accused guilty of trafficking, rejecting the 'agent for the purchaser' and duress defences, as his actions were voluntary and he had safe avenues of escape.

The court also found him guilty of unlawful act manslaughter, concluding his actions were a significant contributing cause of death, and rejected all alleged intervening acts.

The accused, charged with manslaughter and other offences, sought leave to cross-examine the affiant and sub-affiants of an Information to Obtain (ITO) a general warrant.

The accused argued that the authorizing judge was deprived of relevant information regarding the police's operational plan, including the intention to obtain a statement and the use of the Emergency Response Unit.

The court dismissed the motion, finding that cross-examination was not necessary because the arguments regarding the omissions and the use of a youth record could be made based on the evidence already before the court.

The accused, Brian Foreman, faced charges of impaired driving and "80 Plus" after crashing his car.

He brought a Charter application to exclude breath samples and observations of alcohol odour, alleging violations of his rights against arbitrary detention, unreasonable search and seizure, and right to counsel.

The court found that while reasonable grounds for arrest and breath demand existed, the police officer failed to immediately inform the accused of his right to counsel and delayed facilitating access to counsel.

Despite the minimal impact on the accused's rights, the seriousness of the police misconduct, particularly the officer's dishonesty in testimony and persistent ignorance of constitutional obligations, led the court to exclude the breath samples and related observations under s. 24(2) of the Charter.

With the exclusion of this key evidence, the Crown lacked sufficient proof, leading to acquittals on both charges.

The defendant pleaded guilty to deriving a material benefit from the purchase of sexual services, contrary to section 286.2 of the Criminal Code.

The offence involved her relationship with the victim and her pimp, where she coached the victim, monitored her, and received money from her, including a "leaving fee." The court considered significant mitigating factors, including the defendant's guilty plea, lack of criminal record, personal history of exploitation in the sex trade, and significant rehabilitative efforts.

Aggravating factors included the exploitation of a vulnerable young woman and the financial impact on the victim.

The court found comments in the pre-sentence report regarding the defendant's character and attitude unhelpful and disregarded them, emphasizing the proper scope of pre-sentence reports.

Despite the Crown seeking a conditional sentence, the court granted a conditional discharge with 12 months probation, finding it in the defendant's best interest and not contrary to public interest, given the unique and exceptional circumstances, and the low risk of re-offence.

A DNA order was also issued.

The Crown applied for a temporary publication ban on portions of an agreed statement of fact and bail synopsis relating to an adult accused who pleaded guilty to manslaughter.

The ban was sought to protect the fair trial rights of a young person co-accused who was scheduled to be tried for second-degree murder at a later date.

The court applied the Dagenais/Mentuck test and concluded that a broad ban was not necessary, as alternative measures like jury instructions and the passage of time would mitigate prejudice.

However, a limited ban was granted for evidence that could identify the young person or would be presumptively inadmissible at their trial.

The Crown brought an application under s. 669.2 of the Criminal Code to have the accused's trial continued before a different judge after the original pretrial judge became unavailable due to an extended medical leave.

The accused opposed the application, arguing the original judge was only temporarily unavailable and offering to waive his s. 11(b) Charter rights.

The court granted the application, finding that the original judge was unable to continue and that society's interest in a timely trial for sexual offences involving a minor outweighed the accused's preference to wait for the original judge's uncertain return.

The accused, charged with kidnapping and human trafficking, brought a Charter application challenging production orders for their cell phone records.

They argued the Information to Obtain (ITO) lacked reasonable grounds to believe the records would afford evidence of the offences, as there was no evidence they possessed or used cell phones during the alleged offences.

The court agreed, finding the ITO relied on mere suspicion rather than credibly-based probability, resulting in a breach of section 8 of the Charter.

A subsequent hearing will determine if the evidence should be excluded under section 24(2).

The Attorney General of Ontario sought an order appointing counsel for a seventeen-year-old sexual assault complainant to represent her interests during a section 278.93 Code application hearing concerning evidence of her sexual history.

The complainant wished to exercise her standing and right to legal representation at the evidentiary hearing.

The court considered whether a statutory court possessed the jurisdiction to make such an appointment order.

The accused pleaded guilty to possession of fentanyl and methamphetamine for the purpose of trafficking, identity theft, and possession of counterfeit money.

He sought a reduced sentence, alleging his high-risk arrest at a gas station violated his Charter rights and that he suffered harsh pre-trial custody conditions, including an assault.

The court found no Charter breaches regarding the arrest but granted 60 days of enhanced credit for the assault in custody.

The accused was sentenced to a total of 45 months' imprisonment, reduced to 32 months going forward after pre-sentence custody credit.

The defendant pleaded guilty to possession of fentanyl for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, identity theft, and possession of counterfeit money.

The defendant challenged the circumstances of his arrest under sections 7 and 8 of the Charter and sought enhanced credit for pre-trial detention at Maplehurst Correctional Centre.

The court found no Charter violations in the arrest execution and rejected most claims regarding harsh detention conditions, though it granted limited additional credit for an assault suffered in custody.

The court imposed a sentence of 45 months incarceration, with credit for 399 days of pre-trial detention, resulting in time served plus 32 months additional custody.

The accused, Abdu Mohamed, charged with dangerous driving causing bodily harm and assault with a weapon, sought to introduce expert psychological evidence to support a defence of automatism.

The court conducted a voir dire to determine the admissibility and scope of the proposed expert testimony from Dr. George Stones.

Applying the Mohan criteria, the court found Dr. Stones qualified as an expert in psychology and dissociative states, and his evidence relevant and necessary.

However, the court imposed strict limitations on his testimony, prohibiting opinions on the accused's truthfulness, speculative theories about past trauma and immigration, and personal opinions lacking scientific support regarding the victim of aggression in a dissociative state.

The ruling on future risk evidence was deferred.

The Crown brought an application to designate the accused as a dangerous offender following his conviction on multiple offences including two counts of human trafficking.

The accused sought to prohibit the Crown from calling viva voce evidence relating to findings of guilt from 1999 on the grounds of issue estoppel.

The court dismissed the application, finding that issue estoppel did not apply because there was no evidence that the sentencing judge from 1999 made findings of fact in favour of the accused, nor was there evidence that such findings were logically necessary to the convictions and sentence imposed.

The destruction of the audio recording and transcript from the 1999 proceedings prevented the court from determining what facts were admitted or found.

The accused brought an application to stay proceedings for unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The Crown charged the accused with possession of cocaine, possession for the purpose of trafficking cocaine, and possession of proceeds of crime following a search warrant execution on October 3, 2016.

The case proceeded through multiple adjournments and judicial pre-trials, with significant delays in Crown disclosure.

The accused initially faced a discovery preliminary hearing scheduled for November 2017 but later elected trial in the Ontario Court of Justice in September 2017.

The court found that the applicable Jordan presumptive ceiling was 18 months (not 30 months as the Crown argued), and that the total delay of 18 months and 24 days, minus 44 days of defence delay, resulted in net delay of approximately 17.5 months, narrowly avoiding the presumptive ceiling.

The application to stay was dismissed, though the court criticized the Crown's disclosure practices as unacceptable and cavalier.