Malcolm McRae

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 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 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 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.

The Crown applied for a dangerous offender designation and indeterminate sentence for the respondent convicted of human trafficking, receiving material benefits from trafficking, withholding documents, exercising control, and obstructing justice.

The court found the respondent posed a high risk to reoffend but declined the dangerous offender designation due to insufficient evidence of the requisite pattern of repetitive behaviour under section 753(1)(a)(i) of the Criminal Code.

However, the court designated the respondent as a Long Term Offender under section 753.1(2) and imposed a sentence of 10½ years incarceration (reduced by pre-sentence custody credit to 2 years 7 months remaining) followed by a maximum 10-year Long Term Supervision Order.

The Crown brought a pre-trial motion seeking a ruling that the accused had waived solicitor-client privilege regarding communications with his former counsel.

The accused had filed a written waiver at the preliminary hearing, purporting to limit the waiver to oral communications during a specific time period and solely for the purpose of the preliminary hearing.

The court held that the waiver could not be limited to the preliminary hearing, as doing so would allow the accused to use privilege as a sword rather than a shield and risk misleading the court.

The Crown was permitted to cross-examine the former counsel on any relevant communications within the specified time frame.

The accused was sentenced following conviction for assault causing bodily harm in a domestic violence context.

The court imposed a sentence of seven months imprisonment (credited as seven months and eight days with pre-sentence custody), followed by three years of probation.

The sentence took into account the accused's extensive criminal history involving violent offences dating back to 2007, the domestic nature of the assault, and the demeaning and violent manner in which the assault was perpetrated.

The court credited the accused minimally for time spent on bail release conditions.

The probation order included conditions requiring the accused to keep the peace, report to a probation officer, attend domestic violence counselling programs, maintain no contact with the victim, and remain at least 100 metres from places the victim frequents.

A lifetime weapons prohibition was imposed under section 109 of the Criminal Code, and a DNA order was made.

A $200 victim fine surcharge was imposed with one year to pay.

The Public Prosecution Service of Canada (PPSC) sought production of a file held by the respondent's former solicitor, Shahzad Siddiqui, contending that the respondent had waived solicitor-client privilege over all communications during the retainer.

The respondent resisted, arguing the waiver was limited to oral communications during a preliminary inquiry.

The court found that the explicit waiver referred only to oral communications and was limited in purpose.

The documents sought were deemed innocuous and would not mislead the court or opposing counsel.

The court dismissed the application for production, upholding the respondent's claim of solicitor-client privilege and ordering the sealed file to remain in court custody.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol level exceeding 80 mg per 100 ml of blood following a RIDE spot check.

The impaired charge was dismissed due to lack of evidence of impairment.

On the Over 80 charge, the defence raised multiple Charter breaches including timing of breath samples, failure to videotape, lost evidence, lack of reasonable grounds, and denial of right to counsel.

The court rejected all Charter breach arguments and found the Crown proved the accused operated a motor vehicle with a blood alcohol level over the legal limit.

Conviction entered.