Malcolm Savage

This decision addresses the application to exclude evidence seized during a warrantless search conducted under s. 12(3) of the Cannabis Control Act (CCA).

The police officer stopped the accused for a traffic violation and observed a cannabis vape pen in the vehicle, which he believed constituted reasonable grounds to conduct a search.

The Court found that the vape pen is paraphernalia and not cannabis itself, and that the officer lacked objectively reasonable grounds to conduct the search without further investigation.

The Court also found a breach of the accused’s s. 10(b) Charter right due to delay in informing him of his right to counsel.

Balancing the factors under s. 24(2) of the Charter, the Court excluded the evidence due to serious Charter breaches despite the good faith of the officer.

The accused, O.W., was charged with first-degree murder and attempted murder in connection with a fatal shooting.

The Crown’s case was entirely circumstantial, relying on evidence of means, opportunity, motive, and post-offence celebratory conduct.

The central issue was the identity of the second shooter.

The court found significant gaps and inconsistencies in the evidence, particularly regarding motive and animus, and concluded that the Crown had not proven O.W.’s guilt beyond a reasonable doubt.

O.W. was acquitted on both counts.

The court considered the admissibility of discreditable conduct evidence in a judge-alone trial for first-degree murder and attempted murder.

The Crown sought to introduce evidence that the accused, O.W., threatened the deceased with a firearm on Instagram Live hours before the homicide, and a video showing O.W. associating with J.A. (the co-accused) who brandished a handgun.

The court found both pieces of evidence highly probative to issues of motive, animus, intent, and identification, and held that their probative value outweighed any prejudicial effect, especially given the reduced risk of prejudice in a judge-alone trial.

The application to admit the evidence was granted.

The court considered a Crown application to admit hearsay statements made by the deceased to a friend, Rebecca Guindon, identifying O.W. as the perpetrator of a prior shooting, in a trial for first-degree murder and attempted murder.

The application was dismissed.

The court found that the statements lacked sufficient procedural and substantive reliability to be admitted for their truth under the principled exception to the hearsay rule.

The court also rejected their admissibility under the "state of mind" exception, finding the statements incapable of supporting the inferences the Crown sought regarding motive or animosity between the deceased and O.W.

Dolain Mwamba pleaded guilty to multiple Criminal Code offences, including discharge firearm with intent, possession of a loaded restricted firearm, and breach of a firearm prohibition, as well as possession of cocaine for the purpose of trafficking.

The incident involved Mwamba firing a handgun at a stranger's vehicle during a verbal argument at a gas station.

The court considered aggravating factors such as the gratuitous nature of the shooting and mitigating factors including an early guilty plea, remorse, pro-social tendencies, and a difficult background.

The court imposed a global sentence of six years, comprising a five-year mandatory minimum for discharging a firearm and a one-year consecutive sentence for breaching a prohibition order, with other charges running concurrently.

The accused pleaded guilty to theft under $5,000 and breach of probation after stealing cigarettes from a convenience store he was prohibited from attending.

The accused had a lengthy criminal record of over 100 convictions, primarily for property offences driven by a crack cocaine addiction.

The Crown sought a one-year custodial sentence, while the accused sought a sentence of time served (110 days).

The court emphasized specific deterrence and proportionality, imposing a total sentence of 250 days custody, which was deemed served due to pre-trial custody credit.

The court declined to impose a further probation order, noting the accused was already subject to an existing order and could access community outpatient programs voluntarily.

Thato Tobo pleaded guilty to theft under $5,000 and breach of probation, admitting to stealing cigarettes from a Circle K while under a court order not to attend the store.

The aggravating factor is his extensive criminal record, including over 100 convictions, many property-related, and 10 similar theft charges from the same store in the last two years.

Tobo attributes his crimes to cocaine addiction and disputes a forensic psychiatrist's report regarding his mental health.

The court, seeking to craft a fit sentence incorporating rehabilitation, ordered a pre-sentence report to explore available substance abuse and social support programs, their accessibility, and Tobo's housing prospects.

Amicus curiae counsel was also tasked with obtaining further information from another forensic psychiatrist regarding Tobo's mental health, rehabilitation prospects, and eligibility for a treatment centre.

The offender, Paul David Batchelor, was found guilty of two counts of sexual assault involving two complainants (Ms. B and Ms. R) after a 24-day trial.

The court considered sentencing principles, aggravating factors (significant victim impact, predatory nature, lack of insight), and mitigating factors (first-time offender for these charges, pre-sentence custody, and difficult conditions due to the COVID-19 pandemic, warranting a Duncan credit).

The court imposed a total sentence of two years and six months imprisonment, along with a two-year probation order, lifetime Sex Offender Registry compliance, a DNA order, and a lifetime weapons prohibition.

The accused was charged with sexual assault involving five female complainants he met through online dating platforms.

The central issue was consent and the credibility and reliability of the witnesses.

Applying the W.(D.) framework, the court assessed the evidence for each complainant.

The court found the accused guilty of sexually assaulting two of the complainants, finding their evidence credible and rejecting the accused's testimony.

For the other three complainants, the court found the accused not guilty, as the evidence raised a reasonable doubt regarding either the reliability of the complainants' memories or their subjective non-consent.

The Crown brought forfeiture proceedings against the accused for failing to attend court while on bail.

The accused challenged the court's jurisdiction, arguing the certificate of default was defective.

The court rejected the jurisdictional challenge, finding that a lack of particularity does not deny jurisdiction.

Considering the accused's financial circumstances and late disclosure by the Crown, the court ordered a reduced forfeiture of $500 instead of the pledged $2,500.

The accused pled guilty to perjury for lying under oath during the preliminary inquiry of her boyfriend, who was charged with murder.

The Crown and defence agreed on a sentence range of 18 to 24 months but disagreed on whether it should be served in custody or the community.

The court considered the serious nature of perjury in homicide cases, the accused's youth, lack of prior record, guilty plea, and the impact of the COVID-19 pandemic on custodial sentences.

The court imposed a conditional sentence of two years less a day, finding it would adequately address denunciation and deterrence while facilitating rehabilitation.

The accused brought an application for certiorari to quash her committal for trial and for a stay of proceedings.

During a judicial pre-trial where she was unrepresented, the Crown added a serious charge without explanation, and the accused was incorrectly advised she had no right to a preliminary inquiry and was not put to her election under section 536 of the Criminal Code.

The court found this to be a jurisdictional error that could not be retroactively corrected by the Crown withdrawing the added charge.

The committal was quashed and the matter remitted to the Ontario Court of Justice for a proper election.

The application for a stay of proceedings was dismissed as premature.

Idres Ismail, charged with murder, sought permission to adduce evidence at trial regarding an alternate suspect.

The evidence included a threatening video found on the deceased's phone, viewed shortly before his death, featuring an unknown male who resembled the accused.

The court applied the "air of reality" test, finding that the temporal connection between the video and the death, coupled with the threatening nature, provided a sufficient evidentiary foundation to cast doubt on the accused's guilt.

The application to admit the alternate suspect evidence was granted.

The accused, charged with second degree murder, sought a pre-trial ruling to admit evidence of the deceased's bad character, specifically text messages suggesting the deceased possessed a handgun and dealt drugs.

The accused argued this evidence was relevant to his claim of self-defence, as it supported his belief that the deceased's friends were retrieving a real gun during the altercation.

The Crown opposed, arguing the evidence was irrelevant and prejudicial.

The court allowed the application, finding the evidence had probative value regarding the accused's state of mind, the credibility of the Crown's witnesses, and the likelihood that the deceased's words were intended as a threat, which outweighed any prejudicial effect.

The accused brought a pre-trial application under s. 24(2) of the Charter to exclude evidence seized during a traffic stop, subsequent arrest, and search, arguing racial profiling and significant Charter breaches.

The evidence included a loaded handgun, ammunition, drugs, and cash.

The Crown opposed the application, denying racial profiling and significant breaches.

The court found a breach of the right to counsel under s. 10(b) due to a six-hour delay in providing access to a lawyer while the accused was detained at a hospital, but found other alleged breaches unsubstantiated or minor.

Applying the R. v. Grant framework, the court determined that the admission of the evidence would not bring the administration of justice into disrepute, given the minor nature of the Charter breach, the independent discovery of the real evidence, and the gravity of the firearms and drug trafficking offences.

The application to exclude evidence was dismissed.

Liban Omar was acquitted of first-degree murder but subsequently sentenced for contempt of court.

During his murder trial, Omar testified in his own defence, claiming a "mystery man" committed the murder and provided him with details, but he adamantly refused to name this individual despite court orders and warnings.

The court found his refusal to answer proper questions, while voluntarily testifying, constituted serious contempt.

The judge sentenced Omar to three years imprisonment, emphasizing denunciation and deterrence, and denied credit for the 3.5 years Omar had spent in custody on the murder charge, as that time was not "as a result of the offence" of contempt.

The accused was charged with sexual assault, administering a stupefying substance, and assault against three complainants.

The Crown's case relied almost entirely on the testimony of one complainant, whose evidence was fraught with inconsistencies and contradictions.

The court found the complainant's testimony unreliable and noted a complete lack of corroborating forensic or independent evidence, such as security footage, taxicab records, or DNA.

Given the significant evidentiary gaps and credibility issues, the court was left with a reasonable doubt and acquitted the accused of all charges.

The defendant was charged with sexual assault and sexual interference following an alleged incident on May 2-3, 2015, when the complainant, a 15-year-old girl, was sleeping at a friend's house.

The complainant testified that she awoke to find the defendant with his fingers inserted under her shorts and underwear, touching her crotch.

The defendant denied entering the room or having any contact with the complainant.

The court found the complainant's evidence credible and reliable, noting multiple corroborations and inconsistencies in the defendant's testimony.

The defendant was convicted of both sexual assault and sexual interference.

The court also addressed the legal issue of whether the Crown must prove the defendant's knowledge of the complainant's age for the sexual interference charge, concluding that the Crown bears no such burden unless the defendant introduces evidence of his belief regarding the complainant's age.

Kristopher McLellan and Kyle Mullen were cited for contempt of court after refusing to testify at the second-degree murder trial of Sam Tsega.

Both had previously provided statements to police and, in McLellan's case, testified at his own murder trial, implicating Tsega.

The court found both guilty of contempt.

Considering aggravating factors such as the refusal to testify in a murder trial, the highly probative nature of their evidence, the disruption to the trial, and their criminal records, alongside mitigating factors like no prior contempt, respectful conduct, and the risks associated with being labeled an informant in prison, the court sentenced each to 30 months imprisonment, to be served consecutively to their existing life sentences.

The accused applied for relief under section 11(b) of the Canadian Charter of Rights and Freedoms for a breach of the right to trial within a reasonable time.

The accused was arrested on October 18, 2014 for care and control over 80 and charged on November 19, 2014.

The trial was scheduled for March 15 and 16, 2016, resulting in a total delay of 17 months from arrest and 16 months from the swearing of the information.

The delay was primarily caused by both parties awaiting disclosure of an in-car camera video that did not exist, despite both parties having information indicating its non-existence as early as January 19, 2015.

The court found a breach of section 11(b) rights and stayed the proceedings.