Marcella Henschel

On a pre-trial Charter application in a first degree murder prosecution, the accused alleged that his s. 10(b) rights were breached because his brief Brydges duty counsel consultation was constitutionally deficient and because police failed to facilitate a second consultation before routine post-arrest evidence-gathering steps.

The court held that the police fulfilled both their informational and implementational duties by promptly advising the accused of his rights and facilitating private contact with duty counsel at the first reasonable opportunity.

Applying Sinclair, Willier, LaFrance, and Dussault, the court found no objectively observable change in circumstances and no basis requiring police to monitor advice quality or provide renewed access before photographs, fingerprints, clothing seizure, and hand swabs.

The court further held that duty counsel providing summary legal advice is not a state actor and that s. 10(b) guarantees access to counsel, not the quality of legal advice received.

The accused was convicted after trial of possession of cocaine and fentanyl for the purposes of trafficking.

The offences involved 28.7 grams of cocaine and 183.6 grams of fentanyl seized from a rental vehicle and a residential search.

The court found the accused to be a mid-level trafficker motivated by financial gain.

The court rejected a conditional sentence as inconsistent with the fundamental sentencing objectives of denunciation and deterrence given the large quantity of fentanyl, and imposed a penitentiary sentence.

Significant mitigating factors — including five years of compliance with stringent bail conditions, prosocial conduct, and severe collateral consequences to young children — reduced the sentence from a starting point of eight years to a net sentence of six years, reflecting one year credit for restrictive bail conditions and three days of pre-trial custody.

The Crown brought a pre-trial motion in a first-degree murder case to admit hearsay statements and video-recorded police interviews of the deceased's eight-year-old daughter.

The child witnessed a struggle between the accused and her mother, during which she heard her mother say 'let me go' and the accused reply 'wait, wait, wait, wait'.

The court ruled the mother's statement admissible as a res gestae spontaneous utterance and under the principled exception to the hearsay rule.

The accused's statement was admitted as a party admission.

The court also admitted the child's video statements under s. 715.1 of the Criminal Code, subject to editing, and granted testimonial aids including testimony via closed-circuit television with a support person and support dog.

The accused is charged with first-degree murder of his former intimate partner.

The Crown sought to admit the expert opinion evidence of a forensic pathologist regarding the cause of death, which included neck compression.

The defence opposed the admission, arguing the expert was biased, inflexible, and failed to consider alternative causes for petechiae, such as coughing.

The court applied the two-stage test for expert evidence and found the expert was properly qualified, understood her duty to the court, and her reasoning was transparent and evidence-based.

The court admitted the expert evidence, concluding its probative value outweighed any potential prejudicial effect, leaving the ultimate assessment of weight to the jury.

The appellant was convicted of "80 plus" after being approached by police while drinking in a parked car in a plaza parking lot.

The officer detained him to check his sobriety, waited 15 minutes due to potential mouth alcohol, and then demanded an ASD sample once the device arrived.

The trial judge admitted the breath readings, finding the stop was authorized at common law, the demand met statutory immediacy requirements, and the admission of evidence would not bring the administration of justice into disrepute despite an 11-minute delay in providing the right to counsel upon arrest.

The summary conviction appeal court dismissed the appeal, holding that the police have common law authority to conduct random sobriety stops in public parking lots, that an informal immediate demand satisfied the Criminal Code, and that the trial judge's findings on exclusion of evidence and care and control were reasonable.

The accused pleaded guilty to manslaughter for causing the death of Kenneth Chopee on January 25, 2023.

The accused discovered his personal property in the victim's possession, became enraged, and attacked the victim with bolt cutters and a knife, inflicting devastating injuries including multiple skull fractures and stab wounds.

The accused did not form the specific intent to kill due to his excessive consumption of fentanyl and benzodiazepines.

The court imposed a sentence of 9.5 years custody, accounting for harsh pre-trial detention conditions and mistreatment by police following arrest.

The sentence reflects the serious nature of the violent offense while considering the accused's rehabilitative efforts in custody and difficult background.

The Crown applied to introduce an out-of-court video statement of a deceased witness for the truth of its contents under the principled exception to the hearsay rule in a second-degree murder trial.

The witness was under the influence of fentanyl and extremely fatigued during the police interview, which was replete with leading questions and internal inconsistencies.

The court found that the statement lacked both procedural and substantive reliability.

The corroborative evidence, including video surveillance and preliminary hearing testimony of another witness, failed to rule out alternative explanations for the material aspects of the statement.

The application was dismissed.

In this decision, the Ontario Court of Justice acquitted Franco Tomasone of the charge of refusing to provide a breath sample under s. 320.15(1) of the Criminal Code.

The court found that the Crown failed to prove beyond a reasonable doubt that Tomasone unequivocally refused to comply with a lawful approved screening device (ASD) demand.

The judge emphasized the statutory immediacy requirement for providing breath samples but recognized that some flexibility is warranted when confusion arises, particularly when the right to counsel is suspended during an ASD demand.

The court also found that the officer did not have objectively reasonable grounds to suspect Tomasone had alcohol in his body at the time of the demand, rendering the demand unlawful.

The decision highlights the importance of the timing and clarity of demands and refusals in impaired driving investigations.

The accused, a young person, was charged with kidnapping, forcible confinement, sexual assault, and failing to comply with a release order.

The victim was kidnapped at gunpoint by two older men, sexually assaulted in the vehicle by one of them, and then driven to a garage where the accused and two other young men were waiting.

The victim was tied to a chair and tortured by the other young men while the accused was present and provided a syringe with fentanyl used to threaten her.

Incident to arrest, the police obtained a penile swab from the accused without providing him an opportunity to have a parent or counsel present.

The court found that the police lacked objective reasonable grounds to believe the penile swab would afford evidence of the sexual assault, and that the manner of execution violated s. 8 of the Charter because the accused was not afforded enhanced procedural protections as a youth.

However, the court concluded that a stay of proceedings was not warranted, finding that a sentence reduction was an appropriate alternative remedy.

Findings of guilt were entered for kidnapping, forcible confinement, and failing to comply with a release order, while the sexual assault count was dismissed.

Police responded to a domestic disturbance call and arrested the accused for mischief after observing the complainant’s property scattered below her apartment balcony.

During a search incident to arrest, officers discovered cocaine, fentanyl, and drug paraphernalia on the accused.

The accused alleged multiple Charter breaches relating to the arrest, strip search, and delay in access to counsel.

The court held the arrest and searches were lawful and that any delay in implementing the right to counsel was justified by officer and public safety concerns, particularly the risk posed by fentanyl.

The application to exclude the drug evidence under s. 24(2) was dismissed, and the accused was convicted of possession of fentanyl and cocaine for the purpose of trafficking.

The accused, Mark Aninon, pleaded not guilty to attempted murder and assault with a weapon.

The court found him not criminally responsible (NCR) due to a mental disorder, specifically schizophrenia, for both offences.

The decision was based on an agreed statement of facts establishing the actus reus and expert psychiatric evidence confirming that the mental disorder rendered the accused incapable of appreciating the nature and quality of his actions or knowing they were wrong.

The matter was remitted to the Review Board for disposition, emphasizing that public safety remains the paramount consideration in the NCR regime.

Hesam Dowran pleaded guilty to two counts of voyeurism for making surreptitious video recordings for a sexual purpose.

The incidents involved filming a 16-year-old in a public mall and an unidentified nude woman who was a tenant in his Airbnb.

Police found numerous other voyeuristic videos on his devices.

The Crown sought eight months custody and three years probation, while the defence sought a non-custodial sentence.

The court considered aggravating factors such as the repeated and predatory nature of the conduct, the victim's age, breach of trust, and significant victim impact, balanced against mitigating factors including a guilty plea, no prior record, remorse, and significant counselling.

The court emphasized denunciation and general deterrence, finding a conditional sentence inappropriate given the seriousness and extent of the offences.

Dowran was sentenced to four months custody and two years probation.

The accused was charged with multiple firearm offences after attempting to enter a nightclub with a concealed handgun and subsequently fleeing from police.

During the foot chase, the accused discarded a loaded prohibited firearm.

The accused brought a Charter application alleging violations of his s. 10(a) and s. 10(b) rights.

The court found no s. 10(a) violation but found a s. 10(b) violation due to a 43-minute delay in facilitating access to counsel at the police station.

Applying the Grant test, the court declined to exclude the firearm and DNA evidence under s. 24(2), finding the breach was not serious and had minimal impact.

On the trial proper, the court found the circumstantial evidence overwhelmingly established the accused's identity and possession of the firearm.

The accused was found guilty on all counts.

The applicant, a young Black male, was stopped at a RIDE program.

Officers smelled cannabis and observed cannabis shake on his clothing.

The applicant admitted to smoking earlier and being a "messy roller".

The officers detained the applicant and searched his vehicle under section 12(3) of the Cannabis Control Act, locating a loaded handgun in a closed satchel on the passenger seat.

The applicant brought a Charter motion to exclude the firearm, alleging racial profiling and violations of his rights under sections 8, 9, 10(a), and 10(b).

The court dismissed the motion, finding no evidence of racial profiling.

The court held that the officers had reasonable grounds to search the vehicle and that the Cannabis Control Act authorized the search of the closed satchel.

The court also found no violations of the applicant's rights to counsel, which were suspended during the brief roadside investigation.

The accused was charged with operating a conveyance with a blood alcohol concentration over 80mg.

At trial, the accused argued her s. 10(b) Charter right to counsel was violated due to a seven-minute delay between her arrest and the reading of her rights.

The court found no Charter violation, concluding the delay was justified by the officer's need to secure the accused, conduct a search incident to arrest, and ensure safety.

The court further held that even if a breach had occurred, the breath sample evidence would not be excluded under s. 24(2).

The accused was found guilty.

The applicant, charged with impaired driving and "80 plus", sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay was 24 months and 21 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court found no defence delay, as the defence diligently pursued core disclosure that was significantly delayed by the Crown and police.

A deduction of three months was made for pandemic-related systemic delay as an exceptional circumstance.

Even with this deduction, the remaining delay of 21 months and 21 days still exceeded the presumptive ceiling, leading the court to grant a stay of proceedings.

Krsna Singh was charged with refusing to provide a breath sample.

Police responded to a Crimestoppers tip about an impaired driver, located the vehicle at Singh's residence, and made an Approved Screening Device (ASD) demand, which Singh refused.

Singh challenged the lawfulness of his detention and the ASD demand, alleging violations of his Charter rights under sections 9 (arbitrary detention), 10(a) (right to be informed of reasons for detention), and 10(b) (right to counsel).

The court found no Charter violations, distinguishing the case from R. v. McColman by noting the police had reasonable grounds to suspect impaired driving based on the specific tip.

The court also found the police acted within their ancillary powers and that Singh was promptly informed of his detention reasons and that his right to counsel was not violated, as he was released as soon as practicable.

Consequently, the court found Singh guilty of the offence.

The accused, charged with impaired driving, brought an application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The court determined that the delay clock started when the information was sworn, not at the time of arrest.

After deducting delay caused by the COVID-19 pandemic as an exceptional circumstance and a period of defence delay, the remaining delay was calculated at 14 months and 9 days, which is below the 18-month presumptive ceiling.

The court found that the case did not take markedly longer than it reasonably should have and dismissed the application.

Zion Lewis, a 20-year-old first offender, pleaded guilty to possession of a loaded restricted firearm.

The court considered aggravating factors, including the inherent danger of the weapon and its possession after a car accident, and mitigating factors such as his youth, guilty plea, strong rehabilitative prospects, supportive family, harsh pre-trial custody conditions (including contracting COVID-19), and experiences with anti-Black racism.

The court emphasized denunciation and deterrence but also rehabilitation, particularly for youthful first offenders, and the relevance of social context evidence to moral blameworthiness.

The court imposed an 18-month sentence, with credit for pre-trial custody and strict bail conditions, resulting in 106 days remaining to be served, followed by 2 years of probation.

Ancillary orders included a lifetime firearms prohibition and a DNA databank order.

Barjot Minhas pleaded guilty to one count of assault causing bodily harm and one count of aggravated assault after stabbing two individuals at a house party.

The court considered the serious nature of the injuries, the use of a concealed knife, and the multiple instances of violence as aggravating factors.

Mitigating factors included the offender's youth, first-offender status, positive pre-sentence report, remorse, and compliance with bail conditions.

The court also considered the impact of the COVID-19 pandemic on conditions of custody.

Applying sentencing principles of denunciation, deterrence, and rehabilitation, the court imposed a global sentence of 18 months custody followed by 2 years probation, along with ancillary orders.