Marianne Salih

The accused was charged with firearms offences after police searched his rental vehicle incident to an arrest for a two-year-old homicide.

The police found a loaded firearm in the vehicle.

The accused brought an application to exclude the evidence, arguing the search violated his s. 8 Charter rights.

The court found that the search was not truly incident to the arrest, as there were no valid safety concerns and no reasonable prospect of locating the homicide firearm in the vehicle two years later.

The court concluded that the police conduct was deliberate and routine, demonstrating a flagrant disregard for Charter rights.

The application was granted, and the firearm and other evidence were excluded under s. 24(2) of the Charter.

The appellant, a personal support worker, appealed his conviction for sexual assault against a resident with Down Syndrome.

The Crown's case at trial relied heavily on hearsay statements made by the complainant to her sister and a police officer, which the trial judge admitted under the principled exception and as res gestae spontaneous statements.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in his hearsay analysis by failing to properly articulate reliability as a hearsay danger, misconstruing corroborative evidence, and failing to consider alternative explanations.

The conviction was set aside and a new trial ordered.

The appellant appealed his conviction for first-degree murder in the strangulation death of his intimate partner.

The Court of Appeal found that the trial judge erred in leaving planned and deliberate murder with the jury, as there was no air of reality to the element of deliberation.

While there was an air of reality to constructive first-degree murder based on unlawful confinement, the Court found that the appellant received ineffective assistance of counsel.

Trial counsel's decision to call a forensic psychiatrist, whose evidence introduced highly prejudicial statements by the appellant about his intent to kill, fell below the standard of reasonableness and resulted in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

The applicants brought a pretrial motion challenging a search warrant and a Part VI wiretap authorization.

The court found that the applicant had standing to challenge the search warrant for a short-term rental unit, as he could rely on the affiant's theory in the Information to Obtain (ITO) which alleged he rented the unit.

The court also held that the applicants do not require leave to cross-examine officers regarding the 'resort-to' provision of the wiretap authorization, as the Crown bears the burden of establishing lawful interception when a Charter challenge is raised.

Following a jury trial where the defendants were convicted of kidnapping and other offences, the Crown sought a Gardiner ruling to establish that a firearm was used during the commission of the offences.

The court reviewed the evidence, including victim testimony, photographs of injuries, and security footage.

The court found beyond a reasonable doubt that an operative firearm was used by a co-perpetrator to threaten and assault the victim during the kidnapping, robbery, aggravated assault, and uttering of death threats.

This finding triggers mandatory minimum sentencing provisions under the Criminal Code.

The appellant, convicted of sexual assault, appealed his sentence of three years, six months' imprisonment.

He argued the trial judge erred in failing to give effect to mitigating factors, failing to apply the principle of restraint, and failing to give proper credit for pre-sentence custody.

The Court of Appeal dismissed the first two grounds, finding the sentence fit given the gravity of the offence.

However, the court allowed the appeal in part on the third ground, increasing the pre-sentence custody credit.

The Crown appealed the respondent's acquittals on charges relating to the sale of sexual services.

The application judge had struck down sections 286.2 (material benefit), 286.3 (procuring), and 286.4 (advertising) of the Criminal Code, enacted by the Protection of Communities and Exploited Persons Act, finding they infringed section 7 of the Charter.

The Court of Appeal allowed the appeal, holding that the provisions do not violate section 7.

The Court found that cooperative arrangements among sex workers do not constitute a 'commercial enterprise' under the material benefit provision, and that the procuring and advertising provisions are neither overbroad nor grossly disproportionate to their objectives.

The Court also rejected arguments that the provisions unjustifiably infringed sections 2(b) and 2(d) of the Charter.

The acquittals were set aside and a new trial was ordered.

The appellant appealed his 21-month custodial sentence for aggravated assault, arguing the sentencing judge erred in applying the parity principle by imposing a sentence almost double that of his co-accused, who pleaded guilty and had a criminal record.

The Court of Appeal dismissed the appeal, finding no error in principle and that the sentence was not demonstrably unfit.

The court affirmed that the sentencing judge properly considered the parity principle and other factors like denunciation and deterrence, noting that the co-accused's guilty plea was a mitigating factor not available to the appellant, justifying the disparity.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence following convictions for sexual assault and prostitution-related offences.

The Court of Appeal found that the sentencing judge erred in concluding that the appellant showed a likelihood of causing harm through a failure to control sexual impulses, as required for a dangerous offender designation under s. 753(1)(b) of the Criminal Code.

The court held that the evidence of prostitution-related activities, while harmful, did not demonstrate a failure to control sexual impulses.

The appeal was allowed, the dangerous offender designation was set aside, and the appellant was designated a long-term offender with a determinate sentence of 6.5 years and a 10-year long-term supervision order, effective from the original sentencing date.

The Crown appealed a trial judge's decision declaring certain Criminal Code provisions related to sexual services unconstitutional and sought a stay of the declaration pending appeal.

The Court of Appeal applied the tripartite test from RJR-MacDonald Inc., finding a serious question to be tried, irreparable harm to the Crown (public confusion, impact on law enforcement), and that the balance of convenience favoured granting the stay, especially given the short duration of the stay until the appeal hearing.

The Crown appealed the respondent's acquittals for possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

At trial, a key Crown witness recanted her videorecorded police statement in which she described witnessing the respondent sell cocaine.

The trial judge permitted the Crown to cross-examine the witness under s. 9(2) of the Canada Evidence Act but dismissed the Crown's application to admit the statement for the truth of its contents under the principled exception to the hearsay rule.

The Court of Appeal found that the trial judge made multiple errors in his hearsay analysis, including improperly assessing necessity based on the overall strength of the Crown's case, failing to recognize the witness's availability for cross-examination as a procedural safeguard, and improperly exercising his residual discretion.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for assault causing bodily harm arising from an altercation at a bush party.

At trial, the appellant claimed self-defence, but the trial judge rejected his testimony and convicted him.

On appeal, the appellant argued the trial judge erred in assessing credibility.

The Superior Court of Justice found that the trial judge erred by relying on ungrounded common-sense assumptions about human behaviour to reject the appellant's testimony and by failing to consider corroborative defence evidence before concluding the appellant was not credible.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellant, Romy Desir, appealed an adult sentence for multiple serious crimes, including three jewelry store robberies and aggravated assault, committed when he was 16 years old.

The sentencing judge imposed a global sentence of seven years.

The appellant argued the judge erred in imposing an adult sentence and failed to apply the principle of restraint.

The Court of Appeal upheld the adult sentence, finding no error in the rebuttal of the presumption of diminished moral blameworthiness.

However, the court found that the sentencing judge failed to properly apply the principle of restraint, which dictates that a first penitentiary sentence for a youthful offender should be as short as possible.

Consequently, the global sentence was reduced from seven years to six years less credit for pre-sentence custody.

The accused, charged with first-degree murder, brought a Garofoli application challenging a production order for his cell phone records, arguing the Information to Obtain (ITO) contained significant errors and omissions violating section 8 of the Charter.

The court found that while the affiant made several errors due to inexperience and negligence, there was no intent to mislead.

After excising the errors and amplifying the ITO, sufficient reliable evidence remained to justify the production order.

The court concluded there was no section 8 violation and noted that, even if a breach had occurred, the evidence would be admitted under section 24(2) of the Charter.

The appellant was convicted of assault with a weapon, possession of a weapon, break and enter, and theft.

Identity was the primary issue at trial.

The trial judge found the appellant guilty, rejecting his explanation for his whereabouts as fabricated.

The Court of Appeal allowed the conviction appeal, finding that the trial judge erred by drawing an inference of guilt from a finding of fabrication without independent evidence.

The convictions were set aside, and a new trial was ordered on all charges.

The sentence appeal was not addressed.

During a murder trial, the Crown sought to introduce two pieces of evidence: an internet search conducted by an associate of the accused shortly after the shooting, and a video found on the associate's phone depicting the accused brandishing a firearm 11 days prior to the murder.

The court ruled the internet search inadmissible, finding its limited probative value was outweighed by its prejudicial effect.

However, the court admitted the video as prior discreditable conduct, concluding it was highly probative on the central issue of identity and its prejudicial effect could be mitigated by jury instructions.

The appellant, Taylor Griffith, appealed his conviction for unlawful possession of a loaded semi-automatic handgun and cocaine for trafficking, and sought leave to appeal his sentence.

The main issue was the exclusion of evidence under s. 24(2) of the Charter due to a s. 10(b) right to counsel breach.

The Court of Appeal found that while the police had objectively reasonable grounds for arrest and search incident to arrest, and were justified in delaying counsel access during warrant execution due to officer safety concerns, an unexplained 80-minute delay after warrants were executed did constitute a s. 10(b) breach.

However, applying the Grant test, the court determined that admitting the reliable and crucial evidence would not bring the administration of justice into disrepute, given the unintentional and situation-specific nature of the breach and its moderate impact on the appellant's Charter interests.

The court also found no error in the trial judge's decision not to reduce the sentence based on the s. 10(b) breach, as it did not relate to the circumstances of the offence or offender.

Both the conviction and sentence appeals were dismissed.

The applicant, a young person charged with second-degree murder and firearms offences, brought a Charter application alleging violations of his rights under sections 10(a) and 12 during his arrest.

The police executed a search warrant using a dynamic entry and a violent struggle ensued when the applicant resisted arrest, resulting in officers punching him multiple times to gain control and seize a loaded firearm.

The court dismissed the application, finding that the section 10(a) right to be informed of the reasons for arrest did not accrue until the applicant was safely detained, which was delayed by his own actions.

Furthermore, the court held that the force used by the police was reasonable and justified under the circumstances, resulting in no section 12 violation.

The accused, charged with second-degree murder, sought to exclude a photograph taken of him surreptitiously by a police officer while he was seated in a courtroom for an unrelated matter.

The accused argued the photograph violated his rights under sections 7 and 8 of the Charter.

The court found no Charter breaches, noting there is no reasonable expectation of privacy in a public courtroom and no state compulsion involved.

However, the court exercised its residual discretion to exclude the photograph because the officer violated section 136 of the Courts of Justice Act, which prohibits taking photographs in a courtroom without judicial authorization.