Mario Thomaidis

The Crown applied under section 486.2(2) of the Criminal Code for Lindsay Smith, a key witness and former intimate partner of the accused, to testify via closed circuit television (CCTV) in a trial for failing to remain at the scene of an accident causing death.

The application was supported by evidence from a Victim Witness Services Worker, who described Ms. Smith’s anxiety and safety concerns.

The defence opposed, arguing Ms. Smith was no longer intimidated.

The court granted the application, finding that testifying by CCTV would facilitate a full and candid account and was in the interests of justice, especially given the context of intimate partner violence and the need to encourage survivor participation in the justice process.

The Crown applied on behalf of the complainant to revoke a publication ban issued under s. 486.4 of the Criminal Code.

The court noted recent amendments to s. 486.51 intended to respect complainant autonomy.

Finding that the ban's purpose is to protect the complainant, not the accused, and that the accused had notice but did not seek their own ban, the court granted the application and revoked the publication ban.

The applicant, M.C., sought to exclude evidence under s. 24(2) of the Charter, alleging violations of his s. 8 (unreasonable search) and s. 10 (right to counsel) rights by Canada Border Services Officers (BSOs) during a search of his electronic devices at Pearson International Airport.

The court found that the BSO had a particularized suspicion, triggering a constitutional detention, and failed to caution M.C. or advise him of his s. 8 rights before the search, thus violating s. 8.

The court also found that BSOs violated M.C.'s s. 10(b) right to counsel by adhering to a policy that restricted detainees to only duty counsel, denying his request to speak to his uncle, a criminal lawyer.

While a subsequent police interview by Constable Imber was found not to violate M.C.'s s. 10 rights and his statement to Imber was voluntary, the search warrant obtained by police was deemed invalid as it was based on constitutionally tainted information from the initial unlawful border search.

Applying the Grant test for s. 24(2) exclusion, the court found the Charter breaches serious, the impact on M.C.'s rights significant, and society's interest in the rule of law favoured exclusion.

The evidence recovered from M.C.'s electronic devices was therefore excluded from his trial.

The accused, facing historical sexual abuse charges, brought an application to exclude a recorded telephone conversation between himself and the complainant.

The accused argued the recording was more prejudicial than probative.

The court found the recording had significant probative value, as the accused's failure to deny the allegations and his apology could be construed as an admission.

The court also found no moral or reasoning prejudice would result from its admission.

The application to exclude the evidence was dismissed.

The accused, G.D., faced historical sexual abuse charges.

The Crown sought to admit statements made by the accused to the complainant, his niece, during two telephone conversations, without proving voluntariness under the confessions rule.

The accused argued the complainant was a "person in authority" because he believed she was a parole officer and could initiate criminal proceedings.

The court examined the "person in authority" requirement, particularly in light of R. v. Hodgson, and concluded that for the confessions rule to apply, the recipient of the statement must actually be an agent of the state or capable of influencing the prosecution, in addition to the accused's reasonable belief.

Since the complainant was not acting on behalf of investigating authorities, her status as a private citizen meant the confessions rule did not apply.

The Crown brought an application seeking to terminate a preliminary inquiry that had commenced on September 18, 2019, arguing that amendments to Section 535 of the Criminal Code (Bill C-75), which came into effect on September 19, 2019, eliminated the jurisdiction of the court to conduct preliminary inquiries where the maximum punishment is under 14 years of imprisonment.

The Crown had withdrawn a Section 244 charge (punishable by 14 years or more), leaving only offences with maximum sentences under 14 years.

The court denied the Crown's application, finding that the legislation should not apply retrospectively to proceedings already commenced.

The accused, charged with sexual interference and sexual assault, brought an application under s. 638(1)(f) of the Criminal Code to challenge all prospective jurors for cause regarding their English language competence.

The trial was scheduled to proceed in English in Brampton.

The court dismissed the application, finding that the standard jury vetting process adequately addresses language comprehension and that the accused failed to provide an evidentiary foundation or air of reality to justify the proposed challenge for cause.

After trial, the offender was sentenced for possessing child pornography, with the accessing conviction conditionally stayed under the Kienapple principle because both offences arose from the same wrongful conduct.

The court reviewed aggravating and mitigating factors, including the size and nature of the collection, dated related record, remorse, lengthy delay, supportive family, and absence of reoffending over nine years.

Applying the governing principles for child pornography sentencing, the court found the otherwise fit range to be six to eight months' imprisonment.

The court then modestly reduced sentence to 179 days to account for severe collateral immigration consequences to a long-term permanent resident, while maintaining proportionality.

Ancillary probation, s. 161, SOIRA, and DNA orders were also imposed.

The accused, M.K., was charged with sexual assault, assault with a weapon, forcible confinement, death threats, and simple assault against his wife, A.H., following their arranged marriage and her arrival in Canada.

The case was a pure credibility contest with no significant corroboration.

The court found the complainant's evidence regarding forcible confinement to be substantially exaggerated and unreliable, particularly as the accused was absent for most of the alleged confinement period.

The Crown's cross-examination of the accused and defence witnesses was criticized for its demeaning tone, incivility, and unfairness, including misrepresenting a police statement.

Ultimately, the court found the complainant's allegations of criminal conduct unreliable and unsafe for a finding of guilt, leading to an acquittal on all counts.

Criminal trial concerning child pornography located on the accused's computer following a peer-to-peer file-sharing investigation.

The Crown proved possession and access offences through forensic evidence and the accused's admissions, but the only live issue was whether the accused subjectively knew he was making files available to others through file-sharing software.

Applying the mens rea analysis from Spencer and the credibility framework in W.(D.), the court held the Crown failed to prove beyond a reasonable doubt that the accused intended, knew, or was wilfully blind to sharing child pornography.

Convictions were entered on possession and access, and an acquittal was entered on making available.

The Crown appealed two summary conviction acquittals for "over 80" offences, arguing that the Ontario Court of Appeal's decision in R. v. Soules was wrongly decided and per incuriam, and therefore not binding.

The Superior Court dismissed both appeals, reaffirming the principle of stare decisis and holding that R. v. Soules remains binding authority on lower courts, as confirmed by the Court of Appeal in R. v. Roberts.

The court also upheld the trial judge's rejection of the Crown's Section 1 Charter argument, agreeing that a Section 7 breach, triggered by the Crown's attempt to use statutorily compelled statements at trial, is not amenable to Section 1 justification.

The Crown brought an application to admit the notes, diagrams, and Exhibit List prepared by a deceased police officer under the principled exception to the hearsay rule.

The officer had served as the Exhibit Officer during the execution of a search warrant in a child exploitation investigation.

The court found that necessity was established due to the officer's death and that threshold reliability was met given the administrative nature of the task, the officer's conscientious work habits, and the corroborative checks performed by other officers.

The application was granted and the evidence was ruled admissible.

During a trial, the Crown brought an application to admit into evidence an Agreed Statement of Facts that the accused had signed and filed in support of earlier guilty pleas which were subsequently struck.

The court dismissed the application, applying the reasoning from R. v. B.(D.M.), holding that the Agreed Statement of Facts was inextricably linked to the struck guilty pleas and fairness required it to be brought under the same protective umbrella.

The accused pleaded guilty to possession of child pornography and access to child pornography contrary to sections 163.1(4) and 163.1(4.1) of the Criminal Code.

Police found 32 unique video clips and 69 unique pictures of child pornography on the accused's computer depicting children aged 6-14 engaged in sexual abuse.

The Crown sought 8 months imprisonment plus 2 years probation.

The defence sought a conditional sentence or alternatively 4-6 months imprisonment.

The court imposed 6 months imprisonment (after crediting pre-trial custody and bail time) followed by 2 years probation, a 10-year section 161 order, DNA order, lifetime SOIRA registration, and forfeiture of computer equipment.

The court rejected a conditional sentence as inconsistent with denunciation and deterrence principles applicable to child pornography offences.

The defendant in a sexual assault trial applied under s. 276(2) of the Criminal Code to adduce evidence of the complainant's prior sexual activity with another man, Steve.

The defence theory was that the complainant fabricated the assault to protect her relationship with Steve, given inconsistencies in her statements about her relationship with Steve and DNA evidence.

The court found the evidence admissible, ruling that the defendant met the preconditions under s. 276(2) and that the evidence had significant probative value regarding the complainant's credibility and the defendant's right to make full answer and defence, without invoking the "twin myths."

The applicant sought leave to cross-examine the affiant and sub-affiant regarding an Information to Obtain a search warrant for his residence.

The search warrant, issued on October 20, 2016, led to the seizure of eight computer devices and the discovery of child pornography.

The applicant was charged with possession of child pornography and accessing child pornography.

The applicant argued that the ITO lacked information about the investigative process linking the computer user at a suspected IP address to the possession of child pornography, and that cross-examination was necessary to remedy these informational shortcomings.

The Crown opposed the application, arguing that the applicant had not demonstrated that cross-examination would elicit testimony tending to discredit a pre-condition to the warrant's authorization.

The court refused leave to cross-examine, finding that the applicant had not established an evidentiary basis for the proposed cross-examination and that the areas sought were too broad and speculative.

The accused was charged with care and control of a motor vehicle while impaired and over the legal limit, resisting arrest, and assault with intent to resist arrest, following her arrest at a banquet hall parking lot.

The Crown alleged the accused was found behind the wheel of her vehicle after leaving a Christmas party.

The accused applied for Charter relief alleging breaches of sections 7, 8, and 9 of the Charter.

The trial judge dismissed the Charter applications but acquitted the accused on the impaired and over 80 charges, finding she had rebutted the statutory presumption of care and control and that no realistic risk of danger existed.

The accused was convicted of resisting arrest but acquitted of assault with intent to resist arrest.

Two defendants were jointly charged with dangerous driving causing bodily harm following a street race on May 11, 2015, that resulted in a collision with an innocent third party.

The Crown alleged the defendants engaged in street racing along Mavis Road in Mississauga, which caused one defendant's vehicle to lose control and collide with the victim's Honda Civic, causing serious injuries.

The trial focused on whether both defendants were driving dangerously and whether the second defendant's manner of driving significantly contributed to the victim's bodily harm despite not being physically involved in the collision.

The court found the first defendant guilty as charged and the second defendant guilty of dangerous driving simpliciter, finding insufficient evidence that the second defendant's driving significantly contributed to the victim's injuries.

The defendant was charged with operation of a motor vehicle with excess blood alcohol.

The defence brought a motion under sections 7 and 8 of the Canadian Charter of Rights and Freedoms seeking to exclude breath sample results.

The central issue was whether the defendant's roadside statements identifying himself as the driver were statutorily compelled statements under section 199 of the Highway Traffic Act.

The court found that the statements were compelled and that their use to establish reasonable suspicion for an ASD demand and reasonable and probable grounds for breath samples violated section 7 of the Charter.

The court excluded the breath sample evidence.

The accused was stopped by police ostensibly for speeding and running red lights, but the officer's actual purpose was to investigate impaired driving.

The officer failed to immediately advise the accused of the true reason for the detention, conducted an unjustified pat-down search, and unlawfully detained the accused in the back of a police cruiser before administering a roadside screening device.

Although the officer made reasonable efforts to facilitate contact with counsel of choice, the court found violations of sections 8, 9, and 10(a) of the Canadian Charter of Rights and Freedoms.

The breath sample evidence was excluded under section 24(2) of the Charter, and the charge was dismissed.