Martin Kerbel

This preliminary inquiry addressed charges of possession for the purpose of trafficking against three accused.

The Crown sought to admit evidence via a s.540(7) application, primarily relying on police notebook notes.

The court found significant issues with the admissibility and trustworthiness of much of the Crown's evidence, particularly hearsay statements within officer notes, which prevented the defence from cross-examining critical witnesses.

While some drug trafficking activity was inferred, the court found insufficient evidence to establish constructive possession for most charges against Bogdan Butean and Justin David Gurley.

Natalie Tovah Abuhav was committed to stand trial only on the charge of Possession for the Purpose of Trafficking Percocet, as her identification was found with those specific drugs.

The other charges against her, and all charges against Butean and Gurley, were not committed for trial due to lack of sufficient evidence for committal.

Angelina Codina applied for bail pending her application for leave to appeal three decisions of the Court of Appeal for Ontario to the Supreme Court of Canada.

The motion judge dismissed the bail application, finding that Ms. Codina had not met her burden of persuading the court that her release was in the public interest.

The court considered the strength of her proposed grounds of appeal, which were deemed not to "clearly surpass the minimal standard" of "not frivolous," and noted a residual public safety concern given her history of preying on vulnerable individuals and being "ungovernable." The court emphasized the paramountcy of enforcing trial judgments at this stage of proceedings, especially given no further right of appeal.

The offender pleaded guilty to five counts of fraud over $5,000 for evading personal and corporate income taxes and failing to remit GST/HST, totaling over $1.6 million.

The court accepted a joint submission for a penitentiary sentence of two and one-half years.

The court also found that the offender had misappropriated and hidden significant cash, establishing her ability to pay a fine.

A fine of $833,238 was imposed, with five and one-half years to pay.

The defendant was charged with sexual exploitation under section 153 of the Criminal Code.

The Crown alleged that the defendant invited the complainant, a 17-year-old volunteer at a nursing home, to engage in mutual masturbation while the defendant was in a position of authority over the complainant.

The defendant denied making such an invitation, claiming the complainant initiated the discussion about masturbation.

The court found that the defendant did invite sexual touching but acquitted him because the Crown failed to prove beyond a reasonable doubt that the defendant was in a position of trust or authority over the complainant.

The brief supervisory relationship during a single afternoon of volunteering was insufficient to establish the requisite position of authority.

The defendant, Nima Alamouti, was charged with sexually assaulting the complainant, M.P., by anal intercourse without consent.

The trial involved conflicting accounts of the events, particularly regarding the nature of the sexual activity and the complainant's consent.

The court considered the credibility of both the complainant and the defendant, as well as corroborating evidence from a third-party witness.

Ultimately, the court found inconsistencies in the complainant's testimony and the defendant's reaction, leading to a reasonable doubt regarding the defendant's guilt.

The accused was convicted at trial of three counts of sexual assault contrary to section 271 of the Criminal Code.

While providing hair salon services, he touched the breasts of three female customers on separate occasions, with the touching being deliberate and repeated, and in one case occurring under the victim's bra.

The Crown sought a custodial sentence of 4 to 6 months followed by probation.

The defence sought a conditional sentence or, alternatively, a 90-day intermittent sentence, citing the accused's status as a permanent resident and potential immigration consequences.

The court imposed a 90-day intermittent sentence followed by two years of probation with restrictive conditions, finding that incarceration was necessary to meet the principles of denunciation and deterrence despite the accused's lack of criminal record and stable employment.

The accused, a salon owner, was charged with three counts of sexual assault against three separate female clients who alleged he repeatedly touched their breasts in a sexual manner while cutting or dyeing their hair.

The Crown alleged the repeated touching, manner of contact, accused's statements, and multiple independent complaints proved sexual assault.

The defence contended the complaints were fabrications and any contact was unintentional and non-sexual.

The court found all three complainants credible and reliable witnesses whose evidence was internally consistent, logically progressive, and corroborated by external circumstances.

The accused's testimony was found to be not credible, internally inconsistent, and implausible given his claimed lack of memory regarding dramatic events.

The court found the similar fact evidence admissible and probative, establishing a clear pattern of intentional sexual assault.

The Crown proved all three charges beyond a reasonable doubt.

Yuk Yuen Lee and Jing Zhang Huang were convicted by a jury of production and trafficking of cannabis.

A Gardiner hearing determined that the Crown did not prove the number of plants for mandatory minimum sentencing, but confirmed a substantial grow operation.

The Crown sought four years for Lee and two years for Huang, arguing Lee was the mastermind.

The defence sought suspended sentences or fines.

The court rejected the 'mastermind' theory, finding both individuals were lower-level participants.

Lee was sentenced to 15 months incarceration and three years probation, with no credit for speculative parole eligibility time.

Huang was sentenced to seven months and one week incarceration (net five months after pre-trial credit) and three years probation.

Ancillary orders under s. 109 of the Criminal Code and DNA orders were imposed for both.

The court emphasized denunciation and deterrence, noting that commercial grow operations remain unlawful despite pending legislative changes to marijuana possession.

A Gardiner hearing was held to determine the number of marijuana plants for sentencing purposes after convictions for production and possession for trafficking.

The Crown sought to engage a mandatory minimum sentence based on a plant count exceeding 500.

The defence presented expert statistical evidence challenging the adequacy of the police's sampling methodology.

The court found that the Crown failed to prove beyond a reasonable doubt that the number of marijuana plants exceeded 500 due to the arbitrary sampling process, thus precluding reliance on the mandatory minimum.

However, the court accepted that it was a substantial marijuana grow operation for general sentencing purposes.

The appellant appealed his conviction for dangerous driving causing bodily harm.

The Crown's case relied on evidence that the appellant was driving at a very high rate of speed (40-50 km/h above the speed limit) and possibly racing another vehicle when he entered an intersection where a collision occurred with a vehicle making a left turn.

The appellant argued he was driving only somewhat over the speed limit and that the accident resulted from the other driver's illegal left turn.

The Court of Appeal dismissed all four grounds of appeal, finding the trial judge's instructions on the fault component of dangerous driving were consistent with R. v. Roy, the expert evidence was properly admitted, the instruction regarding Highway Traffic Act convictions was harmless, and the verdict was reasonable.

A 16-year-old youth pled guilty to dangerous driving causing death while street racing.

The offender was driving his mother's car at approximately 130 km/h in a 60 km/h zone while racing another vehicle when he struck and killed an 18-year-old cyclist.

The court imposed a sentence of 7 months open custody followed by 3.5 months community supervision and one year probation, for a total of 10.5 months custody.

The sentence included 100 hours of community service, with a significant portion to be spent speaking at schools about the dangers of street racing, and a 5-year driving prohibition.

The court applied principles of accountability and denunciation while recognizing the offender's youth, remorse, and rehabilitation potential.

Two accused were charged with possession of a loaded prohibited firearm, possession of a prohibited device, and possession of a prohibited firearm without a licence after police discovered a loaded handgun and over-capacity magazine in a closet in their shared apartment during execution of a search warrant.

The Crown relied entirely on circumstantial evidence to establish knowledge and control.

The defence argued that guests attending a party at the apartment had access to the room and closet and may have placed the firearm there, and adduced alternate suspect evidence relating to individuals with prior firearm convictions.

Applying the principles governing circumstantial evidence and the framework in R. v. W. (D.), the court found the Crown failed to prove beyond a reasonable doubt that the accused had knowledge of the firearm.

Both accused were acquitted.

The accused was charged with impaired driving and over 80 after being found outside his vehicle in a parking lot at 3:46 a.m.

The Crown alleged the accused had care and control of the motor vehicle while impaired.

The accused testified he had consumed six to seven beers and whiskey, decided to take a taxi home, and sat in his vehicle with the seat reclined and keys on the dashboard while waiting for the rain to stop.

The court found the Crown had not proven its case beyond a reasonable doubt, applying the three-part test from R. v. Boudreault: intentional conduct associated with the vehicle, impairment, and a realistic risk of danger.

The court found the accused had rebutted the presumption of care and control by establishing an alternative plan to get home safely and demonstrating awareness of his condition through his actions.

The accused was charged with indecent act in public and mischief to private property for masturbating on a Toronto subway car on July 7, 2012.

Identity was a key issue at trial.

The Crown sought to introduce lay recognition opinion evidence from two police officers who arrested the accused on July 13, 2012, and who testified that they recognized the suspect in a photograph taken by the complainant as the accused.

The court conducted a voir dire to determine the admissibility of this evidence and ruled it inadmissible.

Three young women pleaded guilty to forcible confinement and assault causing bodily harm after luring their friend from her home, blindfolding her, forcing her into a vehicle, beating her, and abandoning her unconscious at the roadside.

The Crown sought nine months' imprisonment, while defence counsel argued for a conditional sentence.

The court imposed 195 days in custody followed by two years of probation, finding that while the offenders demonstrated strong rehabilitation potential and remorse, the gravity of the offences and egregious aggravating circumstances required actual imprisonment to satisfy denunciation and general deterrence objectives.

The defendant was charged with refusal to comply with an approved roadside screening device (ASD) demand under section 254(5) of the Criminal Code.

The Crown alleged the defendant refused to provide a suitable breath sample after being lawfully demanded to do so.

The defence challenged both the validity of the demand and the Crown's proof of the requisite mens rea (intentional non-compliance).

The court found the ASD demand was lawful and valid based on reasonable grounds to suspect alcohol consumption.

However, the court acquitted the defendant on the basis that the Crown failed to prove beyond a reasonable doubt that the defendant's failure to produce a suitable sample was intentional, as opposed to a genuine inability to comply despite sincere efforts.