Melina Macchia

The Crown brought an application under s. 714.1 of the Criminal Code to allow two complainants to testify remotely from Sudbury.

The complainants cited childcare responsibilities, mental health issues, addiction recovery, and fear of the accused as reasons for their reluctance to testify in person.

The court balanced the rights of the vulnerable witnesses with the accused's right to a fair trial and the presumption of innocence.

Finding no prejudice to the accused in a judge-alone trial, the court granted the application, ordering the complainants to testify via video conference from the Sudbury courthouse.

The accused was charged with firearms offences after police executed a search warrant at his residence and found a loaded prohibited handgun and extended magazines on his bed.

The accused testified that he had left his friends in his bedroom and slept in the basement, denying knowledge of the firearms.

The court rejected the accused's evidence as lacking credibility and found that the circumstantial evidence overwhelmingly established his knowledge and constructive possession of the items.

The accused was found guilty on all counts.

Following execution of search warrants at two Toronto residences, the accused challenged the admissibility of seized drugs, cash, and paraphernalia under ss. 8, 10(a), and 10(b) of the Charter.

The court held that the ITO, after amplification and excision, could not support the Keele Street warrant but did support the Jane Street warrant; it also found breaches arising from the police failure to fully inform the accused of the drug investigation, failure to facilitate timely access to counsel of choice, and a seventeen-month delay in filing the Jane Street Report to a Justice under s. 489.1 of the Criminal Code.

Applying Grant, the court excluded the Keele Street evidence but admitted the Jane Street evidence.

On the trial proper, the Crown's case on possession rested entirely on circumstantial evidence, and the court found a reasonable inference remained that another resident had hidden the drugs without the accused's knowledge.

The charges were dismissed.

Sentencing of a first offender who pleaded guilty to uttering threats, assault with a firearm, possession of a loaded prohibited firearm, unlawful confinement (kidnapping), and disobeying a court order in the context of intimate partner violence.

The accused conducted a mock execution by pointing a handgun at the victim's head and pulling the trigger while their child was in the apartment, and two days after release on bail kidnapped the victim in violation of a no-contact order.

The court rejected the defence position of 6 years (time served) as insufficient to denounce the crimes, and imposed a global sentence of 7.5 years, resulting in approximately 14 months further custody plus three years probation, along with firearms prohibition orders including a lifetime ban on the kidnapping count.

This sentencing decision concerns Noah Anderson and Junior Jahmal Harvey, who were convicted by a jury of the first-degree murder of Thane Murray and the attempted murder of Allen Uthayakumaran and Tony Nguyen.

The court imposed the mandatory sentence of life imprisonment without parole eligibility for 25 years for first-degree murder and, after considering aggravating and mitigating factors, imposed concurrent life sentences for the two counts of attempted murder.

The reasons detail the circumstances of the offence, the profound impact on the victims and community, the backgrounds of the offenders, and the applicable sentencing principles and case law.

The court considered whether to admit expert evidence from Dr. Jabari M. Evans on the history and social context of drill rap in a criminal trial involving the use of rap lyrics as circumstantial evidence.

The defence sought to qualify Dr. Evans to provide context for the jury regarding the conventions of drill rap, arguing that a jury instruction would be insufficient, especially given the risk of racist stereotypes.

The Crown opposed, citing prejudice and confusion.

The court found that the subject matter was not complex and that a proper jury instruction would suffice.

The court held that Dr. Evans' evidence was not necessary and, even if it were, its prejudicial effect would substantially outweigh its probative value.

The evidence was excluded.

Abdul Malik Kamara was convicted of possessing a loaded Glock 27 firearm with a defaced serial number while subject to two firearms prohibitions under s. 109 of the Criminal Code.

This was his third conviction for possession of a loaded firearm.

The court considered extensive social context evidence, including an Impact of Race and Culture Assessment highlighting systemic anti-Black racism and trauma in Mr. Kamara’s life, as well as harsh incarceration conditions at the Toronto South Detention Centre.

The Crown sought a 9-year penitentiary sentence, while the defence recommended 6 years.

The court imposed a global sentence of 8 years, reflecting denunciation and deterrence, with credit for pre-sentence custody and harsh jail conditions, and apportioned the sentence across multiple counts including possession while prohibited and possession of a firearm with a defaced serial number.

Mohamed Hassan was sentenced for firearms and counterfeiting offences.

Police found a loaded handgun, counterfeit money, and counterfeiting tools at his home.

He was found guilty of multiple firearms offences after trial and admitted guilt to counterfeiting offences.

The court considered aggravating factors, including his criminal record, the sophistication of the counterfeiting operation, and possession of a loaded defaced firearm while on bail.

Mitigating factors included his youth at the time of the offence, strong family support, religious faith, mentorship of younger cousins, and efforts towards rehabilitation, as detailed in an Impact of Race and Culture Assessment (IRCA).

The court imposed a global sentence of two years and ten months, after credit for pre-sentence custody and bail conditions, emphasizing denunciation and deterrence while acknowledging rehabilitative potential and the systemic challenges highlighted by the IRCA.

In a prosecution for first-degree murder and attempted murder, the accused brought pre-trial motions challenging the search warrants for a residence and cell phones under s. 8 of the Charter, seeking exclusion of evidence under s. 24(2).

The Crown brought a motion to adduce extrinsic misconduct evidence, including rap lyrics and videos of firearms found on the accused's phones.

The court dismissed the accused's Charter motions, finding the ITOs sufficient and admitting the evidence despite technical breaches regarding the timing of Reports to Justice.

The court partially granted the Crown's motion, admitting the rap lyrics and firearm videos as highly probative of animus and means, while excluding certain photographs due to prejudicial effect.

The accused, Dominic Wright, faced charges related to drug trafficking and possession of proceeds of crime under the CDSA and Criminal Code, as well as breaches of a release order.

The central issue at trial was whether the accused was in constructive possession of controlled substances and cash found in a condo unit.

The court found the accused in constructive possession of fentanyl and cash in the kitchen and bedroom closet, applying the principles of circumstantial evidence from R. v. Villaroman.

However, the Crown failed to prove beyond a reasonable doubt that the accused was in constructive possession of fentanyl found in the dryer.

The accused was found guilty of most charges, including possession for the purpose of trafficking (oxycodone, MDMA, fentanyl in kitchen/closet), possession of proceeds of crime, and most breaches of a release order, but not guilty of possession of fentanyl in the dryer or the cell phone breach.

The offender, Jerome Atkinson, pleaded guilty to possession of a loaded restricted firearm, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime over $5000.

The court considered significant aggravating factors, including the nature of the offences, a prior youth firearms record, and violation of court orders.

However, substantial mitigating factors were also weighed, such as an early guilty plea, strong family support, and life experiences marked by systemic racism, poverty, and police harassment, which attenuated his moral culpability.

Harsh pre-sentence custody conditions and rehabilitative efforts in custody were also considered.

The Crown sought an eight-year global sentence, while the defence sought five years.

The court imposed a global sentence of five years' imprisonment, crediting 1,388 days for pre-sentence custody, resulting in a remaining sentence of 1 year and 2 months.

Additional orders included a two-year probation, forfeiture of seized items, a lifetime weapons prohibition, and a DNA order.

The accused was found in possession of a loaded, defaced firearm while subject to two weapons prohibition orders.

He challenged the lawfulness of his arrest, alleging lack of reasonable grounds, racial profiling, lost evidence, and violations of his rights to be informed of the reason for arrest and to counsel.

The court dismissed all Charter applications, finding the police had reasonable grounds, no racial profiling occurred, the lost evidence did not prejudice the defence, and his right to counsel was not violated.

Consequently, the accused was found guilty on all four counts.

This endorsement from the Court of Appeal for Ontario addresses a non-publication order under s. 517 of the Criminal Code that was imposed at a bail hearing in the court below.

The endorsement states that the full decision, which contains information covered by this order, will not be published online until the non-publication order ceases to be in effect.

In the interim, a physical copy of the decision is available at the Court of Appeal Registry.

The underlying matter is an application to set aside a detention order.

The accused was charged with possession of fentanyl for the purpose of trafficking after police executed search warrants at a residence and on her vehicle, finding significant quantities of fentanyl, cocaine, and cash.

The Crown's case relied on circumstantial evidence to prove constructive possession.

The court found that while there was a high suspicion of the accused's involvement in the trafficking operation, the Crown failed to prove beyond a reasonable doubt that she had knowledge and control of the drugs, as other individuals had access to the residence and vehicle.

The accused was found not guilty.

The defendants brought applications for a stay of proceedings under s. 11(b) of the Charter of Rights and Freedoms, alleging unreasonable delay of up to 44 months from arrest to the anticipated completion of their five-week trial.

The court dismissed the applications, finding that the delay, while exceeding the presumptive 30-month Jordan ceiling, was justified by exceptional circumstances.

These circumstances included the particular complexity of the multi-accused kidnapping case, which involved extensive investigation, disclosure, and coordination of multiple counsel, and the systemic disruptions caused by the Covid-19 pandemic, which profoundly impacted court operations and created significant backlogs.

The court concluded that the Crown and the justice system took all reasonable steps to mitigate delay, and the time taken would not violate the applicants' constitutional right to a trial within a reasonable time.

The accused was charged with drug trafficking offences after police executed a search warrant at his residence and seized approximately 1kg of cocaine from a safe.

At trial, the accused brought a Charter application arguing his s. 10(b) right to counsel and s. 8 right against unreasonable search were violated due to delays in facilitating access to a lawyer, questioning before he spoke to counsel, and an unjustified level 3 (strip) search at the police station.

The court found breaches of both s. 10(b) and s. 8.

However, applying the Grant framework under s. 24(2), the court concluded the breaches were on the less serious end of the spectrum, had minimal impact on the accused as they did not lead to the discovery of the evidence, and society's interest favoured adjudication on the merits.

The application to exclude the evidence was dismissed.

The accused, facing serious charges for trafficking carfentanil and possessing numerous firearms, applied for a second bail review under s. 520 of the Criminal Code.

The accused proposed a novel release plan involving 24/7 physical surveillance by a private security firm, GPS monitoring, and strict house arrest with multiple sureties.

The court found that this enhanced plan, combined with the severe difficulties the accused faced in preparing for trial due to COVID-19 restrictions in custody, constituted a material change in circumstances.

The court concluded that the stringent conditions sufficiently attenuated the primary, secondary, and tertiary ground concerns, and ordered the accused's release.

The accused, charged with historical sexual assault, brought an application seeking to delay his s. 276 application regarding the complainant's prior intimate relationship with him until after the complainant's examination-in-chief.

The court dismissed the application, finding that allowing the delay based on a bare-bones notice of application would defeat the spirit and intention of s. 276, prejudice the Crown's ability to prepare, and invite the mischief Parliament sought to address in enacting the provision.

The Crown applied under s. 714.1 of the Criminal Code for an order permitting the complainant to testify by video link from New Brunswick at the upcoming trial for gang sexual assault.

The complainant suffers from progressive Multiple Sclerosis, is immunosuppressed, and cannot be vaccinated against COVID-19.

The court found that the complainant's debilitating medical condition, combined with the risks posed by the COVID-19 pandemic, constituted exceptional circumstances.

The application was granted, allowing the complainant to testify via video link from a secure facility.

During a trial for first-degree murder, the accused applied for a directed verdict at the close of the Crown's case to reduce the charge to second-degree murder, arguing a lack of evidence for planning and deliberation.

The court dismissed the application, finding that evidence of the accused waiting at a restaurant, conducting reconnaissance, ambushing the victim in a washroom, and fleeing together with the murder weapon provided a prima facie case upon which a reasonable jury could find planning and deliberation.