M. Engel

The court considered whether the accused, Malachi Venus-Seaforth, had standing to bring a section 8 Charter application to exclude evidence obtained during a search of an apartment in Thunder Bay.

The court reviewed the facts, including the nature of the accused’s presence at the apartment, the degree of control exercised, and the legal principles governing reasonable expectation of privacy.

The court concluded that the accused was, at best, a transient occupant with minimal connection to the apartment and did not have a reasonable expectation of privacy.

The application for standing was dismissed.

The accused brought a Charter application seeking exclusion of evidence (two firearms) found during a vehicle stop and search.

They alleged racial profiling, lack of grounds for the Cannabis Control Act (CCA) search, and violations of their s. 10(a) and 10(b) Charter rights.

The court found no racial profiling and determined that the strong smell of fresh marijuana provided valid grounds for the CCA search.

While s. 10(a) rights were not breached, the court found a serious violation of the accused's s. 10(b) rights due to "lackadaisical" police conduct at the station, resulting in significant delays in facilitating access to counsel of choice.

However, applying the Grant factors under s. 24(2), the court concluded that the long-term repute of the justice system would be better served by admitting the evidence, given its reliability, the minimal impact of the breach on the accused (who eventually spoke to counsel), and society's strong interest in adjudicating serious charges on their merits.

The application for exclusion of evidence was dismissed.

This criminal trial concerned charges of voyeurism, unlawfully distributing an intimate video, assault causing bodily harm, and criminal harassment.

The complainant alleged the defendant took non-consensual intimate videos and photographs, distributed one such video, and engaged in assault and harassment.

The court found the complainant's evidence credible regarding non-consensual recording of intimate images, leading to convictions for voyeurism.

However, the Crown failed to prove the distribution of the intimate video due to lack of admissible evidence on how it was obtained by a third party.

The assault charge was dismissed, as the defendant's actions in retrieving his property were deemed a reasonable defence of property under the Criminal Code, and the injury was accidental.

The criminal harassment charge was also dismissed, as the complainant's actions did not demonstrate a fear for her safety despite the use of a tracking device.

The defendant brought an application for a stay of proceedings, alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The defendant was charged with sexual assault.

The total delay was 778 days.

The court found that the defence failed to raise s. 11(b) concerns in a timely manner after trial dates were set outside the Jordan ceiling, attributing 243 days as defence delay.

With an additional 65 days of conceded defence delay, the net delay was calculated at 470 days (15.5 months), which is below the 18-month presumptive ceiling.

The application for a stay was dismissed.

Areeb-Ud-Din Zain pleaded guilty to multiple charges, including three counts of discharging a prohibited firearm with intent to endanger life, unauthorized possession of a non-restricted firearm, flight from police, and possession of cocaine.

The charges stemmed from an incident where Zain fired at three police officers after being stopped for running a red light.

Despite his efforts, no officers were injured.

The court considered aggravating factors, such as the deliberate shooting at police officers, the number of shots fired, the public location, and his criminal record, including prior flight from police.

Mitigating factors included his guilty plea (though not early), his relative youth, and harsh pre-sentence custody conditions.

The court accepted a joint submission for a total sentence of eight and a half years, less pre-sentence custody, emphasizing denunciation, deterrence, and public protection.

The Crown brought an application to admit three prior out-of-court statements made by the deceased victim, Peter Kostopoulos, for the truth of their contents under the principled approach to hearsay.

The victim had been assaulted and died months later.

While necessity was conceded due to the victim's death, the court assessed threshold reliability.

The court found significant concerns regarding the reliability of the statements, including inconsistencies in the victim's descriptions of assailants and events, vague eyewitness details, a possible language barrier, and a potential motive to lie due to animus towards "homeless people." Furthermore, video evidence contradicted parts of the victim's statements, particularly regarding his own actions during the altercation.

The court concluded that the alternative explanations for the statements' accuracy or truthfulness could not be ruled out, and admitting them would impede the defence's ability to challenge the evidence.

The Crown's application was dismissed.

The accused was charged with multiple offences including human trafficking, assault, theft of a motor vehicle, and firearms offences.

The Crown's case relied entirely on the testimony of a single complainant, a sex trade worker with a severe cocaine addiction.

The court found the complainant's evidence to be riddled with internal and external inconsistencies, largely due to her admitted drug intoxication and trauma.

Text messages between the complainant and the accused contradicted her claims of fear and control.

Consequently, the court found the complainant's evidence lacked credibility and reliability, resulting in an acquittal on all counts.

The defendant pleaded guilty to three breaches of a Long-Term Supervision Order (LTSO), which stemmed from his contact with his intimate partner, the complainant, and violation of geographic and residency conditions.

The court considered aggravating factors, including a lengthy criminal record with multiple intimate partner violence convictions and prior breaches of court orders.

Mitigating factors included a guilty plea, which spared the complainant from testifying, and evidence of rehabilitation efforts from his parole officer.

The court emphasized denunciation, specific deterrence, and public protection, while also balancing rehabilitation.

A penitentiary sentence of three years was imposed, with credit for pre-sentence custody and collateral consequences of COVID-19.

The court also issued a DNA order, a lifetime weapons prohibition, and a communication prohibition with the complainant.

The accused, Theofanes Kalamaras, applied to reopen his trial after being found guilty of "over 80" but prior to sentencing.

The application sought to introduce fresh evidence from the accused and his wife regarding the police officer's initial interaction and alleged coercion, which the defence argued would support previously dismissed Charter applications (ss. 7, 8, 10(a)).

The court applied the Palmer test for fresh evidence, finding a significant lack of due diligence in not presenting the evidence at trial.

Crucially, the court determined that even if the new evidence were admitted and believed, it would not reasonably have affected the trial's outcome, as other evidence overwhelmingly supported the officer's reasonable suspicion and the alleged Charter breaches were minor and did not impact the investigation's course.

The application to reopen the trial was dismissed.

The accused was charged with "Over 80" following a RIDE stop in Mississauga where he registered a fail on an approved screening device.

At trial, the Crown sought to rely on breath samples showing readings of 130 and 120 mg/100mL.

The defence raised three Charter arguments: (1) that the Crown failed to establish the concentration of the alcohol standard solution for the presumption of accuracy under s. 320.31 of the Criminal Code; (2) that the accused's right to counsel under s. 10(b) was breached by failing to facilitate his request to contact a friend to obtain his lawyer of choice and by "funnelling" him toward duty counsel; and (3) that the accused's right to be free from arbitrary detention under s. 9 was breached by being held for approximately two hours after the breath tests without a timely assessment of his suitability for release.

The court found breaches of s. 10(b) and s. 9, and excluded the breath evidence under s. 24(2) of the Charter, resulting in dismissal of the charge.

The Crown sought permission to proceed with trial using a non-accredited interpreter in Shona for the defendant, who is a native of Zimbabwe.

The defendant was charged with driving with excess alcohol.

The court applied the legal framework requiring the Crown to rebut the presumption of incompetence for non-accredited interpreters on a balance of probabilities.

The proposed interpreter had significant experience including accreditation with the Immigration and Refugee Board, criminal trial experience, and fluency in multiple languages.

The court found the Crown had discharged its burden and permitted the non-accredited interpreter to provide services.

The defendant was charged with driving with excess alcohol following a traffic stop on January 13, 2018.

A York Regional Police sergeant observed the defendant's vehicle stopped in a live lane of traffic, followed it, and conducted a sobriety check.

The defendant provided a breath sample on an approved screening device (ASD) which registered a "Fail," leading to arrest and a breath demand at the police station.

The defendant's blood alcohol readings were 140 and 130 mgs of alcohol in 100 mls of blood.

The court rejected multiple Charter challenges, including arguments regarding the presumption of identity, the calibration of the breath testing device, reasonable grounds for the ASD demand, and alleged breaches of rights to counsel and protection against unreasonable search and seizure.

The court found the defendant guilty of operating a motor vehicle with excess alcohol.

The appellant appealed convictions for "over 80" and impaired driving.

The trial judge had found the breathalyzer certificate admissible despite the absence of direct evidence of a breathalyzer demand, ruling that the defence objection was untimely.

The Superior Court of Justice held that the trial judge erred in law by misconstruing the nature of the statutory presumptions under sections 258(1)(c) and (g) of the Criminal Code.

The court clarified that the absence of evidence of a proper breath demand meant the preconditions for these presumptions were not met, rendering the certificate's contents unusable for their truth, irrespective of a timely objection.

Consequently, the "over 80" conviction was quashed and an acquittal entered.

For the impaired driving count, while the evidence of impairment was not weak, the trial judge's reliance on the erroneously admitted breath readings constituted an error of law, necessitating a new trial.

The defendant was charged with driving a motor vehicle while having an excess blood alcohol concentration.

He brought a Charter application alleging breaches of sections 7, 8, and 10(b) of the Charter.

The defendant abandoned the section 8 argument during the hearing.

The sole issue was whether police failed to facilitate the defendant's right to counsel under section 10(b).

The court found that although the investigating officer was credible and his conduct was unimpeachable, the defendant established a breach of his section 10(b) Charter rights by requesting to contact his wife to arrange for specialized counsel.

The breath testing results were excluded pursuant to section 24(2) of the Charter, and the charge was dismissed.

The accused brought a pre-trial motion seeking a stay of proceedings for an alleged violation of his Charter right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms.

The accused was charged with having care and control of a motor vehicle with an excess blood alcohol concentration.

The court applied the new framework established in R. v. Jordan, which sets presumptive ceilings of 18 months for provincial court trials.

After deducting five months of defence delay attributable to the accused's failure to diligently pursue disclosure and meet with Crown counsel, the net delay was 14.3 months, well below the ceiling.

The court found the accused had not demonstrated meaningful steps to expedite proceedings and dismissed the application.

The accused was charged with attempted fraud, robbery, assault, and multiple counts of failing to comply with probation after entering a stopped vehicle at a Toronto intersection, taking the driver’s phone, and assaulting him.

Identification was established through CCTV footage from a nearby restaurant, dashcam video from a passing vehicle, circumstantial evidence linking clothing found at the scene, and an incriminating in-court utterance.

The court held that the accused’s removal of the complainant’s phone from his hand constituted an indirect application of force amounting to assault, satisfying the elements of robbery under s. 343(c) of the Criminal Code.

The attempted fraud charge failed because the court was left with reasonable doubt as to whether the accused’s claim that the vehicle had struck him was false.

The accused was convicted of robbery and two counts of failing to comply with probation, while the assault conviction was stayed under the Kienapple principle.

The applicant sought exclusion of breath sample evidence under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, arguing that police violated his section 8 rights by obtaining the samples without reasonable grounds to arrest.

The applicant challenged whether the arresting officer had reasonable grounds to arrest on an "over 80 mgs" charge and make an Intoxilyzer demand under section 254(3) of the Criminal Code.

The applicant raised three main issues: whether the officer should have delayed the approved screening device (ASD) test to eliminate mouth alcohol concerns, whether the officer should have verified device calibration, and whether the officer demonstrated sufficient competence in operating the device.

The court found no section 8 breach and dismissed the application.

The accused was charged with impaired driving and "over 80" following a traffic stop in the early morning hours.

The court found that while the arresting officer lacked reasonable and probable grounds for the impaired driving arrest, the breathalyzer evidence was admissible under the Charter s. 24(2) test.

The court also found breaches of the accused's s. 9 rights due to arbitrary detention both at the point of arrest and through "overholding" in police custody, but declined to grant a stay of proceedings.

The accused was acquitted of impaired driving but convicted of "over 80."

The accused was charged with impaired driving and over 80 milligrams of alcohol in 100 millilitres of blood following a traffic stop.

The Crown proved beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol based on observations of poor driving, physical signs of impairment, and the accused's own admission.

However, the court found that the Intoxilyzer technician caused an unreasonable delay by administering breath tests to another person between the accused's first and second breath samples, contrary to the requirement that samples be taken "as soon as practicable" under section 258(1)(c)(ii) of the Criminal Code.

Consequently, the accused was acquitted of the over 80 charge.

The court also rejected Charter applications alleging breaches of section 8 (unreasonable search and seizure) and section 10(b) (right to counsel) rights, finding the police acted reasonably in all circumstances.

The Crown sought to commit multiple co-accused to stand trial following a preliminary inquiry into numerous drug trafficking, firearms trafficking, and criminal organization charges.

The court applied the test for committal, assessing whether there was any evidence upon which a reasonable jury, properly instructed, could convict.

The court found sufficient evidence to commit several accused on substantive drug and firearms offences, as well as conspiracy charges.

However, the court discharged certain accused on the criminal organization charges, finding insufficient evidence that they operated as a criminal organization rather than for personal benefit.