Michael A. Crystal

The Crown sought a ruling on the voluntariness of a statement given by the accused, who was charged with second-degree murder.

The accused was arrested on December 23, 2022, and gave a statement to police approximately 10 hours later.

The defence challenged the voluntariness of the statement, arguing that oppressive circumstances, including fentanyl withdrawal symptoms, lack of proper caution, and police trickery, rendered the statement involuntary.

The court found that the Crown proved beyond a reasonable doubt that the statement was voluntary and admissible in evidence.

This decision addresses an application for a stay of proceedings under sections 11(b) and 24(2) of the Canadian Charter of Rights and Freedoms, brought by Nicholas Aaron Martin and Mackenzie Doyle.

The applicants, charged with serious offences including robbery and pointing a firearm, argued that the delay in bringing their case to trial—over 52 months—exceeded the presumptive ceiling established in R. v. Jordan.

The court analyzed the sources of delay, including the presence of multiple accused and the impact of the COVID-19 pandemic, and found that the net delay still exceeded the ceiling.

The court ordered a stay of proceedings.

J.H., accused of three sexual offences, applied for a stay of proceedings under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms due to unreasonable delay.

The court calculated the total delay, deducted defence delay and exceptional circumstances (COVID-19 pandemic), and found the remaining delay of 34.5 months exceeded the presumptive ceiling of 30 months established in R. v. Jordan.

The application was allowed, and the charges were stayed.

The accused, Cody Lenard, brought an application for a stay of proceedings under ss. 11(b) and 24(2) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay in bringing his aggravated assault charge to trial.

The total delay was 38.5 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court attributed 5.5 months of delay to the defence's unnecessary adjournments.

However, the court rejected the Crown's argument that a 6.7-month period, during which the accused was out of province, constituted defence delay or an exceptional circumstance, finding the Crown failed to prove the accused's knowledge of the charge or police diligence in obtaining a Canada-wide warrant.

With only the 5.5 months of defence delay deducted, the net delay remained 33 months, still exceeding the presumptive ceiling.

The application for a stay was granted.

The accused, Travis Larose, brought a motion for a stay of proceedings under section 24(1) of the Charter, alleging an infringement of his section 11(b) right to be tried within a reasonable time.

The application was assessed under the R. v. Jordan framework, which sets a presumptive ceiling of 30 months for Superior Court cases.

The applicant argued the total delay exceeded this ceiling, while the Crown contended that significant portions of the delay were attributable to defence conduct, including lack of diligence in disclosure, failure to elect, and lack of urgency in setting trial dates.

The court agreed with the Crown's calculation, finding the net delay to be 26.4 months, which is below the Jordan ceiling.

Consequently, the onus remained on the defence to demonstrate the delay was unreasonable, which they failed to do.

The application for a stay of proceedings was dismissed.

The Crown appealed a summary conviction acquittal and stay of proceedings against the respondent, Michael Lemieux, who was charged with assaulting a police officer.

The trial judge had acquitted Lemieux, finding doubt regarding his intent (reflexive action) and, alternatively, applying the doctrine of *de minimis non curat lex*.

The Crown also appealed the trial judge's findings on Charter violations.

The appellate court found that the trial judge misapprehended evidence regarding the police vehicle's location and erred in applying *de minimis non curat lex*.

However, these legal errors were deemed not to have impacted the trial judge's fundamental doubt about the respondent's intent for assault.

Consequently, the appeal was dismissed, upholding the acquittal.

The appellate court declined to review the Charter findings due to the trial judge's unclear factual findings.

This ruling addresses the voluntariness of three statements made by the accused, Nadine Melvaer and Tyler Campbell, to police in relation to the death of Oliver McCarthy.

The Crown sought to admit Nadine Melvaer's statements from January 15-16, 2020, and March 31, 2021, and Tyler Campbell's statement from January 23, 2020.

The court applied the common law confessions rule, considering factors such as inducements, oppressive circumstances, operating mind, police trickery, and the presence or absence of a police caution.

The court found all three statements to be voluntary and admissible, concluding that the police conduct did not unfairly deprive the accused of their free choice to speak.

The Crown applied under section 486.2(2) of the Criminal Code for an order permitting the complainant, Makenna Desbiens, to testify via CCTV in a trial involving 11 charges of intimate partner violence against Anthony Grantham.

The complainant, diagnosed with borderline personality disorder and PTSD, testified that she would be fearful and intimidated if required to testify in the same courtroom as the accused, which would negatively impact her ability to give a full and candid account.

The court considered factors under section 486.2(3), including the complainant's mental health, the nature of the offences, and the relationship with the accused.

The court found that CCTV testimony would facilitate a more fulsome and honest account and would not compromise the defence's ability to assess demeanor.

The Crown's application was granted.

The Crown sought to appeal the respondent's acquittal on assault charges but failed to personally serve the Notice of Appeal within the 30-day limit, citing concerns about using local police due to the trial judge's finding of excessive force.

The Crown brought an application for substituted service or to dispense with service, which the court dismissed because the Crown had not attempted personal service via a process server.

However, the court granted the Crown's alternative request for a 30-day extension of time to effect personal service, finding the Crown had demonstrated a bona fide intention to appeal, explained the delay, and raised grounds with some merit.

The defendant, Chad Valiquette, applied under sections 11(b) and 24(1) of the Charter of Rights and Freedoms to stay charges of assault and sexual assault due to unreasonable delay.

The court analyzed the total delay of 1331 days against the 30-month Jordan ceiling, deducting periods attributed to defence actions (awaiting an appeal decision, Legal Aid issues) and exceptional circumstances (threat to counsel, COVID-19 court suspensions).

The court found that after deductions, the remaining delay was 27.99 months, which is below the Jordan ceiling.

Consequently, the application for a stay of proceedings was dismissed.

The appellant, an Indigenous man, sought to withdraw his guilty pleas, arguing that the trial judge erred by not inquiring into the impact of his Indigenous experiences on the voluntariness of his plea, even though he had not raised this issue.

The Court of Appeal dismissed the appeal, holding that while judges have a duty to inquire into the validity of a plea if there are apparent indications of an issue, there is no general affirmative obligation to inquire into an Indigenous person's experiences affecting plea voluntariness unless specific circumstances trigger such a duty.

The court found no such circumstances in this case, and the evidence suggested the plea was voluntary.

The appellant, Jesse David Harvey, appealed his sentence of 3 years' incarceration for numerous breaches of probation orders and assault, having abandoned his conviction appeal.

The primary ground of appeal was that the sentencing judge erred by referring to the Crown's consideration of a dangerous offender application.

The Court of Appeal dismissed the appeal, finding the sentence was fit and that the sentencing judge's brief reference to a dangerous offender application, when contextualized by the appellant's repeated failure to abide by court orders in a domestic violence situation, did not constitute an error or transform the sentencing into an informal dangerous offender hearing.

The appellant appealed his sentence on two grounds: the sentencing judge's alleged failure to consider Gladue factors and an error in calculating Duncan credits.

The Court of Appeal found that the Gladue factors were expressly waived by the appellant, and even if considered, would not have impacted the sentence given his lengthy criminal record and the serious nature of the charges.

The court also found no basis to interfere with the trial judge's discretionary calculation of Duncan credits for harsh conditions of incarceration.

The appeal was dismissed.

The appellant, D.M., appealed his dangerous offender designation and indeterminate sentence, which followed convictions for sexual assault and child pornography.

The Crown conceded that the sentencing judge erred by not explicitly considering the appellant's future treatment prospects at the designation stage, as required by R. v. Boutilier.

However, the Court of Appeal found this error to be harmless, concluding that the overwhelming evidence, including consistent psychiatric opinions on the appellant's high risk of sexual recidivism and his lack of credibility regarding amenability to treatment, compelled the dangerous offender designation and indeterminate sentence.

An application to admit fresh evidence was also dismissed as it would not have altered the outcome.

The appeal was dismissed.

The applicant sought bail pending appeal after being convicted of sexual assault, uttering death threats, and breaching a release order, resulting in a three-and-a-half-year imprisonment sentence.

The application for bail pending appeal was dismissed.

The court found that while the appeal was not frivolous and the applicant would likely surrender, detention was necessary in the public interest due to an extensive criminal history, including prior sexual assault and harassment convictions, and a significant track record of breaching court orders, which outweighed the proposed surety's assurances.

The appellant, D.B., appealed his convictions for two counts of sexual touching of his stepdaughter, A.G., contrary to s. 151 of the Criminal Code.

The appellant argued the trial judge misapprehended important evidence, failed to reconcile material inconsistencies, unevenly scrutinized evidence, and provided inadequate reasons.

The Court of Appeal found no reversible error, concluding that the trial judge's assessment of the evidence, including the victim's letter, was reasonable and did not unfairly scrutinize the evidence.

The appeal was dismissed.

The appellant sought leave to appeal a 6-year sentence for aggravated assault, which included credit for pre-sentence custody and harsh conditions of confinement.

The conviction stemmed from a violent knife attack on his former partner's husband.

The sentencing judge emphasized general deterrence and denunciation, noting the victim's severe injuries, the appellant's use of two knives, his related criminal record, and the attack occurring partly in front of his daughter.

The Court of Appeal found no error in the sentencing judge's assessment of the appellant's limited insight into the gravity of the offence, which restricted the weight given to his rehabilitative potential.

The application for leave to appeal was granted, but the appeal itself was dismissed, upholding the original sentence.

The appellant appealed his conviction for sexual assault, arguing that the trial judge erred in her credibility assessment by suggesting his evidence was tailored to the complainant's testimony.

The Court of Appeal found that the trial judge committed a legal error by impugning the appellant's credibility on this basis, as it undermined his constitutional right to be present at trial and make full answer and defence.

The court determined this error played a significant role in the trial judge's rejection of the appellant's evidence.

The appeal was allowed, and a new trial was ordered.

The applicant, serving a life sentence for first-degree murder and attempted murder with no parole eligibility for 25 years, applied under s. 745.6 of the Criminal Code for a reduction in his parole ineligibility period.

The screening judge considered the applicant's institutional record, letters of support, and the nature of the gang-related offences.

The court dismissed the application, finding that the applicant's lack of remorse and failure to take accountability for the specific violent acts meant there was no reasonable prospect a unanimous jury would reduce his parole ineligibility.

The accused was charged with impaired care or control of a motor vehicle.

During a voir dire, the defence sought to admit hearsay statements made by an unknown female witness to a police officer.

The female stated that she did not know the accused personally and that they intended to go to the vehicle to smoke marijuana.

The Crown opposed admission on the grounds that the statements did not meet the threshold reliability requirements for a principled exception to the hearsay rule.

The court found that while procedural reliability was lacking, substantive reliability was established through circumstantial guarantees of trustworthiness, including the female's independent demeanor, corroborating evidence of marijuana in the vehicle, and the nonchalant public attitude toward marijuana use at the time.

The statements were admitted.