Michael A. Johnston

The youth offender, convicted of first-degree murder and sentenced as an adult, appeared for a mandatory annual review of his sentence under s. 94(9) of the Youth Criminal Justice Act.

Both the Crown and defence agreed the sentence should be confirmed.

The court confirmed the sentence but noted the youth's inability to access rehabilitative programming since being transferred to an adult provincial correctional centre.

To ensure efforts are made to provide programming, the court ordered a further review under s. 94(4) and directed probation and social work staff to provide updated reports and attend the next hearing.

The appellant was acquitted of possession of proceeds of crime after over $1.2 million in cash was excluded from his criminal trial under s. 24(2) of the Charter.

The Crown subsequently applied for forfeiture of the cash under s. 490(9) of the Criminal Code.

The trial judge conducted a fresh s. 24(2) analysis, admitted the evidence, and ordered forfeiture.

On appeal, the appellant argued that his acquittal created an issue estoppel preventing the trial judge from finding his possession was unlawful or conducting a fresh s. 24(2) analysis.

The Court of Appeal dismissed the appeal, holding that the acquittal did not logically necessitate a finding of lawful possession, and that a s. 24(2) analysis in a forfeiture proceeding involves different considerations than in a criminal trial.

The accused, A.D.S., pleaded guilty to the first-degree murder of Omar Al-Khalidi, which occurred when the accused was a youth.

The Crown and defence presented a joint submission for the maximum youth sentence of ten years of custody and conditional supervision under the Youth Criminal Justice Act.

Justice Somji accepted the joint submission, finding it fit and appropriate given the planned and deliberate nature of the offence, the devastating impact on the victim's family, and the accused's prospects for rehabilitation.

The accused was sentenced to ten years of custody and conditional supervision, with 280 days of credit for pre-trial custody, resulting in 2,022 days of secure custody and 1,348 days of conditional supervision.

The appellant was convicted of operating a conveyance over 80.

The appeal concerned whether the trial judge erred in finding a valid Approved Screening Device (ASD) demand existed, even after excising a compelled statement about alcohol consumption.

The appellant argued the trial judge replaced a subjective/objective test with an objective/objective test for the officer's grounds.

The court dismissed the appeal, finding the trial judge correctly assessed the officer's subjective belief, considering the circumstances from the perspective of a reasonable police officer, and that the finding of subjective reasonable suspicion was supported by evidence even without the compelled statement.

The Crown appealed a trial judge's decision to declare a mistrial in a sexual assault case after conviction but before sentencing.

The trial judge had admitted fresh evidence of the accused's subsequent acquittal on similar fact charges, believing it rendered the similar fact evidence inadmissible retrospectively.

The Court of Appeal found that the trial judge erred in misinterpreting the Supreme Court's decision in R. v. Mahalingan, which clarified that issue estoppel does not operate retrospectively to render evidence inadmissible in an earlier completed trial, even if sentencing has not occurred.

The Court also found that it had jurisdiction to hear the appeal under s. 676(1)(b) of the Criminal Code because the trial judge failed to exercise jurisdiction on legally valid grounds by not proceeding to sentencing.

The appeal was allowed, and the matter remitted for sentencing.

The appellant, H.A., appealed his conviction for sexual interference and his sentence.

The trial judge had found that the appellant touched the complainant in her vaginal area on multiple occasions when she was nine years old.

The appellant claimed the trial judge misapprehended evidence regarding the use of a blanket and the complainant's clothing, and erred by failing to provide a proper analysis under the third prong of *R. v. W.D.* The Court of Appeal found no misapprehension of evidence, noting the trial judge's reasons were clear and comprehensive.

The court also found no error in the application of the burden of proof.

No submissions were advanced on the sentence appeal.

Both the conviction and sentence appeals were dismissed.

The Crown applied for forfeiture of cash found on Mr. Breton's property, alleging it was proceeds of crime under sections 462.43 and 490(9) of the Criminal Code.

The court applied the criminal standard of proof beyond a reasonable doubt, relying on circumstantial evidence and expert testimony regarding drug trafficking patterns and currency bundling.

The court found that the large sums of cash found buried in the garage, along with cocaine and digital scales, were proceeds of crime, dismissing alternative explanations like a repair business or lottery winnings.

However, cash found in the house vents was not forfeited due to reasonable doubt regarding its origin.

The accused, David Wilson, brought an application to admit fresh evidence and seek a mistrial after being convicted of sexual touching but before sentencing.

The fresh evidence was his subsequent acquittal in a separate trial involving a similar fact witness (K.B.) who had testified in the initial trial.

The court considered whether the subsequent acquittal met the Palmer test for fresh evidence and whether the Supreme Court of Canada's decision in R. v. Mahalingan overruled the Ontario Court of Appeal's decision in R. v. G. (K.R.) regarding the retrospective application of issue estoppel.

The court found that Mahalingan did not overrule G. (K.R.) in this context, as the trial was not yet completed by sentencing.

The application to admit the fresh evidence was granted, and a mistrial was declared.

The accused, Nicholas Cox and Erick Silva-Stone, pleaded guilty to unlawful act manslaughter in the death of Christopher Avery Houghton, which occurred during a robbery involving an unloaded firearm and subsequent stabbing.

The court accepted a joint submission on sentence, imposing 12 years custody for Mr. Cox (who had a youth record for similar offences) and 10 years custody for Mr. Silva-Stone (a first-time offender).

The judge considered aggravating factors including the profound impact on the victim's family, the callous nature of the crime, the use of a weapon, and the commission during a robbery.

Mitigating factors included early guilty pleas, sincere expressions of remorse, young age, and efforts towards rehabilitation.

The Crown sought forfeiture of over $1.2 million in cash seized from the accused under sections 462.43 and 490(9) of the Criminal Code.

The accused applied to exclude the evidence (cash, opinion evidence, and agreed statement of facts) under section 24(2) of the Canadian Charter of Rights and Freedoms, arguing that it was obtained in violation of his section 8 Charter rights, as previously found by the court in his criminal trial where the evidence was excluded, leading to his acquittal.

The court, applying the R. v. Grant test, determined that while the Charter breaches were serious, the context of a forfeiture application, where liberty is not at stake, is sufficiently different from a criminal trial.

The court found that excluding the evidence in this forfeiture proceeding would bring the administration of justice into disrepute, given the nature and large sum of the cash.

Therefore, the defence's application to exclude the evidence was dismissed, allowing the forfeiture application to proceed.

The Crown appealed directed verdicts of acquittal on drug and firearm possession and conspiracy charges arising from contraband found in a storage locker and hidden vehicle compartments.

The accused had repeatedly accompanied a co‑conspirator to a storage locker used as a drug stash house and later exercised exclusive control over the co‑conspirator’s vehicle containing large quantities of cocaine, fentanyl, and a handgun.

The Court of Appeal held that the trial judge erred in removing the case from the trier of fact.

Applying the directed verdict framework, the circumstantial evidence could support reasonable inferences of participation in the drug conspiracy.

The acquittals were set aside and a new trial was ordered.

This judgment addresses alleged breaches of the accused's Charter rights under sections 8, 9, and 10(b) during an impaired driving investigation.

The court found a breach of the right against unreasonable search (s. 8) due to a warrantless vehicle search, a serious breach of the right not to be arbitrarily detained (s. 9) due to prolonged detention without considering release options, and a breach of the right to counsel (s. 10(b)) due to delayed notification and imposed duty counsel.

As a remedy under section 24(2) of the Charter, the court excluded the breath readings, finding that their admission would bring the administration of justice into disrepute, particularly due to the arbitrary overholding.

The accused, Mr. Breton, brought an application to exclude evidence under section 24(2) of the Canadian Charter of Rights and Freedoms, following previous findings of serious section 8 Charter violations by the police.

The court applied the three-part test from R. v. Grant, assessing the seriousness of state conduct, the impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits.

The court found the police conduct to be serious and deliberate, including disingenuous warrant applications, warrantless searches of outbuildings, and oppressive personal searches.

The impact on the accused's privacy and dignity was deemed significant.

While the evidence was reliable and critical to the Crown's case, the court concluded that the strong pull for exclusion from the first two Grant factors outweighed society's interest in admission.

Consequently, all evidence obtained after 9:00 a.m. on December 1, 2009, including property seized under three warrants and derivative evidence, was excluded from the trial.

The applicant sought a review of a bail judge's order denying bail pending trial for second-degree murder.

The Court of Appeal found that the bail judge erred in principle by failing to adequately consider the proposed release plan, which included strict house arrest, electronic monitoring, and committed sureties, when assessing the secondary and tertiary grounds for detention.

The court allowed the application, set aside the detention order, and ordered the applicant's release on approved terms.

The appellant appealed his sentence for mischief under $5000 after pleading guilty to vandalizing an 87-year-old woman's vehicle.

The sentencing judge imposed a suspended sentence with 12 months of probation, rejecting the appellant's request for a conditional discharge.

On appeal, the appellant argued the judge failed to apply the principle of restraint.

The Superior Court dismissed the appeal, finding no error in principle and holding that the sentence was fit and within the judge's discretion given the need for denunciation.

The applicant, charged with drug trafficking and firearms offences, brought an application under s. 8 of the Charter challenging tracking warrants and telewarrants executed on a vehicle and his temporary residence.

The court found the tracking warrants and the telewarrant for the vehicle were validly issued, and a minor post-seizure reporting breach did not warrant exclusion of the evidence found in the vehicle under s. 24(2).

However, the court found there were insufficient grounds to issue the telewarrant for the residence, constituting a serious Charter breach, and excluded the evidence seized from the residence.

The Crown appealed a lower court's decision to stay proceedings against the respondent for unreasonable delay under section 11(b) of the Charter.

The trial judge had stayed the proceedings after a mid-trial family emergency caused an adjournment, attributing the subsequent delay to the Crown's failure to consent to a "mistrial" or continuation before another judge.

The Superior Court found that the trial judge erred in law by misattributing the delay, as the judge's emergency was an exceptional circumstance, and neither striking a "not guilty" plea nor continuing the trial before a new judge was a legally available option once evidence had been heard.

The court emphasized that an adjournment was the only permissible remedy.

The appeal was granted, and a new trial is ordered.

Scott Bullen, a surety, brought a preliminary motion challenging the court's jurisdiction to hold a forfeiture hearing under s. 771(2) of the Criminal Code.

He argued that the certificate of default (Form 33) was endorsed prematurely and lacked sufficient information, and that the forfeiture proceedings should be stayed due to the principal's (David Bullen's) death and the Crown's staying of charges against him.

The court rejected all arguments, finding the certificate validly endorsed and that neither the stay of charges nor the principal's death precluded forfeiture proceedings against the sureties.

The appellant appealed his convictions for assault with a weapon and assault causing bodily harm arising from a stabbing at a wedding reception.

The appellant argued the trial judge misapprehended evidence and erred in applying the law of self-defence.

The Superior Court of Justice found the trial judge correctly applied the three-part test for self-defence under section 34 of the Criminal Code and reasonably concluded the appellant's response was disproportionate and not a justified act of self-defence.

The appeal against conviction was dismissed, though the victim fine surcharge was set aside.

The defendants brought an application to dismiss charges in a private prosecution alleging violations of a municipal fence by-law.

The defendants raised five grounds: abuse of process due to prior adjudication, statutory bar due to limitation period expiry, insufficient knowledge of the informant, res judicata and issue estoppel, and unauthorized practice of law by the informant.

The court dismissed all grounds, finding that the prior proceeding involved different charges and a different fence, the limitation period had not expired as the fence had been modified, the informant had reasonable and probable grounds, the doctrine of issue estoppel did not apply, and the informant's conduct was permitted under applicable law society by-laws.