Michael A. Johnston

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 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.

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 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 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.

The Crown appealed a Court of Appeal decision setting aside convictions for sexual assault and ordering a new trial.

The Court of Appeal majority had held that the trial judge erred by failing to engage in the second step of the admissibility inquiry and by giving inadequate jury instructions regarding post-offence conduct (the accused's failure to attend for his original trial date).

The Supreme Court held unanimously that failure to attend trial is not presumptively post-offence conduct and its admissibility must be assessed on a case-by-case basis.

A majority allowed the appeal substantially for the reasons of Huscroft J.A. (dissenting in the Court of Appeal), restoring the convictions.

The appellant was convicted of two counts of sexual assault following a jury trial.

On appeal, the court considered whether the trial judge erred in admitting evidence of the appellant's failure to appear at his original trial date as post-offence conduct evidence, and whether the jury was properly instructed on the use of such evidence.

The majority found that the trial judge erred by refusing to allow the appellant to testify on the voir dire regarding his explanation for non-appearance, and by failing to properly instruct the jury on alternative explanations for the post-offence conduct.

The majority held that these errors undermined the fairness of the trial and ordered a new trial.

The dissent argued that the trial judge had sufficient information to make an informed decision on admissibility and that the jury instructions were adequate.

The appellant appealed his summary conviction for impaired driving, arguing that a 19-minute delay between his detention by a transit officer and the administration of an approved screening device (ASD) test by a dispatched police officer violated the immediacy requirement of s. 254(2)(b) of the Criminal Code and his s. 10(b) Charter right to counsel.

The Superior Court of Justice dismissed the appeal, upholding the trial judge's finding that the delay was reasonably necessary given the unusual circumstance that transit officers do not carry ASDs.

The court also upheld the finding that the appellant had no realistic opportunity to consult counsel at the roadside and would not have done so even if properly advised.

J.M. was found guilty on two counts of sexual assault against two child victims, T.L. and B.R., following a jury trial.

The sentencing judge accepted the complainants' evidence as substantially true, including the more egregious allegations.

Aggravating factors included the offender's position of trust, the young age of the victims, the lengthy period and invasive nature of the abuse, and the severe impact on the victims.

Mitigating factors included the absence of overt violence, no serious criminal record, and a history of employment.

The court emphasized denunciation and deterrence as primary sentencing principles for child sexual abuse by a person in a position of trust.

J.M. was sentenced to 5 years and 6 months imprisonment for the sexual assault against T.L., and 15 months concurrent for the sexual assault against B.R., with credit for pretrial custody.

Various ancillary orders were also imposed.

The appellant appealed his conviction for failing or refusing to provide a breath sample.

He was found asleep in his overturned truck by a passing driver, and later arrested at his home after police smelled alcohol on his breath.

The appellant argued the trial judge erred in finding he had care and control of the vehicle, misapprehended evidence regarding post-driving alcohol consumption, and that the breath demand was unlawful.

The summary conviction appeal court dismissed the appeal, finding the trial judge's conclusions were reasonable, supported by the evidence, and that the arresting officer had reasonable and probable grounds to make the breath demand.