Michael A. Moon

The Ontario Review Board conducted an annual review of the accused's disposition.

The accused, who was found not criminally responsible for manslaughter, sought a modification to his detention order to permit limited access to cannabis.

The hospital and the Attorney General opposed the request, arguing that cannabis use exacerbates the accused's psychotic symptoms and that he continues to pose a significant threat to public safety.

The Board accepted the hospital's evidence, finding that unmitigated cannabis use would destabilize the accused's mental state.

The Board concluded that the accused continues to represent a significant threat to the public and ordered the continuation of the detention order with no changes.

The appellant appealed his convictions for possession of stolen property and driving while prohibited, arguing the trial judge erred in relying on video surveillance and police identification evidence, and that his trial counsel was ineffective.

The Superior Court of Justice dismissed the appeal, finding the trial judge properly conducted an independent assessment of the video evidence and did not merely adopt the police officer's opinion.

The court also admitted fresh evidence but concluded that trial counsel's strategic decision not to call the appellant to testify did not constitute ineffective assistance or cause a miscarriage of justice.

The Ontario Review Board held a mandatory annual review hearing for an accused found not criminally responsible for two counts of second-degree murder.

The accused had recently assaulted his attending psychiatrist with a concealed weapon and remained in seclusion, refusing to engage with treatment staff while researching knives on the internet.

The Board accepted the joint submission of the parties and the evidence of the attending psychiatrist, finding that the accused continues to pose a significant threat to public safety.

The Board ordered the continuation of the existing Detention Order at the high-secure provincial forensic program without change.

The Ontario Review Board held an initial disposition hearing for the accused, who was found not criminally responsible for second-degree murder and arson.

The Board found that the accused continues to pose a significant threat to public safety due to his treatment-resistant schizoaffective disorder and history of severe violence when acutely unwell.

The Board ordered a detention disposition with graduated privileges at the Ontario Shores Centre for Mental Health Sciences, adopting the joint recommendation of the parties.

Following a trial, the offender was convicted of attempted murder and breaching a recognizance for brutally assaulting a five-year-old child and leaving him for dead in an isolated area.

The Crown applied for a dangerous offender designation under section 753(1)(a)(iii) of the Criminal Code.

The court rejected the dangerous offender application, finding that while the conduct was undoubtedly brutal, the psychiatric evidence did not compel the conclusion that the offender's future behaviour would be unlikely to be inhibited by normal standards of behavioural restraint.

However, the court imposed a life sentence based on the extreme brutality of the offence, the vulnerability of the victim, the breach of trust, the premeditated nature of the crime, and the offender's high risk of violent reoffending as established by actuarial assessment.

The court declined to impose a parole eligibility delay under section 743.6, finding that a life sentence adequately addressed the sentencing objectives of denunciation and deterrence.

The hospital notified the Ontario Review Board that the accused's liberty had been restricted following his placement in seclusion.

The accused, who was previously found not criminally responsible for two counts of second-degree murder, had been transferred to a high-secure forensic program after an unprovoked attack on his attending psychiatrist.

The Board held a hearing to review the restriction of liberty pursuant to section 672.81(2.1) of the Criminal Code.

Relying on expert psychiatric evidence, the Board concluded that the initial and ongoing restriction of liberty was warranted, necessary for public safety, and represented the least onerous and least restrictive intervention available in the circumstances.

The Court of Appeal for Ontario granted the Crown’s application to revoke the respondent’s bail pending retrial on historical sexual offences.

The court found that the motion judge erred in law by concluding that the release order was a nullity due to a typographical error referencing the wrong provision of the Criminal Code.

The error was deemed minor and not prejudicial.

The respondent’s breach of a condition prohibiting contact with children under 16 was established, and the release order was revoked.

The Crown applied under section 486.2(2) of the Criminal Code for Lindsay Smith, a key witness and former intimate partner of the accused, to testify via closed circuit television (CCTV) in a trial for failing to remain at the scene of an accident causing death.

The application was supported by evidence from a Victim Witness Services Worker, who described Ms. Smith’s anxiety and safety concerns.

The defence opposed, arguing Ms. Smith was no longer intimidated.

The court granted the application, finding that testifying by CCTV would facilitate a full and candid account and was in the interests of justice, especially given the context of intimate partner violence and the need to encourage survivor participation in the justice process.

The Crown applied to revoke a release order after the respondent allegedly breached a condition.

The respondent argued the release order was a nullity because it was issued under s. 679(5) of the Criminal Code (release pending appeal) after the Court of Appeal had already allowed his appeal and ordered a new trial.

The motions judge agreed, finding that release pending a new trial must be ordered under s. 679(7.1).

The Crown's application was dismissed, and the matter of interim release was remitted to the Superior Court of Justice for a de novo hearing.

The accused, charged with possession of fentanyl and cocaine for the purpose of trafficking, brought an application for a stay of proceedings under s. 11(b) of the Charter.

The total delay was 1,427 days (approximately 47 months).

The primary issue was whether certain periods of delay should be attributed to the defence, including adjournments for bail, a change of election to the Ontario Court of Justice, and a subsequent re-election to the Superior Court of Justice.

The court found that while the defence was responsible for some delay, the net delay was 1,027 days (approximately 34 months), which exceeded the 30-month presumptive ceiling.

As the Crown did not rely on any exceptional circumstances, the court found a violation of s. 11(b) and entered a stay of proceedings.

The defendant pleaded guilty to manslaughter with a firearm following a planned home invasion that resulted in a fatal shooting and assault.

The court considered aggravating factors, including the planned nature of the home invasion, the use of a loaded prohibited firearm, the defendant's leadership role, and the severe impact on victims.

Mitigating factors included the guilty plea, lack of adult criminal record, youth, and harsh pre-sentence custody conditions.

The court imposed an 11-year sentence, less credit for pre-sentence custody, emphasizing denunciation, deterrence, and public protection.

During a trial for first degree murder and attempted murder, a Crown witness recanted her previous statements and testified in chief that a third party named 'George' was with her at the time of the shooting, rather than the accused.

The Crown requested a ruling that the defence must bring a formal third party suspect application before cross-examining the witness on this issue.

The court ruled that no application was required, as the evidence was direct evidence of a third party suspect that had already been elicited by the Crown, establishing its own logical relevance without the need for a formal application.

The Crown brought an application under s. 9(1) of the Canada Evidence Act seeking leave to cross-examine its own witness, Keima Davis-Baynes, due to significant inconsistencies between her trial evidence and prior statements to police and at a preliminary inquiry.

The defence opposed the application.

The court found the witness to be adverse to the Crown's position and, after considering the probative value and potential prejudicial effect, granted the Crown leave to cross-examine the witness on the inconsistencies, subject to specific restrictions to prevent the jury from misusing the evidence to infer the accused's credibility or guilt.

The Crown brought an application to admit a police interview of a recanting witness, Ms. Keima Davis-Baynes, for the truth of its contents under the principled exception to the hearsay rule.

The accused did not oppose the application.

The court found that the criteria of necessity (due to the witness's recantation) and threshold reliability (established by procedural reliability, including a video-recorded, sworn statement, and the witness's availability for cross-examination at trial, and substantive reliability through corroborating independent evidence) were met.

The court also determined that the prejudicial effect of the statement did not outweigh its probative value.

The Crown's application was granted.

The accused, Kahli Johnson-Phillips and Shanice Wynter, brought an application under s. 11(b) of the Charter of Rights and Freedoms, seeking a stay of charges for first-degree murder and other offences due to unreasonable delay.

The court applied the R. v. Jordan framework, calculating total delay, subtracting defence delay, and considering exceptional circumstances, particularly the impact of the COVID-19 pandemic.

The court found that after deducting defence-attributable delays and pandemic-related delays, the net delay for both accused was below the 30-month presumptive ceiling.

The court also determined the case to be particularly complex, which would justify a delay above the ceiling if necessary.

Consequently, the s. 11(b) applications were dismissed.

Caleb Burgler pleaded guilty to criminal negligence causing death after robbing an 86-year-old woman, Marion Fenwick, causing her to fall and sustain a hip fracture, which led to her death from pneumonia.

The court considered aggravating factors including the victim's vulnerability, foreseeability of harm, the offender's flight, and the significant impact on the victim's family and community.

Mitigating factors included the guilty plea, remorse, first offender status, harsh pre-sentence custody conditions, and family support for rehabilitation.

The offender's long-standing opioid addiction was not considered a mitigating factor.

The court sentenced the offender to six years in jail, less pre-sentence custody, followed by three years of probation, emphasizing denunciation, deterrence, and public protection.

The defence applied under s. 638(1)(b) of the Criminal Code for an order permitting specific challenge for cause questions, arguing a reasonable possibility of juror partiality.

The issues not on consent were the need for a question regarding partiality towards police (a Barnes question) and who would ask the questions.

The court allowed the police partiality question, finding that evidence of systemic racism within the Peel Regional Police Service and related media coverage created a realistic potential for partiality among prospective jurors.

The court also ruled that the trial judge, rather than counsel, would ask all challenge for cause questions to emphasize the court's impartiality and the importance of a fair trial.

The accused, Shanice Wynter, brought an application for an order allowing her counsel to make an opening address immediately after the Crown’s opening address in a joint criminal trial for first-degree murder and aggravated assault.

The Crown opposed, and the co-accused did not join the application.

The court, exercising judicial discretion, determined that an early defence opening is only permissible in special or exceptional circumstances.

Considering factors such as the trial's length and complexity, but also the "all or none" approach for co-accused in joint trials, the court dismissed the application.

It concluded that special or exceptional circumstances were not present and that following the procedure outlined in s. 651 of the Criminal Code was the fairest course of action.

In a pre-trial Charter motion arising from a first degree murder prosecution, the accused sought exclusion of evidence obtained from cell phones seized from a vehicle and from a residence.

The court held that defects in the initial Nissan warrants and the continuation of the search after withdrawal of charges against a third party did not establish a breach, but the delayed return to justice and prolonged detention of the phones without judicial authorization did breach s. 8.

Applying the Grant framework, the court nevertheless admitted the Nissan phone evidence because the impact of the reporting breach was negligible and the evidence was highly important to adjudication on the merits.

In contrast, the residential warrant was facially invalid, the seizure of a phone from a bedroom bag was not authorized by the warrant, s. 489(1), plain view, or search incident to arrest, and the resulting picture and video were excluded under s. 24(2).

This ruling addresses an application by an accused, Ms. Wynter, to be off-screen during pre-trial motions in a first-degree murder trial, specifically during motions where she conceded she lacked standing.

The request was based on a misunderstanding of attendance requirements and employment obligations.

The court dismissed the application, emphasizing the fundamental right and duty of an accused to be present throughout their trial, even in ancillary proceedings where their interests may be affected, and that economic hardship must be substantial to justify absence.