Michael B.J. Carnegie

The applicant, convicted of sexual assault and serving a 720-day conditional sentence order with 425 days of home confinement, applied under s. 742.4(5) of the Criminal Code for two variations: permission to travel internationally to India for a non-immediate family wedding and to extend his community service beyond the prescribed 120 hours.

The court dismissed the travel request, finding it inconsistent with the sentencing judge's express intention to eliminate the applicant's travel lifestyle as a punitive restriction, and that permitting such travel would undermine the denunciatory and deterrent purposes of the CSO.

The court granted the community service variation, allowing the applicant to volunteer two days per week at a museum, as the restorative and rehabilitative purpose of continued community service did not displace the sentencing balance.

Three young men were convicted by jury of aggravated assault following an unprovoked group attack on a social worker protecting a vulnerable child at a hotel in London, Ontario on December 29, 2021.

The victim was stabbed five times and suffered multiple injuries.

The court sentenced the offenders to terms of imprisonment, considering their youth, refugee backgrounds, family support systems, and immigration consequences, while emphasizing the serious nature of the group violence and the need for denunciation and deterrence.

This sentencing decision addresses the appropriate penalty for Taymoor Pasha, who pleaded guilty to possessing over 15 kilograms of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

The court reviews the aggravating and mitigating factors, the local context of the opioid crisis in London, Ontario, and the relevant case law, ultimately endorsing a joint submission for a 16½-year sentence (after credit for harsh pre-trial custody and pre-sentence custody).

The decision emphasizes the need for denunciation and deterrence in the face of the ongoing fentanyl crisis and the unprecedented scale of the offence.

The court sentenced Joshua Biernacki for trafficking in heroin, following a jury verdict acquitting him of manslaughter in the overdose death of Deborah Beer.

The decision reviews the tragic facts, the offender’s background, and the impact on the victim’s family.

The court analyzes the legal framework for sentencing, including the principles of proportionality, denunciation, deterrence, and rehabilitation, and considers the appropriateness of a conditional sentence.

Ultimately, the court imposes an 18-month conditional sentence followed by two years of probation, with ancillary orders, finding that a custodial disposition is required but can be served in the community given the circumstances.

The court considered the appropriate scope of a mistrial declaration following a breach of the applicant’s right to full and complete disclosure under section 7 of the Charter.

The applicant sought a mistrial only on the counts for which he was convicted, while the Crown argued for a mistrial on all counts.

The court found that the undisclosed evidence would not have affected the acquittal on the third count and granted a mistrial only on counts 1 and 2, leaving the acquittal on count 3 undisturbed.

The applicant, Trevor Birtch, sought a mistrial on two counts of sexual and common assault after being found guilty, alleging a breach of his s. 7 Charter right to fundamental justice due to inadequate Crown disclosure.

A key witness statement (T.W.S.) relevant to the T.P. complainant's credibility was disclosed in a separate prosecution file and not reviewed by defence counsel until after the verdict.

The court found the Crown breached its disclosure obligation by failing to provide proper and targeted disclosure for the T.P. prosecution.

Applying the Palmer criteria for fresh evidence and considering the impact on trial fairness and credibility findings, the court granted the mistrial application, deeming it the only effective remedy to redress the Charter breach.

The applicant sought a bail review under s. 520 of the Criminal Code after being detained on secondary grounds.

The court found a material change in circumstances due to charge withdrawals/amendments and new disclosure, allowing a fresh consideration of bail.

However, the proposed new release plan, including a new surety, was deemed insufficient to mitigate the substantial likelihood of re-offending, given the seriousness and repetition of the charges, the applicant's history of non-compliance with release orders, and the surety's lack of insight and inadequate supervision plan.

The court also noted an error by the original Justice of the Peace in failing to consider the tertiary ground, but ultimately dismissed the bail review application, affirming continued detention on secondary grounds.

The defendant pleaded guilty to one count of obtaining a material benefit from the sale of sexual services, contrary to s. 286.2(1) of the Criminal Code.

Involvement spanned from September 2018 to March 2020, facilitating a family member's human trafficking activities by managing finances, booking hotel rooms, and transporting victims.

The court considered aggravating factors including the number of victims, profound impact, duration of the offence, and the enabling role, and mitigating factors such as the guilty plea, first-time offender status, and compliance with bail.

The court rejected the claim of believing prostitution was legal and the lack of remorse for victims.

A two-year less one-day conditional sentence was imposed, along with two years of probation and a DNA order, emphasizing denunciation and deterrence while allowing for community service given the lower moral culpability compared to the principal offender.

Joel Ramocan pleaded guilty to one global count of procuring prostitution involving two adult complainants.

The court had to craft a proportional sentence, distinguishing between procuring prostitution and human trafficking, while acknowledging the defendant's party liability.

The sentencing considered aggravating factors such as the victims' vulnerability, the defendant's awareness of the principal offender's coercive actions, and his criminal record.

Mitigating factors included his guilty plea, rehabilitative efforts, and racialized background.

The court sentenced him to 30 months incarceration, consecutive to his current sentence, along with ancillary orders.

The applicant sought a s. 525 Criminal Code detention review, arguing that his continued detention was no longer justified due to a material change in circumstances, including new disclosure and an enhanced release plan with new sureties.

The court dismissed the application, finding that the proposed release plan did not sufficiently mitigate the secondary and tertiary ground concerns, particularly given the applicant's alleged repeated breaches of non-communication orders and the serious nature of the human trafficking and prostitution-related charges.

The court also ruled that the new evidence regarding the complainant's post-offence conduct was inadmissible without a s. 276 application.

Bradley Turner, an Uber driver, pleaded guilty to three counts of obtaining sexual services for consideration from persons under 18, contrary to s. 286.1(2) of the Criminal Code.

He propositioned and groomed teenage girls (aged 14-15, though he believed them to be 16-17) for sexual services, sending money and attempting to arrange meetings.

The court considered aggravating factors including the number of victims, age disparity, persistence, attempts at concealment, and the profound harm caused to victims.

Mitigating factors included his guilty plea, lack of criminal history, pro-social history, and a recent diagnosis of Autism Spectrum Disorder.

The court emphasized denunciation and deterrence in child sexual abuse cases, citing R. v. Friesen and R. v. Alcorn.

Despite mitigating factors, the court found a significant custodial sentence necessary.

This ruling addresses the admissibility of Crown expert evidence in a criminal trial concerning firearm offences.

The Crown sought to introduce opinion evidence from Sgt. Peter Reinjtes regarding firearm classification, functioning, and comparison, specifically to link a seized firearm to one seen in a social media video, and to comment on the firearm's prevalence.

The defence conceded classification and functioning but contested the comparison and prevalence evidence.

Applying the Mohan framework, the court found the comparison evidence logically relevant and necessary to assist the trier of fact, particularly regarding unique markings and their significance.

However, the court excluded the expert's opinion on the firearm's prevalence, deeming it unreliable due to a lack of normative data and reliance on anecdotal experience.

The assessment of the expert's duty to the court was reserved for further inquiry during the trial.

This is a sentencing judgment for Aliyan Ahmed, who pleaded guilty to manslaughter.

The offence involved a single punch to the head of an intoxicated 18-year-old university student, Gabriel Neil, causing him to fall, hit his head, and later die.

The court considered aggravating factors, including the grave consequence, the public nature of the assault, the offender's initiation of violence, and his flight from the scene.

Mitigating factors included the guilty plea, genuine remorse, strong rehabilitative prospects, lack of criminal record, and youth.

The court emphasized the principles of denunciation and general deterrence, finding that a conditional sentence would not adequately reflect the gravity of the offence.

A three-year term of imprisonment was imposed, along with ancillary orders.

Karen Cady was found guilty of fraud and possession of forged documents.

The Crown applied for forfeiture of proceeds of crime and a fine in lieu of forfeiture.

The court ordered forfeiture of real property and a motor vehicle, but exercised its discretion under s. 462.41 of the Criminal Code to return a portion of the sale proceeds to innocent third-party secured creditors, Computershare Trust Company of Canada and TD Auto Finance (Canada) Inc., to satisfy their legitimate interests.

A fine in lieu of forfeiture of $928,063.61 was imposed on Cady for the remaining proceeds of crime, with an 8-year payment period and a 4-year default imprisonment term.

Karen Cady pleaded guilty to defrauding her employer, Henninger’s Diesel Ltd., of over $1 million and possessing a forged document.

This was her third fraud conviction, with previous offenses also involving employers.

The court considered aggravating factors including the breach of trust, magnitude and sophistication of the fraud, its duration, and the significant impact on the victim company and its employees.

Mitigating factors included her guilty plea.

The court emphasized denunciation and deterrence, imposing a four-year penitentiary term, a 10-year prohibition from positions of financial trust, a non-communication order, and a restitution order for the full amount of the loss.