Michael R. Dambrot

The offender, Connor Madison, was found guilty of second-degree murder for the fatal stabbing of Stephon Knight-Roberts.

The court was tasked with determining the period of parole ineligibility, which is statutorily set at a minimum of 10 years for second-degree murder.

Considering the brutal and prolonged nature of the offence, the offender's armed presence despite recognizances, and the devastating impact on the victim's family, balanced against the offender's Indigenous background, difficult upbringing, mental health issues, and genuine remorse, the court fixed the parole ineligibility period at 13 years.

This ruling provides the judge's reasons for not allowing the defence of self-defence to be put to the jury in a second-degree murder trial.

The accused, Connor Madison, was found guilty by a jury.

The court concluded that the defence of self-defence lacked an "air of reality" because the evidence indicated the accused's actions were an act of revenge for a prior robbery, rather than a response to an ongoing threat.

The victim was unarmed and no longer posing a threat when the fatal stabbings occurred, and the accused's conduct was deemed unreasonable in the circumstances.

This ruling concerns the admissibility of a post-arrest statement made by the accused, charged with second-degree murder, to the police.

The Crown sought to admit the statement for cross-examination, while the accused sought to exclude it, alleging violations of his s. 10(b) Charter right to counsel and that the statement was involuntary due to a lack of operating mind and an oppressive atmosphere (including the absence of face masks during the COVID-19 pandemic).

The court found no Charter violation, determining that delays in providing counsel were justified by safety and practical considerations, and that the accused's repeated requests for counsel during the interview did not trigger a right to a second consultation under the *Sinclair* framework.

The court also concluded that the accused possessed an operating mind and that the interview conditions, including the lack of masks, did not create an oppressive atmosphere given the prevailing public health understanding at the time.

The statement was deemed voluntary and admissible for cross-examination, though specific portions where the accused asserted his right to silence or requested counsel were deemed inadmissible for direct cross-examination.

This ruling addresses three pre-trial applications by the Crown regarding the admissibility of evidence in a second-degree murder trial.

The Crown sought to introduce evidence of the accused's prior discreditable conduct (possession of a knife two hours before the stabbing), contemporaneous discreditable conduct (robbery of a gun from the accused by the deceased), and after-the-fact conduct (failure to assist the victim, calm departure, disposal of evidence, and flight).

The accused conceded the admissibility of the gun robbery evidence but opposed the others, arguing lack of probative value or undue prejudice.

The court granted all three applications, finding the evidence relevant to material issues such as intent, self-defence, and the overall narrative, with probative value outweighing any prejudicial effect.

The applicant, Barrie Lynn, a 66-year-old man found unfit to stand trial due to dementia, challenged the constitutionality of s. 672.851(1)(a) of the Criminal Code under s. 7 of the Canadian Charter of Rights and Freedoms.

He argued that the provision, by precluding the Ontario Review Board from recommending a stay of proceedings at an initial disposition hearing, arbitrarily restricted the liberty of permanently unfit accused persons who do not pose a significant public threat.

The court dismissed the application, finding no sufficient causal connection between the impugned limitation and prejudice to the applicant's liberty or security of the person.

Furthermore, the court held that the limitation was not arbitrary, as it served the legitimate legislative purpose of ensuring adequate consideration of public safety and enhancing public confidence in the administration of justice by requiring a "second look" before a stay recommendation.

Following a jury's guilty verdict for gang sexual assault and administering a stupefying drug, the court delivered reasons for sentencing Gavin MacMillan and Enzo DeJesus Carrasco.

Each offender received a total sentence of nine years imprisonment (seven years for gang sexual assault and two years consecutive for administering a stupefying substance), with credit for pre-sentence custody.

The court found that the victim never consented to the sexual activity, and the offenders had no mistaken belief of consent, rejecting their characterization of events as consensual BDSM.

Ancillary orders included DNA, lifetime prohibition, 20-year SOIRA, and non-communication.

The applicant, Phoenix Panton-Sawyers, sought a writ of habeas corpus, certiorari, and mandamus to quash an assessment order made under s. 672.11 of the Criminal Code.

The assessment was ordered after her conviction for assault and breach of probation, to determine if she was not criminally responsible due to mental disorder.

The applicant argued the trial judge lacked jurisdiction to make the order due to insufficient evidence.

The court first addressed a preliminary procedural issue regarding virtual presence for habeas corpus applications during the COVID-19 pandemic, finding virtual presence sufficient under s. 774.1 of the Criminal Code.

On the merits, the court found that the trial judge had jurisdiction, as there was a significant body of evidence—including the irrational nature of the assault, the applicant's history of violent conduct, and her ongoing diagnosis of schizophrenia with non-compliance with medication—to reasonably doubt her criminal responsibility and necessitate an assessment.

The application was dismissed.

This ruling addresses the admissibility of text messages extracted from the accused's cell phone during a first-degree murder trial.

The defence argued the texts were irrelevant and constituted impermissible disposition evidence.

The Crown sought to admit them to corroborate the credibility and reliability of statements made by the accused to undercover officers, particularly regarding his lifestyle and interests.

The court found the majority of the texts relevant for supporting the officers' testimony, concluding their probative value outweighed their prejudicial effect.

However, the court excluded texts referring to violent consensual sex, masturbation, and a nude photograph, deeming them either too prejudicial or irrelevant.

The accused, Kalen Schlatter, applied for an order declaring his right to silence under s. 7 of the Canadian Charter of Rights and Freedoms was infringed by statements made to Toronto Police Services undercover officers placed in cells adjacent to his upon arrest, and to exclude these statements under s. 24(2) of the Charter.

The court reviewed the police conduct, including the decision not to record the interaction surreptitiously without judicial authorization, and the nature of the conversation between the accused and the undercover officers.

The court found that the police did not actively elicit the statement in a manner akin to interrogation and that the accused had not met the onus of establishing a Charter violation.

The application was dismissed.

David Holden was found guilty of fraud exceeding $54 million and money laundering in a large-scale Ponzi scheme.

This decision outlines the sentencing, which includes 12 years imprisonment for fraud (concurrent with 8 years for money laundering), a restitution order, and a fine in lieu of forfeiture of $54,159,737, with a default imprisonment of 5 years consecutive.

The court emphasized denunciation, general deterrence, and separation due to the egregious nature of the fraud, its devastating impact on 65 victims, and Holden's significant prior record of similar offences and lack of remorse.

The Crown sought to admit evidence of the accused's prior discreditable conduct, including violent sexual images, search terms, and viva voce evidence of consensual choking sex, in a first-degree murder trial.

The defence intended to assert an alternate suspect (James Gardiner) and an inadequate police investigation defence.

The court ruled that the discreditable conduct evidence was not admissible generally, as its prejudicial effect outweighed its probative value, not being sufficiently distinctive to constitute a signature.

However, the evidence would become admissible if the defence adduced evidence of the alternate suspect's bad character or raised an inadequate investigation/tunnel vision defence, to prevent a distorted picture for the jury.

Certain highly prejudicial evidence, such as a specific video, would need to be excised or altered if admitted.

Eduardo Bohorquez and Qasim Siddiqi were found guilty by a jury of sexual assault with another person contrary to s. 272(1)(d) of the Criminal Code.

The court was tasked with imposing sentence.

The offenders, sexual predators, lured a 19-year-old complainant, S., to Bohorquez's home for non-consensual sexual activity, which they video recorded.

The court rejected the offenders' claims of consent or honest but mistaken belief in consent, emphasizing the power imbalance and the complainant's fear.

The impact on the victim was severe, leading to PTSD and a suicide attempt.

Bohorquez was identified as the leader and more aggressive participant, while Siddiqi was an enthusiastic follower.

The court considered sentencing objectives of denunciation, deterrence, and rehabilitation, noting the aggravated nature of the offence.

Bohorquez was sentenced to 6 years and 4 months imprisonment, and Siddiqi to 3 years and 7 months imprisonment, along with ancillary orders.

The accused, Abdirisaq Yabarow, facing a charge of second-degree murder, brought a motion seeking to admit an exculpatory statement he made to an acquaintance, Mohamed Khalinle, or to compel the Crown to lead this statement as part of its case.

The statement included a claim of self-defence.

The court considered the established exceptions to the rule against self-serving statements, including mixed statements and spontaneous statements.

The court found that the Khalinle statement did not qualify as a mixed statement because it was separate from other inculpatory statements adduced by the Crown, lacking a sufficient nexus.

It also did not meet the criteria for a spontaneous statement, as it was made after ample time for consideration and not upon confrontation with an accusation.

Consequently, the court ruled the exculpatory statement inadmissible at the instance of the accused and refused to compel the Crown to lead it, affirming the Crown's discretion in calling witnesses and the principle against self-serving evidence.

The accused, Abdirizaq Yabarow, was charged with second-degree murder.

The Crown brought an application to determine the voluntariness and admissibility of two statements made by the accused.

The first statement was made to paramedics and police on October 4, 2017, when the accused was perceived as a victim seeking help for injuries.

The second statement was made to homicide detectives on October 6, 2017, following his arrest for murder.

The court found that the paramedics were not persons in authority and that the first statement was voluntary and admissible.

Regarding the second statement, the court determined it was voluntary and admissible up to the point where the accused expressed confusion and requested a rest, but any statements made thereafter were inadmissible as police questioning should have ceased at that juncture.

The court declined to exercise its discretion to exclude the voluntary portions of either statement.

In a second-degree murder trial, the Crown applied to admit three graphic autopsy photographs of the deceased.

The defence opposed, citing prejudicial effect and proposing alternatives such as limiting the number of photographs or presenting them in black and white.

The court applied the balancing test of probative value versus prejudicial effect, finding the photographs highly relevant to central issues including intent, self-defence, and a potential third-party suspect theory.

The court emphasized that modern juries are capable of dispassionate evaluation and concluded that the significant probative value of the photographs strongly outweighed any potential prejudicial effect.

The court declined to exercise its discretion to limit the photographs, as doing so would undermine their evidentiary purpose.

The Crown's application was granted, allowing the introduction of all three full-colour autopsy photographs.

The accused, charged with second-degree murder, brought an application to quash a search warrant and production order related to his electronic devices (cell phone and tablet) and to exclude evidence under s. 24(1) and (2) of the Canadian Charter of Rights and Freedoms.

The application challenged the facial and subfacial validity of the orders, alleging a lack of reasonable grounds, overbreadth, material non-disclosure in the supporting information, and improper execution of the warrant outside the authorized time period.

The court dismissed the application, finding that reasonable grounds for the orders existed, there was no material non-disclosure that vitiated the authorizations, and the forensic examination of the devices was not required to be completed within the search and seizure period stipulated in the warrant, but rather was governed by the Criminal Code's detention regime.

The applicant, convicted of first-degree murder, sought a reduction in his parole ineligibility period under the "faint hope" clause (s. 745.6 of the Criminal Code).

The screening judge applied the less stringent "reasonable prospect of success" test from the 1997 amendments, as the murder occurred in 2003.

Despite some positive institutional conduct, the applicant's abysmal overall conduct, lack of genuine remorse and accountability, and persistent moderate risk for violent recidivism led the court to conclude he failed to meet the test.

The application was dismissed, but a further application was permitted after six years.

Simeon Harty was found guilty by a jury of second-degree murder and discharging a firearm with intent.

The court considered aggravating factors, including the use of a firearm, the offender's criminal record, and being on judicial interim release in violation of conditions.

Mitigating factors included his youth, pro-social behavior, community contributions, positive conduct in detention, and rehabilitation prospects.

The jury recommended 10 years parole ineligibility.

The court, comparing the case to R. v. Grant, imposed a life sentence with 14 years of parole ineligibility for murder and a concurrent 10-year sentence (7 years 7 months after pre-sentence custody credit) for discharging a firearm with intent.

Ancillary orders for DNA, weapons prohibition, and no-contact were also made.

The Crown applied for an order to permit two police officers to give non-expert opinion evidence identifying the accused from surveillance video in a first-degree murder and attempted murder trial.

The defence resisted the application.

The court found that both officers met the threshold for giving such evidence, having prior acquaintance with the accused and being in a better position than the jury to make the identification due to changes in the accused's appearance and their close interactions.

The court acknowledged potential issues regarding the weight of the evidence and prejudice from prior police contact but ruled the evidence admissible, inviting counsel to minimize the prejudicial risk.

The Crown brought an ex parte motion for a production order under the Criminal Code against the Canadian Broadcasting Corporation (CBC) to obtain audio and video footage of an interview with a sexual assault complainant.

The application was subject to the Journalistic Sources Protection Act (JSPA).

The CBC submitted written arguments opposing the order and requesting a special advocate, but did not appear in person.

The court granted the production order, finding that the general prerequisites were met, there was no other reasonable way to obtain the information, and the public interest in investigating and prosecuting sexual offences outweighed the journalist's right to privacy.

The court declined to allow the CBC to appear inter partes at this stage or appoint a special advocate, noting the JSPA's bifurcated procedure provides for a later disclosure hearing.

The footage is to be sealed, and the CBC retains the right to apply for a non-disclosure order.