Michael Hayworth

The court sentenced Alexander George Jolly for manslaughter after he shot and killed Nicole Mercer, with whom he had an intimate relationship.

The decision reviews the circumstances of the offence, the impact on the victim’s family, the offender’s background, and the aggravating and mitigating factors.

The court imposed a nine-year sentence, less credit for pre-sentence custody, emphasizing denunciation and deterrence in intimate partner violence cases.

The court sentenced Norman Joseph May for the manslaughter of Shirley Hatley, following a joint submission by Crown and defence for 11.5 years' imprisonment, less pre-sentence custody.

The case proceeded on an uncontested basis, with the facts read into the record and not disputed.

The court reviewed the circumstances of the offence, the impact on the victim’s family, and Mr. May’s personal circumstances, including his prior record and health issues.

The court accepted the joint submission, emphasizing the aggravating factors of intimate partner violence and the brutality of the offence, and imposed the recommended sentence.

Justin Europe, charged with human trafficking in January 2019, brought a s. 11(b) Charter application for unreasonable delay after his conviction.

The central issue was the effect of bringing the application late, after trial and conviction.

The court found that while lateness is not fatal per se, in this case, the applicant's conduct (opposing adjournment on delay grounds, scheduling and then abandoning a prior s. 11(b) application) constituted an implicit waiver of a significant period of delay (370 days from when trial dates were set to the end of trial).

After deducting this waived period and COVID-19 related delay, the net delay of 29.6 months fell below the 30-month Jordan ceiling.

The application was dismissed.

The appellant was convicted of sexual assault and sentenced to 30 months' imprisonment.

On appeal, the court dismissed the appeal against conviction, finding that the trial judge correctly determined the appellant was reckless or wilfully blind as to consent, precluding the defence of honest but mistaken belief.

The court also dismissed the appeal against sentence, granting leave but finding the sentence was not demonstrably unfit and that the trial judge appropriately considered mitigating factors, imposing a sentence slightly below the typical range for forced penetration.

Tyri King-Joseph pleaded guilty to possession of a loaded restricted firearm, a prohibited device (extended magazine), and cocaine for the purpose of trafficking.

Police found these items during a search warrant execution at his residence.

The Crown sought a four-year sentence, while the defence argued for a community sentence, citing the offender's reduced moral culpability due to a history of racism, racial profiling, and personal challenges, exacerbated by the lack of a social context report.

The court considered the aggravating factors, particularly the "toxic combination" of guns and drugs, and the mitigating factors, including the guilty plea, lack of criminal record, and rehabilitation efforts.

The judge imposed a 32-month sentence, reduced to 20 months after a 12-month Downes credit for strict bail conditions and systemic delays in obtaining a social history report.

An 18-month probation, lifetime weapons prohibition, and DNA order were also imposed.

A conditional sentence was deemed inappropriate given the gravity of the offences.

This endorsement addresses issues arising from a trial management conference in a criminal proceeding.

Key points included a discussion regarding the appointment of counsel for one accused, Stephen Richard Parr, who has a Legal Aid certificate but is seeking counsel on the LAO panel.

The court also directed the Crown to file its discreditable conduct application and ordered all counsel to file summaries of their intended pre-trial applications by March 29, 2024.

The judge expressed concern about the efficiency of virtual attendances and indicated a consideration for ordering future trial management conferences to be held in person.

This criminal trial concerned Justin Europe, who was charged with multiple offences related to human trafficking, procuring, receiving material benefits from sexual services, advertising sexual services, assault, aggravated assault, and threatening.

The central issue was the credibility and reliability of the complainant, L.G.'s, evidence.

The court found the accused guilty of human trafficking, procuring, receiving material benefits from human trafficking and sexual services, advertising sexual services, aggravated assault, and threatening death.

He was found not guilty of simple assault and threatening to kill a dog due to insufficient evidence.

The court emphasized the dynamics of the relationship, L.G.'s fear, and the accused's conduct in reinforcing that fear to profit from her work.

The accused, Justin Europe, charged with human trafficking and related offences, sought to cross-examine the complainant about her prior sexual activity.

The Crown argued that s. 276 of the Criminal Code applied, requiring a formal application.

The court, applying the doctrine of horizontal stare decisis, determined that s. 276 does not apply to human trafficking offences, following the precedent set in R. v. Williams, 2020 ONSC 206.

The court also rejected the common law requirement for a voir dire for such evidence.

While allowing questions about the complainant's involvement in the sex trade immediately prior to the alleged offences due to relevance to the "procuring" element, the court disallowed questions about her activities after the relationship ended, finding them to have marginal relevance.

Following a jury trial, the defendant was found guilty of manslaughter and discharging a firearm with intent.

The charges stemmed from a fatal shooting in a public parking lot.

The Crown sought a 15-year sentence, while the defence proposed 10 years before credit for pre-trial custody.

The court considered various aggravating factors, including the deliberate use of an illegal firearm, multiple shots, harm to multiple victims, flight from the scene, and the significant impact on the victim's family.

Mitigating factors included the defendant's relative youth, a single prior youth conviction, a history of domestic violence trauma, family support, and harsh pre-trial custody conditions.

The court also considered the provocation that reduced the charge from second-degree murder to manslaughter, noting its limited impact on moral culpability.

The judge determined an appropriate sentencing range for firearm-related manslaughter to be 12 to 15 years.

Applying principles of denunciation, deterrence, and rehabilitation, the court imposed a total sentence of 11.5 years imprisonment, to be served concurrently with a 6-year sentence for the firearm charge.

After accounting for 5 years of pre-trial custody credit, the defendant was sentenced to a further 6.5 years imprisonment, along with a lifetime s. 109 order and a DNA order.

The Crown applied under s. 123 of the Youth Criminal Justice Act (YCJA) for access to S.S.'s youth records to assist in his adult sentencing for manslaughter and reckless discharge of a firearm.

S.S. had previously been found guilty of assault causing bodily harm as a young person.

The court granted the application, finding that the Crown had a valid and substantial interest in the records, disclosure was not prohibited, and access was necessary for the proper administration of justice, balancing S.S.'s privacy interests against the public interest in a fit sentence for a serious adult re-offence.

During a jury trial for second-degree murder and attempted murder, the Crown sought to admit three hearsay statements under the principled exception to the hearsay rule after the witnesses failed to adopt them in court.

The court excluded a police statement due to a lack of necessity and suggestive questioning.

However, the court admitted a witness's preliminary inquiry testimony, finding the witness's claimed lack of memory amounted to a recantation, satisfying necessity and procedural reliability.

The court also admitted a surreptitiously recorded video of another witness describing the shooting, finding necessity met by the witness's feigned memory loss and threshold reliability established through procedural safeguards and corroborative evidence (gunshot residue in a Gucci bag).

A second video was excluded due to its prejudicial effect regarding the accused's bad character.

The appellant appealed his summary conviction for sexual assault.

At trial, the judge rejected the appellant's testimony, stating he was an 'old fox' who had tailored his evidence to the case he knew he had to meet.

The Superior Court of Justice found this to be an error of law, as discounting an accused's credibility on the basis of tailored evidence creates a constitutional trap that subverts the right to be present at trial.

Because the trial judge provided no explanation for this conclusion, the appeal was allowed and a new trial ordered.

The appellants, David Kaczmarek and Terrell Sullivan, appealed their convictions for sexual assault and Mr. Sullivan also appealed his sentence.

The trial judge had found the complainant lacked the capacity to consent due to extreme intoxication and did not agree to the sexual activity.

The Court of Appeal upheld the trial judge's finding of incapacity, rejecting arguments that the judge erred in the order of findings, equated lack of memory with incapacity, or reversed the burden of proof.

Mr. Kaczmarek's claim of ineffective assistance of counsel, alleging his counsel prevented him from testifying, was also dismissed, as the court found counsel's advice was sound and the decision not to testify was ultimately Mr. Kaczmarek's.

Mr. Sullivan's sentence appeal was dismissed, with the court affirming that continuing sexual activity after consent is withdrawn is not less morally blameworthy than engaging in sexual activity with someone who never consented or lacked capacity.

The accused was charged with firearm offences after being arrested during a police takedown of a target he was accompanying.

The accused brought Charter applications alleging arbitrary detention and excessive use of force, supported by independent video evidence showing police kicking him while he was handcuffed on the ground.

The court found the detention was arbitrary as police lacked reasonable grounds, and excluded the firearm under s. 24(2) due to the seriousness of the police misconduct.

The court also found the Crown failed to prove possession beyond a reasonable doubt due to severe police credibility issues, resulting in an acquittal.

Jaleel Williams was charged with robbery and other offenses.

He sought to exclude evidence seized during an investigative detention and search, arguing violations of ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The Crown sought to admit certain utterances made by Williams.

The court found that the detention and search violated ss. 8 and 9 of the Charter, as there was no objectively reasonable basis for the initial detention and the search exceeded the scope of a permissible pat-down.

This evidence was excluded under s. 24(2) of the Charter.

The court found no violation of Williams's s. 10(b) right to counsel and admitted his booking hall utterances as voluntary.

As a result of the exclusion of key evidence, the Crown tendered no further evidence, and Williams was found not guilty of the charges.

The accused pleaded guilty to one breach of a recognizance and one breach of probation.

The breaches involved violating court orders to stay away from the victim, Monique Fortin, whom he had previously assaulted on two separate occasions.

The court imposed a six-month conditional sentence followed by two years' probation, along with a section 109 weapons prohibition order for 10 years and a DNA order.

The sentence balanced the serious aggravating factors, including multiple breaches and a pattern of domestic violence, against mitigating factors such as the guilty plea, recent rehabilitation efforts, and stable employment.

The accused was charged with impaired care or control.

The Crown's case relied on blood test results obtained at a hospital without the accused's consent.

The defence sought to exclude the blood results based on alleged Charter breaches, including unlawful detention, delayed right to counsel, and failure to facilitate the accused's request to contact counsel.

The court found that while the initial order to exit the vehicle was lawful under the Waterfield test (justified to protect life), there were Charter breaches regarding the right to counsel.

The court excluded the blood evidence under section 24(2) of the Charter, finding that the impact on the accused's Charter-protected interests was significant, particularly given the accused's vulnerability and explicit request for counsel that was not facilitated.