Michael R. Dambrot

The accused, charged with second degree murder following an unprovoked and fatal assault on a stranger, applied for judicial interim release.

The court reviewed the accused's extensive criminal record, history of breaching court orders, and the strength of the Crown's case.

The court found the proposed release plan, which relied on family members as sureties, insufficient to manage the risk.

The application was dismissed, and the accused was ordered detained on both the primary and secondary grounds.

In a first degree murder jury trial, the accused brought a Charter application to exclude taxi dispatch records and related audio recordings voluntarily provided by a taxi company to police without judicial authorization.

The court held that the accused had no objectively reasonable expectation of privacy in the basic service-order information, including phone numbers, pickup locations, first names used, and associated audio of brief taxi-ordering calls, such that no search or seizure occurred for s. 8 purposes.

In the alternative, the court found that the October 2017 police requests were justified by exigent circumstances arising from the immediate aftermath of a homicide and concern for public safety, the taxi driver, and preservation of evidence, while the later May 2020 request would have been unreasonable if s. 8 were engaged.

Applying the Grant factors in the further alternative, the court held that any breach was not serious, the privacy impact was minimal, and society’s interest in adjudication on the merits strongly favoured admission.

The exclusion application was dismissed.

The Crown brought an application for a sealing order and to hold part of the proceedings in camera regarding charges under the Security of Information Act.

The charges stemmed from intercepted telephone calls to a foreign embassy.

The Crown sought to prevent public disclosure of a redacted CSIS affidavit and warrant, arguing it would injure Canada's international relations.

Applying the Dagenais/Mentuck test, the court found that the orders were necessary to prevent a serious risk to the proper administration of justice and that the salutary effects outweighed the deleterious effects on the open court principle.

The application was granted.

During a jury trial for first degree murder, the Crown sought to introduce recognition evidence from five witnesses to identify the accused in surveillance videos.

The witnesses, including a police officer and four security guards, had prior interactions with the accused in the community.

The court applied the test for non-expert opinion evidence of identity, finding that each witness had a sufficient prior acquaintance with the accused and was in a better position than the jury to identify him.

The court rejected arguments that the evidence was overly prejudicial or tainted by the witnesses' knowledge of the investigation.

The Crown's application to adduce the recognition evidence was granted.

During a trial for first-degree murder, the Crown sought to admit a Resident Information Form for an apartment unit as a business record under s. 30 of the Canada Evidence Act.

The accused objected, arguing the form was not created in the ordinary course of business, contained double hearsay, and lacked threshold reliability.

The court dismissed the objections, finding the form was routinely collected and relied upon by property management, satisfying the statutory requirements for admissibility.

The form was admitted into evidence.

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.

During a first-degree murder trial, the accused brought an application for a mistrial and other relief following the late disclosure that undercover officers placed in his cell had audio-monitored their communications.

The accused sought further disclosure, challenged the Crown's claim of investigative privilege over the monitoring device, and argued the monitoring violated section 8 of the Charter.

The court dismissed the applications, finding that the Crown properly asserted public interest privilege over the device's specifics.

The court also held that the audio monitoring was lawfully conducted for officer safety under section 184.1 of the Criminal Code and did not constitute an unreasonable search or seizure.

The application for a mistrial 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.

The Crown brought an application during a trial for gang sexual assault to admit the expert testimony of an emergency room physician and a sexual assault nurse-examiner.

The proposed evidence concerned the effects of alcohol and drugs on the complainant's consciousness and capacity to consent, as well as the interpretation of her physical injuries.

The accused opposed the physician's evidence, arguing she lacked toxicological expertise and was biased due to her advocacy for sexual assault survivors.

The court admitted the evidence, finding it relevant, necessary, and reliable, and held that the physician's social media posts did not demonstrate an inability to provide impartial evidence.

The accused, charged with gang sexual assault and other offences, brought applications under s. 276 of the Criminal Code to adduce evidence of the complainant's prior sexual comments, gestures, and interest in a sex club to support their defence of honest but mistaken belief in communicated consent.

The court dismissed the application regarding the prior sexual comments and gestures, finding the evidence irrelevant and based on prohibited twin-myth reasoning.

The court permitted limited evidence regarding discussions about attending a sex club solely to provide context for a text message sent by one of the accused, with strict instructions against using it to infer consent.

Evidence of conversations immediately prior to the sexual encounters was ruled admissible.

The tenant's appeal from an order of the Landlord and Tenant Board terminating her tenancy was previously dismissed.

The court received written submissions on costs from the respondent landlord, but none from the appellant tenant.

The court fixed costs payable to the respondent in the amount of $4,000 all-inclusive.

The offender was convicted of second degree murder after brutally stabbing the victim following a day of drinking.

The Crown sought 15 years of parole ineligibility, while the defence sought the mandatory minimum of 10 years.

The court weighed the offender's difficult background as a refugee and his efforts at self-improvement against the brutal nature of the prolonged attack and his failure to seek medical help for the victim.

The offender was sentenced to life imprisonment with no eligibility for parole for 13 years, along with DNA and firearms prohibition orders.

The accused brought a pre-trial motion arguing that recent amendments to the Criminal Code eliminating peremptory challenges in jury selection should not apply retrospectively to their trial.

The court applied the rule of coordinate jurisdiction, noting that two other Ontario Superior Court judges had already ruled the amendments were procedural and applied retrospectively.

Finding no cogent reason to depart from those decisions, the court dismissed the application and ordered jury selection to proceed under the amended procedure.

The Crown sought to admit a post-arrest statement made by the accused, who was charged with multiple sexual offences.

The accused challenged the voluntariness of the statement, arguing that his English comprehension was insufficient and that the police caution regarding his right to silence was inadequate.

The court found that the accused's English skills were reasonably sophisticated and that the police officer went to great lengths to ensure the accused understood his right to silence.

The statement was ruled voluntary and admissible.

The accused, charged with sexual assault, applied to challenge prospective jurors for cause based on pre-trial publicity and the #MeToo movement, specifically the #IBelieveHer hashtag.

The court permitted modified questions regarding pre-trial publicity but dismissed the request to ask questions about the #MeToo movement and the hashtag.

The court held there was an insufficient evidentiary basis to take judicial notice of widespread bias or that jurors would be incapable of setting aside such bias despite trial safeguards.