Michael Townsend

The defendant, Adil Zeno, brought a Charter application to exclude video evidence from a cell phone, alleging breaches of his rights under sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that while there was a breach of the defendant's section 10(b) right to counsel due to an unreasonable delay, and accepted for the purpose of the application that there was a section 8 breach related to the search warrant for the cell phone, these breaches were not serious enough to warrant exclusion of the evidence under section 24(2) of the Charter.

The court found the police acted in good faith, and the evidence was reliable and relevant to the Crown's case.

The application to exclude evidence was denied.

Adil Zeno, convicted of accessory after the fact to murder, brought a post-verdict application for a stay of proceedings under ss. 7 and 24(1) of the Charter, alleging abuse of process by the Crown.

The alleged abuse primarily related to a separate murder prosecution and the Crown's position on bail.

The court dismissed the application, finding that the alleged misconduct was not related to the current proceeding and that alternative remedies, such as seeking damages in the other proceeding, were available.

The court emphasized that a stay of proceedings is a drastic remedy reserved for the 'clearest of cases' and that impugned conduct must be related to the proceeding before the court.

This is a sentencing decision for Salman Ahmed, who was convicted of second-degree murder.

The primary issue was determining the period of parole ineligibility, which carries a mandatory life sentence with a general 10-year ineligibility period, extendable up to 25 years under s. 745.4 of the Criminal Code.

The Crown sought 25 years, while the defence argued for 12 years.

The court considered the jury's recommendation (which was given little weight), the violent nature and circumstances of the carjacking and murder, and the offender's character, including his youth, first-time offender status, and challenging background, balanced against his poor conduct in custody.

The court ultimately imposed a life sentence with parole ineligibility set at 18 years, emphasizing deterrence and denunciation due to the use of firearms and forcible confinement.

S.A., charged with second-degree murder, applied for judicial interim release.

The Crown opposed release on secondary and tertiary grounds.

The court found a substantial likelihood that S.A. would commit further offences if released, citing strong evidence of involvement in the murder, a prior bail breach, and other outstanding charges.

The proposed release plan, including electronic monitoring and sureties, was deemed insufficient given S.A.'s apparent disregard for consequences.

The COVID-19 pandemic's relevance to the secondary ground was considered but not found to be a significant deterrent for the applicant.

The application for release was dismissed.

The applicant, E.M., sought a bail review under s. 520 of the Criminal Code, arguing that the COVID-19 pandemic constituted a material change in circumstances.

E.M. was charged with 31 firearms-related offences and had been in custody for over a year.

The Crown conceded the material change but opposed release primarily on tertiary grounds.

The court found that E.M. had discharged her onus on the tertiary ground, considering the strong release plan, the circumstantial nature of some charges, the significant delay caused by the pandemic, and compassionate grounds as a mother of four young children.

The court emphasized that while the allegations were serious, the public's confidence in the administration of justice would not be undermined by release under strict conditions, especially given the public health implications of incarceration during the pandemic.

The applicant, charged with first-degree murder, sought release on bail.

The court considered the strength of the Crown's case, the applicant's background (including a new drug trafficking charge while in custody), the reliability of the proposed surety (the applicant's father, who was untruthful in testimony), the release plan, and the impact of the COVID-19 pandemic.

The court found the applicant failed to satisfy the onus on the secondary and tertiary grounds for detention, concluding that detention was necessary for public safety and to maintain confidence in the administration of justice.

The accused, R.S., charged with sexual assault, brought an application to introduce text messages and an email between himself and the complainant, L.H., under ss. 278.92 and 278.94 of the Criminal Code.

The court partially granted the application, admitting the text messages.

These messages, exchanged proximate to and after the alleged assaults, were deemed relevant to L.H.'s credibility regarding consent and the narrative of events, possessing significant probative value not substantially outweighed by prejudice, and crucial for the defence's right to make full answer and defence.

The court emphasized a holistic consideration of factors under s. 278.92(3) and rejected stereotypical interpretations of victim behaviour.

However, the email, which described an erotic dream of L.H. involving R.S. and was sexual in nature, was found to fall under s. 276(4) as sexual activity.

As no s. 276 application was brought for its admission, and it would have been dismissed on the merits for relying on a proscribed inference about consent, the email was deemed inadmissible.

R.S., charged with sexual assault and choking, brought an application under s. 276 of the Criminal Code to introduce evidence of three prior consensual sexual encounters with the complainant, L.H. The defence argued this evidence was relevant to establish an honest but mistaken belief in communicated consent and/or to challenge L.H.'s credibility.

The court dismissed the application, finding that R.S.'s belief was based on a mistake of law ("No" means "No") and not a mistake of fact.

The court emphasized that prior sexual activities, especially those where consent was vitiated by an expressed lack of agreement, could not form the basis of a defence of honest but mistaken belief, nor could they be used to infer consent or attack credibility without engaging in prohibited "twin myths." The evidence lacked significant probative value and was substantially outweighed by the danger of prejudice to the proper administration of justice and the complainant's dignity and privacy.

During a trial for sexual assault, the accused brought a renewed application under section 276 of the Criminal Code to introduce evidence of prior consensual sexual encounters with the complainant.

The application was renewed after the complainant testified in-chief.

The court partially granted the application, finding that the evidence was necessary to provide context to specific text messages and statements made by the complainant regarding their platonic relationship.

The court held that admitting the evidence for this limited purpose did not rely on twin-myth reasoning and its probative value outweighed the danger of prejudice.

The accused was convicted of sexual interference for touching his step-daughter's buttocks.

The court found the accused ineligible for a conditional discharge as the offence could not be proven to have occurred before the maximum penalty was increased.

Emphasizing denunciation and deterrence for sexual offences against children by persons in a position of trust, the court imposed a 60-day intermittent custodial sentence, reduced to 11 days after credit for pre-trial custody and strict bail conditions, followed by two years' probation.

Following a jury verdict finding the accused guilty of sexual interference and sexual assault against his stepdaughter, the defence requested a bifurcated hearing to determine the proven facts for sentencing.

The court applied the principles from R. v. Ferguson to determine the factual implications of the ambiguous jury verdict.

Due to significant credibility and reliability issues with the complainant's evidence regarding hundreds of alleged incidents, the court found only the minimum consistent facts proven.

The court concluded that only one incident of touching the complainant's buttocks was proven beyond a reasonable doubt for the purpose of sentencing.

The appellant appealed his conviction and sentence, arguing that the verdict was unreasonable and unsupported by evidence.

The Court of Appeal upheld the conviction, finding that the trial judge's credibility findings were entitled to deference and were properly reasoned.

The trial judge had provided ample justification for accepting the complainant's evidence and properly assessed conflicting testimony.

The court found no differential standard of scrutiny was applied to defence evidence and that the trial judge properly cautioned himself against treating the case as merely a credibility test.