Michelle K. Fuerst

Sentencing for assault causing bodily harm arising from a violent beating that left the victim with facial fractures, concussion, permanent scarring, and ongoing psychological and physical effects.

The court treated the offence as serious violence, emphasized denunciation, deterrence, and public protection, and considered aggravating factors including pursuit of the victim, repeated blows after the victim was down, breach of bail, and a prior record for violence.

Applying Gladue and Ipeelee principles, the court took into account the offender's Indigenous background, intergenerational residential school impacts, personal trauma, guilty plea, remorse, family support, and rehabilitative prospects.

A sentence of 11 months' imprisonment less seven months' combined credit for pre-trial custody and strict bail conditions was imposed, leaving four months concurrent to an existing sentence, followed by 18 months' probation and ancillary orders.

On a voir dire in a murder prosecution, the Crown sought admission of the accused's videotaped police statement and the defence challenged voluntariness and alleged a breach of s. 10(b) of the Charter.

The court held the statement was not voluntary because the interrogating officer deliberately exploited the accused's concern for his ill father and family home by linking relief from an invasive property search to cooperation, within a lengthy and persistently accusatorial interview.

The court rejected the right-to-counsel claim, finding the accused had already consulted duty counsel, was satisfied with that advice, and no objectively observable changed circumstances required re-consultation.

In the alternative, the court held the statement would also be excluded because its probative value was outweighed by its prejudicial effect.

The applicant sought judicial screening under s. 745.61 of the Criminal Code for a jury hearing to reduce the 25‑year parole ineligibility period imposed following a conviction for first‑degree murder.

The court considered both the statutory filing deadlines under s. 745.6 and the substantive criteria under s. 745.63(1), including the applicant’s character, institutional conduct, nature of the offence, victim impact statements, and risk of recidivism.

The application was found to be filed outside the statutory time limits and therefore procedurally barred.

In any event, the court held that the applicant failed to demonstrate a substantial likelihood that a jury would reduce the parole ineligibility period given the brutal sexually motivated murder, prior sexual violence, limited rehabilitation efforts, denial of responsibility, and ongoing risk factors.

The application was dismissed at the screening stage and the applicant was prohibited from making another application under s. 745.6(1).

Following guilty pleas to sexual interference, child luring, and making child pornography involving a 15‑year‑old complainant, the Crown sought a dangerous offender designation and indeterminate detention.

Extensive psychiatric and psychological evidence established that the offender suffered from antisocial personality disorder with psychopathic traits, severe substance dependence, and a high actuarial risk of violent and sexual recidivism.

The court found the offence of sexual interference constituted a serious personal injury offence and that the offender demonstrated a pattern of repetitive behaviour showing failure to restrain conduct and a likelihood of causing injury or severe psychological harm in the future.

Although one statutory pathway for dangerous offender status based on persistent aggressive behaviour was not proven, the criteria under s. 753(1)(a)(i) of the Criminal Code were satisfied.

The court concluded that neither a determinate sentence nor a long‑term supervision order would adequately protect the public and imposed an indeterminate sentence.

The offender was convicted by a jury of second degree murder in the killing of his intimate partner.

The court was required to determine the appropriate period of parole ineligibility under ss. 745 and 745.4 of the Criminal Code, considering the offender’s character, the circumstances of the offence, and the jury’s recommendation.

The evidence established that the offender repeatedly struck the victim with a baseball bat in her home and subsequently attempted to access her bank account while leaving her gravely injured.

Aggravating factors included the brutality of the attack, the breach of trust in an intimate relationship, and the offender’s post‑offence conduct.

Balancing aggravating and mitigating factors, the court imposed life imprisonment with parole ineligibility for fifteen years.

The applicant sought a Rowbotham order directing the Attorney General or Legal Aid Ontario to fund counsel for pending criminal prosecutions involving multiple marijuana production and trafficking charges, or alternatively a stay of proceedings until funding was provided.

Legal Aid had refused coverage on financial grounds.

The court held that the applicant failed to establish on a balance of probabilities that he lacked the means to retain private counsel, noting inconsistencies in his financial disclosure, undisclosed joint bank accounts, and evidence suggesting a potential interest in property owned by a person with whom he maintained a close relationship.

The court further held that the applicant had not demonstrated that representation by counsel was essential to a fair trial.

The Rowbotham application was therefore dismissed.

During a criminal jury trial, the Crown sought to put prior testimony from a previous trial to a witness during re‑examination.

Defence counsel had suggested in cross‑examination that the witness’s account evolved after discussions with others following the complainant’s death.

The court considered whether the cross‑examination raised an allegation of recent fabrication that would permit the Crown to introduce prior consistent testimony.

Applying the principles discussed in R. v. Ellard, the court found it was unclear that the prior testimony pre‑dated the alleged point of fabrication.

The Crown was therefore not permitted to put the testimony from the first trial to the witness, though re‑examination on the witness’s January testimony was allowed.

During a jury trial for murder, the defence sought to cross‑examine the deceased’s daughters about threatening phone calls, visits by unidentified individuals, and safety precautions allegedly taken due to the accused’s drug‑related associations.

The defence argued the evidence was relevant to show animus against the accused and challenge the credibility of their testimony regarding the relationship between the accused and the deceased.

The Crown objected, arguing the questioning was an indirect attempt to introduce previously excluded third‑party suspect evidence.

The court held that while defence evidence may be excluded only where its prejudicial effect substantially outweighs its probative value, the proposed cross‑examination carried a significant risk of inviting the jury to speculate that unidentified drug associates committed the murder.

The court therefore ruled the prejudicial effect outweighed the limited probative value and prohibited the cross‑examination.

During a murder trial, the defence advised that the accused intended to testify that he witnessed another individual commit the killing.

The defence argued that such evidence could be introduced without a formal third-party suspect application, relying on appellate authority concerning direct confessions by third parties.

The Crown submitted that the anticipated testimony should have been raised during the earlier third-party suspect application already dismissed by the court.

The court held that the law was unclear as to whether the rule permitting direct evidence of a third party’s confession without a formal application extends to testimony by an accused alleging another person committed the offence.

The judge indicated a preliminary inclination to permit the evidence but required the defence to provide a written outline of the proposed allegations to be put to the third party to ensure a sufficient nexus existed before making a final ruling.

In a second‑degree murder trial, the Crown sought to introduce multiple autopsy photographs depicting the deceased’s injuries.

The defence objected, arguing the photographs were highly graphic and unnecessary given admissions regarding the cause of death, the injuries, and the expert pathologist’s conclusions.

Applying the probative value versus prejudicial effect analysis described in R. v. P.(R.) and R. v. Handy, the court held that several close‑up images of the head and face were extremely graphic and their probative value was diminished by the defence’s proposed admissions.

Those photographs were excluded, while less prejudicial images illustrating the body’s condition and certain injuries were admitted to assist the pathologist’s testimony.

The ruling balanced the evidentiary value of visual evidence against the risk of reasoning prejudice for the jury.

In a second-degree murder prosecution, the Crown sought to admit antemortem hearsay statements made by the deceased to friends and family regarding the accused’s drug use, theft, and deterioration of their relationship, as well as evidence of prior discreditable conduct.

The court considered the admissibility of the statements under traditional state-of-mind exceptions and the principled approach to hearsay, assessing necessity and threshold reliability under authorities including R. v. Khelawon.

Most statements from close family members and trusted confidants were admitted as evidence of the deceased’s state of mind and the relationship context relevant to motive and identity.

Statements from casual acquaintances lacking sufficient indicia of reliability were excluded.

Evidence of the accused’s drug use and related conduct was largely admitted as contextual relationship evidence, while certain items, including a prior push and some duplicative or prejudicial evidence, were excluded.

During a murder trial, the defence sought to adduce evidence suggesting that two third parties were responsible for the killing.

The court considered whether the proposed evidence established a sufficient nexus between the third parties and the offence to meet the “air of reality” threshold for third‑party suspect evidence.

Applying the principles from Supreme Court of Canada jurisprudence, the court held that there was no evidence of motive, opportunity, propensity, or other connection linking the proposed suspects to the homicide.

The alleged inconsistencies in their statements and cell phone records did not reasonably support an inference of involvement and amounted only to speculation.

The application to introduce third‑party suspect evidence was dismissed.

The Crown sought to admit a videotaped police statement made by the accused following a high-risk arrest for murder and attempted murder.

The defence argued the statement was involuntary due to oppressive circumstances, including the manner of arrest, relentless questioning, and the accused's physical illness.

The court applied the common law confessions rule and found the statement voluntary for the first three hours and twenty-three minutes, as the accused was able to make a meaningful choice to speak or remain silent.

However, the court found a reasonable doubt as to voluntariness for the remainder of the interview, as the accused became visibly ill and unable to continue.

The statement was ruled partially admissible.

The Crown sought to admit a videotaped police statement made by the accused during a homicide investigation.

The defence challenged the admissibility of the statement on the grounds that it was involuntary and obtained in breach of s. 10(b) of the Canadian Charter of Rights and Freedoms.

Applying the confessions rule from R. v. Oickle, the court assessed whether threats, inducements, oppression, lack of an operating mind, or police trickery undermined voluntariness.

The court found the police interview tactics—including accusatorial questioning, references to investigative techniques, and moral appeals—did not overbear the accused’s will and did not amount to improper inducements or oppressive conduct.

The court further held that the accused was not psychologically detained prior to arrest under the framework in R. v. Grant and R. v. Suberu, and therefore her right to counsel under s. 10(b) was not breached.

The November 22 statement was ruled voluntary and admissible.

The applicant, a lawyer charged with money laundering and possession of property obtained by crime, sought to vary or vacate three restraint orders freezing his bank and securities accounts.

He argued the orders were based on information obtained in breach of his s. 8 Charter rights, PIPEDA, and a production order, and that the banks acted as state agents.

The court dismissed the application, finding the accounts were properly restrained as offence-related property or proceeds of crime.

The court held the applicant had no reasonable expectation of privacy in the banking information disclosed, the banks acted independently to protect their own interests and not as state agents, and the disclosures complied with PIPEDA.

The court also found the CRA tax information was properly acquired and used.

The accused pleaded guilty to multiple sexual offences including attempting to administer a stupefying substance to facilitate sexual assault, attempted sexual assault, attempted making of child pornography, voyeurism, and possession of child pornography.

The offences involved attempts to intoxicate a teenage complainant and long‑term covert recordings of minors in a bathroom, along with possession of a large child pornography collection.

The court emphasized denunciation and deterrence as the primary sentencing objectives given the seriousness of child exploitation offences and the abuse of trust.

Numerous aggravating factors were identified, including planning, the vulnerability of victims under 18, abuse of familial trust, and significant psychological harm to victims.

Accepting a joint submission, the court imposed concurrent penitentiary terms resulting in a total sentence of three years, along with weapons prohibitions, lifetime SOIRA registration, and DNA orders.

A licensed paralegal and her firm sought judicial review of directions issued by a justice of the peace requiring paralegals to remain behind the bar in the courtroom until their matters were called and suggesting that matters involving lawyers be called ahead of those involving paralegals.

The applicants argued that the justice of the peace exceeded jurisdiction, breached natural justice, and violated s. 7 of the Canadian Charter of Rights and Freedoms by disadvantaging paralegals economically and professionally.

The court held that courtroom seating arrangements and management of the calling of cases fall within a judicial officer’s authority to control court process and maintain order.

Economic interests are not protected by s. 7 of the Charter, and the impugned directions did not engage life, liberty, or security of the person.

The justice of the peace therefore acted within jurisdiction and did not breach principles of natural justice.

The applicant sought certiorari to quash a preliminary inquiry committal to trial for first degree murder under s. 231(5) of the Criminal Code, arguing there was no evidence the killing occurred while committing or attempting to commit sexual assault.

The Crown relied on circumstantial evidence suggesting a sexual motive, including prior romantic interest, communications between the parties, and statements made during a “Mr. Big” undercover operation.

The court held that while there was some evidence the accused murdered the deceased, the evidence did not reasonably support an inference that the murder occurred in connection with a sexual assault.

The preliminary inquiry judge therefore exceeded jurisdiction by committing the accused to trial for first degree murder.

The committal was quashed and the matter remitted with direction to commit the accused to trial for second degree murder.

During a murder trial involving multiple accused, an issue arose regarding a potential conflict of interest after counsel for one accused had previously represented a co‑accused on an unrelated impaired driving matter years earlier.

The court considered whether the prior representation created a risk of misuse of confidential information or an appearance of conflict under the principles in MacDonald Estate v. Martin.

Although the risk of prejudice was assessed as minimal and both affected accused were willing to waive any conflict, the court emphasized the unpredictability of a multi‑accused criminal trial and the need to maintain public confidence in the administration of justice.

The judge permitted counsel to continue acting subject to strict conditions, including written waivers, restrictions on cross‑examination of the former client, and prohibitions on accessing or using any prior confidential information.

In a homicide prosecution arising from a stabbing at a banquet hall, the Crown sought to admit a seven‑hour videotaped police interview of one accused.

During the interview the accused repeatedly asserted the right to silence and relied on prior legal advice not to speak.

The court found that the interviewing officer repeatedly urged the accused to speak, suggested that cooperation could improve his status from suspect to witness, implied a legal obligation to assist police, and undermined the accused’s confidence in his lawyer.

Considering the totality of circumstances, the court held that the accused’s ability to make a meaningful choice whether to speak was impaired and the statement was not proven voluntary.

The statement was therefore inadmissible under the confessions rule and would in any event be excluded under s. 24(2) for breaches of ss. 7 and 10(b) of the Charter.