Moiz Murtaza Karimjee

This is a first-stage ruling on a habeas corpus application brought by Andre Ducic, who asserts that his recent confinement at the Ottawa-Carleton Detention Centre was inconsistent with a disposition order of the Ontario Review Board.

The court finds that there is sufficient concern to warrant a full inquiry into the lawfulness of Mr. Ducic’s imprisonment and orders the matter to proceed to the second stage, requiring the responsible authorities to explain the legal basis for his detention.

The appellant appealed a sentencing decision for carrying a concealed weapon, arguing the trial judge erred by sentencing him as if he committed a "use" offence rather than a "possession" offence, and by overstating the seriousness of the offence.

The appellant sought a conditional discharge.

The appeal court found no error in principle, stating the trial judge properly considered all circumstances, including the potential for harm, and that a conditional discharge would be contrary to the public interest.

The appeal was dismissed.

The appellant, B.S., appealed her conviction for criminal harassment under section 264(3) of the Criminal Code.

The conviction stemmed from repeated unannounced visits to the former matrimonial home, where her estranged husband (the complainant) and their children resided, in violation of a Family Court Restraining Order.

The appellant argued that there was insufficient evidentiary basis and that her conduct, being non-threatening, would not cause a reasonable person to fear for personal safety.

The trial judge found the complainant credible, accepting that the appellant's conduct caused him significant anxiety, stress, and mental health trauma, which constituted fear for personal safety.

The appeal court upheld the conviction, affirming that "fear for personal safety" in harassment cases can include psychological well-being, even in the absence of physical threats, and that the trial judge's factual findings were reasonable.

The appellant, Ahmad Hasan, appealed his conviction for criminal harassment, contrary to s. 264(3) of the Criminal Code.

The appeal was based on two grounds: ineffective representation by counsel (specifically, amicus curiae) and an unreasonable verdict.

The court dismissed the ineffective counsel claim, finding that the amicus's actions were within acceptable professional judgment and that the proposed lines of questioning regarding the initial date were irrelevant to the harassment charge.

Regarding the unreasonable verdict claim, the court found no significant discrepancies in the complainant's testimony and upheld the trial judge's findings that the complainant genuinely feared for her safety, and that this fear was reasonable given the appellant's persistent and escalating communications after being told to stop, even after police intervention.

The appeal was dismissed, and the conviction was affirmed.

The court set aside its previous decision summarily dismissing the applicant's change of venue application.

The original dismissal was based on judicial comity and an assessment of the merits, which the Supreme Court of Canada's decision in R. v. Haevischer (2023 SCC 11) now prohibits at the summary dismissal stage.

The court found that the application's factual basis required a hearing to determine if the threshold for a change of venue was met, as it was not "manifestly frivolous." The applicant is permitted to bring his application afresh.

Patrick King, charged in connection with the "Freedom Convoy," applied for a change of venue from Ottawa, arguing he could not receive a fair trial due to local prejudice and extensive prejudicial media coverage.

The court dismissed the application, citing the principle of judicial comity and deferring to a prior decision in R v. Bauder, 2023 ONSC 996, which addressed similar concerns regarding pretrial publicity and local bias for "Freedom Convoy" cases.

The court affirmed that standard procedural safeguards during jury selection are sufficient to ensure a fair trial.

The accused brought a Charter motion alleging breaches of Sections 8 and 9 due to an unlawful warrantless arrest and an unlawful search incident to arrest, including the observation of a phone notification.

The court found that the arrest was lawful, based on reasonable and probable grounds derived from police surveillance and communication with the accused, who was believed to have sexually assaulted the complainant.

The court also ruled that observing a plain-view phone notification on a lawfully seized phone did not constitute a search engaging Section 8 Charter rights, as there was no reasonable expectation of privacy.

Consequently, the accused's application to exclude evidence was dismissed.

The appellant, Mohamed Faisal, appealed his conviction for driving over 0.80, arguing a breach of his s. 10(b) Charter right to counsel.

The trial judge found a s. 10(b) breach but admitted the breath sample evidence under s. 24(2) of the Charter, applying the Grant factors.

The appeal challenged the trial judge's s. 24(2) analysis, specifically regarding the consideration of the police officer's problematic testimony and the overall assessment of whether admitting the evidence would bring the administration of justice into disrepute.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's holistic consideration of the evidence and the Grant factors, and affirming the deference owed to the trial judge's discretion in s. 24(2) assessments.

The applicant, Tamara Lich, sought to review a bail review decision, alleging errors of law in the imposed release conditions.

The Crown argued the Superior Court of Justice lacked jurisdiction to review a decision of another SCJ judge.

The court examined the interpretation of sections 520 and 521 of the Criminal Code, distinguishing between reviews based on material change in circumstances and those based on errors of law.

Relying on Ontario precedent (R. v. Saracino and R. v. Durrani) over Saskatchewan precedent (R. v. Smith), the court found that the Superior Court of Justice does have jurisdiction to review a bail decision made by another judge of the same court, regardless of whether the previous decision affirmed or vacated the justice's order, and whether the grounds for review are a change in circumstances or an error of law.

Brigitte Cleroux pleaded guilty to seven offences, including personation, fraud, assault, and assault with a weapon, stemming from her fraudulent impersonation of a nurse at two medical clinics.

She performed medical procedures on patients without proper qualifications.

The court considered her extensive criminal record, which included prior convictions for impersonating a nurse.

The Crown sought a 10-year sentence, while the defence sought 4-5 years.

The court emphasized denunciation and deterrence, particularly given the breach of public trust in the healthcare system and the offender's history of similar crimes.

The court imposed a total sentence equivalent to seven years' imprisonment, with credit for pre-sentence custody, including enhanced credit for difficult COVID-19 conditions.

Byron Carr, charged with mischief, obstructing police, and failure to obey a court order related to the "freedom convoy" occupation, brought a s. 520 bail review.

The Crown conceded a material change in circumstances.

The court granted bail, finding that the tertiary ground for detention was inapplicable given the mass nature of the alleged crimes and varying degrees of culpability.

The applicant satisfied the primary and secondary grounds for release with a new, robust plan, including two sureties (one a retired police officer), a $3500 bond, and strict conditions on social media, communication with organizers, and travel to Ottawa.

The accused sought a review of a prior bail denial under section 520 of the Criminal Code, arguing a material change in circumstances.

The court considered a "beefed-up" release plan including GPS monitoring and culturally appropriate counselling.

Despite reservations about the accused's credibility and lack of full disclosure to the proposed counsellor, the court found that the new plan, combined with the surety's commitment and the accused's time in custody, barely satisfied the secondary grounds for release.

The application for bail review was granted.

The applicant, Michael Kilbride, sought a bail review after being detained on secondary and tertiary grounds for charges including breaking into a private residence and assault.

The court found that the new bail plan, which included house arrest with his mother and cash pledges, did not constitute a material change in circumstances sufficient to warrant a de novo hearing or to address the original concerns.

The applicant's extensive criminal record, history of failing to comply with court orders, and the surety's past inability to supervise him led the court to conclude that the secondary and tertiary grounds for detention remained strong.

The application for bail review was dismissed, and the applicant remained detained.

The appellant, Ali Fahad, appealed his conviction for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appellant argued that the trial judge erred in finding that the Crown proved a lawful Approved Screening Device (ASD) demand, given the absence of evidence regarding the exact words used by the officer and errors in police notes and advice.

The court found that while exact words are not always necessary, the absence of evidence of the demand's content, coupled with the officer's errors, rendered the conviction unreasonable.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.

The Crown appealed the acquittal of Mr. Mtonga on a charge of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appeal raised three issues: misapprehension of evidence by the trial judge, insufficient reasons for reasonable doubt, and application of an incorrect mens rea test.

The court dismissed the appeal, finding that the trial judge did not misapprehend the officer's evidence, provided sufficient reasons by considering the accused's request for a "last chance" to provide a sample, and correctly applied the subjective mens rea test requiring proof of intent to refuse or fail on purpose.

The court emphasized that the accused's request for a further attempt, combined with incomplete officer notes, created a reasonable doubt as to his intent, distinguishing the case from others where such a request was absent.

The appellant, Ferid Retta, appealed his conviction for impaired operation of a motor vehicle.

The appeal was based on two grounds: first, that the trial judge's finding of Constable Connolly's credibility was unreasonable given the officer's compromised credibility on a Charter issue; and second, that the breath technician's observations of impairment should have been excluded due to a Charter breach, and the trial judge's reasons were insufficient.

The court dismissed the appeal, finding that the trial judge's credibility assessment was reasonable as it was confined to a specific issue, and that the exclusion of the breath technician's observations was not a live issue at trial.

The court affirmed that non-conscriptive observations of impairment are generally admissible despite Charter breaches.

The applicant, D.M., sought a bail review under s. 520 of the Criminal Code, citing a material change in circumstances due to the COVID-19 pandemic and the proposed use of a GPS monitoring bracelet.

D.M. was charged with multiple counts of sexual assault and sexual interference and had a history of failing to comply with release conditions.

The court acknowledged COVID-19 as a material change but found the proposed surety, Ms. A.T., lacked sufficient judgment and that the applicant had a history of not adhering to surety directives.

The application for release was denied on both secondary and tertiary grounds, concluding that detention was necessary to prevent further offenses and maintain confidence in the administration of justice, despite the elevated health risks posed by COVID-19 in custody.

The applicant, M.K., sought a review of his detention order, which was initially based on secondary and tertiary grounds.

The bail review was conducted via audio conference due to the COVID-19 pandemic.

M.K. faced serious drug trafficking and firearm charges, had a criminal record including prior trafficking convictions and failures to comply with court orders, and was on probation and a firearms prohibition at the time of his arrest.

A new bail plan was proposed, including M.K.'s mother as an additional surety and a GPS monitoring bracelet.

The court found a material change in circumstances, allowing for a de novo hearing.

While the primary and secondary grounds were mitigated by the strengthened bail plan and strong family ties, the tertiary grounds initially favored detention due to the seriousness of the charges and M.K.'s criminal history.

However, M.K.'s specific health vulnerability (prior spontaneous pneumothorax) combined with the heightened risk of COVID-19 transmission in custodial facilities, and the robust bail plan, ultimately led the court to grant release.

The court emphasized that absent M.K.'s particular health vulnerability, the tertiary grounds would have mandated detention.

The accused, Jormond Fraser, sought a bail review under s. 520 of the Criminal Code, following two previous detention orders.

The application cited a material change in circumstances due to a new surety, the proposed use of a GPS monitoring bracelet, and the elevated health risks posed by the COVID-19 pandemic within the Ottawa Carleton Detention Centre, particularly given Fraser's history of leukemia.

The court acknowledged the COVID-19 pandemic as a material change allowing a de novo hearing and a relevant factor in assessing the tertiary ground for bail.

However, the proposed surety was deemed unsuitable due to a past failure to report a breach of conditions and current mental health challenges, raising concerns about her ability to supervise effectively.

Despite the increased risk of infection in custody and Fraser's expressed fear, his extensive criminal record, including numerous convictions for failing to comply with court orders and violence against women, led the court to conclude that the proposed bail plan was insufficient to manage the substantial likelihood of him committing further offences.

The bail review was dismissed, and the detention order remained undisturbed.