Moiz Murtaza Karimjee

The Crown sought an order compelling the Defence to file a Notice of Constitutional Question to challenge the constitutionality of the mandatory minimum sentence for sexual interference under s. 151 of the Criminal Code.

The Defence argued that a prior Superior Court decision (R. v. M.(L.), 2016 ONSC 7082) had already declared the provision unconstitutional and of no force or effect under s. 52(1) of the Constitution Act, making a new constitutional question unnecessary.

The court dismissed the Crown's application, holding that a declaration of invalidity by a Superior Court judge with inherent jurisdiction renders the law null and void *in rem*, binding on the Crown until overturned on appeal, and thus the constitutionality of the provision was no longer "in question."

The appellant, Nabil Benhsaien, sought a funding order under s. 684 of the Criminal Code to pursue an appeal from convictions for mischief and an indecent act.

The Crown moved to strike the appeal for lack of perfection.

The court denied the funding application, finding the appellant capable of self-representation and the appeal lacking merit.

Consequently, the court granted the Crown's motion to strike the appeal.

The Crown appealed the acquittal of the respondent on a charge of driving over 80 mg of alcohol.

The trial judge erred in law by failing to apply the common sense inference against bolus drinking and the practical evidentiary burden on the respondent when breath samples were taken more than two hours after the alleged offence, despite finding no evidence of bolus drinking.

The appeal was allowed, the acquittal set aside, and the matter remitted for a new trial.

The appellant appealed his conviction for failing or refusing to provide a breath sample.

He was found asleep in his overturned truck by a passing driver, and later arrested at his home after police smelled alcohol on his breath.

The appellant argued the trial judge erred in finding he had care and control of the vehicle, misapprehended evidence regarding post-driving alcohol consumption, and that the breath demand was unlawful.

The summary conviction appeal court dismissed the appeal, finding the trial judge's conclusions were reasonable, supported by the evidence, and that the arresting officer had reasonable and probable grounds to make the breath demand.

The appellant was convicted of cruelty to animals after dropping a pet rabbit from a 10th-floor balcony to its death in front of an eight-year-old child.

He appealed his nine-month sentence, arguing it was harsh and excessive, and that the trial judge erred in weighing aggravating and mitigating factors.

The Superior Court of Justice dismissed the appeal, finding the sentence was fit, proportionate, and properly prioritized denunciation and deterrence given the appellant's history and lack of insight.

The appellant appealed his conviction for having care or control of a motor vehicle while his blood alcohol level exceeded the legal limit.

His vehicle was found on its side in a snowy ditch.

The appellant argued the vehicle was inoperable and posed no realistic risk of danger.

The trial judge found that the appellant's persistent requests to passersby to help right the vehicle so he could drive it constituted an intentional course of conduct creating a realistic risk of danger.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's factual conclusions.

The appellant appealed his conviction for committing an indecent act in a public place.

The appellant had masturbated in his workplace after hours, believing he was alone.

The trial judge convicted him on the basis of wilful blindness, finding he had a positive obligation to verify no one was present.

The Superior Court of Justice found the trial judge erred in law by failing to apply the W.D. framework to assess the appellant's testimony, which negated a finding of wilful blindness.

The conviction was quashed and a new trial ordered.

The Crown applied for a writ of certiorari and mandamus to review a preliminary inquiry judge's decision to discharge the accused on a sexual assault count.

The preliminary inquiry judge had found insufficient evidence to establish that the offence, which involved anal intercourse, was initiated in Ontario and completed in Quebec, thereby denying Ontario jurisdiction.

The Superior Court, applying the standard of review for non-committal orders, determined that the preliminary inquiry judge's decision was based on an insufficiency of evidence, not a jurisdictional error.

As such, the decision was not susceptible to judicial review, and the Crown's application was dismissed.

The Applicant sought certiorari to quash a stay of proceedings entered by the Attorney General in relation to private charges she proposed, and to return the matter for a pre-enquete hearing.

The core issue was whether the Attorney General could intervene and direct a stay under s. 504 of the Criminal Code prior to a pre-enquete.

The court dismissed the application, affirming the Attorney General's broad prosecutorial discretion to stay proceedings at any time after an information has been laid, provided there is no flagrant impropriety or abuse of process.

The appellant appealed her conviction for having care or control of a motor vehicle while impaired, contrary to section 253(1)(a) and (b) of the Criminal Code.

She was found asleep in her car with keys in the ignition after a tire blowout, having called a tow truck.

The trial judge found she failed to rebut the presumption of intent to drive and had de facto care and control, concluding there was a realistic risk of danger.

The appellate court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or legal conclusions regarding intent to drive and realistic risk of danger.

The appellant appealed the cumulative sentence of almost 18 months imposed for criminal harassment and two counts of breaching court orders, arguing it was harsh, excessive, and an error in principle.

The Superior Court of Justice dismissed the appeal, affirming the trial judge's sentence.

The court found the trial judge properly applied sentencing principles, considered aggravating factors such as domestic violence, pre-planning, and lack of remorse, and was entitled to deference in her assessment of the appellant's rehabilitation potential and the fitness of the consecutive sentences.

The appellant appealed his conviction for driving over 80, arguing that the trial judge misapprehended evidence and engaged in speculative reasoning to reconcile conflicting timelines provided by police officers and a tow truck driver.

The appellant contended there was an unexplained 14-minute delay, rendering the breath samples not taken 'as soon as practicable'.

The summary conviction appeal court dismissed the appeal, finding that the trial judge made no palpable and overriding error, properly applied the law, and reasonably concluded that the discrepancies were due to asynchronous timepieces and that the police acted reasonably.

The Crown appealed the accused's acquittals on charges of impaired driving and driving over 80.

The trial judge had excluded the breathalyzer evidence under s. 24(2) of the Charter, finding that the arresting officer lacked reasonable and probable grounds and failed to make the breath demand as soon as practicable.

The Superior Court of Justice allowed the appeal, holding that the trial judge erred in law by requiring the facts to be exclusively consistent with alcohol impairment to form reasonable grounds, and misapprehended the evidence regarding the timeline of the breath demand.

A new trial was ordered.

The appellant appealed summary conviction findings of guilt for sexual assault and sexual exploitation, arguing that the trial judge misapplied the credibility framework in R. v. W.(D.) and improperly restricted cross‑examination concerning alleged exculpatory statements made during the incident.

The appeal court held that although the trial judge’s articulation of the second branch of the W.(D.) test differed slightly from the classic formulation, the reasons as a whole demonstrated that the correct burden of proof was applied and the accused’s evidence was rejected in its entirety on credibility grounds.

The court also found no miscarriage of justice arising from the trial judge’s intervention regarding prior exculpatory statements and the requirement for assurance that the accused would testify.

Any potential confusion was addressed during the trial and did not prejudice the defence.

The convictions were therefore upheld.

The Crown appealed a sexual assault acquittal, alleging errors of law in the trial judge's treatment of consent and the admissibility of the complainant's hearsay statements after the complainant testified she could not remember the material events.

The appeal court held that the trial judge properly applied the threshold reliability analysis for hearsay and did not improperly conflate threshold and ultimate reliability.

It also held that the trial judge made no legal error in finding the accused lacked a belief in consent while still concluding that the Crown had not proved beyond a reasonable doubt that the complainant had revoked her prior consent.

The appeal was dismissed.

The appellant appealed an impaired driving conviction, alleging legal error in the dismissal of a Charter s. 11(b) application based on trial delay.

The court held that delay caused by the unexplained absence of an interpreter was properly treated as neutral rather than institutional, because the cause of the absence was unknown and attribution required an evidentiary basis.

The court also held that delay following outstanding expert-related disclosure was not Crown-caused, since the Crown had not received the material and the trial would have required additional dates in any event due to an inadequate time estimate.

Applying the Morin framework, the court found no unreasonable delay and dismissed the summary conviction appeal.

The appellant appealed her conviction for dangerous operation of a motor vehicle, arguing the trial judge erred in assessing eyewitness identification evidence, rendered an unreasonable verdict, and provided insufficient reasons.

The Superior Court of Justice dismissed the appeal, finding the trial judge's reasons were clear, logical, and demonstrated an awareness of the frailties of eyewitness evidence.

The court concluded the identification evidence, supported by circumstantial factors such as the driver's physical description and a distinct limp, reasonably supported the conviction.

The appellant appealed a conviction for failing to stop a vehicle as soon as reasonable while being pursued by a peace officer in order to evade police, contrary to s. 249.1 of the Criminal Code.

He argued the initial roadside detention was unconstitutional, that the police were not in “pursuit” within the meaning of the offence, that derivative evidence should have been excluded, and that the trial judge misapprehended the elements of the offence.

The court held the traffic stop had a valid dual purpose, found no breaches of ss. 9, 10(a), or 10(b) of the Charter, and concluded that “pursuit” should be given its ordinary meaning rather than a police policy definition.

The evidence supported the finding that the appellant knew police were pursuing him and drove away to evade them.

The conviction appeal was dismissed.

The appellant challenged convictions arising from a police pursuit on the basis that identity was proved only through weak eyewitness evidence.

The appeal court held that the trial judge failed to apply the careful scrutiny required for stranger identification made during a brief and dynamic encounter, followed by a single-photograph identification process.

The officer's contemporaneous description was generic, the later in-court description was materially augmented, and there was no confirmatory circumstantial evidence linking the appellant to the vehicle or plate.

The convictions were set aside and acquittals entered.

On a summary conviction sentence appeal by a young person who pleaded guilty to sexual assault, the court considered whether the Youth Criminal Justice Act requires a sentencing judge to ask the young person if he has anything to say before sentence is imposed.

The court held that, unlike s. 726 of the Criminal Code for adult offenders, the YCJA does not impose such a duty, and that the legislative scheme instead leaves the decision to speak to the young person, counsel, and parents.

The court also refused to admit the appellant's proposed statement as fresh evidence, applying the Levesque criteria and finding it was not fresh and would not reasonably have affected the sentence.

The probation sentence was upheld as fit and the appeal was dismissed.