Nola E. Garton

The accused brought Charter motions (ss. 7, 10(a), 10(b)) to exclude drug and money evidence in a trial for possession of drugs for the purpose of trafficking and possession of proceeds of crime.

The court found no s. 7 violation regarding police body-worn camera (BWC) muting or late activation, as no evidence was "lost" and no prejudice was demonstrated.

However, the court found s. 10(a) and 10(b) violations due to delayed and incomplete advisement of rights upon detention and arrest.

Applying the s. 24(2) Grant analysis, the court determined that the evidence should not be excluded, weighing the seriousness of the breaches (moderate, good faith, fluid situation) against the minimal impact on the accused's Charter interests (no incriminating statements, evidence discoverable) and society's strong interest in adjudicating serious drug offences on their merits.

The motions to exclude evidence were dismissed, and the accused was found guilty on all counts.

Jahlando Sinclair, aged 22, faced charges related to the robbery of two pharmacies.

The central issue was the identification of Sinclair as one of the robbers, specifically the one wearing a grey Roots hoodie.

The Crown relied heavily on high-quality video surveillance, physical resemblance, matching clothing and accessories (shoes, underwear, mask), temporal proximity to other identified robbers, and the location of his arrest near discarded robbery clothing.

The court applied principles of video identification and circumstantial evidence, finding that the cumulative effect of the evidence led to the only reasonable inference of guilt, rejecting the defence's "series of coincidences" argument.

Sinclair was found guilty of robbery, masked with intent, and possession of a firearm while prohibited.

A charge of possession of a loaded restricted firearm was reduced to a lesser included offence.

Kyle Marier pleaded guilty to possession of a loaded prohibited firearm.

The Crown sought 34 months imprisonment, while the defence sought an 18-month conditional sentence.

The court considered aggravating factors, including the public possession of a loaded firearm, flight from police, discarding the weapon, and being on bail for another offence.

Mitigating factors included Marier's youth (19 at the time of offence, 23 at sentencing), lack of prior criminal record, guilty plea, strong family and community support, and significant rehabilitative efforts while on house arrest bail for over four years.

The court also considered social context evidence of systemic anti-Black racism and its impact on the offender, which mitigated his moral culpability.

The judge found the appropriate sentence to be in the range of two years and, applying the principles from R. v. Morris, determined that a conditional sentence was appropriate given Marier's rehabilitative potential and the systemic factors.

Marier was sentenced to a two-year conditional sentence (less 46 days credit for pre-trial custody), with the first 12 months under house arrest and the remainder under curfew, followed by one year of probation.

Ancillary orders included a DNA order, a 10-year/lifetime firearms prohibition, and forfeiture of seized items.

The applicant, Mohamad El-Zahawi, sought to re-open a Garofoli application to exclude intercepted communications, an order for additional disclosure, and a stay of proceedings.

The original Garofoli application, heard in the Ontario Court of Justice, was dismissed.

However, new information (Exhibit F) came to light in a related case (Askari Group) that led to a stay of charges for other accused due to the Crown's inability to disclose relevant material without compromising informant privilege.

The court found that Exhibit F was relevant fresh evidence, constituting a material change in circumstances, and that the Superior Court of Justice had inherent jurisdiction to re-open the Garofoli application despite the applicant's prior undertakings.

The court ruled that the undertakings were not intended to bind the applicant in perpetuity against new evidence.

Consequently, the application to re-open was allowed.

Following this decision, the Crown conceded a violation of the applicant's s. 7 Charter rights due to the inability to disclose Exhibit F and requested a stay of charges, which was granted.

The offender, Dylan Dolman-Kencher, pleaded guilty to exploiting a person under 18 (s. 279.011(1) Criminal Code) and breach of probation (s. 733.1(1) Criminal Code).

The Crown sought a six-year sentence, while the defence sought five years.

The court considered aggravating factors, including breach of trust, victim vulnerability, provision of drugs, and prior breach of probation, and mitigating factors such as youth, guilty plea, and harsh pre-trial custody conditions (Duncan credit).

The court imposed a six-year sentence, reduced by a nine-month Duncan credit and a 1.5:1 Summers credit for 792 days of pre-trial custody, resulting in a remaining sentence of 2 years less 2 days, plus 6 months concurrent for the probation breach, followed by two years probation.

Michael Haughton, 47, sought a second bail review under s. 520 of the Criminal Code, citing the availability of electronic monitoring as a material change in circumstances.

This followed a previous dismissal of his bail application where the Crown met its onus on secondary and tertiary grounds.

The court found electronic monitoring to be a material change but ultimately dismissed the application, concluding that the proposed release plan, even with electronic monitoring, was insufficient to address the substantial likelihood of re-offending due to Haughton's extensive criminal record, history of non-compliance, and severe crack cocaine addiction.

The court also found that confidence in the administration of justice would be seriously eroded by his release.

The accused, Jevanny Walters, Collin Walters, and Raymond Ellis, were charged with unlawful confinement and robbery stemming from two separate incidents at a gaming house.

Jevanny Walters and Raymond Ellis were charged in connection with the first robbery, and all three were charged in relation to the second.

The Crown conceded that unlawful confinement was not established for the second robbery.

The primary issue was the identification of the perpetrators, relying on surveillance footage, cell phone records, and similar act evidence.

The court found Jevanny Walters guilty on all remaining counts (1, 2, and 4) and Collin Walters guilty on Count 4.

Raymond Ellis was acquitted on all counts (1, 2, and 4), as the court found a reasonable doubt regarding his possession and use of a key cell phone at the time of the robberies, despite circumstantial evidence.

Michael Haughton, charged with numerous break and enter offences and breaches of court orders, sought a bail review based on a material change in circumstances, including delays due to COVID-19 and his asthma.

The Crown opposed release on secondary and tertiary grounds.

The court found the Crown's case strong and the proposed surety plan inadequate.

Despite the increased risk of COVID-19 in custody and the applicant's asthma, the court determined that the risk to public safety and the need to maintain confidence in the administration of justice outweighed these concerns, dismissing the bail review application.

Anissah Auckbaraullee was convicted of fraud over $5000 against the Ontario Hospital Association, involving a breach of trust.

The court considered aggravating factors, including the breach of trust and planning, and significant mitigating factors, such as a history of spousal abuse, health issues, financial hardship, and the profound impact of the criminal proceedings and potential deportation on her family life.

Despite the Crown seeking 12-18 months imprisonment, the court imposed a conditional sentence of two years less a day with house arrest, followed by two years probation, and a restitution order of $80,370, finding it to be one of the rare cases where a conditional sentence was appropriate for large-scale fraud due to compelling circumstances and the collateral immigration consequences.

The accused, Justin Hung, applied to reopen his trial and declare a mistrial after being found guilty of possession of methamphetamine for the purpose of trafficking.

Post-conviction analysis revealed significant inaccuracies in the Agreed Statement of Facts (ASF) regarding the quantity and value of methamphetamine.

The original ASF stated 700.65 grams of methamphetamine (worth up to $46,800), but the actual amount was 15.54 grams (worth potentially much less, depending on market factors).

The court found that the incorrect high value of the drugs played a role in its initial assessment of the accused's credibility and the inferences drawn from circumstantial evidence.

Given that the fresh evidence could reasonably have affected the trial's outcome, the court allowed the application to reopen the case, set aside the finding of guilt, and declared a mistrial to ensure fairness and avoid any appearance of bias in re-evaluating credibility.

The applicant, Shawn Tedder, faced charges of trafficking and possession of marihuana for the purpose of trafficking, and possession of proceeds of crime.

He brought several pre-trial motions, including an application for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter, an application to quash indictment counts under s. 601(1) of the Criminal Code alleging unconstitutionality of s. 5 of the Controlled Drugs and Substances Act (CDSA), various constitutional challenges to the medical marihuana regulatory schemes (MMAR, MMPR, ACMPR) and CDSA ss. 4, 5, and 6, and an application under s. 8 of the Charter for exclusion of evidence.

All of Tedder's applications were dismissed.

The court found no s. 11(b) violation, affirmed the validity of CDSA s. 5 offences despite regulatory changes, and rejected constitutional challenges due to an insufficient evidentiary record and established legal principles distinguishing medical users from commercial suppliers.

The accused, Furqan Akhtar and Saifullah Dero, were found guilty by a jury of criminal negligence causing death and two counts of criminal negligence causing bodily harm while street racing.

The offences involved racing at high speeds (up to 144 km/h in a 60 km/h zone) on a city street, resulting in a fatal collision that killed one person and seriously injured two others.

The court considered aggravating factors such as the extreme speed, dangerous driving on a busy city street, and the horrific consequences, balanced against mitigating factors including the youth of the first-time offenders and their rehabilitative prospects.

The court imposed a concurrent sentence of 30 months imprisonment for each accused, along with a 10-year driving prohibition, a 10-year weapons prohibition, a DNA order, and forfeiture of the vehicles.

Andre Callaghan was found guilty of 15 counts, including discharging a prohibited firearm, possession of a loaded prohibited firearm, possession of a high-capacity magazine, possession of a firearm with a removed serial number, careless storage, possession of firearms/devices while prohibited, dangerous driving, and failing to stop for police.

Counts 2, 5, and 7 were stayed.

The court considered aggravating factors such as his extensive criminal record (including prior gun and drug offenses, and breaches of prohibition orders), lack of remorse, and high-risk lifestyle.

Mitigating factors included family support, educational achievements in custody, and employment history.

The court declined enhanced credit for pre-trial custody conditions due to insufficient evidence of impact.

A global sentence of ten years was imposed, reduced to six years after credit for pre-trial custody, along with ancillary orders including a lifetime firearms prohibition and a two-year driving prohibition.

Deepu Sawh, charged with four counts of trafficking crack cocaine, sought a judicial stay of proceedings based on entrapment after the Crown closed its case and guilt was admitted.

The application was dismissed.

The court found that the police had reasonable suspicion to investigate Sawh based on a detailed and reliable confidential informant tip, and the undercover officer's initial interaction was a legitimate investigative step, not an inducement.

The court emphasized that the reasonable suspicion inquiry should focus on the collective knowledge of the investigative team.

The accused applied for certiorari to quash a preliminary inquiry committal for first degree murder on the basis that the Crown had not led evidence capable of supporting the predicate offence of sexual assault required under s. 231(5)(b) of the Criminal Code.

The evidence established that the accused’s semen was found in the deceased’s mouth and that the deceased died from neck compression during a violent encounter in her apartment.

The court held that while there was evidence of both a sexual act and a homicide, there was no evidence linking the sexual act to non-consensual activity or establishing that the death occurred while committing or attempting to commit sexual assault.

The preliminary inquiry judge’s inference that the sexual activity was non-consensual improperly conflated the violent killing with the earlier sexual act and relied on speculation rather than evidence.

The committal for first degree murder was therefore quashed, but the accused was ordered to stand trial for second degree murder.

The accused was charged with break and enter, child abduction, sexual assault, and sexual interference arising from the nighttime abduction of a child from a residence.

On a voir dire, the defence challenged the admissibility of DNA samples and two police statements, alleging breaches of ss. 7, 8, and 10(b) of the Charter and arguing the statements were involuntary.

The court found the accused was not psychologically detained during the initial police interview and that his statement and consent DNA sample were voluntary and informed.

The court also held there were no Charter breaches in relation to counsel rights or the right to silence during the later custodial interview.

Both the statements and DNA evidence were ruled admissible.

The accused was charged with sexual assault and sexual interference involving a child who alleged that the accused touched her vaginal area over and under her pyjamas while reading bedtime stories over an extended period when she was between seven and eight years old.

The trial judge assessed the credibility and reliability of the complainant’s delayed disclosure and considered the principles in W.(D.) and jurisprudence on evaluating child witnesses.

While the complainant’s testimony appeared sincere, the court identified internal inconsistencies, reliability concerns regarding certain details, and evidence suggesting potential motive related to family dynamics and conflict between the complainant and the accused.

Considering the totality of the evidence, including the accused’s testimony and the surrounding circumstances, the court found that the accused’s denial could reasonably be true.

The Crown therefore failed to prove the allegations beyond a reasonable doubt.

The accused applied for disclosure of investigative materials held by the Toronto Police Service Professional Standards Unit relating to investigations of two individuals connected to a large-scale drug investigation known as Project Gladiator.

The Crown argued the records constituted third‑party records requiring an O’Connor application, while the defence asserted they formed part of the fruits of the investigation subject to Stinchcombe disclosure.

The court found the investigations of the two individuals were intertwined with the criminal investigation of the accused and were conducted as part of the same joint police investigation.

Because the materials could assist the defence, including supporting alternate suspect theories, they constituted first‑party disclosure.

The court ordered disclosure under the Stinchcombe regime.

The accused applied under s. 24(2) of the Charter to exclude a loaded handgun and ammunition discovered during a warrantless arrest on a TTC bus, arguing breaches of ss. 7, 8, and 9 due to lack of reasonable and probable grounds.

Police had acted on information from a confidential informant and later obtained a search warrant for the accused’s residence.

The court applied the Garofoli “step six” procedure, relying on a judicial summary and reviewing the unredacted information to obtain to assess whether sufficient disclosure had been provided while preserving informant privilege.

Applying the Debot framework, the court found the informant’s information compelling and credible, though only minimally corroborated, and held that reasonable and probable grounds for arrest existed.

The search incidental to arrest was therefore lawful and the application to exclude the firearm evidence was dismissed.

The accused was sentenced following convictions after trial for possession of a loaded restricted firearm, related firearms offences, carrying a concealed weapon, and possession of cocaine.

Police discovered a loaded revolver and knife on the accused during a pat‑down search following a traffic stop, and crack cocaine was later found in the rear seat of the police vehicle used to transport him.

The court considered aggravating factors including possession of a loaded handgun in public, the combination of firearms and drugs, and the presence of multiple weapons, while also weighing mitigating factors such as the offender’s lack of criminal record, family support, disability, and rehabilitative prospects.

Relying on jurisprudence addressing the constitutional status of the mandatory minimum for s. 95 offences and sentencing ranges for loaded handgun possession, the court imposed a global sentence of three years.

After applying credit for pre‑trial custody and strict bail conditions including house arrest, the effective custodial sentence was reduced to 20 months.