Oliver Nissim Abergel

Marco Clayton, accused of human trafficking, sought judicial interim release (bail) mid-trial before a judge (Justice Wadden) other than his trial judge (Justice Fraser).

The Crown opposed, arguing only the trial judge had jurisdiction under s. 523(2)(a) of the Criminal Code.

Justice Wadden found he had jurisdiction because no prior detention order existed, distinguishing the case from precedents where s. 523(2)(a) applied to vacate existing orders.

However, he declined to exercise this jurisdiction for policy and practical reasons, emphasizing that the trial judge is best positioned to assess bail grounds based on the ongoing trial evidence, and to avoid fragmentation and inefficiency.

The application was adjourned to the trial judge's next scheduled appearance.

The offender, Paul David Batchelor, was found guilty of two counts of sexual assault involving two complainants (Ms. B and Ms. R) after a 24-day trial.

The court considered sentencing principles, aggravating factors (significant victim impact, predatory nature, lack of insight), and mitigating factors (first-time offender for these charges, pre-sentence custody, and difficult conditions due to the COVID-19 pandemic, warranting a Duncan credit).

The court imposed a total sentence of two years and six months imprisonment, along with a two-year probation order, lifetime Sex Offender Registry compliance, a DNA order, and a lifetime weapons prohibition.

The Crown brought an application for a publication ban and sealing order on a victim impact statement.

The victim, who was the subject of threatening and harassing communications, indicated she would only file a victim impact statement if its contents were protected from publication.

The court declined to grant the publication ban, finding that while the victim's concerns were understandable, the open court principle and the public's right to know outweighed the interests in protecting the statement's contents.

The court noted that victim impact statements are not compellable and that courts regularly proceed without them.

This ruling addresses final jury instructions in a criminal trial.

The court decided not to leave the partial defence of provocation to the jury due to a lack of air of reality, specifically regarding the absence of an identifiable indictable offense by the victim and suddenness.

However, the court found an air of reality for self-defence, warranting its submission to the jury, based on the accused's belief of threatened force and purpose of protection, despite concerns about the reasonableness of the force used.

A 'rolled-up' instruction, combining provocation, intoxication, fear, and suddenness for the mental intent of murder, was granted.

Limiting instructions were provided for the accused's after-the-fact conduct, clarifying its relevance to self-defence and intoxication but not to the intent for murder.

The accused, charged with second-degree murder and attempted murder, brought a pre-trial application (voir dire) to exclude his statement to the police, arguing that his Charter rights (ss. 7, 8, 9) were breached due to a warrantless entry into a dwelling house for his arrest.

The court found that the police lawfully entered the dwelling based on the occupant's invitation and that the accused was found in plain view.

Consequently, no Charter breach occurred.

Even if a breach had been established, the court determined that admitting the statement would not bring the administration of justice into disrepute under s. 24(2) of the Charter, considering the good faith of the police, the minor nature of any potential breach, and society's interest in adjudicating serious offences on their merits.

The application was dismissed, and the statement was deemed admissible.

The accused pleaded guilty to common assault contrary to Section 266 of the Criminal Code.

The assault occurred while the accused was in custody at OCDC and involved striking a fellow inmate multiple times in the face following a minor provocation.

The Crown sought a sentence of two years less a day minus pre-sentence custody, while the defence sought probation.

The court imposed a fine of $10 and 24 months of probation, having credited 15 months of pre-sentence custody as sufficient to address deterrence and denunciation.

The sentencing decision applied Gladue principles, considering the accused's Inuit heritage, history of trauma, abuse, and systemic disadvantage.

The accused brought a renewed motion for disclosure of Ottawa Police occurrence reports relating to prior police contacts within 90 days prior to the alleged offence.

The Crown initially opposed disclosure under the Mills regime for third party records in sexual offence prosecutions.

Following the Ontario Court of Appeal's decision in R. v. Quesnelle, which held that police occurrence reports prepared by the investigating police force are not "records" under section 278.1 and are therefore governed by the Stinchcombe disclosure regime rather than the Mills regime, the court reconsidered its initial ruling.

The court found that Quesnelle could be reconciled with prior authority from R. v. McNeil and R. v. Thompson and determined that the Crown must apply the Stinchcombe disclosure obligation to produce occurrence reports relating to the complainant that are in the possession of the investigating police force.

At a preliminary inquiry, two accused were jointly charged with weapons offences, possession of proceeds of crime, and possession of cannabis for trafficking purposes.

The Crown withdrew charges for trafficking and proceeds of crime.

The accused Lacroix conceded sufficient evidence for committal on remaining charges.

The accused Adatia challenged committal on all charges except possession of 26.3 grams of marijuana found in plain view.

The court found that circumstantial evidence regarding a firearm and brass knuckles found in a bedroom drawer and closet was insufficient to establish knowledge and control by Adatia.

The court held that mere proximity of her passport to the firearm did not reasonably support an inference of knowledge or control.

Adatia was committed only on the plain view marijuana possession charge.