Owen Wigderson

The Court of Appeal for Ontario allowed the appeal of Andrew Zock, who was convicted of sexual assault after a judge-alone trial.

The court found that Zock received ineffective assistance of counsel because his trial lawyer elected the mode of trial (judge-alone) without Zock’s informed instructions or advice about his right to a jury trial.

The court set aside the conviction and ordered a new trial before a judge and jury, finding that the loss of the right to elect the mode of trial constituted a miscarriage of justice.

The court rejected the appellant’s argument that the verdict was unreasonable, holding that the trial judge’s finding of incapacity to consent was supported by the evidence.

The accused was charged with sexual assault following an incident where the complainant, a co-worker, woke up naked in his bed with no memory of the preceding events.

The Crown alleged that the accused engaged in unprotected vaginal intercourse and other sexual touching without the complainant's consent.

The court found the complainant to be a credible and reliable witness, rejecting defence arguments that her memory loss was feigned or that her post-offence conduct suggested consent.

The accused was found guilty of sexual assault.

The defendant, facing a sexual assault charge, brought an application to exclude evidence of the complainant's prior sexual disinterest in him.

The complainant had no memory of the sexual activity due to intoxication, and the Crown intended to adduce evidence that she was not sexually interested in the defendant in the hours leading up to her memory blackout as circumstantial evidence of non-consent.

The defence argued this evidence lacked probative value.

The court dismissed the application, ruling that evidence of sexual disinterest closely connected by time and circumstance to the alleged assault has probative value and is admissible to determine subjective consent, distinguishing it from more remote expressions of disinterest.

The appellant, Robert Rak, appealed his conviction for impaired driving, which resulted from a trial where the verdict was determined by a Charter application.

Rak argued that the impaired driving charge should be quashed because the Crown improperly directed the police to lay the charge, the special constable lacked grounds to lay the charge, and the justice of the peace erred in issuing process without a prima facie case.

The appeal court upheld the trial judge's findings that the Crown's communication was a recommendation, not a direction, and that the special constable had the requisite grounds.

While agreeing that the justice of the peace erred in issuing process without a prima facie case, the appeal court found no error in the trial judge's discretionary decision to deny the remedy of quashing the charge, especially since the merits of the impaired driving offence were conceded.

The appeal was dismissed.

The applicant challenged the legality of the process by which he was charged with impaired driving.

The Crown had reviewed the initial "Over 80" charge during case management and recommended that an impaired driving charge also be laid.

The applicant argued that the Crown's direction to police violated police independence and principles of fundamental justice under section 7 of the Charter.

The applicant also argued that the officer who swore the new information lacked subjective grounds and that the Justice of the Peace failed to establish a prima facie case before issuing process.

The court found that the Crown's email constituted a recommendation rather than a direction, and that police independence was not violated.

However, the court found that insufficient grounds were presented to the Justice of the Peace to establish a prima facie case of impaired driving, constituting a Charter violation.

The court declined to quash the information as a remedy, finding the liberty intrusion to be minimal.

The moving parties, two of the plaintiffs in a civil assault action, sought an order to relieve them from the deemed undertaking rule to use a security video, obtained through discovery, for a criminal prosecution against the individual defendants (security guards) and a police officer.

The court found that the deemed undertaking rule applied to the video as it was disclosed under compulsion, despite being provided early for tactical reasons.

The court further determined that the public interest in pursuing a criminal investigation did not outweigh the prejudice to the disclosing party (20 Vic Management Inc.) and its co-defendants, particularly the tactical leverage a concurrent criminal investigation could create in the civil action.

The motion was dismissed.

Enrique Kachuka brought a motion under ss. 8 and 24(2) of the Charter to exclude seized currency as evidence in a forfeiture application by the Attorney General of Ontario under the Civil Remedies Act.

Kachuka argued that the Information to Obtain (ITO) for the search warrants of his vehicle and apartment was legally insufficient, leading to an unreasonable search and seizure in breach of s. 8 of the Charter.

He also contended that police breached his s. 8 rights by submitting a report of seized items past the statutory deadline and with technical errors.

The court found that the issuing Justice of the Peace had reasonable grounds to issue the search warrants, as police surveillance and corroborated confidential informant information established a sufficient nexus between observed drug transactions and Kachuka's apartment.

The court also determined that the reporting delays and errors did not constitute a meaningful infringement of s. 8 rights, as there was no residual privacy interest in the seized cash.

The motion to exclude evidence was dismissed, and the forfeiture application was to proceed.

The Court dismissed the appeal and held that an Ontario Court of Justice judge had jurisdiction to conduct a joint trial of provincial offences and summary conviction criminal offences arising from the same events.

The majority applied a functional joinder approach and found a sufficient factual nexus, no statutory prohibition, and no prejudice.

A dissent would have found no jurisdiction based on legislative intent behind the Provincial Offences Act and would have ordered new trials.

The accused, charged with historical sexual offences, brought pre-trial applications seeking disclosure of redacted police notes and directions on the timing of an anticipated abuse of process application.

The accused alleged that the Crown improperly bifurcated charges between Manitoba and Ontario, resulting in a loss of opportunity to resolve all matters globally.

The court found the accused's Charter application met the threshold to proceed.

To determine if the redacted disclosure was protected by solicitor-client privilege, the court ordered the Crown to provide un-redacted copies under seal for judicial review.

The court also directed that the abuse of process application proceed before the trial.

The Crown sought committal on first-degree murder under section 231(5)(e) of the Criminal Code based on constructive murder arising from unlawful confinement.

The accused was charged with second-degree murder in the stabbing death of the victim.

The Crown argued that the victim was unlawfully confined in his bedroom following the stabbing in the living room, and that the confinement and murder formed part of the same transaction.

The defence argued that the confinement occurred after the victim was stabbed and that the victim managed to escape the apartment.

The court found insufficient evidence that the accused exploited a position of dominance over the victim through confinement to justify committal on first-degree murder.

The accused was committed to stand trial on second-degree murder only.

During pre-trial proceedings involving allegations of abuse of process related to police handling of solicitor-client privileged communications intercepted under Part VI wiretap authorizations, the court had ordered production of privileged materials for judicial review under the McClure framework.

The Crown sought a judicial stay rather than comply with the order, asserting that compliance would require disclosure of solicitor-client privileged communications between police and Crown counsel.

The defence agreed to the requested remedy.

Considering the public interest in preserving solicitor-client privilege and the lengthy procedural history of the case, the court exercised its discretion to terminate the prosecution by entering a judicial stay of proceedings.

The Crown applied for leave to provide a prosecution witness with transcripts of her earlier testimony to refresh her memory before resuming cross‑examination following a five‑month interruption in proceedings.

The defence opposed the request, arguing it would breach professional conduct rules and permit the witness to rehearse prior answers where credibility was a central issue.

The court held that while it had discretion to permit such access, the request was speculative and not sufficiently necessary given the witness’s extensive notes and documentary record.

The court determined the safer course was to maintain the status quo and allow the witness to refresh her memory from transcripts only if a lack of recall arose during testimony.

The application was dismissed.

During pre‑trial proceedings, the accused advanced a Charter challenge alleging a breach of s. 8 arising from an alleged unreasonable search and seizure.

The court addressed issues relating to production of third‑party banking records held by a financial institution.

To facilitate the ongoing motion, the court clarified the scope of a subpoena duces tecum issued to a bank employee and specified categories of internal bank materials to be produced, including anti‑money laundering manuals, online instructions to branches, and training materials relevant to the relevant time period.

The endorsement was issued to ensure production of the documentation necessary for the continuation of the pre‑trial Charter application.