Pamela Santora

The court acquitted Nicol Oliver White of sexual assault, finding that the Crown had not proven beyond a reasonable doubt that the complainant, Z.E., did not consent to the sexual activity in question.

The decision turned on the credibility and reliability of the evidence provided by both the complainant and the accused, as well as corroborating evidence from a third party witness.

The court found material inconsistencies in the complainant’s evidence and accepted the accused’s version of events as raising a reasonable doubt.

The Crown and the accused brought pre-trial applications in a child pornography case.

The Crown sought to admit the accused's statement to police, which the court found was made voluntarily.

The accused sought to exclude evidence under the Charter, arguing that the police's use of the Child Protection System (CPS) to obtain his IP address from a peer-to-peer network violated section 8, that the search of his devices exceeded the warrant's scope, and that his 58-minute detention during the search violated section 9.

The court held that the use of CPS did not engage section 8 as there was no state action and no reasonable expectation of privacy in an IP address shared on a public peer-to-peer network.

While the court found the accused's detention was arbitrary and breached section 9, it declined to exclude the evidence under section 24(2), noting the lack of causal connection to the evidence and the seriousness of the offences.

The applicant, Taylor Javer, facing charges of accessing and possession of child pornography, brought an application under s. 8 of the Charter to exclude evidence obtained from electronic devices seized under a search warrant.

The applicant argued that the search was conducted unreasonably due to a lack of detailed police notes, a sweeping search of all images/videos, and the failure to apply a date filter.

The court dismissed the application, finding that while detailed notes are encouraged, their absence did not render the search unreasonable given the officer's credible testimony and the comprehensive LACE report.

The court also found the broad search of images/videos and the lack of a date filter reasonable, citing the nature of child pornography investigations and the unreliability of timestamps.

The offender, James Treloar, was found guilty after trial of accessing child pornography.

The Crown sought the maximum summary conviction sentence (two years less a day imprisonment) and various ancillary orders.

The defence sought a conditional discharge, conditional sentence, or intermittent sentence.

The court reviewed sentencing principles, aggravating and mitigating factors, and relevant case law on child pornography offences.

The judge rejected a conditional discharge, conditional sentence, and intermittent sentence, emphasizing denunciation and deterrence as primary sentencing objectives for such offences.

The court imposed a sentence of six months' imprisonment, to be followed by three years of probation, a DNA order, forfeiture of electronic devices, and a 10-year order under the Sexual Offender Information Registration Act (SOIRA).

A 5-year order under s. 161 of the Criminal Code with internet restrictions was also imposed, but conditions related to contact with persons under 16 or positions of trust were not imposed, given the offender's low risk of re-offending and the absence of evidence of child contact.

This criminal trial concerned five charges against Mahesh Bisesar related to child pornography: making, communicating for the purpose of making, arranging to make, possessing, and accessing.

The court dismissed the "making" charges, ruling that directing actions during a live stream did not constitute "making" a visual representation under the Criminal Code.

The court also found reasonable doubt regarding the accused's identity as the Skype chat participant due to shared account access.

However, the accused was convicted of possession and accessing child pornography, as images and videos found on his computer were deemed to be knowingly possessed and accessed by him, rejecting defence explanations of malware, client files, or employee actions as speculative.

During a first-degree murder trial, the self-represented accused sought to introduce a hearsay statement made by the deceased victim to a friend.

The Crown conceded necessity but argued the statement lacked threshold reliability.

The court applied the principled approach to hearsay and found that the statement met substantive reliability based on its inherent trustworthiness, corroborated by other evidence.

The court ruled the statement admissible, noting that admitting it also served the interests of trial fairness.

The applicant, charged with accessing child pornography, brought an application under sections 8 and 24(2) of the Charter to exclude evidence seized during the execution of a search warrant at his residence.

The defence argued that the information to obtain (ITO) did not provide reasonable grounds for the warrant, specifically raising concerns about the staleness of the information.

The Crown contended that the ITO disclosed sufficient information.

The court dismissed the application, concluding that the ITO contained reasonable grounds upon which the issuing justice could have issued the search warrant, emphasizing that the nature of child pornography as non-consumable digital evidence affects the staleness analysis.

M.M. was sentenced for possession and making child pornography involving a 15-year-old foster cousin, M.G., with whom he was in a position of trust.

The court considered aggravating factors, including the position of trust and luring behaviour (despite an acquittal on a luring charge, which was considered as character evidence).

Mitigating factors included M.M. being a first offender, low risk of reoffending, unsolicited receipt of images, no distribution, and genuine remorse.

The court emphasized denunciation and deterrence for child pornography offences, referencing R. v. Friesen, but ultimately imposed a conditional sentence due to the specific, less sinister nature of the pornography and the offender's personal circumstances.

The offender, a bar manager, was convicted of sexual assault and voyeurism after luring an employee into a basement office, sexually assaulting her, and surreptitiously filming the assault.

The court found the predatory nature of the offence, the breach of trust, and the voyeuristic purpose to be highly aggravating factors.

The offender was sentenced to a global term of 18 months imprisonment, followed by three years of probation, along with DNA, weapons prohibition, and sex offender registry orders.

The defendant, Enzo Dario De Jesus Carrasco, was charged with sexual assault, voyeurism, and transmitting an intimate image.

The court found the defendant's testimony to be untruthful and inconsistent with text messages.

The complainant's evidence, despite some inconsistencies, was found credible and consistent with corroborating text messages.

The court convicted the defendant of sexual assault and voyeurism, finding that the touching was sexual, non-consensual, and that the complainant had a reasonable expectation of privacy in the basement office where she was filmed.

The defendant was acquitted of transmitting an intimate image due to reasonable doubt regarding criminal intent, based on a text message indicating the image was sent by mistake.

Following a jury's guilty verdict for gang sexual assault and administering a stupefying drug, the court delivered reasons for sentencing Gavin MacMillan and Enzo DeJesus Carrasco.

Each offender received a total sentence of nine years imprisonment (seven years for gang sexual assault and two years consecutive for administering a stupefying substance), with credit for pre-sentence custody.

The court found that the victim never consented to the sexual activity, and the offenders had no mistaken belief of consent, rejecting their characterization of events as consensual BDSM.

Ancillary orders included DNA, lifetime prohibition, 20-year SOIRA, and non-communication.

The Crown brought an application during a trial for gang sexual assault to admit the expert testimony of an emergency room physician and a sexual assault nurse-examiner.

The proposed evidence concerned the effects of alcohol and drugs on the complainant's consciousness and capacity to consent, as well as the interpretation of her physical injuries.

The accused opposed the physician's evidence, arguing she lacked toxicological expertise and was biased due to her advocacy for sexual assault survivors.

The court admitted the evidence, finding it relevant, necessary, and reliable, and held that the physician's social media posts did not demonstrate an inability to provide impartial evidence.

The accused, charged with gang sexual assault and other offences, brought applications under s. 276 of the Criminal Code to adduce evidence of the complainant's prior sexual comments, gestures, and interest in a sex club to support their defence of honest but mistaken belief in communicated consent.

The court dismissed the application regarding the prior sexual comments and gestures, finding the evidence irrelevant and based on prohibited twin-myth reasoning.

The court permitted limited evidence regarding discussions about attending a sex club solely to provide context for a text message sent by one of the accused, with strict instructions against using it to infer consent.

Evidence of conversations immediately prior to the sexual encounters was ruled admissible.

The accused brought a pre-trial motion arguing that recent amendments to the Criminal Code eliminating peremptory challenges in jury selection should not apply retrospectively to their trial.

The court applied the rule of coordinate jurisdiction, noting that two other Ontario Superior Court judges had already ruled the amendments were procedural and applied retrospectively.

Finding no cogent reason to depart from those decisions, the court dismissed the application and ordered jury selection to proceed under the amended procedure.

The Crown sought to admit a post-arrest statement made by the accused, who was charged with multiple sexual offences.

The accused challenged the voluntariness of the statement, arguing that his English comprehension was insufficient and that the police caution regarding his right to silence was inadequate.

The court found that the accused's English skills were reasonably sophisticated and that the police officer went to great lengths to ensure the accused understood his right to silence.

The statement was ruled voluntary and admissible.

The accused, charged with sexual assault, applied to challenge prospective jurors for cause based on pre-trial publicity and the #MeToo movement, specifically the #IBelieveHer hashtag.

The court permitted modified questions regarding pre-trial publicity but dismissed the request to ask questions about the #MeToo movement and the hashtag.

The court held there was an insufficient evidentiary basis to take judicial notice of widespread bias or that jurors would be incapable of setting aside such bias despite trial safeguards.

During a jury trial for first-degree murder, the self-represented accused brought multiple applications for a mistrial, arguing the trial judge demonstrated a reasonable apprehension of bias.

The accused alleged the judge called him a liar, favoured the Crown, withheld reasons on a Charter application, and made adverse evidentiary rulings.

The trial judge dismissed the applications, finding his actions were directed at controlling an ungovernable litigant who refused to abide by rulings, and that a fair-minded observer would not conclude there was bias.

During a trial for first-degree murder, the court held a pre-charge discussion to determine whether the lesser included offences of manslaughter and second-degree murder should be left to the jury.

The Crown argued that neither should be left, while the defence argued both should be available.

Applying the air of reality test, the court found no evidentiary foundation for manslaughter, as the forensic evidence indicated a targeted killing with no signs of a fight gone wrong.

However, the court found a gasping air of reality to second-degree murder, as a properly instructed jury could find the accused had the intent to kill but have a reasonable doubt regarding planning and deliberation.

Consequently, second-degree murder was left to the jury, but manslaughter was not.

The accused, charged with first-degree murder, brought an application to stay the proceedings due to unreasonable delay under section 11(b) of the Charter.

The total delay exceeded the 30-month ceiling established in Jordan.

However, the court found that the net delay was justified by the complexity of the case, which involved international extradition, voluminous disclosure, and significant defence-caused delays.

Furthermore, applying the transitional exceptional circumstances framework, the court determined that the delay was within the Morin guidelines and dismissed the application.

During a trial for first-degree murder, the defence requested a jury instruction that the accused's after-the-fact conduct of attempting to collect the deceased's life insurance and death benefits had no probative value.

The Crown argued the conduct was relevant to the financial motive for the murder.

The court dismissed the defence's request, finding that the post-offence conduct was directly relevant to motive, which in turn was circumstantially relevant to the identity of the killers.

The court declined to give a 'no probative value' instruction.