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.

Sentencing for possession of child pornography and accessing child pornography following findings of guilt after trial.

The court rejected a defence request for a conditional sentence, holding that the curated nature of the collection, the offender’s continued searching and copying of material, the presence of real child victims, the lack of remorse, and the absence of treatment insight made denunciation and deterrence paramount.

Applying recent appellate guidance on child pornography sentencing and conditional sentences, the court concluded that a community sentence would not be proportionate.

A sentence of 10 months’ incarceration was imposed, followed by 3 years’ probation and ancillary DNA, SOIRA, s. 161, and forfeiture orders.

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 accused pleaded guilty to making child pornography available after uploading an image containing 30 thumbnails of child abuse to a public website.

A search of his residence revealed a moderate collection of child pornography.

The accused, a youthful first offender with a low risk of reoffending, sought a conditional sentence.

The court emphasized denunciation and general deterrence for offences involving the abuse of children, sentencing the accused to 10 months' incarceration followed by 18 months' probation and ancillary orders.

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.

Sentencing for possession and distribution of child pornography arising from multi-year dark web activity involving online trading, chats, and a collection of hundreds of images and videos.

The offender was a youthful first offender who pleaded guilty early, engaged in counselling, expressed remorse, and filed mental health evidence suggesting a relatively low risk of reoffending.

The court held that denunciation and general deterrence remained the primary sentencing objectives for child pornography offences and, applying contemporary appellate guidance, concluded that a custodial sentence was required.

A fit sentence was 20 months' imprisonment, followed by two years' probation with counselling and child-contact restrictions.

During a trial for first-degree murder, the investigating officer gave inadmissible hearsay and opinion evidence connecting the accused to the apartment where the alleged murder weapon was found.

The defence applied for a mistrial.

The trial judge dismissed the application, finding that the Crown's case on identity was overwhelming even without the knife evidence, and that a strong mid-trial instruction to the jury to disregard the inadmissible evidence was sufficient to ensure a fair trial.

The accused was subsequently convicted by the jury.

The court sentenced the offender for a sexual assault committed against a co-worker who had driven him home after a work shift.

The assault involved persistent sexual advances, forced kissing, and digital vaginal penetration in the complainant's car, and the court treated breach of trust, degradation of sexual integrity, and the need for denunciation and deterrence as significant sentencing factors.

Although the offender had later been convicted of other sexual offences connected to the same workplace, the court held under the Coke principle that those later convictions could not be used as aggravating factors for this offence.

Applying the totality principle in light of the offender's existing consecutive penitentiary sentences, the court imposed a further consecutive sentence of 15 months, three years' probation, a lifetime SOIRA order, and a DNA order.

In a judge-alone sexual assault trial involving two co-worker complainants, the Crown sought admission of extrinsic similar fact evidence from two other incidents and also sought count-to-count use of the complainants' evidence.

Applying the similar fact framework from *Handy*, the court excluded the extrinsic incidents because their probative value did not outweigh prejudice, but allowed count-to-count use of the two charged incidents based on their persuasive degree of connection.

On the merits, the court found the accused's evidence concerning one complainant incredible and accepted that complainant's account beyond a reasonable doubt, resulting in a conviction on one count.

The court was left with a reasonable doubt on the second count because of material credibility and reliability concerns affecting that complainant's evidence, and entered an acquittal on that count.

The Crown brought a pretrial motion to permit the complainant and a nurse to testify remotely by videoconference under s. 714.1 of the Criminal Code due to the COVID-19 pandemic.

The defence opposed the complainant testifying virtually, arguing it would impede cross-examination and the assessment of credibility.

The court granted the motion, finding that virtual testimony would reduce COVID-19 transmission risks and could actually enhance the assessment of demeanour compared to an in-person trial with masks and plexiglass.

The defence's subsequent application for an adjournment to allow for a future in-person trial was dismissed.

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.

During a murder trial, the Crown sought to introduce two pieces of evidence: an internet search conducted by an associate of the accused shortly after the shooting, and a video found on the associate's phone depicting the accused brandishing a firearm 11 days prior to the murder.

The court ruled the internet search inadmissible, finding its limited probative value was outweighed by its prejudicial effect.

However, the court admitted the video as prior discreditable conduct, concluding it was highly probative on the central issue of identity and its prejudicial effect could be mitigated by jury instructions.

The applicant, a young person charged with second-degree murder and firearms offences, brought a Charter application alleging violations of his rights under sections 10(a) and 12 during his arrest.

The police executed a search warrant using a dynamic entry and a violent struggle ensued when the applicant resisted arrest, resulting in officers punching him multiple times to gain control and seize a loaded firearm.

The court dismissed the application, finding that the section 10(a) right to be informed of the reasons for arrest did not accrue until the applicant was safely detained, which was delayed by his own actions.

Furthermore, the court held that the force used by the police was reasonable and justified under the circumstances, resulting in no section 12 violation.

The accused, charged with second-degree murder, sought to exclude a photograph taken of him surreptitiously by a police officer while he was seated in a courtroom for an unrelated matter.

The accused argued the photograph violated his rights under sections 7 and 8 of the Charter.

The court found no Charter breaches, noting there is no reasonable expectation of privacy in a public courtroom and no state compulsion involved.

However, the court exercised its residual discretion to exclude the photograph because the officer violated section 136 of the Courts of Justice Act, which prohibits taking photographs in a courtroom without judicial authorization.

In a youth prosecution for second degree murder arising from a fatal shooting at Dundas Square, the Crown brought a Leaney application seeking leave to adduce recognition evidence from several non-expert witnesses based on surveillance footage and images recovered from seized mobile phones.

The court applied the threshold admissibility principles governing recognition evidence, focusing on the witnesses' prior acquaintance and whether they were in a better position than the trier of fact to identify the persons depicted.

The court permitted recognition evidence from one investigating officer as to the accused and another individual, and from another officer as to a third individual, but excluded the proposed recognition evidence of three other witnesses for insufficient familiarity.

The ruling distinguished threshold admissibility from ultimate reliability, leaving reliability to the trier of fact.

The young person, charged with second degree murder, brought a Charter application challenging the validity of a search warrant executed at his residence.

He argued the Information to Obtain (ITO) failed to establish he resided at the address, the warrant was overly broad, the search of seized cell phones occurred outside the warrant's time limit, and the affiant deliberately misled the issuing justice.

The court dismissed the application, finding sufficient surveillance evidence linked the young person to the residence, the seizure of multiple phones was necessary, the forensic examination of the phones did not need to occur within the warrant's entry window, and there was no evidence of deliberate deception by police.