P. Andras Schreck

This ruling addresses the admissibility of evidence in a first-degree murder trial.

The Crown sought to introduce "gang evidence" (rap videos, social media posts, and expert testimony) to establish motive and party liability, and an intercepted telephone communication as an admission.

The court found the gang evidence's probative value to be tenuous, as the deceased was not a gang member, and its prejudicial effect (moral prejudice, reasoning prejudice, and risk of unconscious bias against young Black men) significantly outweighed any probative value.

Consequently, the gang evidence and related expert testimony were deemed inadmissible.

However, the intercepted communication, despite its ambiguity, was found to have sufficient probative value as a potential admission and limited prejudicial effect, thus rendering it admissible.

Trevell Greene pleaded guilty to aggravated assault and assault causing bodily harm.

The aggravated assault stemmed from a home invasion robbery in which two individuals were shot multiple times.

The assault causing bodily harm occurred while in custody against another inmate.

The court balanced the sentencing objectives of denunciation, deterrence, and rehabilitation, taking into account the offender's youth, background of systemic anti-Black racism, and the unduly harsh conditions of his pre-sentence custody at the Toronto East Detention Centre.

A total sentence of eight years was imposed, with credit for pre-sentence custody, resulting in a remaining sentence of three years and eight months.

The accused, a self-represented individual alleged to have a leadership role in a street gang, was tried on a 21-count indictment for firearms, drug trafficking, robbery, conspiracy, and criminal organization offences.

The Crown's case relied heavily on intercepted communications.

The court found the accused guilty of multiple offences, including counselling firearm possession, conspiracy to commit robbery, firearm possession, and drug trafficking.

The court also found that the group met the definition of a criminal organization and convicted the accused of committing and instructing several of these offences for the benefit of or in association with the organization.

The accused was acquitted on counts where the evidence of agreement or instruction was insufficient.

Justin Europe, charged with human trafficking in January 2019, brought a s. 11(b) Charter application for unreasonable delay after his conviction.

The central issue was the effect of bringing the application late, after trial and conviction.

The court found that while lateness is not fatal per se, in this case, the applicant's conduct (opposing adjournment on delay grounds, scheduling and then abandoning a prior s. 11(b) application) constituted an implicit waiver of a significant period of delay (370 days from when trial dates were set to the end of trial).

After deducting this waived period and COVID-19 related delay, the net delay of 29.6 months fell below the 30-month Jordan ceiling.

The application was dismissed.

The offender was found guilty of sexually assaulting a woman with whom he had recently started an intimate relationship.

He absconded prior to his sentencing hearing, which proceeded in his absence.

The court considered the aggravating factors, including the intimate relationship and the use of force, as well as the mitigating factor of potential collateral immigration consequences.

The offender was sentenced to four years' imprisonment, along with a 10-year firearms prohibition and a lifetime SOIRA order.

The accused was tried before a judge alone on charges of robbery, wearing a disguise with intent to commit an indictable offence, and conspiracy to commit robbery arising from an attempted armed carjacking by three masked men.

The Crown's case on identity was wholly circumstantial and relied on eyewitness evidence, an abandoned BMW linked to the offence, the accused's driver's licence and fingerprint in that vehicle, surveillance video showing two men near where the vehicle was abandoned, and clothing seized from the accused's residence matching distinctive clothing seen on video.

Applying the circumstantial evidence framework, the court held that guilt was the only reasonable inference and found the accused guilty on all three counts.

The court nevertheless expressed concern about the propriety of adding a conspiracy count where the only evidence of agreement was the commission of the substantive offence, and invited submissions on the rule against multiple convictions and possible severance.

Following a sexual assault conviction, the Crown sought to sentence the accused in absentia after he absconded.

The court, having previously erred in not revoking bail, determined that the accused had voluntarily absented himself to avoid consequences.

While acknowledging the need for sufficient information for a fit sentence, the court found enough information available from trial evidence and a previous presentence report.

The court granted a brief adjournment to allow defence counsel to follow up on information and make a final contact attempt, but confirmed the sentencing would proceed on the adjourned date regardless of the accused's presence.

An arrest warrant was issued.

The defendant, Jean Edy Donacien, was convicted after a judge-alone trial of human trafficking, recruiting for sexual services, receiving material benefit from sexual services, assault causing bodily harm, two counts of assault, and unlawful confinement.

The court determined an appropriate sentence, considering aggravating factors such as the serious nature of the offences, the defendant's significant criminal record, and the exploitation of the vulnerable victim.

Mitigating factors included a supportive family and the unduly harsh conditions of presentence custody.

The court imposed a total sentence of five years imprisonment, with credit for presentence custody, and ordered restitution to the victim.

The offender, who was 18 years old at the time of the offences, was sentenced for attempted murder, conspiracy to commit forcible confinement, unauthorized possession of a loaded firearm, possession of a firearm while prohibited, and trafficking in a controlled substance.

The court considered the offender's cognitive impairments, background of poverty, and harsh presentence custody conditions as mitigating factors against the serious aggravating factors of the offences, which included a home invasion and the use of a firearm.

Applying the totality principle, the court imposed a global sentence of 14 years, which was reduced to 8 years and 3 months after applying credit for presentence custody.

The accused, Duy Tam Nguyen, was charged with multiple drug and firearm offences following his arrest with a co-accused.

Police found methamphetamine, cash, and keys to a rooming house unit on Nguyen.

A subsequent search of the unit revealed more methamphetamine, cocaine, firearms, drug trafficking paraphernalia, and Nguyen's identification documents.

The primary issues at trial were whether circumstantial evidence proved Nguyen's possession of the drugs and firearms and if the cash was proceeds of crime.

A secondary issue was the admissibility and weight of the co-accused's exculpatory statements.

The court found Nguyen guilty of possession of methamphetamine for trafficking (on person and in unit), possession of non-restricted and restricted firearms, and possession of cocaine for trafficking.

He was found not guilty of possession of proceeds of crime due to insufficient evidence.

The applicant was arrested for drug trafficking, and a subsequent search of his residence yielded a firearm.

He brought a Charter application to exclude evidence, alleging breaches of his s. 10(a) and 10(b) rights due to a delay in facilitating contact with counsel and a failure to inform him of the firearms charges.

The court found that the police breached both s. 10(a) and s. 10(b) of the Charter.

However, applying the Grant framework under s. 24(2), the court concluded that the evidence should not be excluded, as the breaches had a minimal impact on the applicant's Charter-protected interests and society's interest in adjudicating the serious charges on their merits strongly favoured inclusion.

The applicant, P.L., charged with sexual assault, brought two applications: one under s. 276 of the Criminal Code to admit evidence of prior sexual activity to explain his detailed recollection of the alleged incident, and another under s. 278.92 of the Criminal Code to admit communications (emails, texts, 911 report) to support a motive-to-fabricate defence by the complainant.

The s. 276 application was dismissed as its minimal probative value was substantially outweighed by prejudice to the complainant's dignity and privacy, especially since the Crown would not challenge the applicant's ability to recall.

The s. 278.92 application was granted in part; some communications were deemed "records" and admitted for their probative value regarding the alleged motive to fabricate, while others were excluded.

The court also ordered a publication ban for the daughter (S.L.) and considered a sealing order for related exhibits.

The accused, Jean Edy Donacien, was charged with multiple offences including human trafficking, recruiting/harbouring a person providing sexual services, receiving material benefit from sexual services, two counts of assault causing bodily harm, assault, and unlawful confinement.

The Crown alleged that the accused controlled the complainant, C.C., a sex trade worker, received all her earnings, and engaged in assaultive behaviour.

The defence challenged C.C.'s credibility and argued the financial arrangement was a legitimate living arrangement.

The court found C.C.'s testimony largely credible, corroborated by other evidence.

The accused was found guilty on most counts, with one count of assault causing bodily harm reduced to the lesser included offence of assault.

This is an appeal from a conviction for sexual assault.

The appellant challenged the trial judge's findings on three grounds: inferring the complainant's non-impairment without expert evidence, alleged improper conduct by the Crown regarding the complainant's prior relationship, and uneven scrutiny of the appellant's and complainant's testimony.

The Superior Court of Justice dismissed the appeal, finding that the trial judge was entitled to accept the complainant's evidence regarding non-impairment, that the Crown's submission, while potentially improper, caused no prejudice as the prior relationship's nature was irrelevant to consent, and that the trial judge's differential treatment of argumentativeness and assessment of inconsistencies did not constitute reversible error or uneven scrutiny.

Shekh Insanally pleaded guilty to possession of child pornography and making it available.

Police discovered approximately 2500 child pornography files on his computer, which were accessible via peer-to-peer software.

The court considered aggravating factors, including the large collection and young victims, and mitigating factors such as no prior criminal record, a guilty plea, health issues, and caregiver responsibilities.

The Crown sought a three-year sentence, while the defence sought a conditional sentence.

The court found a conditional sentence inappropriate given the nature of the offence and the absence of exceptional circumstances.

Balancing the factors, including the mitigating effect of the guilty plea and the offender's health, the court imposed a sentence of two years less a day imprisonment, concurrent on both counts, along with a DNA order, a 20-year Sex Offender Information Registration Act (SOIRA) order, and a 10-year s. 161 Criminal Code prohibition order.

Alexander Clarke pleaded guilty to robbery with a firearm, unlawful confinement, and having his face masked with intent to commit an indictable offence.

This was his eighth robbery conviction, committed while on parole for previous robberies.

The Crown sought a long-term offender designation and a 10-year sentence followed by a 10-year long-term supervision order (LTSO).

Defence counsel agreed to the long-term offender designation but sought a 6.5-8 year sentence and a 3-5 year LTSO.

The court found Clarke to be a long-term offender, applying the "step principle" for repeat offenders, and sentenced him to a total of nine years imprisonment (with 56.25 months credit for presentence custody) and an eight-year LTSO.

The court emphasized the need for specific deterrence and public protection, while also acknowledging the offender's efforts at rehabilitation and expressing hope for his future.

The applicant, Givonn Bowen-Wright, sought a stay of proceedings for firearm possession charges, arguing an infringement of his s. 11(b) Charter right to a trial within a reasonable time, as the total delay exceeded the 30-month Jordan ceiling.

The Crown opposed, attributing delay to the defence and arguing case complexity.

The court found that the primary cause of delay was institutional shortcomings, specifically judicial unavailability, and rejected the Crown's arguments regarding defence delay and case complexity.

The application was granted, and the proceedings were stayed.

The offender was convicted by a jury of second degree murder, attempted murder, and firearms offences following a public shooting at a shopping mall.

The offender fired at an intended target but missed, instead striking and killing an innocent bystander.

The court sentenced the offender to life imprisonment with no parole eligibility for 14 years for the murder, alongside concurrent sentences of 12 years for attempted murder and 8 years for the firearms offences.

The court rejected the application of the rule against multiple convictions for the attempted murder charge, noting the offences involved different victims.

This endorsement addresses the repeated failure of the Ottawa-Carleton Detention Centre (OCDC) to produce the accused, Thornell Shah, for his scheduled sentencing hearings.

Shah had pleaded guilty and was awaiting sentencing.

Despite court orders for his appearance, first by videoconference and then in person, the OCDC failed to comply without explanation.

Citing precedent, the court emphasized the judiciary's authority over prisoner production and the executive branch's obligation to comply.

The judge ordered the Superintendent or a Deputy Superintendent of the OCDC to appear before the court to provide an explanation for the non-compliance.

The accused, Vahid Pashazahiri, brought an application to exclude evidence (fentanyl, morphine, and cash) seized during his arrest, alleging violations of his Charter rights under sections 8 (unreasonable search), 9 (arbitrary detention), and 10(b) (right to counsel).

The court found that the arresting officer lacked reasonable and probable grounds for the arrest, rendering the subsequent search unlawful.

Additionally, the officer delayed advising the accused of his right to counsel, demonstrating a fundamental misunderstanding of the "without delay" standard.

Applying the Grant framework, the court determined that the seriousness of the state's Charter-infringing conduct and its significant impact on the accused's liberty and privacy interests outweighed society's interest in the adjudication of the case on its merits, despite the reliability and importance of the evidence.

Consequently, the application to exclude the evidence was granted.