P. Andras Schreck

The applicant sought a stay of proceedings for unreasonable delay under s. 11(b) of the Charter, arguing that late disclosure by the Crown prevented him from re-electing a judge-alone trial, thereby causing delay.

The court dismissed the application, finding that the primary reason for the trial not proceeding was the suspension of jury trials due to the COVID-19 pandemic, which constituted an exceptional circumstance.

The court also found that the applicant failed to prove that the late disclosure was the sole reason for not re-electing, noting other factors like the complainant's COVID-19 symptoms.

The appellant appealed his six-month sentence for accessing child pornography, arguing that the mandatory minimum penalty under s. 163.1(4.1)(b) of the Criminal Code violates s. 12 of the Charter.

The Superior Court of Justice allowed the constitutional challenge to be raised for the first time on appeal and found the mandatory minimum to be grossly disproportionate based on reasonable hypotheticals.

The mandatory minimum was declared of no force or effect.

The court varied the sentence to four months, less pre-sentence custody, to be served in the community via a conditional sentence order due to exceptional circumstances including the passage of time, the appellant's health, and the COVID-19 pandemic.

The self-represented applicant applied to vary his bail to remove a condition prohibiting him from recording court proceedings.

During previous appearances, the applicant had insisted on his right to record proceedings for note-taking purposes, leading a judge to issue a bench warrant for failing to 'properly attend' court.

The Superior Court found that the applicant was legally permitted to record the proceedings under the Courts of Justice Act and the Ontario Court of Justice Protocol.

The court held that the bench warrant was unlawfully issued and the bail condition was improperly imposed.

The application to vary bail was granted.

The appellant appealed his sentence of 18 months' probation for two counts of failing to comply with a recognizance in a domestic context.

He argued the sentencing judge failed to adequately consider the principle of restraint and his rehabilitation, seeking a conditional discharge due to potential employment and immigration consequences.

The Superior Court of Justice dismissed the appeal, finding the sentencing judge made no error in principle and that a suspended sentence was appropriate given the repeated breaches of court orders.

The Crown sought to admit a four-and-a-half-hour statement given by the accused to the RCMP during a fraud investigation.

The accused argued the statement was involuntary because he was not formally cautioned and was not told the police had reasonable and probable grounds to arrest him.

The Superior Court of Justice found the statement voluntary beyond a reasonable doubt, noting the accused was aware of his jeopardy, the nature of the investigation, and that his statements could be used in court.

The failure to use a standard police caution did not render the statement involuntary.

B.H., charged with sexual assault and other offences, brought a motion for directions to determine if voicemail messages left by the complainant for him were "records" under s. 278.1 of the Criminal Code.

The court analyzed whether the complainant had a reasonable expectation of privacy in these messages, considering the nature of the information and the context of their creation.

The court concluded that the complainant did not have a reasonable expectation of privacy, and therefore the messages were not "records" requiring an application under ss. 278.93 and 278.94 for admission at trial.

The applicant, an Aboriginal man with a lengthy criminal record and mental health issues, sought a review of his detention order under ss. 520 and 525 of the Criminal Code.

The court found the justice of the peace erred in rejecting a proposed surety's credibility based on unproven information.

Conducting a de novo review, the court provided a detailed analysis of the newly enacted s. 493.2 of the Criminal Code, which requires particular attention to the circumstances of Aboriginal and vulnerable accused.

Applying these principles contextually to the applicant's history of breaches and the proposed release plan, the court concluded that detention was not necessary on the secondary or tertiary grounds and ordered the applicant's release on strict conditions, including electronic monitoring.

S.A., charged with second-degree murder, applied for judicial interim release.

The Crown opposed release on secondary and tertiary grounds.

The court found a substantial likelihood that S.A. would commit further offences if released, citing strong evidence of involvement in the murder, a prior bail breach, and other outstanding charges.

The proposed release plan, including electronic monitoring and sureties, was deemed insufficient given S.A.'s apparent disregard for consequences.

The COVID-19 pandemic's relevance to the secondary ground was considered but not found to be a significant deterrent for the applicant.

The application for release was dismissed.

The applicant, charged with kidnapping, robbery, and firearms offences, underwent an automatic 90-day detention review under s. 525 of the Criminal Code.

The court resolved conflicting caselaw to hold that neither party bears an onus on a s. 525 review, as it is an independent judicial safeguard.

However, conducting an independent review, the court found the applicant's continued detention was necessary on the secondary ground due to a substantial likelihood of reoffending, noting he allegedly committed the current offences while on a recognizance with a curfew.

The court also held that the risks of COVID-19 in custody did not outweigh the risk to public safety.

The applicant, who had been in custody for eight months on various assault charges, applied for a bail review under s. 525 of the Criminal Code.

The Crown opposed release on the secondary ground due to the applicant's lengthy criminal record and history of breaching court orders.

The court found that while there were secondary ground concerns, the applicant had already served the equivalent of 12 months, which approached the likely sentence of 12 to 15 months if convicted.

Applying the principle of proportionality, the court held that the risk of the applicant serving a disproportionate sentence outweighed the secondary ground concerns, and ordered his release on a recognizance with his mother as a surety.

The applicant, charged with conspiracy to commit murder, drug trafficking, and firearm possession, applied for judicial interim release.

The Crown opposed release on the secondary and tertiary grounds.

The court found that the strict release plan, which included house arrest, electronic monitoring, and supervision by the applicant's parents, adequately addressed the secondary ground concerns.

On the tertiary ground, although the charges were extremely serious and the Crown's case appeared strong, the court held that the applicant's Type 1 diabetes placed him at higher risk of severe complications from COVID-19 in a congregate setting.

Balancing the strict release plan, the health risks, and the need to flatten the curve, the court granted the application for release.

S.H., a 19-year-old with a lengthy youth record, was detained on secondary and tertiary grounds for firearm possession offences after a loaded handgun was found on him while being treated for gunshot wounds.

He applied for a bail review, arguing that the COVID-19 pandemic constituted a material change in circumstances, increasing his risk in custody and providing a strong incentive to comply with bail conditions, especially with electronic monitoring.

The court considered the strong Crown case, gravity of the offence, and circumstances of the offence, which favored detention.

However, it also weighed the public health imperative of reducing inmate populations during the pandemic, supported by expert epidemiological evidence, and the anticipated trial delays.

The court found that with strict conditions, including electronic monitoring via Recovery Science Corporation (RSC) for GPS tracking, the applicant could be safely released, thereby enhancing public confidence in the administration of justice by contributing to public health efforts.

Z.A., in custody for 11 months awaiting trial on criminal harassment and probation breach charges, sought a review of his detention under s. 525 of the Criminal Code.

The Crown opposed release on secondary grounds, citing Z.A.'s history of harassing conduct and related convictions.

The court considered the COVID-19 pandemic and the passage of time but found a substantial likelihood of Z.A. committing further offences, given his persistent pattern of harassment despite warnings and previous convictions.

The application for release was dismissed.

The applicant, J.R., charged with serious firearms and drug offences, sought a bail review under s. 525 of the Criminal Code after being detained for over 90 days.

The court considered the secondary and tertiary grounds for detention, particularly in light of the COVID-19 pandemic and the passage of time.

The court found no substantial likelihood of the applicant committing further offences given the proposed electronic monitoring and sureties.

On the tertiary ground, the court emphasized the public health implications of incarceration during the pandemic, relying on expert evidence, and noted the Crown's unreasonable delay in disclosure.

The court concluded that continued detention was not justified and ordered the applicant's release on strict conditions.

The accused, D.B., was charged with multiple counts of sexual assault, robbery, and other offenses involving two complainants, L.G. and E.H., on a single indictment.

D.B. applied to sever the charges relating to L.G. from those relating to E.H. and also sought to admit evidence under s. 276 of the Criminal Code regarding L.G.'s past willing sexual services for drug debts.

The court granted the severance application, finding insufficient factual nexus between the incidents and a significant risk of propensity reasoning by the jury.

It also determined that the Crown's similar fact evidence application was unlikely to succeed.

The s. 276 application was dismissed, as the proposed evidence was deemed inadmissible under s. 276(1) and (2) of the Criminal Code, serving no purpose other than to support an inference of past consent, which is prohibited.

The accused, a nightclub promoter, was charged with two counts of sexual assault involving two different complainants at different nightclubs in 2008.

The Crown applied to admit the evidence of each complainant as similar fact evidence across both counts, which the court dismissed due to insufficient similarity and prejudicial effect.

The court assessed the credibility and reliability of the witnesses, finding the accused's exculpatory evidence contrived and unreliable.

The court found the accused guilty on Count 1, accepting the first complainant's evidence beyond a reasonable doubt.

However, the court acquitted the accused on Count 2, finding a reasonable doubt regarding the second complainant's identification of the accused due to her inability to recall his distinctive tattoos.

The appellant, M.R., appealed his convictions for sexual assault, arguing that his right to an interpreter under s. 14 of the Charter was infringed.

His Swahili interpreter was only partially accredited and made several significant errors during his testimony, which M.R., who had some English proficiency, corrected.

The trial judge declined a renewed objection to the interpreter, relying on M.R.'s ability to self-correct.

The Superior Court of Justice found that the trial judge erred by relying on the appellant to safeguard his own constitutional right to a competent interpreter and by failing to conduct a further inquiry into the interpreter's competence despite clear indications of inaccuracies.

The court emphasized that the right to a competent interpreter is unqualified and a denial of this right is inherently prejudicial.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant appealed convictions for accessing child pornography, arguing an infringement of his s. 11(b) Charter right to a trial within a reasonable time.

The appeal court applied the R. v. Jordan framework, finding that the net delay, after deducting defence-caused delay and exceptional circumstances (judicial scheduling conflict, judge's unilateral shortening of trial), fell below the 18-month ceiling for the Ontario Court of Justice.

The court also determined that the one-month period for deliberation was defence delay due to counsel's scheduling conflict.

Consequently, the transitional exceptional circumstance was not applicable, and the appeal was dismissed.

Jeffrey Persad pleaded guilty to firearms and drug trafficking offences.

The parties jointly submitted a nine-year imprisonment sentence, with standard credit for presentence custody.

The dispute centered on enhanced credit for harsh conditions at the Toronto South Detention Centre (TSDC), where the offender experienced frequent lockdowns due to staff shortages.

The Crown proposed an additional 0.5:1 credit for lockdown days, while the offender sought 2.5:1.

The court, acknowledging the inhumane and persistent conditions at the TSDC as deliberate state misconduct, awarded an enhanced credit of 1.5:1 for each of the 475 lockdown days, in addition to the standard 1.5:1 credit for 1010 days in custody.

The final sentence was nine years, effectively reduced to 33 months after all credits.

The applicant received a seven-month conditional sentence in 2013.

Subsequent retroactive amendments to the Immigration and Refugee Protection Act made her liable to deportation without a right of appeal due to the sentence length exceeding six months.

Unaware of her right to appeal the sentence until recently, she applied for an extension of time to file a notice of appeal.

The court applied the Menear factors and granted the extension, finding that the delay was adequately explained, the proposed appeal had merit based on unforeseen collateral immigration consequences, and denying the extension would be unjust.