Peter G. Bawden

The appellant appealed his conviction for driving with a blood alcohol concentration over the legal limit, arguing the trial judge erred in admitting breath sample evidence obtained in breach of his ss. 8 and 9 Charter rights.

The trial judge had found the roadside breath demand violated the appellant's Charter rights because the officer lacked objectively reasonable suspicion, but declined to exclude the evidence under s. 24(2) of the Charter applying the R. v. Grant framework.

On appeal, the sole issue was whether the trial judge erred in finding the first stage of the Grant test favoured admission.

The appeal court found the trial judge did not improperly equate the officer's conduct with good faith, but rather assessed the totality of police conduct including respectful treatment and diligence in facilitating s. 10(b) rights, and upheld the s. 24(2) analysis as reasonable and well-supported.

The decision concerns the conviction of Kayani As-Sadiq for assault, threatening death, aggravated assault, and related offences against his former wife, Marie-Lyne Toussaint.

The court found the complainant credible and her account corroborated by independent evidence and post-offence conduct.

The court rejected the accused’s alibi and alternative explanations, finding them improbable and unsupported by the evidence.

The court acquitted the accused of attempted murder, finding a reasonable doubt as to intent to kill, but convicted him of the included offence of aggravated assault.

The court sentenced Ibrahim Khiar for manslaughter and aggravated assault after he fired eight shots at Marcel Teme, killing him, and injuring three bystanders.

The Crown sought a life sentence or, alternatively, 20 years’ incarceration with delayed parole eligibility.

The defence sought 15 years.

The court imposed 18 years, to be served concurrently with a prior sentence, and declined to delay parole eligibility.

The decision reviews the facts, aggravating and mitigating factors, the impact of systemic racism, and relevant case law on sentencing for manslaughter with a firearm.

The court considered whether Mohamed Siad should be designated a dangerous offender following a series of violent offences, primarily against intimate partners and family members.

After reviewing Siad’s history of escalating violence, repeated breaches of court orders, failed attempts at rehabilitation, and psychiatric evidence, the court found that Siad’s conduct was intractable and that he posed a high risk of future violence.

The court designated Siad a dangerous offender and imposed a global sentence of five years’ incarceration (after credit for pretrial custody), followed by a seven-year long-term supervision order, with ancillary orders including DNA and weapons prohibitions.

The applicants sought to quash charges of fraud on the public and conspiracy to defraud the public, arguing that the evidence identified 38 specific corporate victims, thus requiring individual naming in the indictment.

The Crown contended that the charges were properly framed against the public due to the impossibility of identifying all victims (e.g., individual condominium owners affected by increased fees) and the broad interpretation of "public" in the Criminal Code.

The court dismissed the application, finding that the charges were appropriately framed as offenses against the public, consistent with recent jurisprudence where a segment of the community or a regulated industry can constitute "the public," and where a ripple effect on unidentifiable parties exists.

This decision addresses multiple mid-trial applications in a first-degree murder trial.

The court dismissed the defence's application for a mistrial, finding that while the Crown's officer erred in interviewing a witness under cross-examination, the accused's right to a fair trial was not impaired.

The court also denied the defence's request to exclude a key witness's evidence, despite witness misconduct, deeming it a misunderstanding rather than an intent to obstruct justice.

Furthermore, the court allowed the Crown to introduce detailed pathology evidence and evidence of the accused's failure to disclose litigation in bankruptcy, finding their probative value outweighed potential prejudice.

The defence's application to compel the Crown to call a witness whose testimony might exculpate the accused was denied due to reliability concerns.

Finally, the court found the defence breached the rule in Browne and Dunn by not confronting Crown witnesses with anticipated defence evidence and allowed the Crown to call significant reply evidence to counter the accused's claims of English comprehension issues regarding her motive.

K.A. sought a review of his detention on two sets of criminal charges: criminal organization/trafficking and aggravated assault.

The court granted release on the criminal organization and trafficking charges with conditions, including electronic monitoring and a surety.

However, detention was maintained for the aggravated assault charge due to overwhelming concerns on both secondary (risk to public safety given extensive violent history and nature of the index offense) and tertiary grounds (maintaining confidence in the administration of justice).

J.L. was arrested and detained for an indecent act and probation breach.

He sought a review of his continuing detention under section 525 of the Criminal Code.

The court found his continued detention was no longer justified given the pre-trial custody already served, the anticipated length of time to bring the matter to trial, and a community-based release plan arranged by amicus curiae.

Despite a criminal record including sexual assault and multiple indecent acts, and a history of non-compliance, the court emphasized that further incarceration would not provide enduring public protection where reliable community supports were available to address the root causes of his offending behavior.

J.L. was released on his own recognizance with specific conditions related to shelter, mental health support, and restrictions on proximity to children.

The applicant, charged with first-degree murder, sought release on bail.

The court considered the strength of the Crown's case, the applicant's background (including a new drug trafficking charge while in custody), the reliability of the proposed surety (the applicant's father, who was untruthful in testimony), the release plan, and the impact of the COVID-19 pandemic.

The court found the applicant failed to satisfy the onus on the secondary and tertiary grounds for detention, concluding that detention was necessary for public safety and to maintain confidence in the administration of justice.

The plaintiff, Richard Hefkey, sought summary judgment for wrongful dismissal and constructive dismissal against Blanchfield Roofing Company Limited.

The court addressed whether a genuine issue requiring trial existed, the permissibility of layoffs under the verbal employment agreement, the impact of a new proposed contract on constructive dismissal, the plaintiff's position and length of service, and entitlement to bonus during the notice period.

The court found Hefkey was not wrongfully dismissed by the initial layoff but was constructively dismissed when the company required him to sign a new employment contract with substantially altered terms.

The court determined his length of service was shorter than claimed due to a four-month break and awarded damages including bonus compensation, while dismissing claims for aggravated damages and the defendant's counterclaim.

The applicant sought to exclude evidence (a BB gun) obtained following an investigative detention, search, and seizure, alleging violations of sections 8, 9, 10(a), and 10(b) of the Charter.

The court found serious breaches of section 9 (arbitrary detention) due to the prolonged, unjustified handcuffing and de facto arrest, and breaches of section 8 (unreasonable search and seizure) regarding the keys and wallet.

While section 10 rights were deemed not violated, the court excluded the BB gun under section 24(2) due to the serious section 9 breaches, but admitted the discovery of the keys and vehicle as it was minimally intrusive and could have been found by other lawful means.

Magdy Hamdy, represented by Leon Wickham in matrimonial proceedings, was awarded an equalization payment.

Conflicting directions from Hamdy regarding the payment led to an interpleader order, with funds paid into court.

Wickham failed to initiate proceedings to establish a proprietary interest in the funds.

Following an assessment of Wickham's accounts, which concluded with Hamdy owing nothing to Wickham, Hamdy applied for the release of the funds.

The court ordered the release of the funds and accumulated interest to Hamdy, as the justification for the interpleader order no longer existed.

The Crown applied under section 714.2 of the Criminal Code for an order permitting two civilian witnesses residing outside Canada to testify via video link.

The defence opposed, arguing that video testimony would offend the principles of fundamental justice, particularly concerning effective cross-examination, the right to confront accusers, and the solemnity of testimony.

The court granted the application, finding that video testimony would not offend fundamental justice, provided appropriate technical and environmental controls are implemented to ensure a fair process.

The court emphasized that while physical presence is not always required, the testimonial environment must maintain solemnity and control, and that the Crown bears the obligation to secure an appropriate video conferencing facility.

This case addresses the interpretation of "Builder's Risk" insurance policies versus Commercial General Liability (CGL) policies in the context of construction negligence.

A builder's negligent roof repair caused water damage to a school gymnasium floor and project delays.

The court examined whether the Builder's Risk policy, intended to cover "property in course of construction," extended to the entire project site or only the specific area under renovation.

Resolving conflicting jurisprudence, the court adopted the reasoning that Builder's Risk insurance covers only the property actively under construction, not the entire structure.

Consequently, the Builder's Risk insurer (Northbridge) was found not liable for the gym floor damage, while the CGL insurer (Intact) was found liable.

The applicant, a homeowner, sought to evict the respondent, a long-term tenant, from a shared residence and recover rent arrears.

The Landlord and Tenant Board had declined jurisdiction because the parties shared a bathroom and kitchen, making the Commercial Tenancies Act applicable instead of the Residential Tenancies Act.

The respondent failed to appear in court despite notice.

The court found the respondent in breach of an implied lease due to non-payment of rent and failure to maintain the property.

The court granted orders for lease termination, a writ of possession, and payment of rent arrears, but dismissed the request for injunctive relief without prejudice due to insufficient evidence.

The Saskatchewan Cricket Association (SCA) sought judicial review of an arbitration award concerning several grounds, including factual findings, solicitor-client privilege, admission of hearsay evidence, public policy considerations, and the awarding of costs.

The court dismissed the application, finding the arbitrator's factual determinations reasonable, the preclusion of counsel as a witness due to solicitor-client privilege correct, the admission of evidence for its effect (not truth) not hearsay, and no relevant public policy issues.

The court also upheld the arbitrator's costs order as reasonable under the Canadian Sport Dispute Resolution Code.

Magdy Hamdy sought to assess the accounts of his former counsel, Leon Wickham.

The Assessment Officer referred issues of parties and scope to the court.

The court ordered the assessment of all accounts rendered by Mr. Wickham, including those for family law, partition and sale, and criminal charges, rejecting Mr. Wickham's arguments for limited scope.

The court also ruled that Peter Rickards and his law firm, who supervised Mr. Wickham, were not parties to the assessment.

Mr. Wickham was ordered to provide a Solicitor's Brief and an accounting of funds.

Costs were awarded to Mr. Hamdy on a partial indemnity basis, with full indemnity for written materials, and costs were also awarded to Mr. Rickards against Mr. Wickham.

The defendant, Ghenadie Carpov, was charged with sexual assault, administering a noxious substance to cause bodily harm, and administering a stupefying thing to commit an indictable offence, involving two complainants, L.M. and L.O. The court found the defendant guilty of two counts of sexual assault but not guilty of the charges related to administering a noxious substance.

The court rejected the defendant's testimony regarding consent, finding that both complainants lacked the capacity to consent due to intoxication, which the defendant exploited.

Aviva Insurance sought a declaration that Intact Insurance was obliged to defend Deejah Braithwaite and Lynda Williams in a motor vehicle accident action.

The core issue was the applicability and validity of an Excluded Driver Endorsement (OPCF 28A) signed by Deejah and Lynda.

The court found that Lynda Williams was aware Deejah remained an excluded driver and that the EDE applied to the vehicle involved in the accident, despite it being acquired after the EDE was signed.

The court also found substantial compliance with the Insurance Act regarding the EDE and that any non-compliance did not vitiate the contract.

The application was dismissed, and Intact Insurance was not obliged to defend.

The defendant, Courtney Dennis, challenged the lawfulness of his warrantless arrest for possession for the purpose of trafficking cocaine and the subsequent search incident to arrest, arguing a violation of section 8 of the Charter.

The police relied on information from a confidential informant, corroborated by police investigation and the defendant's criminal record.

The court found that the arresting officer had subjective and objective reasonable and probable grounds for the arrest, satisfying the criteria for informant reliability and corroboration as established in Debot.

Consequently, the arrest was lawful, the search incident to arrest was authorized, and the seized evidence was admissible at trial.