Peter K. Doody

The court determined whether a Sexual Assault Evidence Kit (SAEK) constitutes a "record" under s. 278.1 of the Criminal Code, which would require a special application for its admissibility in sexual assault trials.

The Crown argued it was a record, while the defence contended it was not.

The court found that the SAEK, prepared by a specially trained nurse, falls under the exception for "records made by persons responsible for the investigation or prosecution of the offence." This is because the kit's purpose is to investigate the sexual assault allegation, making the nurse responsible for that part of the investigation.

Consequently, the SAEK is not a "record" under s. 278.1, and no application under s. 278.93 is required for its admission into evidence.

The defendant, charged with sexual assault, brought an application challenging the constitutionality of sections 278.93 and 278.94 of the Criminal Code, arguing they violate sections 7 and 11(d) of the Charter by infringing his right to a fair trial, particularly concerning the admissibility of a complainant's prior sexual activity.

The court dismissed the application, finding that the amendments, which grant complainants rights to notice and participation in admissibility hearings, do not diminish the Crown's role or infringe the accused's fair trial rights, and are consistent with Supreme Court jurisprudence.

The defendant was charged with operating a conveyance while impaired by alcohol and having 80 mg or more of alcohol in 100 ml of blood.

She brought a Charter application to exclude breath test evidence, alleging breaches of her s. 10(b) (right to counsel), s. 8 (search and seizure), and s. 9 (arbitrary detention) rights.

The defendant argued that the approved screening device demand was not made immediately, that she was not advised of her right to counsel during the delay caused by her chewing gum, and that her arrest was arbitrary.

The court found that the demand was made immediately, that the delay was too brief to require the officer to facilitate access to counsel, and that the defendant's Charter rights were not infringed.

The application was dismissed and the breath test evidence was admitted.

The offender pleaded guilty to sexual interference with a person under 14 years of age contrary to section 151 of the Criminal Code.

The offender had sexual intercourse with his daughter and sexually touched her on multiple occasions over several years prior to October 2017.

The victim became pregnant and underwent an abortion.

DNA testing confirmed the offender was the father.

The Crown sought 8-10 years imprisonment; defence counsel sought 5 years.

The court imposed a 9-year penitentiary sentence, reduced to 8 years and 320 days after crediting 45 days of pre-trial custody.

The offender was prohibited from seeking employment or volunteering with persons under 16, ordered to comply with the Sex Offender Information Registration Act for 20 years, and ordered to provide a DNA sample.

Two young offenders were convicted of aggravated assault on two unprovoked victims and various breach offences.

The Crown sought four years custody for each.

The court imposed differentiated sentences of 695 days for Hussein and 669 days for Sahal, accounting for pre-sentence custody, restrictive bail conditions, and pandemic-related hardship.

The court considered Hussein's significant mental health issues and remorse as mitigating factors, while noting Sahal's prior criminal record, lack of remorse, and failure to heed prior judicial warnings.

Both received two years probation with conditions including weapons prohibitions and DNA orders.

The defendant pleaded guilty to conspiracy to traffic in marijuana and trafficking in marijuana under 3 kilograms.

An Agreed Statement of Facts was entered that did not specify the quantity of marijuana involved in the conspiracy.

The Crown subsequently sought to lead evidence at sentencing to establish that the quantity exceeded 3 kilograms.

The court found that the Crown and defence had entered into an implicit agreement that sentencing would be based solely on the facts in the Agreed Statement of Facts.

The Crown's application to call further evidence was dismissed.

The defendant then brought a section 11(b) Charter application alleging breach of the right to be sentenced within a reasonable time.

The court found that the net sentencing delay of 10 months exceeded the 5-month presumptive ceiling established in R. v. Charley, and that no exceptional circumstances justified the delay.

The court granted a stay of proceedings as the remedy for the breach, while preserving the finding of guilt.

The defendant was convicted of aggravated assault following a road rage incident in which she pushed a 66-year-old victim, causing the victim to fall to the roadway and sustain a fractured pelvis and broken pubic bone.

The victim required hospitalization and convalescence, and suffered significant ongoing physical and emotional injuries.

The defendant was sentenced to six months in custody followed by two years' probation with mandatory counselling, a DNA order, a ten-year weapons prohibition, and a no-contact order with the victim.

The defendant was charged with refusing to provide a suitable sample of breath to enable a proper analysis by an approved screening device at the roadside, contrary to section 320.15(1) of the Criminal Code.

The defendant did not contest the lawfulness of the demand but argued he lacked the necessary mens rea because he requested to speak to a lawyer before complying.

The court found that the Crown proved all elements of the offence beyond a reasonable doubt.

The defendant's desire to consult counsel before providing a sample does not constitute a reasonable excuse for refusing an immediate demand.

The court convicted the defendant.

The Crown sought to lead evidence at a sentencing hearing to prove that the amount of marijuana the defendant conspired to traffic exceeded three kilograms, despite an agreed statement of facts that did not include this fact.

The defendant had pleaded guilty to conspiracy to traffic marijuana and trafficking in marijuana under three kilograms based on the agreed statement of facts.

The Crown, represented by different counsel at sentencing, sought to introduce additional evidence to establish the higher amount.

The court held that the Crown was not permitted to lead evidence to establish additional facts beyond those contained in the agreed statement of facts, as doing so would breach the implicit agreement between Crown and defence counsel and would be unfair to the defendant who had abandoned his right to trial and his Charter s. 11(b) application in reliance on that agreement.

A voir dire decision addressing the admissibility of evidence regarding the complainant's sexual activity during captivity.

The Crown sought to elicit evidence through cross-examination of the defendant regarding his reasons for having children with the complainant while in captivity, arguing it was relevant to his credibility.

The court found the evidence had minimal probative value and that its prejudicial effect substantially outweighed any probative value.

The court excluded the evidence and emphasized the importance of pre-trial applications and proper procedure when Crown seeks to adduce evidence of prior sexual activity.

The defendant was charged with aggravated assault following a road rage incident on Ogilvie Road in Ottawa.

The defendant cut off the complainant's vehicle, stopped abruptly, and exited her car to confront the complainant.

After an aggressive verbal altercation, the defendant pushed the complainant, causing her to fall to the roadway and sustain serious injuries including a fractured pelvis and broken pubic bone.

The defendant argued the charge should be dismissed on grounds that her action was reflexive rather than voluntary, or alternatively that she acted in self-defence.

The court found the defendant's actions were voluntary and rejected the self-defence claim, finding the force used was not reasonable in the circumstances.

The defendant was convicted of aggravated assault.

The Crown brought an application for a Gardiner hearing to lead evidence of additional facts regarding the quantity of marijuana involved in a conspiracy charge, facts not admitted in the Agreed Statement of Facts to which the defendant had pleaded guilty.

The defendant opposed the application, arguing that an implicit agreement existed between the Crown and defence that no additional facts would be introduced at sentencing.

The court found that an objective agreement had been reached whereby the Crown agreed not to tender evidence of facts beyond those contained in the Agreed Statement of Facts.

The court deferred the remedy issue pending further submissions on the application of R. v. Nixon and whether the defendant wished to strike his guilty plea.

This is a voir dire decision determining the admissibility of evidence of prior sexual activity between the complainant and the accused, led by the Crown during trial.

The court considered whether evidence of consensual sexual conduct on other occasions, including details of BDSM activities and statements made by the accused on multiple occasions, should be admitted.

The court applied the principles established in R. v. Seaboyer and the statutory framework of section 276 of the Criminal Code, balancing the probative value of the evidence against potential prejudice to the complainant's privacy rights and the interests of justice.

The court admitted the evidence, finding it relevant to issues beyond the "twin myths" and that any interference with the complainant's privacy was justified by the interests of justice.

A 16-year-old resident of a group home was charged with five offences: killing a rabbit kept for a lawful purpose, causing unnecessary injury to the rabbit, destroying property by killing the rabbit, breaching a bail undertaking, and uttering a threat to cause death.

The defendant claimed he killed the rabbit out of necessity because it was freezing and staff would not allow him to bring it inside.

The court rejected the necessity defence, finding no air of reality to the claim that the defendant had no reasonable legal alternatives.

The court found the defendant's evidence evasive and incredible, noting his behaviour was consistent with rage over being denied food rather than concern for the animal.

The defendant was found guilty of four counts and acquitted of the death threat charge due to reasonable doubt.

The accused was charged with assault with a weapon (jailhouse shank), assault causing bodily harm, and aggravated assault following an altercation in the maximum security section of a detention centre.

The defence argued that two other inmates caused the complainant's injuries using pencils.

The court analyzed video evidence and found that neither inmate had a pencil.

The court concluded that the accused removed a wrapped object from his waistband, unwrapped it, and used it to slash the complainant across both cheeks, causing wounds.

The accused was convicted of all three charges.

The defendant pleaded guilty to dangerous driving causing bodily harm, impaired driving causing bodily harm, failing to stop and provide assistance after an accident, and breach of a recognizance of bail.

On September 25, 2016, the defendant drove while impaired with a blood alcohol level between 145-200 mg/100ml, causing his vehicle to roll and injure two passengers.

One victim suffered catastrophic spinal cord injuries resulting in paraplegia.

The defendant fled the scene and hid from police.

The court imposed a sentence of 3 years custody with a 6-year driving prohibition, balancing significant aggravating factors including catastrophic injuries to victims, prior impaired driving conviction, and breach of bail conditions, against mitigating factors including guilty plea, genuine remorse, and successful rehabilitation from alcohol addiction.

The defendant applied under section 276.1 of the Criminal Code to determine the admissibility of evidence regarding prior sexual activity with the complainant in a sexual assault case.

The defendant sought to introduce evidence of an ongoing consensual sexual relationship with the complainant before and after the alleged assault, as well as evidence regarding the lack of explicit verbal consent in their prior encounters.

The court granted the application in part, permitting evidence of the nature and duration of the relationship but prohibiting evidence of specific sexual acts and the absence of explicit verbal consent in prior encounters.

The defendant was charged with assault with a weapon (a Chrysler PT Cruiser), uttering a threat to cause death, dangerous driving, and failing to stop and give his name and address after an accident.

The Crown's case relied on eyewitness identification and circumstantial evidence.

The main issue was whether the Crown proved beyond a reasonable doubt that the defendant was the driver of the vehicle that struck the victim.

The court found the direct identification evidence (courtroom identification by the victim and police officer identification from video) to be inherently unreliable and subject to significant frailties.

While circumstantial evidence established that the vehicle involved was registered to an address where the defendant lived and was found shortly after the incident with a warm engine, this did not eliminate reasonable doubt as to the defendant's identity as the driver.

The court noted that proper investigative procedures (photo lineup, seizure of the toque, obtaining the mall video) were not conducted, which could have resolved the identification issues.

All charges were dismissed due to reasonable doubt.

The defendant pleaded guilty to assault on a 2½-year-old child in her care on March 25, 2015.

The Crown sought 90 days in custody followed by 18 months probation.

The defence sought a conditional discharge with probation.

The court found the defendant was a victim of domestic abuse and control by her husband at the time of the assault, acted out of character, expressed genuine remorse, and had no criminal record.

The court imposed a conditional discharge with 12 months probation, rejecting the Crown's custodial sentence as disproportionate for a first offender.

A bail application by a young person charged with possession of a firearm while prohibited under section 51 of the Youth Criminal Justice Act and three counts of breach of a youth sentence imposed two days prior.

The Crown sought detention on the secondary ground, arguing substantial likelihood of committing a serious offence (drug trafficking).

The court found the Crown's case on the firearm charge weak, lacking direct evidence and relying on a poor-quality photograph.

The court rejected detention, finding it would improperly substitute for child protection and mental health measures, contrary to the YCJA's preference for release and its rehabilitative principles.