Philip Zylberberg

The Crown applied under section 521 of the Criminal Code to vacate a Judicial Interim Release Order and substitute a Detention Order for the accused.

The court found that the Justice of the Peace erred by giving excessive weight to the accused's lack of sureties and insufficient weight to his extensive criminal record, particularly concerning primary and secondary grounds for detention.

The Justice of the Peace also failed to adequately analyze the accused's record, his drug problem, and the unsuitability of the proposed living arrangements.

The court granted the Crown's application, ordering the immediate detention of the accused.

The offender was found guilty of touching a person under 16 for a sexual purpose, involving a long-term relationship with a young person in a position of trust.

The court determined a fit sentence was 7 years (84 months) imprisonment.

The court then considered the offender's pre-sentence custody at the Sudbury Jail, which involved frequent lockdowns, overcrowding, mice infestations, and extended segregation.

Applying the principles from Summers and Duncan, the court awarded 1.5:1 credit for time served plus an additional 9 months for harsh conditions, resulting in a total credit of 46.5 months and a net sentence of 37.5 months.

The offenders pleaded guilty to manslaughter and indecent interference with human remains following a joint submission.

Originally charged with first-degree murder, the Crown accepted lesser pleas due to evidentiary frailties.

The court accepted the joint submission, imposing a 10-year sentence for manslaughter and 3 years concurrent for indecent interference, with credit for pre-trial custody and Gladue factors for Aboriginal offenders.

The accused, H.B., brought an application to withdraw his guilty pleas to charges of indecent assault, gross indecency, and sexual intercourse with his daughter, which stemmed from incidents between 1964 and 1980.

H.B. contended that his pleas were not voluntary, informed, or unequivocal due to his health issues, stressors, and financial situation, and that he did not understand the proceedings.

The court considered the evidence of H.B., his physician (Dr. Jacques), and his former counsel (Mr. Beckett).

The court found that H.B.'s plea was voluntary, informed, and unequivocal, noting his active involvement in plea negotiations and his understanding of potential penalties, despite his claims of memory loss and confusion.

The application to withdraw the pleas was dismissed.

The applicant, Dirk Plate, sought an order to be tried separately from his co-accused, Paul Caron, on charges of fraud and theft arising from an alleged $20 million kickback scheme.

The Crown alleged a common criminal enterprise, invoking the Carter rule for the admissibility of evidence.

The court balanced the factors under the interests of justice test, including the truth-seeking function, judicial economy, and potential prejudice.

The court found that a joint trial was the best way to assess witness credibility and avoid inconsistent findings, and that the applicant failed to demonstrate a real likelihood of injustice if tried jointly.

The application for severance was dismissed.

The Crown applied under section 486.2(1) of the Criminal Code for an order allowing two child witnesses to testify via video link from outside the courtroom in a trial for sexual assault and sexual interference.

The defence objected to the use of remote video technology, arguing the court had discretion to order a different accommodation, such as testifying behind a screen.

The court held that under section 486.2(1), the presiding judge has no discretion to alter the requested accommodation unless it would interfere with the proper administration of justice.

Finding no such interference, the court granted the Crown's application with specific conditions to ensure trial efficiency.

The applicant brought a Charter motion under sections 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, alleging that she was not afforded contact with counsel of her choice and did not receive adequate legal advice.

The applicant was arrested for impaired driving and given her right to counsel.

She selected three lawyers from a provided list.

The police attempted to contact her first two choices without success and successfully connected her with her third choice, with whom she spoke for approximately eight minutes.

The applicant subsequently complained to police that the lawyer was rude and hung up on her, and that she received no advice.

The court found that the police took reasonable steps to facilitate contact with counsel of choice and that the applicant did not diligently and reasonably indicate that the advice received was inadequate.

The accused pleaded guilty to child luring after communicating with an undercover police officer posing as a 13-year-old girl on Craigslist.

The accused sought a stay of proceedings, arguing he was entrapped by the police.

The court dismissed the entrapment claim, finding the officer was engaged in a bona fide investigation and merely provided an opportunity to commit the offence without inducing it.

A finding of guilt was registered.

The accused was charged with luring contrary to section 172.1 of the Criminal Code.

The accused pleaded guilty to the offense and subsequently raised the defense of entrapment.

The court found that the police officer conducting the investigation was engaged in a bona fide, proactive investigation with reasonable suspicion that the accused was engaged in prohibited activity.

The court determined that the police did not induce the commission of the offense but merely provided an opportunity, which the accused freely pursued on multiple occasions without coercion.

The entrapment defense was rejected and a conviction was registered.

The accused was charged with driving with more than 80 mg of alcohol in 100 mL of blood contrary to section 253(1)(b) of the Criminal Code.

He brought a Charter application alleging violations of section 10(b) rights (right to retain and instruct counsel without delay) on three occasions: during the roadside detention before the screening device arrived, during detention at the police station, and during the breathalyzer procedure.

The court found no realistic opportunity to consult counsel during the roadside detention period and that the police made reasonable efforts to contact the accused's chosen counsel at the station.

The accused was offered legal aid assistance but refused.

The application was dismissed.

The Crown brought a dangerous offender application against the accused following his conviction for assault causing bodily harm and three counts of breaches of a section 810.2 recognizance.

The court heard psychiatric evidence from both the Crown's expert (Dr. Mark Pearce) and the defence expert (Dr. Jeffrey McMaster).

Both experts agreed the accused met the statutory criteria for dangerous offender designation, but disagreed on the appropriate sentencing option.

The court declared the accused a dangerous offender but imposed a determinate sentence of ten years custody with a ten-year long-term supervision order rather than an indeterminate sentence, based on evidence of significant behavioral improvement during pre-sentence custody and the reasonable possibility of eventual control of risk in the community.

The appellant applied for bail pending appeal following a conviction for care and control of a motor vehicle with a blood alcohol level exceeding the legal limit.

The appeal alleged several legal errors, including alleged breaches of the right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms, improper findings regarding the timing and reliability of breath tests, and failure to properly consider Supreme Court jurisprudence concerning breathalyzer evidence.

Applying s. 679(3) of the Criminal Code, the court assessed whether the appeal was frivolous, whether the applicant would surrender into custody, and whether detention was necessary in the public interest.

The court concluded that although some grounds appeared weak, they raised arguable issues and therefore satisfied the requirement that the appeal not be frivolous.

Bail pending appeal was granted and the driving prohibition was stayed pending the hearing of the appeal.

The accused, a physician, was charged with one count of sexual assault against his employee.

The Crown alleged multiple incidents of unwanted touching and attempted kissing in the workplace, set against a backdrop of admitted sexual harassment.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's denials as implausible and inconsistent.

Finding the complainant's evidence credible and corroborated in part by other witnesses, the court concluded that at least one incident of sexual assault—rubbing his groin against her leg—was proven beyond a reasonable doubt.

A conviction was entered.

The accused brought a Charter application seeking exclusion of evidence obtained from a Blackberry following his arrest during a police investigation into cocaine trafficking.

The court found that the arrest was supported by reasonable and probable grounds and therefore did not violate s. 9 of the Charter.

However, the police officer’s cursory examination of the Blackberry was not authorized by law because the officer mistakenly believed the search was permitted under a CDSA warrant rather than as a search incident to arrest, resulting in a breach of s. 8.

Applying the s. 24(2) framework from Grant, the court concluded that although the breach engaged significant privacy interests in cell phone data, the officer acted in good faith and the evidence was lawfully discoverable.

The societal interest in adjudicating serious gun-related charges on their merits outweighed the breach.

The application to exclude the evidence was dismissed.