Rafik Kodsy

This decision addresses the Crown's application for abridgement of time for service and filing of its Form 2 response to a defence Charter Application under the Criminal Proceedings Rules of the Ontario Court of Justice.

The Court emphasizes the fundamental importance of fairness and adherence to procedural rules but recognizes that inadvertent non-compliance, when explained and without bad faith, does not necessarily warrant prohibiting the Crown from responding.

The Court grants the Crown's application, allowing the late response, and highlights the discretion courts have to ensure just and efficient proceedings.

Mr. Walker pleaded guilty to operating a motor vehicle with a blood alcohol content exceeding 80 mg and possession of a loaded, prohibited firearm.

For the firearm offence, a joint submission resulted in a two-year net prison term.

For the Over 80 offence, while counsel agreed on the minimum fine and driving prohibition, they disagreed on whether Mr. Walker should receive credit for a 14-month pre-sentence driving prohibition.

The court, applying the reasoning from R. v. Basque, granted the credit, finding that the common law discretion to credit pre-sentence driving prohibitions applies and that failing to do so would result in double punishment.

This is a sentencing decision for Asvin Sahadevan, who pleaded guilty to possession of a loaded restricted firearm and possession of a firearm while prohibited.

The offences occurred when a loaded firearm was found in a car driven by the offender, who was subject to a firearms prohibition.

The court considered aggravating factors, including the nature of the offence and the offender's youth record, and significant mitigating factors, such as a difficult childhood marked by abuse, mental health challenges, steady employment, and a guilty plea.

Despite the Crown seeking a term of imprisonment, the court imposed a conditional sentence of 23 months, followed by two years of probation, emphasizing the offender's rehabilitative progress and the exceptional circumstances.

The sentence included 14 months of house arrest and 9 months of curfew, along with a lifetime firearms prohibition and a DNA order.

The defendants applied to exclude evidence (a gun and their clothing) obtained following their detention and arrest, alleging breaches of their Charter rights under ss. 8, 9, 10(a), and 10(b).

The court found the initial investigative detention lawful, but identified breaches of s. 10(b) due to the police's failure to promptly advise of the right to counsel upon detention and for subsequent delays in facilitating access to counsel at the police station.

However, the court found no s. 8 breach regarding the gun seizure, concluding the accused had no privacy expectation, had abandoned the gun, and the search was conducted with valid consent.

Applying the s. 24(2) Grant test, the court weighed the moderate seriousness of the Charter breaches against their minimal impact on the accused's rights and society's strong interest in adjudicating serious armed robbery cases on their merits.

The application to exclude the evidence was dismissed, and all evidence was found admissible.

The defendant, charged with sexual assault, brought a pretrial motion seeking a ruling that Instagram messages between him and the complainant were not "records" under s. 278.1 of the Criminal Code, thus not requiring the pre-screening procedure.

The Crown argued for a reasonable expectation of privacy.

The court found no objectively reasonable expectation of privacy in either the general platonic messages (Group #1) or the more sensitive cocaine trafficking messages (Group #2), concluding that the messages were not "records" under s. 278.1 and no further defence application was required.

The defendant, Jehangir Khan, was charged with sexual assault.

The case hinged on the credibility of the complainant and other witnesses versus the defendant's testimony.

The court applied the principles of R. v. W.(D.) and found the defendant's evidence credible and reliable, corroborated by a third-party witness (PW).

The complainant's testimony was deemed untrustworthy due to altered text messages, evasiveness, internal inconsistencies, and collaboration with other witnesses to craft a false narrative.

The Crown failed to prove the charge beyond a reasonable doubt, leading to an acquittal.

The accused was arrested for armed robbery and immediately requested to speak to his lawyer.

The police failed to facilitate his right to counsel for over three hours, despite having easy access to the lawyer's contact information.

During a search of the accused's vehicle incident to arrest, police located a firearm.

The accused brought an application to exclude the firearm under s. 24(2) of the Charter, arguing his s. 10(b) rights were violated.

The court found a serious breach of the right to counsel due to police negligence and excluded the firearm, concluding its admission would bring the administration of justice into disrepute.

The accused was charged with robbery with a firearm and other offences after police tracked a GPS device from stolen cell phones to a plaza.

The accused brought a Charter application alleging arbitrary arrest, unreasonable search of his satchel and vehicle, and denial of his right to counsel.

The court dismissed the application, finding the police had reasonable and probable grounds for the arrest, the searches were validly conducted incident to arrest, and the accused was properly advised of his right to counsel.

The court also noted that even if Charter breaches had occurred, the evidence would not be excluded under s. 24(2).

The accused, charged with drug trafficking, brought a pre-trial application seeking disclosure of confidential informant handler notes and files to prepare for a Garofoli application.

The Crown resisted, arguing the materials were not part of the investigative file and could identify the informants.

The court dismissed the application, holding that the requested materials are not routinely disclosed as part of the investigative file and the accused failed to meet the threshold showing of relevance required to compel their disclosure.

Boyd Alexander pleaded guilty to possession of cocaine for the purpose of trafficking and failing to appear in court.

The court considered aggravating factors, including the quantity of cocaine and a lengthy criminal record, and mitigating factors, such as his guilty plea, remorse, community support, and status as an addict trafficker.

The Crown sought 15 months custody, while the defence proposed a 90-day intermittent sentence followed by a conditional sentence with drug treatment.

The court imposed a total sentence of 304 days (10 months) in prison for the drug offence, less 170 days pre-sentence custody credit, resulting in a further 134 days of incarceration, followed by a six-month conditional sentence for the failure to appear charge, with conditions focused on drug treatment.

Ancillary orders for a DNA sample and a 10-year weapons prohibition were also made.

This endorsement provides reasons for four trial rulings made during a jury trial for manslaughter, where the accused were ultimately found not guilty.

The rulings addressed: (1) whether jurors could ask witnesses questions (denied, emphasizing the adversarial nature of criminal trials); (2) the Crown's re-examination of a witness on prior consistent statements (allowed to clarify a one-sided picture created during cross-examination); (3) the Crown's request to introduce bad character evidence against one accused (denied, as the defence had not put character in issue); and (4) the Crown's request for a specific jury charge on aiding and abetting related to a push by one accused (declined as speculative and unduly complex given the Crown's primary theory of a group beating).

The accused was charged with sexual interference involving a twelve-year-old girl.

The Crown alleged that the accused intentionally touched the complainant's breast on Danforth Avenue in Toronto.

The court found that while the accused made intentional contact with the complainant, the contact was not for a sexual purpose.

The accused was motivated by frustration with pedestrians not following his perceived rules about sidewalk usage.

The court acquitted the accused of sexual interference, finding no sexual purpose to the contact.

The court also considered whether common assault was an included offence within sexual interference and concluded it was not, as common assault requires lack of consent while sexual interference does not.

The accused was charged with weapons offences related to possession of an illegal handgun.

He brought an application to exclude the gun from evidence, alleging that police conduct violated his Charter rights.

The officer stopped the accused based on suspicion that he might be one of two Fountain brothers, one of whom might be wanted.

After clarifying the accused's identity and confirming no warrants existed, the officer continued to detain the accused to complete a field investigative report (FIR card).

When a third party suddenly interjected, the accused's demeanor changed and he adopted a blading stance.

The officer, concerned for safety, conducted a pat-down search and discovered the gun.

The court found an unlawful detention during the FIR process but held that the pat-down search was lawful as it was conducted in response to exigent circumstances triggered by the accused's sudden threatening posture.

The gun was admitted into evidence under section 24(2) of the Charter.