Reid Rusonik

This endorsement addresses an upcoming in camera Basi hearing to determine the legitimacy of a confidential informant (CI) privilege claim during a continuing Garofoli application.

The court, exercising extraordinary discretion, ordered a specific police officer, Officer Paul Noonan, to testify remotely at the Basi hearing.

This decision was based on allegations of police impropriety regarding the CI's role, the officer's co-handling of the CI, and the necessity of his testimony to determine the privilege claim on a balance of probabilities.

The defendant was also directed to provide written submissions and questions for the hearing.

The offenders were convicted of firearms trafficking and related offences committed in association with a criminal organization that imported firearms from the United States to Toronto.

The Crown sought sentences of 9 and 12 years, while the defence sought 4 and 6-8 years.

The court emphasized denunciation and deterrence given the severe risk firearms pose to the community, while also considering the offenders' lack of prior records and prospects for rehabilitation.

The court sentenced the first offender to 6 years and the second offender to 9 years in custody, with credit given for pre-sentence custody and stringent bail conditions.

The accused brought a Charter application challenging the issuance of a tracking warrant, alleging violations of their s.8 rights due to misrepresentations and omissions in the Information to Obtain (ITO).

The application also included a s.7 claim for a stay of proceedings due to lost evidence (CCTV footage).

The court found that the affiant made significant misrepresentations and omissions regarding a confidential human source's criminal record and surveillance observations, particularly concerning a trip to Whole Foods characterized as "counter-surveillance" driving and an alleged "drug transaction." These misrepresentations were found to be intentional or reckless, tainting the reliability of the ITO.

Consequently, the court excised the misleading portions, rendering the warrant invalid.

The s.7 application for a stay was not granted, as the s.8 remedy was deemed sufficient at this stage.

The defendant, Troy Moulton, charged with drug and firearm offences, brought an application to cross-examine a sub-affiant (Officer N.) regarding the Information to Obtain (ITO) a search warrant.

The core of the challenge was whether the confidential informant (CI) relied upon by the affiant was actually an agent acting at the behest of the police, which would negate informer privilege and lead to full disclosure.

The court determined that a Basi hearing was necessary to first determine the status of the putative CI before ruling on the cross-examination application.

The ruling on the cross-examination was deferred pending the in camera Basi hearing.

The accused, Duval Smith, challenged the validity of CDSA search warrants, seeking to exclude seized evidence under s. 24(2) of the Charter, alleging a violation of his s. 8 rights.

The challenge was sub-facial, arguing the Information to Obtain (ITO) was misleading due to affiant carelessness, including erroneous source history, improper investigative file maintenance, and inadequate presentation of previous warrant information.

The court found the affiant careless but not intentionally misleading, and that despite the deficiencies, the ITO, when excised and amplified, still provided reasonable and probable grounds for the warrant's issuance based on compelling and corroborated confidential source information and surveillance.

The application to exclude evidence was dismissed.

The accused, facing firearms charges, brought pre-trial motions challenging the validity of a search warrant and a warrantless search of an Instagram account under s. 8 of the Charter.

They sought further disclosure and leave to cross-examine the affiant, arguing that a confidential informant was actually a police agent.

The court dismissed the disclosure and cross-examination motions, finding no evidence to support the police agent theory.

The court upheld the search warrant, concluding the information provided by informants was compelling, credible, and corroborated.

The court also dismissed the challenge to the Instagram search, finding the accused lost his reasonable expectation of privacy by accepting a stranger's follow request.

The defendant, C.S., brought a motion to recuse the assigned Crown counsel, alleging her involvement in the drafting of a racially charged undercover advertisement used in the investigation, which formed the basis of a potential abuse of process application.

The court found that newly disclosed police notes suggested the Crown's involvement in the investigative planning, making her a material and necessary witness.

Given the unreliability of the police officer's testimony regarding the meeting, the court determined that the proper administration of justice required the Crown to be called as a witness, thus meeting the stringent preconditions for recusal.

The accused, Bill Allison and Kamar Cunningham, were charged with multiple offences related to firearms trafficking and participation in a criminal organization following a police investigation dubbed 'Project Patton'.

The Crown alleged that the accused were involved in importing firearms from the United States and distributing them in Toronto.

The court relied heavily on intercepted communications using coded language.

Mr. Allison testified, claiming he only received firearms for personal use, but his evidence was rejected.

Mr. Allison was found guilty of firearms trafficking, offering to transfer a firearm, and conspiracy.

Mr. Cunningham was found guilty of firearms trafficking, participating in a criminal organization, and possession for the purpose of transferring, but was acquitted of conspiracy due to reasonable doubt about his membership.

Barrington Grant applied for a bail review to vacate a detention order and grant judicial interim release under s. 520 of the Criminal Code.

He was charged with firearms and ammunition offences.

The Justice of the Peace had detained him primarily on tertiary grounds.

The Superior Court found that the COVID-19 pandemic constituted a material change in circumstances, relevant to both secondary and tertiary grounds.

Considering Grant's pre-existing health conditions and the proposed robust release plan including electronic monitoring and a surety, the court was satisfied that the fear of reincarceration would motivate compliance and that public confidence would not be undermined by release under strict conditions.

The application for judicial interim release was granted.

The applicant sought disclosure of materials to support a Garofoli challenge to a search warrant executed at his residence.

The applicant was charged with possession of fentanyl for trafficking and possession of a loaded firearm.

The prosecution relied on redacted portions of the Information to Obtain (ITO) to protect a confidential informant's identity.

The applicant challenged the existence of the confidential informant status, asserting the person was a police agent or agent provocateur.

The court determined whether disclosure of various documents was required under the reasonable possibility test for Garofoli applications.

Sahilan Surendran was sentenced for manslaughter after pleading guilty to the shooting death of Kyle Baker.

The incident occurred during a drug deal where Baker accosted and assaulted Surendran, who then fired multiple shots, including fatal ones after Baker had released him.

The court considered aggravating factors such as Surendran's extensive criminal record, use of a firearm while subject to prohibition orders, and lack of assistance to the victim.

Mitigating factors included his guilty plea, expression of remorse, unstable upbringing, a childhood head injury, and acting under provocation.

The court also noted the limited weight given to a forensic psychiatrist's report due to lack of confirmatory information.

The sentence emphasized denunciation and deterrence, particularly given the prevalence of unlawful handguns in the community.

The court issued a judicial summary of redacted information relating to a search warrant application.

The decision addresses the balance between the defendant's right to full disclosure and the right to make full answer and defence against the Crown's obligation to prove allegations beyond a reasonable doubt and the protection of a confidential informant's identity.

The court determined which redactions to Appendix D of the Information to Obtain were necessary to protect the confidential informant while providing sufficient information to allow the defendant to challenge the issuance of the search warrant.

The accused was charged with trafficking and possession for the purposes of trafficking under the Controlled Drugs and Substances Act following his arrest on August 8, 2018.

The accused brought a section 11(b) Charter application seeking a stay of proceedings for delay.

Although the net delay of 15 months and 24 days fell below the presumptive ceiling of 18 months for provincial court cases, the court found this was a rare and clear case warranting a stay.

The defence demonstrated meaningful steps to expedite proceedings while the Crown caused significant delays through unavailability and serious non-disclosure of search warrant materials for ten months.

The court granted the stay, finding the case took markedly longer than it reasonably should have.

Seven appellants appealed their convictions for offences relating to a conspiracy to import and traffic in cocaine, arguing that the trial judge erred in dismissing their applications for a stay of proceedings based on breach of their Charter right to trial within a reasonable time under section 11(b).

The appellants contended that the 30-month presumptive ceiling under the Jordan framework should not apply because the Crown preferred an indictment, thereby creating a one-stage proceeding subject to an 18-month ceiling.

They also argued that delay in preferring the indictment constituted "wasted" time and that systemic or institutional delay was not adequately considered.

The Court of Appeal upheld the trial judge's decision, finding that the 30-month ceiling applied to cases tried in superior court regardless of whether a preliminary inquiry occurred, that the Crown's delay in preferring the indictment was justified and did not constitute wasted time, and that the case's particular complexity justified the delay beyond the presumptive ceiling.

The accused, Miguel Orlando Zavala-Martinez, was convicted by a jury of possession of cocaine for the purpose of trafficking.

At sentencing, the defence sought a stay of proceedings or a reduced sentence, arguing police misconduct in obtaining the search warrant constituted Charter violations (ss. 8 and 9) and an abuse of process.

The court found that the affiant police officer failed to be full, frank, and fair in drafting the Information to Obtain (ITO) a search warrant, leading to an infringement of the accused's Charter rights.

While the court declined to grant a stay of proceedings, it considered the state misconduct and the accused's personal circumstances (age, lack of criminal record, medical conditions, family responsibilities) as significant mitigating factors.

The court imposed a suspended sentence with a three-month probationary period, a ten-year weapons prohibition, and a DNA order, departing from the typical custodial range for such an offence.

The accused, Miguel Orlando Zavala-Martinez, was convicted by a jury of possession of cocaine for the purpose of trafficking.

At sentencing, new defence counsel sought a reduction in sentence, including an absolute discharge or suspended sentence, alleging egregious violations of the accused's Charter rights (sections 7, 8, 9) and police misconduct during the investigation and search.

The defence argued that the evidence presented to the jury was obtained through fabricated grounds and omissions in the Information to Obtain (ITO) a search warrant.

The Crown opposed, arguing that these issues should have been raised at a pre-trial admissibility hearing and that the sentencing court lacked jurisdiction to decide Charter violations at this stage.

The court denied the defence's claim of a section 7 Charter breach for non-disclosure but ruled that the defence could call a police witness to adduce evidence on the alleged Charter violations and state misconduct to determine if a sentence reduction is appropriate, potentially below statutory limits, in accordance with principles from R. v. Nasogaluak.

The defendants, David Brown and Daimian Johnson, pleaded guilty to cocaine trafficking offences.

The court considered aggravating factors, including the substantial quantities of cocaine involved and their high-level involvement in the drug trade, and mitigating factors such as their guilty pleas, personal circumstances, restrictive bail conditions, and the anonymous surrender of firearms.

For Johnson, the court also considered his testimony at another trial.

The Crown proposed sentences of five years for Brown and seven years for Johnson.

The court imposed sentences of four years and seven months for Brown and six years and five months for Johnson, granting modest additional credit for restrictive bail conditions and the surrender of firearms, and limited credit for Johnson's testimony, which was found to be of little assistance to the prosecution.

Ancillary orders for DNA samples and firearm prohibitions were also imposed.

Following a jury conviction for possession of cocaine for the purpose of trafficking, the accused retained new counsel and brought an application for a mistrial prior to sentencing.

The application alleged ineffective assistance by trial counsel for failing to bring a Charter application to challenge the search warrant.

The court dismissed the application, holding that a trial judge is functus officio once a jury verdict is recorded, and the proper remedy for an ineffective assistance claim at this stage is an appeal.

The accused, Justin Hung, applied to reopen his trial and declare a mistrial after being found guilty of possession of methamphetamine for the purpose of trafficking.

Post-conviction analysis revealed significant inaccuracies in the Agreed Statement of Facts (ASF) regarding the quantity and value of methamphetamine.

The original ASF stated 700.65 grams of methamphetamine (worth up to $46,800), but the actual amount was 15.54 grams (worth potentially much less, depending on market factors).

The court found that the incorrect high value of the drugs played a role in its initial assessment of the accused's credibility and the inferences drawn from circumstantial evidence.

Given that the fresh evidence could reasonably have affected the trial's outcome, the court allowed the application to reopen the case, set aside the finding of guilt, and declared a mistrial to ensure fairness and avoid any appearance of bias in re-evaluating credibility.

The court delivered reasons for sentence for the offence of possession of cocaine for the purpose of trafficking.

The sentence was based on a joint submission, reflecting the offender's first-offender status but also the large quantity of cocaine (over four kilograms).

The court accepted the joint submission, imposing an eight-year penitentiary sentence, reduced by 21 months for pre-sentence custody and restrictive bail conditions, resulting in 75 months to be served.

Ancillary orders included a DNA order, a 10-year section 109(2)(a) order, a lifetime section 109(2)(b) order, and a forfeiture order with a fine in lieu of forfeiture of $99,999, payable by September 20, 2027, with an 18-month consecutive jail term in default.