Rick Frank

The court considered an application by Kenneth Hill to stay his charges for delay under section 11(b) of the Charter, following his conviction for aggravated assault and related offences.

The application was dismissed.

The court found that the pre-verdict delay was attributable to the defence, as Mr. Hill failed to appear for his trial after being inadvertently released from custody.

The post-verdict delay, related to a long-term offender application, was found to be reasonable and largely an exceptional circumstance, with only a short period of undue delay that did not breach the Charter ceiling.

The defendant, Irby Lemus, was convicted of sexual interference and making and distributing child pornography involving a 14-year-old victim who became pregnant.

The court, after independently finding facts regarding the extent of the sexual interference and the defendant's knowledge of the victim's age, proceeded to sentencing.

The Crown sought 12-15 years, while the defence sought a stay or conditional sentence.

The court determined a base sentence of five years and six months, emphasizing deterrence and denunciation, and considering aggravating factors such as the victim's vulnerability, the intimate nature of the illegal relationship, the resulting pregnancy, and the duration of the abuse.

Mitigating factors included the defendant's lack of a criminal record, pro-social life, family support, and the collateral consequence of separation from his children.

A significant 18-month reduction was applied to the sentence due to a serious s. 7 Charter breach by the Crown, who deliberately failed to disclose material information during a bail review, misleading the court and attempting to interfere with the defendant's parental rights.

The accused, Kenneth Hill, brought an application to stay proceedings or exclude evidence, alleging multiple Charter breaches by police during his arrest and detention for random assaults.

The court found a violation of the accused's s. 10(b) right to counsel, specifically regarding the police's premature interruption of his call to duty counsel and failure to ensure he received legal advice, particularly given his apparent mental health issues.

However, the court found no violations of s. 8 (unreasonable search, including strip search and state of undress) or s. 10(a) (right to be informed of reasons for arrest).

Applying the Grant factors, the court determined that the s. 10(b) breach was at the low end of the spectrum in terms of impact on the accused's Charter interests, and that admitting the evidence (identification photos/videos taken prior to the breach) would not bring the administration of justice into disrepute.

The application for a stay of proceedings or exclusion of evidence was dismissed.

This is an appeal from the dismissal of an application for extraordinary relief (prohibition and certiorari) seeking to prevent a judge from proceeding with a remote video trial and to quash a ruling for a remote trial.

The Court of Appeal dismissed the appeal as moot because the appellant's request for a full in-person trial had been accommodated.

The court declined to hear the moot appeal on public interest grounds, citing an insufficient record, the issues not being evasive of review in normal appellate process, and no evidence of a systemic problem requiring immediate resolution.