R. Johannesson

The accused, a 67-year-old with a heart condition, brought a detention review under s. 525 of the Criminal Code, arguing his vulnerability to COVID-19 warranted release.

He was detained on charges of attempting to purchase a firearm while prohibited, following a previous conviction for serious domestic violence offences against his ex-wife.

The court acknowledged the accused's heightened risk from COVID-19 but found the jail had implemented rigorous mitigation protocols.

Balancing the Gladue factors and pandemic risks against the substantial likelihood that the accused would cause serious harm to his ex-wife if released, the court concluded his detention remained necessary on secondary grounds.

The application was dismissed.

The appellant appealed his convictions for criminal harassment and two counts of breach of undertaking.

The Superior Court of Justice allowed the appeal, finding the trial judge made palpable and overriding errors.

Specifically, the trial judge failed to properly apply the objective test for criminal harassment, as there was no evidence of prior misconduct to support the reasonableness of the complainant's fear.

Additionally, the trial judge erred in finding the appellant breached his undertaking by attending the hallway landing outside the complainant's apartment, as the undertaking strictly prohibited attendance at the apartment itself.

A new trial was ordered for these charges.

The court also granted leave to appeal the sentence for a separate breach of undertaking conviction, imposing a suspended sentence and 12 months' probation.