R. Nathanson

The applicant sought mandamus compelling issuance of criminal process after a justice of the peace refused to issue process under s. 507(1) of the Criminal Code for proposed charges of theft over $5,000, fraud over $5,000, and forgery against a third party.

The court reviewed whether the justice of the peace committed jurisdictional error or failed to exercise discretion judicially in concluding that no prima facie case existed.

The evidence consisted largely of the applicant’s testimony concerning a company cheque and invoices allegedly connected to fraudulent conduct.

The court held the record contained no evidence establishing essential elements of the alleged offences, including personal receipt of funds, fraudulent deprivation, or creation of false documents by the proposed accused.

The justice of the peace properly exercised the gatekeeping function under s. 507(1), and mandamus was not available.

The accused applied for certiorari to quash their committal for trial on a charge of first degree murder following a preliminary inquiry.

They conceded that evidence supported committal for second degree murder but argued the preliminary inquiry judge exceeded jurisdiction by finding evidence capable of supporting planning and deliberation.

The Superior Court held that certiorari is only available where a preliminary inquiry judge commits an accused without any evidence of an essential element or relies on irrational inferences.

The court concluded the hearing judge properly distinguished between speculation and rational inference and applied the correct circumstantial evidence test.

Viewing the evidence as a whole, a properly instructed jury could reasonably infer planning and deliberation.

The applications were dismissed.

A self-represented applicant sought judicial review of a justice of the peace’s refusal to issue process on a privately laid information alleging forcible entry under the Criminal Code.

At the pre‑inquiry hearing, the Crown conceded that there was evidence establishing a prima facie case for each element of the offence.

The justice of the peace nevertheless refused to issue process on the basis that the prosecution was not an appropriate case to proceed.

The Superior Court held that once prima facie evidence exists, s. 507.1(2) of the Criminal Code requires issuance of process unless the complaint is frivolous, vexatious, or an abuse of process.

As no such finding was made, the justice of the peace exceeded jurisdiction and the matter was remitted to the Ontario Court of Justice for process to issue.

The appellant appealed convictions for three counts of sexual assault arising from incidents involving a workplace colleague.

The Crown conceded that two counts were outside the six‑month limitation period for summary conviction proceedings under s. 786(2) of the Criminal Code.

The appeal court set aside those two convictions and entered acquittals.

The appellant further argued that the trial judge misapprehended the evidence, improperly relied on a prior consistent statement, and applied uneven scrutiny to the evidence of the complainant and the accused.

The court rejected these grounds, finding no error in the trial judge’s credibility analysis or use of corroborative evidence, and dismissed the sentence appeal.

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg, arguing the trial judge erred in finding a reasonable doubt about whether the accused’s breath samples were analyzed by an approved instrument.

The doubt arose from a calibration certificate referring to an “Intoxilyzer 8000” while the qualified technician’s certificate referred to an “Intoxilyzer 8000C,” which is the approved Canadian instrument.

The Crown also sought to introduce fresh expert evidence clarifying that the distinction relates only to software and that the calibration certificate is standard for both models.

The court held that the trial judge’s conclusion was open on the evidence and that the alleged misapprehension of evidence was not material.

The proposed fresh evidence was rejected because the Crown failed to meet the due diligence requirement under the Palmer test.

The appeal from acquittal was therefore dismissed.

The appellant appealed a sentence imposed after a guilty plea to possession of child pornography, arguing that the sentencing judge erred by refusing to grant a conditional discharge and by imposing a Sex Offender Information Registration Act order.

The appellant relied on mitigating factors including his status as a first offender, psychiatric evidence indicating a low risk of reoffending, and his cooperation with authorities which led to the prosecution of another offender.

The appeal court held that the sentencing judge committed no error in principle and properly considered all relevant factors.

The court also found that the appellant failed to demonstrate that the SOIRA registration requirement had a grossly disproportionate impact relative to its protective purpose.

The sentence and registration order were upheld.

In a joint first‑degree murder trial arising from a gang‑related shooting, the court considered whether the accused had put his character in issue through testimony denying gang affiliation and explaining incriminating letters written while in custody.

The court held that the accused’s narrative about his upbringing and alleged reluctance to join a gang implicitly asserted good character and therefore opened the door to cross‑examination on prior criminal conduct and gang‑related activity.

The court also ruled that certain previously redacted portions of letters written by the accused from custody could be admitted after reconsideration of a pre‑trial ruling, because the accused’s testimony materially altered the probative value of the evidence and risked misleading the jury.

The court concluded that the probative value of the additional passages outweighed their prejudicial effect and that severance of the co‑accused was not required.

The accused, Jermaine Gager, brought an application for a mistrial during his joint trial for first-degree murder with co-accused Corey Smelie.

The application was based on the closing address of counsel for the co-accused, who improperly commented on his client's failure to testify and suggested he was afraid of retribution from the moving party.

The court found the remarks were improper but concluded that the resulting prejudice was not irremediable.

The court dismissed the mistrial application, holding that a specific curative instruction to the jury would be sufficient to ensure trial fairness.

In a first degree murder prosecution involving alleged gang rivalry, the accused applied to qualify a sociologist as an expert witness on street gangs.

The Crown opposed the qualification, arguing that the proposed expert lacked sufficient knowledge of the specific Toronto gangs at issue and that aspects of his methodology and impartiality were problematic.

The court conducted the two‑stage admissibility analysis for expert evidence under Mohan and Abbey, expressing significant concerns about the expert’s methodology, potential bias, inflated data samples, and limited familiarity with Toronto gangs.

Despite these reservations, the court held that the threshold for excluding defence expert evidence was not met and qualified the witness as an expert in limited areas relating to gang culture and behaviour.

The court then set detailed restrictions on the permissible scope of the expert’s testimony, particularly preventing opinions that would approach the ultimate issue of gang membership.

In a first-degree murder trial involving alleged street gang members, the Crown applied to qualify a police detective as an expert on Toronto street gangs.

The defence brought parallel applications seeking further disclosure of police records, including confidential informant databases, debriefing notes, training presentations, and wiretap intercepts from other investigations.

The court ordered redacted disclosure of the debriefing notes and presentations but denied access to the informant database and the massive wiretap files, finding the latter to be third-party records that did not meet the threshold for likely relevance.

The court qualified the detective as an expert but strictly limited the scope of his permissible opinion evidence to prevent him from usurping the jury's fact-finding function, particularly regarding whether specific individuals were gang members or whether a 'gang war' existed.