Robert Tomovski

This decision addresses a Charter application for a stay of proceedings based on an alleged violation of the accused's section 11(b) right to be tried within a reasonable time.

The accused, Luciano Battiston, was charged following a pedestrian accident resulting in bodily harm and death.

The Court applied the Supreme Court of Canada's framework from R v. Jordan and R v. K.G.K., confirming that the presumptive ceiling for provincial court trials is 18 months.

The Court found the total delay of approximately 18.5 months presumptively unreasonable, with no exceptional circumstances or complexity to justify the delay.

The Court also critically examined state-caused delay due to lack of internet connectivity in Toronto Provincial Offences Act (POA) courts, attributing such delay to the Crown.

The Court ordered a stay of proceedings pursuant to s. 24(1) of the Charter.

This decision addresses a Charter application under section 11(b) seeking a stay of proceedings for delay in a Provincial Offences Act (POA) matter involving careless driving causing bodily harm and death.

The defendant argued that despite the trial being scheduled within the 18-month presumptive ceiling established by the Supreme Court in R. v. Jordan, his right to a timely trial was violated due to systemic delays, particularly in disclosure by the Toronto Police Service (TPS).

The Court analyzed the defendant’s efforts to expedite the trial, the complexity of the case, local systemic factors affecting POA prosecutions in Toronto, and the Crown’s conduct.

The Court found the case was not complex, the defence took all meaningful steps to expedite, and the Crown acted reasonably given local conditions.

The Court emphasized the systemic challenges in POA disclosure and trial scheduling in Toronto but concluded that the trial was scheduled within the constitutional ceiling and denied the stay of proceedings.

The Crown applied to revoke the appellant's bail release order under s. 679(6) of the Criminal Code due to new charges.

The appellant cross-applied for a fresh bail release pending appeal.

The court found reasonable grounds to believe the appellant committed an indictable offence while on release, leading to the revocation of the existing bail.

The court then denied the appellant's application for fresh bail, concluding that while the appeal was not frivolous, the appellant's detention was necessary in the public interest due to public safety concerns (risk of further fraud) and the need to maintain public confidence in the administration of justice, especially given the new charges and the weak nature of the appeal grounds.

The appellant, Jerry Revolus, appealed his 18-month custodial sentence for fraud over $5,000 and conspiracy to commit fraud, seeking a conditional sentence.

The Court of Appeal dismissed the appeal, finding the original sentence to be very low given the seriousness of the orchestrated fraud scheme, which involved over $330,000 from 80+ victims, coercion, and threats of violence, including a handgun.

The court rejected the argument that a conditional sentence was unavailable due to the appellant's Québec residence, stating that even if there was an error in that determination, a conditional sentence was inappropriate given the gravity of the offences and the appellant's central role.

The court also found no parity with a co-accused who received a conditional sentence, citing significant differences in their roles and circumstances.

The appellant, Shane Sureskumar, appealed his convictions for identity theft, attempted fraud over $5,000, fraud over $5,000, and fraudulent possession of credit card data, and sought leave to appeal his sentence.

The convictions stemmed from his actions as a bank teller accessing client data and attempting/executing fraudulent transfers.

The appeal challenged the trial judge's findings on a s. 8 Charter breach regarding a search incident to arrest, the s. 24(2) exclusion of evidence, and the validity of a search warrant for his cell phone.

The appellant also argued the trial judge erred in not imposing a conditional sentence.

The Court of Appeal dismissed the conviction appeal, finding a s. 8 breach but upholding the admission of evidence under s. 24(2) due to good faith and discoverability, and affirming the cell phone warrant.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the trial judge properly considered and rejected a conditional sentence, weighing aggravating factors (breach of trust, quantum, sophistication, greed) against modest mitigating factors (youthful first-time offender, no loss).

The two accused were found guilty by a jury of human trafficking, procuring, and advertising sexual services.

Augustin was also found guilty of receiving a material benefit from human trafficking and procuring.

The accused exercised significant control over the complainant, forcing her to provide sexual services to numerous men in inhumane conditions and taking all her earnings.

The court sentenced Augustin to 8 years imprisonment (less 11 months credit) and St. Armand to 5 years imprisonment (less 6 months credit), noting the severe impact on the victim and the need for denunciation and deterrence.

The accused, G.S., brought an application for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay from charge to anticipated end of trial was 635 days, exceeding the 18-month (547-day) presumptive ceiling for provincial courts.

The court deducted 14 days conceded by the defence and a further 72 days for defence-requested adjournments for resolution discussions post-Judicial Pre-Trial (JPT), finding this delay directly attributable to the defence.

The court also recognized the COVID-19 pandemic as an exceptional circumstance, deducting 20 days for administrative scheduling policy changes and an additional 90 days for the systemic backlog's impact on court resources in Scarborough.

After these deductions, the net delay was calculated at 439 days, falling below the presumptive ceiling.

The court found that the Crown had taken reasonable steps to mitigate delay and that the defence had not demonstrated sustained efforts to expedite proceedings.

Consequently, the application for a stay of proceedings was dismissed.

During pretrial applications in a criminal proceeding, severe technological failures at the Milton courthouse involving remote Zoom interpretation and court reporting equipment caused significant delays and compromised the integrity of the record.

At its own instance, the Superior Court of Justice ordered that fully accredited French language interpreters attend the upcoming jury trial in person, and directed best efforts to secure in-person interpreters or functional simultaneous remote interpretation for the remainder of the pretrial applications.

On a pretrial Charter application in a human trafficking prosecution, the accused sought exclusion of text messages and other data extracted from the complainant’s cellular telephone.

The court held that, although the accused had established a subjective expectation of privacy in their messages, they lacked standing because that expectation was not objectively reasonable given the nature of the alleged relationship and the complainant’s voluntary surrender of her phone to police.

Relying principally on Marakah and Mills, the court concluded that this was not a relationship society ought to recognize as worthy of section 8 protection for the accused senders.

The application was therefore dismissed.

The court further stated that, if standing had existed, it would have found the complainant’s consent valid, no section 8 breach, and no basis to exclude the evidence under section 24(2).

An accused (K.A.) in a human trafficking case sought an adjournment of a section 10(b) Charter application voir dire, citing unpreparedness due to communication difficulties while in custody amidst COVID-19 restrictions.

The Crown and co-accused opposed the request.

The court, balancing the risk of delay against the accused's right to make full answer and defence, reluctantly granted the adjournment to ensure a fair hearing on the important Charter application, which involved potentially inculpatory evidence.

The Crown brought a pretrial application under sections 714.1 and 715.25 of the Criminal Code to allow its witnesses and the prosecutor to participate by videoconference at an upcoming hearsay application.

The accused consented to the prosecutor appearing remotely but opposed the witnesses testifying remotely.

The court analyzed the factors under section 714.1, including the location of the witnesses, costs, the nature of the offences, and the accused's right to a fair hearing.

Finding that the majority of factors weighed against remote testimony, particularly given the serious nature of the charges and the logistical difficulties experienced during the Zoom hearing itself, the court dismissed the application for witnesses to testify remotely.

The offender was convicted of aggravated assault and dangerous operation of a motor vehicle after deliberately driving his car at two pedestrians, striking one and causing a compound fracture.

The court weighed the gravity of the offence, the offender's prior record, and the severe injuries against mitigating factors including strong community support and stringent house arrest conditions.

The offender was sentenced to three years in custody for aggravated assault and a concurrent twelve-month sentence for dangerous driving, along with a three-year driving prohibition and a ten-year weapons prohibition.

The accused was charged with attempted murder, aggravated assault, possession of a weapon (a motor vehicle), and dangerous operation of a motor vehicle after striking a pedestrian with his car during a parking lot altercation.

The incident was captured on video surveillance, showing the accused repeatedly driving his vehicle aggressively towards the unarmed victim, resulting in a compound fracture to the victim's leg.

The court rejected the accused's claims of accident and self-defence, finding the driving was deliberate and a marked departure from the standard of care.

The accused was found guilty of dangerous driving, possession of a weapon, and aggravated assault, but acquitted of attempted murder as the Crown failed to prove a specific intent to kill.

The accused was charged with assault, aggravated assault, and robbery with a firearm.

The Crown brought an application for directions on whether the common law regime from Seaboyer or s. 276 of the Criminal Code applied to evidence it sought to adduce regarding a co-assailant's statement that the complainant had previously 'raped' the accused.

The court held that s. 276 only applies to evidence adduced by the accused.

Assuming the Seaboyer regime applied, the court ruled the evidence was admissible as it was highly probative of motive and did not invite prohibited twin-myths reasoning.

The accused was tried on charges of sexual assault and sexual interference arising from alleged repeated sexual conduct with the complainant between ages 13 and 17.

Applying the W.(D.) framework, the court assessed the accused's denial in the context of the complainant's evidence and identified material concerns about the complainant's evolving explanations on cross-examination and the plausibility of the alleged encounters within the household circumstances described.

The court accepted the accused's evidence about his daily routine and found that, considered with the complainant's evidence, it raised a reasonable doubt.

The accused was acquitted on both counts.

The defendant was charged with driving a motor vehicle with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code.

Two issues were raised at trial: (1) whether the defendant's Charter rights to counsel under section 10(b) were violated by police conduct, and if so, whether excluding breath test results was an appropriate remedy; and (2) whether the prosecution could rely on the presumption of identity under the now-repealed section 258(1)(c) of the Criminal Code, or whether expert evidence of retrograde extrapolation was required.

The court found no breach of the defendant's right to counsel and held that the old presumption of identity continues to apply to outstanding Over 80 charges commenced after the new law came into force on December 18, 2018.

The defendant was convicted.

The accused was arrested for impaired driving following a motor vehicle accident on Highway 401.

At the police station, during the booking process, a police officer directed the accused to remove the drawstring from his pants as a safety concern.

When the drawstring could not be removed without damaging the pants, the accused's pants were removed, leaving him in his undergarments.

The accused remained in this state of undress throughout his time at the police station, including during the breath testing procedure, where he subsequently refused to provide a breath sample.

The court found that the removal of the accused's pants constituted an illegal strip search conducted without reasonable and probable grounds, in a public area, in the presence of multiple officers, and while being videotaped.

The court granted a stay of proceedings as the appropriate remedy, finding that proceeding with the trial would be harmful to the integrity of the justice system.

The Regional Municipality of York sought leave to appeal a provincial court appeal judge's decision that set aside a stay of proceedings in a speeding charge against Steve Tomovski.

The appeal judge had found that while the delay breached the Charter right to trial within a reasonable time under the R. v. Jordan framework, the breach was attributable to the defendant.

The appeal judge also opined that the presumptive delay ceiling for Part I Provincial Offences Act proceedings should be 13 to 15 months, rather than the 18 months established in Jordan.

York sought leave to appeal on questions of law regarding the appropriate presumptive delay ceiling and the application of Charter s. 11(b) to Part I POA proceedings.

The Court of Appeal dismissed the motion for leave to appeal, finding that York was seeking to appeal the reasons for judgment rather than the judgment itself, and that the appeal judge's opinion on the presumptive delay ceiling was not a "judgment" appealable under s. 139 of the POA.

On appeal from a stay of proceedings entered by Justice of the Peace H. Radtke on June 21, 2016, the court considered whether the respondent's right to trial within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms was breached.

The respondent was charged with speeding on December 30, 2014, and the matter proceeded through two adjournments before a stay was granted.

The appeal court applied the framework established in R. v. Jordan, 2016 SCC 27, and determined that the net delay of 326 days (10 months and 22 days) was presumptively reasonable.

The court also addressed whether the 18-month presumptive ceiling established in Jordan applies to Part I Provincial Offences Act proceedings, concluding that a lower ceiling of approximately 14 months is more appropriate for such regulatory matters.

The appellant appealed the 45-day impoundment of his vehicle, which was seized after his son was caught driving it while suspended.

The appellant argued exceptional hardship, claiming he needed the vehicle to assist his daughter-in-law with childcare and could not use public transit due to health issues.

The Licence Appeal Tribunal dismissed the appeal, finding the appellant failed to prove there were no reasonable alternatives to the impounded vehicle, noting he owned a second vehicle and lacked medical evidence to support his claims of physical inability to use transit.