Roderick W. A. Sonley

The applicant, Awso Peshdary, facing terrorism charges, brought applications under s. 7 of the Charter and s. 38.14 of the Canada Evidence Act, seeking a stay of proceedings or exclusion of evidence due to the destruction of notes by a key Crown witness (A.M.), a former CSIS human source.

As part of these applications, Peshdary sought disclosure of various CSIS documents, including policies on human source handling, drafts of an affidavit from a CSIS employee ('John'), and materials related to A.M.'s handler.

The court granted disclosure for CSIS policies related to human source safety and note-taking, finding them relevant to the Charter application concerning the right to make full answer and defence.

However, it denied disclosure for draft affidavits and handler-related materials, citing litigation privilege and lack of likely relevance, or prior Federal Court rulings on privilege.

The defendant pleaded guilty to conspiracy to traffic in marijuana and trafficking in marijuana under 3 kilograms.

An Agreed Statement of Facts was entered that did not specify the quantity of marijuana involved in the conspiracy.

The Crown subsequently sought to lead evidence at sentencing to establish that the quantity exceeded 3 kilograms.

The court found that the Crown and defence had entered into an implicit agreement that sentencing would be based solely on the facts in the Agreed Statement of Facts.

The Crown's application to call further evidence was dismissed.

The defendant then brought a section 11(b) Charter application alleging breach of the right to be sentenced within a reasonable time.

The court found that the net sentencing delay of 10 months exceeded the 5-month presumptive ceiling established in R. v. Charley, and that no exceptional circumstances justified the delay.

The court granted a stay of proceedings as the remedy for the breach, while preserving the finding of guilt.

The Crown sought to lead evidence at a sentencing hearing to prove that the amount of marijuana the defendant conspired to traffic exceeded three kilograms, despite an agreed statement of facts that did not include this fact.

The defendant had pleaded guilty to conspiracy to traffic marijuana and trafficking in marijuana under three kilograms based on the agreed statement of facts.

The Crown, represented by different counsel at sentencing, sought to introduce additional evidence to establish the higher amount.

The court held that the Crown was not permitted to lead evidence to establish additional facts beyond those contained in the agreed statement of facts, as doing so would breach the implicit agreement between Crown and defence counsel and would be unfair to the defendant who had abandoned his right to trial and his Charter s. 11(b) application in reliance on that agreement.

The Crown brought an application for a Gardiner hearing to lead evidence of additional facts regarding the quantity of marijuana involved in a conspiracy charge, facts not admitted in the Agreed Statement of Facts to which the defendant had pleaded guilty.

The defendant opposed the application, arguing that an implicit agreement existed between the Crown and defence that no additional facts would be introduced at sentencing.

The court found that an objective agreement had been reached whereby the Crown agreed not to tender evidence of facts beyond those contained in the Agreed Statement of Facts.

The court deferred the remedy issue pending further submissions on the application of R. v. Nixon and whether the defendant wished to strike his guilty plea.

The applicants, five co-accused in a complex drug trafficking prosecution, applied for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable trial delay.

The anticipated delay was approximately 26 months, exceeding the 18-month ceiling for provincial court trials.

The court dismissed the application, finding that the case was 'particularly complex' under the Jordan framework due to voluminous disclosure (over 75,000 pages), multiple judicial authorizations, and the nature of the joint prosecution.

The court also found that the Crown had developed and followed a concrete plan to minimize delay.

The applicants brought a motion challenging the validity of three general warrants (dated June 30, August 13, and October 8, 2015) authorizing video surveillance and covert entries at 691 Bank Street in Ottawa as part of Project Step, a drug trafficking investigation.

The central issue was whether an Ontario Court of Justice judge had jurisdiction to authorize video surveillance under section 487.01(4) of the Criminal Code, or whether such authorization required a Superior Court of Justice judge.

The court found that the applicants had standing to challenge the warrants based on a reasonable expectation of privacy in the hallway, albeit attenuated.

The court determined that video surveillance warrants must be signed by a Superior Court judge, not an Ontario Court of Justice judge, rendering the June 30 warrant invalid.

However, the court severed the covert entry portion of the June 30 warrant, which remained valid.

The court also quashed the portions of the August 13 and October 8 warrants authorizing entries into unit C, as the information supporting those entries was derived from the unlawful hallway surveillance.

Despite these findings, the court admitted all evidence under section 24(2) of the Charter, finding that exclusion would bring the administration of justice into disrepute given the good faith conduct of police and the attenuated privacy interests involved.

The applicant sought an order to excise information obtained through a Canadian Security Intelligence Service (CSIS) Act authorization, which was subsequently used by the Royal Canadian Mounted Police (RCMP) to secure a Criminal Code authorization for intercepting private communications.

The applicant alleged infringements of Charter s. 8 rights and the right to full answer and defence.

The court determined that the CSIS Act warrant met the minimum criteria for a lawful search, and the information derived from it did not violate s. 8.

Furthermore, the applicant's right to full answer and defence was not denied, as substantial disclosure of source documents related to the CSIS Act warrant had been obtained through prior third-party records applications.

Consequently, the application to excise the information was denied.

The offender pleaded guilty to fraud against the Bank of Nova Scotia involving multiple mortgages obtained with false employment and income documentation totalling $1.74 million, charging criminal interest rates to two individuals, and possession of property obtained by crime.

The court imposed a sentence of 30 months imprisonment, consisting of two years for fraud, three months consecutive for each criminal interest rate offence, and one year concurrent for proceeds of crime.

Additionally, fines in lieu of forfeiture totalling $510,488 were imposed.

The corporation was sentenced to fines totalling $325,000.

The applicant, Awso Peshdary, sought disclosure of source documents from the Canadian Security Intelligence Service (CSIS) related to a 2012 CSIS Act warrant, renewing a previous request based on an alleged material change in circumstances following a Federal Court decision upholding the warrant.

CSIS and the Federal Crown opposed, arguing that the validity of the warrant had been decided by the Federal Court, precluding further challenge, and that no material change justified revisiting the prior disclosure denial.

The court dismissed the application, finding that the renewed request constituted a collateral attack and an abuse of process, as it sought to relitigate the warrant's validity in a different forum after a final determination by the Federal Court.

The accused, David John Mayne Bullen, faced seven charges related to cocaine trafficking and conspiracy, including instructing an offence for a criminal organization and historical trafficking charges.

The trial was the second for the accused, following a mistrial.

The Crown relied on evidence from "Project Mayday" and "Project Adelaide" involving police surveillance and intercepted communications.

The Defence admitted guilt for a smaller conspiracy involving the first three police agent cocaine purchases but disputed the larger conspiracy and criminal organization charges.

The court applied the Carter analysis for co-conspirator hearsay and found the accused guilty of conspiracy to traffic cocaine, trafficking cocaine, and possession for the purpose of trafficking (Counts #1, #2, #3) related to the main conspiracy and the first three police agent buys.

However, the court found the accused not guilty of directing a criminal organization (Count #4) and the historical trafficking charges (Counts #5, #6, #7), citing insufficient evidence for a criminal organization and reliability issues with the police agent's testimony for the historical charges.

The applicant, charged with conspiracy and drug trafficking offences following a complex police investigation, sought a stay of proceedings under s. 24(1) of the Charter, alleging his s. 11(b) right to be tried within a reasonable time was infringed.

The total delay from charge to the anticipated end of trial was 60 months.

The court applied the Jordan framework and transitional provisions, deducting periods of defence waiver and delay caused by discrete exceptional events, including a mistrial and a change of lead counsel.

The court concluded that the remaining delay was justified by the exceptional complexity of the case and the parties' reasonable reliance on the previous Morin framework.

The application was dismissed.

The accused renewed his section 11(b) Charter motion for unreasonable delay, arguing that the delay between conviction and sentencing violated his rights.

The court dismissed the renewed motion, noting that the Jordan framework does not apply to post-trial delay.

Furthermore, the court found the 9-month delay between conviction and sentencing was reasonable, as it was primarily caused by the preparation of pre-sentence reports and the accused's own unsuccessful Charter motions.

The applicant, charged with trafficking in heroin, brought a pre-trial motion seeking a declaration that sections 185 and 186 of the Criminal Code are unconstitutional.

The applicant argued that the 'may assist' standard for targeting an individual's private communications for interception violates section 8 of the Charter, which requires a reasonable and probable cause standard.

The court dismissed the application, finding it was bound by Ontario Court of Appeal jurisprudence that upheld the constitutional validity of the Part VI wiretap regime and the 'may assist' criteria.

The defendant, facing drug trafficking and criminal organization charges, brought a mid-trial application for a stay of proceedings or exclusion of wiretap evidence, alleging a breach of Crown disclosure obligations under Stinchcombe and ss. 7 and 11(d) of the Charter.

The issue concerned whether Monitor Post Reports (MPRs) alone constituted sufficient disclosure of wiretap intercepts, or if all audio recordings were required, and whether the disclosure method was misleading.

The court found that while the Crown did not wilfully breach its obligations, the disclosure method was insufficient due to a lack of clear explanation regarding the relationship between the MPRs and the disclosed audio recordings.

Despite some lack of diligence by defence counsel, the court determined that the defendant's trial fairness rights were compromised.

Given the extensive time required for the defence to review the newly disclosed audio recordings and the judge's impending compulsory retirement, an adjournment was deemed impractical.

The court granted a mistrial, allowing for a new trial where previous pretrial decisions and admitted evidence could be incorporated.

The accused, a leading expert in animal brucellosis employed by the Canadian Food Inspection Agency (CFIA), pleaded guilty to one count of breach of trust and ten regulatory offences.

The breach of trust involved his commercialization of brucellosis diagnostic test kits using intellectual property owned by the CFIA through a company established in China from 2006 to 2010.

The regulatory offences arose from his arrest on October 24, 2012, when he was found attempting to board a flight to China with 17 vials of brucella bacteria improperly packaged in his carry-on luggage.

The court imposed a two-year custodial sentence, rejecting the defence's request for a conditional sentence despite the accused's exemplary background, advanced age, serious medical conditions, and low risk of recidivism.

The court found that general deterrence and denunciation were the predominant sentencing principles required by the legislative objectives of the Human Pathogens and Toxins Act and the Export and Import Permits Act.

The Applicant, Awso Peshdary, facing terrorism-related charges, sought production of materials from the Canadian Security Intelligence Service (CSIS) as a third-party records holder.

The request pertained to two main areas: (1) reliability assessments and financial arrangements of Abdullah Milton, a paid CSIS asset and later police agent whose credibility was a material issue, and (2) materials related to a CSIS warrant obtained against Peshdary, used to support a subsequent RCMP judicial authorization.

The court applied the two-stage O'Connor test for third-party disclosure.

It found that materials related to Milton's reliability and financial arrangements met the "likely relevance" test for trial issues and ordered their disclosure to the court for review.

However, for the CSIS warrant materials, the court distinguished between facial and sub-facial challenges to judicial authorizations, applying the narrower Garofoli test as clarified by World Bank Group v. Wallace.

It concluded that the applicant had not met the test for likely relevance for the CSIS warrant materials, as the purpose was to challenge the admissibility of evidence rather than directly bear on guilt or innocence.

The court also ordered disclosure of any notes Milton took of his interactions with Peshdary.

The accused were charged with multiple offences including conspiracy to traffic cocaine, trafficking, and participating in a criminal organization following a lengthy police investigation involving wiretaps and surveillance.

The court found both accused guilty of conspiracy to traffic and trafficking in cocaine, relying on intercepted communications and surveillance evidence establishing their roles in an ongoing drug distribution network.

However, the court acquitted them of the criminal organization charges, finding insufficient evidence of structure or leadership to meet the statutory definition.

The court also dismissed the accused's application under s. 11(b) of the Charter, concluding that the 38-month delay was justified by the case's complexity and the transitional exception under the Jordan framework.

The three accused, Ashton Larmond, Carlos Larmond, and Suliman Mohamed, pleaded guilty to various terrorism-related offences and other charges.

Ashton Larmond pleaded guilty to knowingly instructing persons to enhance terrorist activity, Carlos Larmond to attempting to leave Canada for terrorist activity, and Suliman Mohamed to conspiring to enhance a terrorist group's ability.

The Larmond brothers also pleaded guilty to offences committed in custody, including threats to correctional officers and inmates, and unlawful communication.

The court accepted joint sentencing submissions, emphasizing the gravity of "home grown" terrorism and the importance of denunciation and deterrence.

Following convictions for drug trafficking, criminal organization offences, possession of proceeds of crime, and related offences, the Crown applied under s. 462.37 of the Criminal Code for forfeiture of assets and a fine in lieu of forfeiture.

The court applied the reverse onus provisions for criminal organization offences and accepted forensic accounting evidence showing substantial unexplained wealth.

Certain assets were found to be proceeds of crime or partly derived from such proceeds, including cash seized from a residence, equity from a property sale, a vehicle, and unexplained deposits.

The court exempted a condominium claimed by a third party where evidence established it had been purchased using inherited funds.

Significant fines in lieu of forfeiture were imposed where assets were no longer available.

Following a forfeiture hearing, defence counsel requested the release of additional funds from seized assets to pay legal fees.

The court had previously authorized the release of $80,000 from the seized funds.

In a supplementary order correcting an inadvertent omission in the earlier decision, the court refused the request for additional funds.

The court cited the accused’s lack of cooperation and the costs associated with the prosecution as reasons not to release further assets.