Russell Silverstein

The applicant sought an order appointing counsel under section 684 of the Criminal Code for a late appeal.

The Crown consented to the extension of time but opposed the appointment of counsel, conceding the applicant lacked sufficient financial means but arguing the appeal was not arguable.

The applicant's principal ground of appeal challenged the trial judge's ruling on a KGB application regarding the admissibility of statements.

The court found no merit in the arguments that the trial judge erred in admitting the statements as substantive evidence and found no merit in other grounds advanced.

The court declined to appoint counsel, finding it was not in the interests of justice to do so.

The appellant appealed his conviction, challenging the trial judge's admission of evidence of a firearm found in a vehicle he was operating.

The appellant argued he was arbitrarily detained and that police violated his Charter rights by failing to immediately advise him of the reason for detention and his rights to counsel.

The trial judge found the detention was not arbitrary, as police had reasonable suspicion of criminal activity based on the cumulative behavior of the occupants, and found Charter violations but admitted the evidence under the R. v. Grant test.

The Court of Appeal upheld the conviction, finding no error in the trial judge's decision.

The accused brought a motion seeking a stay of proceedings on the grounds that his Charter right under section 11(b) to be tried within a reasonable time had been breached.

The total delay from arrest to anticipated trial date was approximately 20.5 months, none attributable to the defence.

The delay resulted from delayed disclosure by the Crown and institutional delays.

The court found that the delay exceeded the 18-month ceiling established in R. v. Jordan for provincial court trials.

The Crown failed to establish that the transitional exceptional circumstance applied, as the case was straightforward, the jurisdiction was not plagued by systemic delays, and the Crown's reliance on the seriousness of charges was not reasonable given the disclosure failures.

The charges were stayed.

The applicants, charged with bookmaking and criminal organization offences, brought a pre-trial application challenging the constitutional validity of the gaming and criminal organization provisions of the Criminal Code and related regulations.

They argued that the gaming provisions were ultra vires Parliament's criminal law power, that the regulation deeming gaming offences as 'serious offences' violated section 7 of the Charter due to overbreadth and gross disproportionality, and that the bookmaking prohibition violated freedom of expression and association under section 2 of the Charter.

The court dismissed the application, finding the provisions were a valid exercise of the criminal law power, did not violate the Charter, and in any event, would be saved under section 1.

Sentencing following convictions for multiple counts of touching a person under 16 for a sexual purpose involving elementary school students.

The offender, an occasional teacher, engaged in repeated inappropriate touching of several grade three girls in classroom settings while in a position of authority.

The court considered aggravating factors including multiple complainants, breach of trust, grooming behaviour, and psychological harm to the victims, while mitigating factors included the offender’s lack of prior record and community contributions.

Emphasizing denunciation and general deterrence for sexual offences against children, the court imposed a custodial sentence.

A global sentence of 12 months’ imprisonment followed by two years’ probation was ordered, along with ancillary prohibitions and sex offender registration.

In a criminal proceeding involving allegations of sexual offences against students, the accused sought to introduce evidence that he offered to take a polygraph test during a police interview.

The defence argued that the offer demonstrated consciousness of innocence and constituted admissible after-the-fact conduct.

The court reviewed the governing principles from appellate authority concerning prior consistent statements and the limited probative value of offers to take polygraph tests.

It held that such an offer, particularly where the accused had received legal advice and the results would be inadmissible, was essentially a self-serving protestation of innocence with no meaningful probative value.

The court concluded that the evidence would risk prejudicing the trial process and dismissed the application to admit it.

The Crown brought a similar fact application in a criminal trial involving allegations that an elementary school teacher sexually touched several young students.

The Crown sought to have the testimony of certain complainants admitted as circumstantial evidence supporting the allegations of other complainants.

Applying the framework from R. v. Handy, the court considered whether the proposed evidence had sufficient probative value to outweigh its prejudicial effect.

The court found that many of the alleged incidents were only generically similar and therefore did not meet the threshold for admissibility.

However, evidence of three specific incidents involving classroom demonstrations and physical manipulation of students was sufficiently similar and reliable to be admitted as similar fact evidence.

In a criminal prosecution involving multiple sexual offence allegations against a teacher, the defence sought to admit the accused’s out-of-court statements to police as evidence of his reaction to the accusations pursuant to the exception recognized in R. v. Edgar.

The court considered whether the statements qualified as spontaneous prior consistent statements capable of admission for credibility purposes.

Applying appellate authority, the court held that the spontaneity requirement was not met where the accused had significant time to reflect, consult others, receive legal advice, and prepare a written account before speaking to police.

Because the statements were not made upon first confrontation with the allegation and were preceded by hours of deliberation, they could not be admitted under the Edgar exception.

The accused was charged with driving a motor vehicle with a blood alcohol level over the legal limit contrary to section 253(1)(b) of the Criminal Code.

The accused applied for a stay of proceedings based on a violation of his Charter right to be tried within a reasonable time under section 11(b).

The total delay from charge to scheduled trial was approximately 22.5 months.

The court found that the combined institutional delay and delay caused by Crown actions totaled 12.5 months, exceeding the Brampton guideline of 8-9 months by 3.5 months.

The court also found actual prejudice to the accused, including stress, anxiety, and significant financial hardship to his family resulting from the need to pay counsel twice due to the case not being reached on the first scheduled trial date.

The court granted the application and ordered a stay of proceedings.

The applicant was charged with unlawful production of marijuana and possession of marijuana for the purpose of trafficking.

He brought an application under section 24(1) of the Canadian Charter of Rights and Freedoms alleging that his right to a trial within a reasonable time under section 11(b) had been infringed.

The court found that the applicant had suffered Crown delay of approximately two months, institutional delay of approximately 14 months and 13 days, and actual prejudice to both his liberty and security interests.

The operative delay of 16 months and 13 days exceeded the Morin guidelines by approximately six and a half months.

Balancing all factors, including the seriousness of the offences against the applicant's prejudice and the institutional failures to expedite the proceedings, the court granted the application and stayed the charges.

The accused was charged with perjury under s. 131 of the Criminal Code for allegedly falsely testifying at a preliminary inquiry that he suffered from a medical condition affecting his memory and that he was receiving treatment from doctors for that condition.

The Crown relied on inconsistencies between the accused’s testimony at the preliminary inquiry and at a later murder trial, as well as medical evidence from physicians who had treated the accused shortly before the preliminary inquiry.

The defence argued that the Crown failed to prove the falsity of the statements or that the accused knew them to be false, emphasizing that heavy marijuana use can affect memory and that the accused may have believed his symptoms were medically related.

The court found that although the accused appeared to be a reluctant witness and may have exaggerated memory loss, the Crown failed to prove beyond a reasonable doubt that the accused did not believe he had a medical condition affecting his memory.

As that essential element of the indictment was not proven, the charge of perjury could not stand.

On a criminal appeal from fraud convictions, the court considered whether trial counsel’s comment invited an impermissible adverse inference from a co-accused’s silence and whether the trial judge’s charge required an explicit remedial direction under s. 4(6) of the Canada Evidence Act.

The majority held that a trial judge may affirm the right to silence when there is a realistic risk of misuse, but found the charge as a whole adequately conveyed that silence is not evidence.

The court also found the erroneous admission of hearsay did not create a realistic possibility of a different verdict.

The conviction was upheld under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

The Crown sought an adjournment of a scheduled Not Criminally Responsible (NCR) hearing on the grounds that its key psychiatric witness, Dr. McDonald, was unavailable.

The court denied the adjournment, finding that the Crown had failed to exercise due diligence in securing the witness's attendance despite having known the hearing date for eight months.

The court noted that the accused had made significant progress in treatment and rehabilitation since his release on bail, and that the Crown had failed to meet the established test for adjournment under R. v. Darville.

The court proceeded to sentencing based on the accused's guilty pleas.

The accused was charged with unlawful production of cannabis, two counts of possession of cannabis for the purpose of trafficking, and fraud under $5,000 of electricity.

The defence brought a Charter application alleging unreasonable delay under section 11(b) and seeking a stay of proceedings.

The court applied the framework from R. v. Morin, considering the length of delay, waiver, reasons for delay, and prejudice to the accused.

The total delay was approximately 16 months from the information being sworn to the trial date.

The court found that while the Crown caused approximately 1 month and 18 days of delay in providing initial disclosure, the remainder of the delay was attributable to inherent time requirements of the case, including the complexity of the charges, the need for a judicial pre-trial, and the time required for counsel preparation.

The court dismissed the application.