Ryan Morrow

In this criminal trial for harassment under s. 264(1) of the Criminal Code, the court considered whether surreptitious video recording of a complainant’s residence constituted “watching” under s. 264(2)(c).

Rejecting a narrow interpretation requiring continuous physical presence, the court adopted a purposive approach that accounted for technological surveillance and held the actus reus was complete when the accused intentionally installed and used a covert camera to capture the interior living space.

The court found the complainant was harassed and reasonably feared for her safety upon discovering the covert recordings in her home.

The court further held the mens rea was established because the accused would have been subjectively aware that covertly watching a person’s residence would cause harassment.

A finding of guilt was entered on Count #1.

The accused pleaded guilty to two robberies in which a group targeted high-end vehicles in public parking lots, blocked the complainants' vehicles, used force or threats, and stole the vehicles while the accused acted as the getaway driver.

The court held that denunciation and deterrence were the primary sentencing objectives for planned daytime carjackings occurring amid a local rise in auto theft.

Although the accused was a youthful first offender, had strong family support, pleaded guilty, and occupied a lower role in the group, the offences were repeated, premeditated, and terrorizing.

The court rejected allegations of police misconduct arising from a later arrest for breaching a vague bail term, but treated the arrest and overnight detention caused by the poorly drafted condition as a further mitigating factor.

A penitentiary sentence of two years, with ancillary orders, was imposed.

The appellant appealed his summary convictions for sexual assault, unlawful confinement, and voyeurism.

The convictions arose from an incident where the appellant invited a third party to participate in sexual activity with the blindfolded complainant without her knowledge, and surreptitiously recorded the encounter.

The Superior Court of Justice allowed the appeal in part.

The unlawful confinement conviction was quashed and an acquittal entered because the trial judge failed to consider whether the confinement was for a significant period.

The voyeurism conviction was quashed and a new trial ordered because the trial judge failed to consider whether the complainant had a reasonable expectation of privacy.

The sexual assault conviction was upheld, as the trial judge made no errors in finding the complainant's consent was vitiated by fraud, and there was no ineffective assistance of counsel.

D.S. appealed convictions for unlawful confinement and sexual assault, and sought leave to appeal the sentence of 15 months custody followed by 12 months probation.

The appellant argued the trial judge misapprehended or misapplied evidence of text messages regarding consent and erred in sentencing by not adequately considering the lack of a criminal record and principles of restraint/rehabilitation.

The court dismissed both the conviction and sentence appeals, finding the trial judge properly used the text messages as circumstantial evidence of the complainant's pre-existing attitude and that the sentence was fit, with no reversible errors in its imposition.

The accused, R.M., faced multiple charges including assault, unlawful confinement, and sexual assault stemming from incidents with the complainant, A.J., following their separation.

The court dismissed one assault charge (Count #2) under the de minimis non curat lex defence, finding the contact trivial.

R.M. was found not guilty of unlawful confinement (Count #3) as the complainant was not deprived of freedom for a significant period.

For three sexual assault charges (Counts #4, #5, #6, #8), the court found R.M. not guilty of sexual assault.

Specifically, for Counts #4 and #8, R.M. was found guilty of the lesser included offence of assault simpliciter, as the non-consensual contact was assaultive but not sexual in nature.

For Count #7, R.M. was found guilty of sexual assault, as the intentional, non-consensual contact clearly violated the complainant's sexual integrity.

The accused, Malik Mbuyi, brought an application under sections 7, 8, and 24(2) of the Canadian Charter of Rights and Freedoms to exclude DNA evidence obtained via two search warrants (TPS and Brantford warrants) in a first-degree murder trial.

The applicant argued that police circumvented proper procedures, misled the issuing justice, and engaged in an abuse of process by obtaining a DNA warrant for stale youth offences primarily to advance the homicide investigation.

The court dismissed the application, finding no Charter breach under section 8, no abuse of process under section 7, and that even if there were breaches, the evidence would be admissible under section 24(2) due to the seriousness of the crime, reliability of the evidence, and public interest in adjudication on the merits.

The accused, Malik Mbuyi, was charged with first-degree murder in relation to two deaths and conspiracy to commit murder.

The Crown's case relied heavily on the testimony of an accomplice, Kareem Zedan, who was deemed an unreliable "Vetrovec" witness, but whose testimony was corroborated by circumstantial evidence including DNA, CCTV footage, and cellphone records.

The court found the accused to be the shooter and to have the requisite intent for murder (transferred intent for one victim, gratuitous for the other).

However, due to the inconsistencies in the accomplice's testimony and lack of sufficient corroborative evidence regarding planning and deliberation, the court found the Crown failed to prove first-degree murder or conspiracy beyond a reasonable doubt.

Consequently, the accused was found guilty of two counts of second-degree murder.

The defendant was charged with two counts of first-degree murder and one count of conspiracy to commit murder, following a shooting that killed two victims.

The Crown alleged the defendant hired a contract killer to murder the victims' son, a drug dealer who worked for the defendant.

The Crown's case relied heavily on the testimony of the admitted killer, an unsavoury witness who had entered a plea deal.

The court applied the Vetrovec warning and found the witness's testimony required independent corroboration.

Concluding that the circumstantial evidence (cell phone records and GPS data) was weak and supported multiple innocent inferences, the court found the Crown failed to prove the charges beyond a reasonable doubt and acquitted the defendant.

The appellant appealed his summary convictions for impaired operation of a motor vehicle, failing to comply with a demand, and dangerous driving.

The appellant argued that the trial judge misapprehended evidence regarding his speed and that the arresting officer lacked lawful grounds to make a Drug Recognition Evaluation demand.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings and concluding that the modified objective test for dangerous driving was met.

The court also upheld the lawfulness of the demands made by the officers.

The applicant was pulled over for an obstructed licence plate.

During the traffic stop, the officer smelled burnt cannabis and observed cannabis shake.

The officer also suspected the rental vehicle might be stolen.

The officer delayed informing the applicant of the new reasons for detention and failed to provide rights to counsel promptly.

A search of the applicant and vehicle yielded fentanyl, a loaded handgun, and credit card data.

The applicant brought a pre-trial motion alleging breaches of ss. 8, 9, 10(a), and 10(b) of the Charter and sought exclusion of the evidence under s. 24(2).

The court found breaches of ss. 10(a) and 10(b) but no breaches of ss. 8 or 9.

Applying the Grant framework, the court concluded that the evidence should not be excluded, as the breaches were not at the most egregious end of the spectrum, had minimal impact on the applicant's interests, and society's interest in adjudicating serious offences on the merits strongly favoured admission.

The application was dismissed.

Jared Gould pleaded guilty to three counts of child luring and one count of inviting a person under 16 to touch themselves sexually.

The court addressed a constitutional challenge to the one-year mandatory minimum sentence for luring, finding it inoperative based on recent Superior Court decisions.

The Crown sought an 18-month jail sentence, while the defence argued for a conditional sentence.

The court, emphasizing denunciation and deterrence for child sexual abuse offences, particularly in light of R. v. Friesen and R. v. Rafiq, determined that a conditional sentence was inappropriate given the repetitive nature of the conduct, the number of victims, and the fact that the offences occurred while the offender was on probation for a related sexual offence.

An 18-month jail sentence was imposed, along with a two-year probation order and various prohibitions.

The appellant, a teacher assistant, was convicted of assault for grabbing a seven-year-old boy by the throat.

On appeal, she argued the trial judge misapprehended evidence regarding video timestamps and erred in rejecting the defence of corrective force under s. 43 of the Criminal Code.

The court dismissed the appeal, finding that the timestamp evidence was not properly authenticated as real evidence, and even if it were, it did not render the verdict unreasonable.

The court also upheld the trial judge's rejection of the s. 43 defence, concluding that the force was applied out of anger and frustration, not for educative or corrective purposes, and therefore did not meet the requirements for justification under the section.

The appellant appealed a forfeiture and prohibition order under s. 117.05(4) of the Criminal Code, arguing the trial judge erred in preferring hearsay evidence, reversing the onus of proof, impermissibly speculating, and misapprehending evidence.

The Superior Court of Justice dismissed the appeal, finding the trial judge's conclusions were reasonable and supported by the evidence, particularly given the deference owed to credibility findings.

The court found no errors in the trial judge's assessment of hearsay or the burden of proof, and that the inferences drawn regarding the appellant's anti-government views and potential for inciting others were reasonable given the evidence.

The Crown brought a pretrial application under section 714.2 of the Criminal Code to allow the complainant to testify remotely from Mexico, or alternatively, for an adjournment of the trial.

The complainant, who was unvaccinated against COVID-19, travelled to Mexico shortly before the scheduled in-person jury trial and refused to return due to fears of being forced into vaccination.

The court dismissed the remote testimony application, finding it would be contrary to the principles of fundamental justice given the complainant's voluntary travel, the poor quality of the internet connection, and non-compliance with notice requirements.

However, the court granted the Crown's alternative request for an adjournment to allow the serious sexual allegations to be tried on their merits.

The appellant appealed his summary conviction for impaired driving, arguing the trial judge made a W.(D.) error in assessing credibility.

The trial judge had rejected the appellant's exculpatory evidence as 'not believable' and accepted the police officer's evidence where it conflicted with the appellant's.

The Superior Court of Justice found that the trial judge failed to apply the standard of proof beyond a reasonable doubt to the credibility contest, improperly treating it as an either/or choice between the two versions of events.

The appeal was allowed and a new trial was ordered.

The applicant applied to exclude a loaded firearm found in his vehicle, alleging breaches of his Charter rights under ss. 8, 9, and 10(b).

The police claimed they stopped the applicant for a traffic violation and searched his car for identification after he refused to provide it.

The court rejected the officers' testimony as fabricated, finding they lacked lawful authority for the arrest and search.

Applying the Grant framework, the court excluded the firearm under s. 24(2) of the Charter due to the egregious nature of the police misconduct, which included misleading the court.

The accused was charged with two offences: breach of probation by contacting the complainant contrary to a no-contact condition, and distributing an intimate video recording without consent contrary to section 162.1 of the Criminal Code.

The accused admitted to sending Facebook messages in breach of the probation order and was found guilty on that count.

On the second count, the Crown relied on circumstantial evidence to establish that the accused uploaded an intimate video to Pornhub.

The court found the complainant credible and the accused's testimony unsatisfactory.

Based on the timing of the accused's release from custody, his hostile Facebook messages, his motive for revenge, and the absence of any realistic alternative explanation, the court found the accused guilty of distributing the intimate image without consent.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

He was stopped at a RIDE checkpoint and failed an approved screening device (ASD) test.

The Crown sought to rely on the presumption of accuracy for the breath test results.

The defence challenged the reasonableness of the officer's reliance on the ASD test result and argued the breath samples were not taken as soon as practicable.

The court found the officer's belief was objectively reasonable, the delay was justified, and the statutory preconditions to the presumption of accuracy were met.

The accused was found guilty.

The applicant sought a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of his s. 11(b) right to a trial within a reasonable time due to delays caused by a co-accused.

The total net delay was 28 months and 26 days, below the 30-month presumptive ceiling established in R. v. Jordan.

The court found that the applicant failed to demonstrate that he took meaningful steps to expedite the proceedings, specifically by not applying for severance of the charges despite knowing of the co-accused's delays and the Crown's position against severance.

The court also found that the case did not take markedly longer than it reasonably should have, considering the complexity of a multi-accused trial and the Crown's reasonable decision to pursue a joint trial due to the young victim's trauma.

The application for a stay was dismissed.

The accused was charged with driving with excess blood alcohol concentration (over 80 mg/100 ml) under the former s. 253(1)(b) of the Criminal Code.

The central issues were whether the presumption of identity under the repealed s. 258(1)(c) survived the legislative amendments that came into force on December 18, 2018, and whether the revised presumption of accuracy under s. 320.31(1) of the new legislation was satisfied.

The court found that the presumption of identity remains intact for transitional cases charged under the old statutory regime but tried after the new legislation came into effect.

The court also rejected arguments that the qualified technician's reliance on the analyst's certificate regarding the alcohol standard was improper.

The accused was found guilty.