Ryan Morrow

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 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 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.

The defendant was charged with driving with an excess blood alcohol concentration under the Criminal Code.

The defendant brought a Charter application alleging violations of sections 8, 9, 10(a), and 10(b) of the Charter.

The defendant challenged the legality of the roadside screening procedure, the pat-down search conducted prior to the screening, the delay in administering the screening, and the delay in providing rights to counsel.

The court conducted a blended voir-dire and ruled on the Charter application.

The court found no violations of the defendant's Charter rights and dismissed the application for exclusion of the evidential breath testing results.

The accused was charged with two counts of sexual assault and two counts of sexual interference against his girlfriend's two daughters over a three-year period ending in 2004.

The complainants, now adults, testified that the accused entered their bedrooms at night while they slept and engaged in inappropriate sexual touching.

The accused denied all allegations.

The court found the complainants credible and reliable witnesses, rejected the accused's minimization of his presence in the home, and found him guilty on all four counts.

The court also addressed the admissibility of similar fact evidence and found no collusion between the complainants despite the opportunity for communication.

The defendant was charged with driving with excess blood alcohol (over 80) and driving without a valid license.

The defendant challenged the admissibility of evidence on Charter grounds, arguing his s. 10(b) right to counsel was violated.

The court found the defendant explicitly waived his right to counsel on multiple occasions despite police efforts to facilitate contact with duty counsel.

The defendant's statements were found to be voluntary.

On the trial proper, the court found the defendant was driving within two hours of the first breath test, satisfying the statutory requirement for the presumption of identity.

The defendant was convicted on both charges.

The accused was charged with operating a motor vehicle while impaired by alcohol contrary to section 253(a) of the Criminal Code, and with having consumed alcohol in such quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(b).

Following a serious single-vehicle collision, the accused brought a Charter application alleging breaches of sections 7, 8, 10(a) and 10(b) of the Charter of Rights and Freedoms.

The trial proceeded on a blended voir dire basis.

The court found that the Crown failed to establish the chain of continuity of the blood sample and that the toxicologist's opinion was undermined by discrepancies in the time the blood was drawn.

The court also found that while the officer had reasonable and probable grounds to make the breath demand, the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol, as the observed signs of impairment could be attributed to trauma and injuries from the collision.

The accused was charged with over .08 and impaired operation following a motor vehicle collision.

The defence sought to exclude breath test results on the grounds that the arresting officer lacked reasonable grounds to make the breath demand and that the officer breached the accused's Charter rights by delaying the provision of rights to counsel.

The court found that the nature of the accident combined with evidence of alcohol consumption provided an objective basis for the breath demand.

The court also found that a five-minute delay in providing rights to counsel did not constitute a breach of s. 10(b) rights.

The application for Charter relief was dismissed and the breath tests were admitted as evidence.