Sandee Smordin

The defendant was convicted of sexual touching (s. 152 Criminal Code) after a non-jury trial.

This decision concerns sentencing.

The complainant was four years old at the time of the single, brief incident.

Aggravating factors included the victim's young age, vulnerability, and the defendant's position of trust, as well as the significant emotional impact on the complainant.

Mitigating factors included the historical nature of the offence (17 years prior), the defendant's lack of recent criminal convictions, the brief and isolated nature of the act, and his current role as a caregiver for his ailing father and grandmother, along with significant health issues.

The Crown sought a custodial sentence of two years less a day or two years in a penitentiary, followed by probation.

The defence sought a conditional sentence.

The court imposed a conditional sentence of two years less one day, to be served in the community with house arrest for the entire period, followed by three years of probation, and various other orders including a 10-year and lifetime weapon prohibition, and a 20-year Sex Offender Information Act order.

The applicant sought certiorari to quash a committal for trial following a preliminary inquiry on a charge of first degree murder.

He argued the preliminary inquiry judge failed to properly analyze exculpatory evidence relating to identification and timeline, and that there was no evidence of planning and deliberation.

The court reviewed the limited role of a preliminary inquiry judge under s. 548(1) of the Criminal Code and the principles from appellate jurisprudence governing circumstantial evidence at the committal stage.

It concluded the preliminary inquiry judge properly considered the whole of the evidence and did not exceed the limited weighing permitted in circumstantial cases.

The evidence, if believed, was capable of supporting inferences of identity and planning and deliberation, making committal appropriate.

Four accused were charged with first degree murder in the death of the victim, who was shot in the chest on November 30, 2013.

One accused conceded committal.

The remaining three accused contested committal.

The Crown's theory was that the accused, motivated by prior animus, planned and deliberately ambushed and murdered the victim with the assistance of an accused who possessed a firearm.

The court examined extensive surveillance video evidence, cell phone records, and witness testimony to determine whether sufficient evidence existed for committal on first degree murder charges.

The court found that the evidence, largely circumstantial, supported inferences that the three accused collectively planned and deliberately executed the murder and committed to the enterprise without resiling from it.