Sandra Kimberg

The Court of Appeal for Ontario considered whether the right to counsel under section 10(b) of the Charter requires police to provide a detainee with a renewed opportunity to consult counsel before a strip search incident to arrest.

The Court held that, given the highly invasive nature of strip searches, the right to reconsult is necessary to fulfill the purpose of section 10(b).

The Court found two additional Charter breaches: a 20-minute delay in informing the appellant of his right to counsel, and the failure to provide an opportunity to reconsult before the strip search.

However, after a fresh section 24(2) analysis, the Court concluded that the evidence was properly admitted and dismissed the appeal.

The Court of Appeal for Ontario allowed the Crown's appeal from acquittals on charges of sexual assault and forcible confinement, finding that the trial judge erred in law by failing to consider similar act evidence holistically.

The trial judge focused on minor dissimilarities between witness accounts rather than the striking similarities, which deprived the Crown of critical identification evidence.

The Court ordered a new trial.

This endorsement concerns a detention review hearing under section 525 of the Criminal Code for the accused, Loic Aurel Simeu, who sought release on bail pending the completion of his sentencing.

The court declined to release Mr. Simeu, finding his continued detention justified under section 515(10) CCC.

The decision was based on three factors: an unsatisfactory bail plan due to insufficient information about the proposed surety, the availability of alternative measures to address health and safety concerns in custody (e.g., transfer to another facility), and the assessment that there was no risk of the accused serving more pre-sentence custody than a fit sentence would entail, considering potential maximum credit and 'Duncan credit' for harsh conditions.

The appellant appealed convictions for drug and proceeds of crime charges, alleging ineffective assistance of trial counsel regarding a s. 8 Charter application challenging the validity of a search warrant.

The appeal focused on counsel's failure to challenge the accuracy of GPS tracking data relied upon by police and counsel's agreement to allow the Crown to introduce amplification evidence from the affiant.

The Court of Appeal dismissed the appeal, finding no prejudice from counsel's tactical decisions and upholding the trial judge's conclusion that there were sufficient grounds for the search warrant.

The defendant, Mikal Richards, brought a s. 11(b) Charter application seeking a stay of proceedings due to unreasonable delay.

The total delay was 15 months and 26 days for a 5-day in-custody trial, which is below the 18-month presumptive ceiling established in R. v. Jordan.

The court found that the defence did not demonstrate sustained efforts to expedite the proceedings, citing repeated postponements of the bail hearing and delays in scheduling judicial pre-trials.

While acknowledging the Crown's unreasonable delay in disclosure, particularly the ITO, the court concluded that the case did not take "markedly longer than it reasonably should have" when viewed holistically, considering the actions of both parties and local conditions.

The application for a stay of proceedings was dismissed.

The applicant, Andrew Rocha, sought a stay of proceedings for charges of possession of cocaine for trafficking and possession of proceeds of crime, alleging police stole money and drugs during a search warrant execution, violating his s. 7 Charter rights.

The court found approximately $6000 of seized cash was missing and inferred it was taken by police officers involved in the investigation.

This misconduct was deemed an abuse of state power and a breach of s. 7 of the Canadian Charter of Rights and Freedoms.

Given the egregious nature of the police misconduct and the lack of an adequate alternative remedy, the court granted a stay of proceedings to dissociate the justice system from the impugned conduct, despite the strong societal interest in a trial on the merits.

The applicant, charged with drug-related offences, brought an application for a stay of proceedings, arguing his right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The total delay was 47 months.

The court deducted 15.5 months of defence delay and 9.3 months of exceptional circumstances delay due to the COVID-19 pandemic.

The net delay fell below the 30-month presumptive ceiling.

The application was dismissed.

The applicant sought a review of a detention order under s. 520(1) of the Criminal Code.

He faced numerous charges including human trafficking, procuring, and breaching court orders.

The court found no errors of law in the justice of the peace's initial detention order.

Although a material change in circumstances warranted a de novo review, the court concluded the applicant failed to meet his reverse onus.

Detention was deemed necessary on the secondary ground due to a substantial likelihood of reoffending, given his history of breaching orders and lack of credibility, and on the tertiary ground due to the gravity of the offences and strength of the Crown's case.

The applicant, Ernest Gyamfy, brought a Section 11(b) Charter application seeking a stay of proceedings due to unreasonable delay.

The total delay from charge to anticipated end of trial was 701 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court deducted 59 days for defence delay related to retaining counsel but found no other defence delay.

The Crown argued for deductions based on Covid-19 and case complexity as exceptional circumstances.

The court found that Covid-19 did not cause any actual delay in this specific case, nor was the case particularly complex.

The court also noted that the Crown could have remedied the delay caused by the co-accused's inaction by severing the accused.

As the Crown failed to rebut the presumption of unreasonable delay, the court found a breach of the applicant's Section 11(b) rights and stayed the charges.

The defence sought to quash search warrants for a vehicle and two residences, alleging police subversion of the pre-authorization process and insufficient evidence in the Information to Obtain (ITO) after excising inaccuracies.

The court found that the affiant's statements regarding tracking data and landlord information were misleading and inaccurate, leading to a Section 8 Charter breach concerning the search of one residence (350 Church Street).

However, the court did not find deliberate intent to mislead sufficient to quash all warrants for subversion of the process.

The warrants for the Sandison Street address and the vehicle remained valid.

The offender pleaded guilty to trafficking in over one kilogram of cocaine.

Sentencing was delayed for eight months on compassionate grounds to allow the offender to care for his terminally ill mother.

The Crown sought a four-year sentence, while the defence sought three years based on the principle of restraint and the offender's lack of a recent criminal record.

The court weighed the significant quantity of drugs and commercial nature of the enterprise against the offender's guilty plea, remorse, and strong rehabilitation prospects.

The court imposed a sentence of four years imprisonment, finding it appropriate and below the usual range for such offences.

The defence brought an application challenging the facial validity of a tracking warrant and multiple search warrants, alleging a breach of the Applicant's Section 8 Charter rights and seeking exclusion of seized evidence under Section 24(2).

In the alternative, the Applicant sought leave to cross-examine the affiant.

The court dismissed the application challenging the warrants' facial validity, finding that the Information to Obtain (ITO) provided sufficient credible and reliable evidence for the issuing justice to find reasonable and probable grounds.

The court applied the R. v. Debot factors for assessing confidential informant information, concluding the information was credible, compelling, and sufficiently corroborated.

While the warrants were upheld, the court granted leave to cross-examine the affiant on several specific areas, applying the R. v. Garofoli test, to ensure the Applicant could make full answer and defence.

The applicant, Shaji Bashir Ahmad, sought a stay of proceedings under s. 24(1) of the Charter, alleging a breach of his s. 11(b) right to be tried within a reasonable time.

The total delay from arrest to the anticipated end of trial was 46 months, exceeding the 30-month Jordan ceiling.

The Crown argued that defence delay accounted for the excess, while the defence contended the delay was due to the Crown's late and incomplete disclosure of cell phone search warrants, ITOs, and extracted data.

The court found that the defence's waivers of delay were uninformed due to the Crown's disclosure failures, which included police oversight in not informing the Crown of the warrants and the Crown's erroneous assertion that the data was unreadable.

The court attributed significant portions of the delay to the Crown and found that the Crown failed to rebut the presumption of unreasonable delay.

The application for a stay of proceedings was granted.

The defendant, Jia Qiong Shen, faced charges of impaired operation and operation over 80.

The court addressed several admissibility issues, including a Charter s. 8 challenge to a key fob found on the defendant, a s. 9 challenge to the lawfulness of her arrest, and ss. 10(a) and (b) challenges to the admissibility of breath test results.

Additionally, the voluntariness of post-breath test utterances was contested.

The court found the arrest lawful and the key fob admissible.

While the Crown conceded ss. 10(a) and (b) breaches due to delays in providing rights in Mandarin, the court admitted the breath test results under a s. 24(2) analysis, deeming the breaches moderate and the evidence reliable and essential.

However, the post-test utterances were excluded as the Crown failed to prove their voluntariness beyond a reasonable doubt.

Ultimately, the court found the defendant guilty of both impaired operation and operation over 80 based on circumstantial evidence and the admitted breath test results.

The Attorney General of Ontario brought an application for a preservation order under the Civil Remedies Act, 2001, seeking to preserve $91,072 in Canadian currency and $510 in US currency seized from a suspected illegal gaming house.

The court found reasonable grounds to believe the currency constituted proceeds and/or instruments of unlawful activity, including operating a gaming house and firearm offenses.

The application was granted, and the seized funds were ordered to be preserved in an interest-bearing account until the final disposition of the application.

The Crown sought to admit four statements from a deceased witness (J.T.) at a preliminary hearing under s. 540(7) of the Criminal Code.

The court applied the "prima facie air of reliability" test to determine admissibility.

It found the portions of J.T.'s statements related to the kidnapping credible and trustworthy due to corroborating evidence, despite procedural deficiencies in statement-taking.

However, the portions related to drug possession and the identification of "Z" were deemed unreliable and were excised, as J.T.'s account was inconsistent and self-serving regarding her involvement with drugs.

The court affirmed its power to excise unreliable portions of a statement.

The applicants, awaiting extradition hearings, challenged the constitutionality of sections 2(2) and 3(2) of the Department of Justice Act as applied to the Extradition Act.

They argued that vesting the distinct roles of Minister of Justice and Attorney General in a single elected individual violates section 7 of the Charter by creating an apprehension of bias.

The court dismissed the applications, finding that it was bound by the Supreme Court of Canada's decision in Idziak, which held that the distinct phases of the extradition process permit the Minister to perform both roles without violating the principles of fundamental justice.

The accused was charged with sexual assault.

The complainant alleged sexual assault by the accused and a co-accused in a parking lot, supported by the co-accused's testimony, video surveillance, and taxi drivers' accounts.

The accused denied the assault, claiming he only assisted the co-accused.

The court found the accused guilty beyond a reasonable doubt, rejecting his denial and accepting the complainant's and co-accused's evidence, corroborated by video and other circumstantial evidence.