Sara Little

The Crown brought a motion to bifurcate its sentence appeal from the respondent's conviction appeal.

The respondent had been convicted of sexual assault of a child and sentenced to a conditional sentence of two years less a day.

The Crown sought leave to appeal the sentence as demonstrably unfit and argued that if the appeals were heard together, the delay would render the sentence appeal redundant, as the respondent would have served a significant portion of the conditional sentence by the hearing date.

The motion judge accepted the Crown's submission, finding that the anticipated delay constituted a compelling reason for bifurcation and that the issues on the two appeals were discrete.

The motion was granted.

This is an appeal from conviction and sentence.

The appellant challenged the dismissal of his s. 11(b) Charter application, arguing the trial judge erred in characterizing a 60-day period as an exceptional COVID-19 delay without evidence and in double-counting a 7-day defence delay.

The Court of Appeal dismissed both arguments, affirming the trial judge's consideration of local circumstances for the COVID-19 delay and finding no double-counting.

The appellant also sought leave to appeal his 6-month custodial sentence, requesting a conditional sentence.

Leave was granted, but the sentence appeal was dismissed, as the Court found no error in principle or unfitness.

The appellant, a permanent resident, pleaded guilty to failing to remain at the scene of a fatal accident and received an 18-month imprisonment sentence, which subjected him to deportation without the right to appeal on humanitarian or compassionate grounds.

He appealed his conviction, arguing his plea was uninformed about these collateral immigration consequences and that his right to be present during his trial was violated when the trial judge conducted a post-plea inquiry with his counsel in his absence.

The Court of Appeal allowed the conviction appeal, finding a miscarriage of justice due to the appellant's improper exclusion from proceedings where his vital interests were discussed and misleading representations were made by his counsel regarding his understanding of immigration consequences.

A new trial was ordered.

The accused, Shabbir Dossa, brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been breached.

The total delay from the swearing of the Information to the anticipated end of trial was 24 months and 17 days, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The Crown argued that portions of the delay were attributable to the defence or constituted exceptional circumstances (discrete events or case complexity).

The court found no delay attributable to the defence and no exceptional circumstances.

The primary reason for the delay was the Crown's unacceptable and unexplainable delay in providing meaningful disclosure, particularly the accident reconstructionist report and ITOs.

Consequently, the court found a breach of the accused's 11(b) right and ordered a stay of proceedings.

The accused, charged with multiple counts including impaired operation and refusing to provide a breath sample causing death and bodily harm, brought a pre-trial application seeking to quash, amend, or sever the refusal counts.

The court dismissed the request to quash the counts based on issue estoppel and rejected the argument that the Crown was limited to a single refusal count under s. 320.15(4) of the Criminal Code.

However, the court granted the application to sever the refusal counts from the impaired and dangerous operation counts, finding that the interests of justice favoured severance to allow the accused to testify on the refusal counts without prejudice to the remaining charges.

The defendant, Gianmarco Di Luciano, on trial for dangerous and impaired operation of a motor vehicle causing bodily harm and death, applied for a directed verdict on the counts alleging bodily harm to two victims.

The Crown's case was in, and the defence argued that the evidence of soft tissue injuries and psychological sequelae was insufficient to establish 'bodily harm' as defined in the Criminal Code, and that objective foreseeability of injury was required.

The court dismissed the motion, finding that objective foreseeability of bodily harm is not an essential element for dangerous or impaired driving causing bodily harm offences, citing R. v. Creighton and R. v. K.L. While agreeing with the Crown that psychological injuries would not be considered for this ruling, the court found sufficient evidence from the victims' self-reports of physical injuries to allow the jury to consider the bodily harm counts.

The accused was charged with impaired operation causing death and refusing to provide a breath sample following a serious motor vehicle collision.

He brought pre-trial applications alleging multiple Charter breaches and seeking to exclude evidence of his refusals to provide breath samples and data seized from his vehicle's Airbag Control Module.

The court found breaches of s. 8 (unlawful roadside breath demand), s. 9 (unjustified continued detention), and s. 10(b) (failure to hold off questioning).

Applying s. 24(2) of the Charter, the court excluded the accused's refusals at the roadside and in the booking area.

However, the court found that a subsequent demand by a breath technician constituted a 'fresh start' and admitted the final refusal.

The application to quash the search warrant for the vehicle data was dismissed.

The defendant, Zhu Xi Shen, applied for judicial interim release following his conviction for sexual assault, after his initial bail was vacated due to flight risk concerns.

The application was based on a material change in circumstances, including a new release plan with an additional residential surety, a significant increase in the pledged bail amount, and the proposed use of ankle monitoring.

The defendant also intended to bring a Charter application to reopen the trial.

The court dismissed the application, finding that despite the enhanced release plan, the defendant remained a significant flight risk due to the serious nature of the offence, the lengthy sentence sought by the Crown, his means to abscond, and the limitations of electronic monitoring in preventing flight.

The appellant was convicted of fraud over $5,000 and possession of proceeds of crime over $5,000.

He appealed his conviction and sought leave to appeal his sentence.

The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial.

The court found that the trial judge's central credibility finding against the appellant was tainted by two errors: procedural unfairness, as it was based on an issue not raised by the Crown in submissions or cross-examination, and a material misapprehension of evidence, specifically failing to consider that the appellant and a key defence witness were legally prohibited from communicating.

These errors resulted in a miscarriage of justice, precluding the application of the curative proviso.

The accused, Tuan Bui, applied for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms due to unreasonable delay.

The total delay was 20 months and 14 days (622 days), exceeding the 18-month presumptive ceiling established in R. v. Jordan.

The court found a significant, unexplained 15-month delay in disclosure by the Crown, which was not excused by the COVID-19 pandemic or the alleged complexity of the case.

The court also determined that periods of defence unavailability did not cause the delay.

Consequently, the charges against the accused were stayed.