Criminal and Quasi-Criminal Law - SCJ

The Crown applied for permission to introduce similar fact evidence in a case involving six charges of sexual touching and extortion of a nude photograph.

The Crown sought to introduce evidence that the defendant attempted to obtain a nude photograph from the complainant's friend (extrinsic similar fact evidence) and to have evidence relating to the photograph charges admitted in support of the sexual touching charges (cross-count similar fact evidence).

The court granted the extrinsic similar fact evidence application but denied the cross-count similar fact evidence application, finding insufficient probative value in the latter.

The accused was charged with sexually touching a child on three or four occasions when she was approximately 11 years old.

The Crown alleged that the accused touched the complainant's breasts, buttocks, and vagina under her clothing while she was intoxicated at a firepit and subsequently in the basement and bedroom of the family home.

The accused denied all allegations.

The trial judge found both witnesses credible but identified significant implausibilities in the complainant's evidence, including that she would not be wearing underwear at age 11 and that each alleged incident would follow an identical pattern.

Finding these implausibilities created a reasonable doubt, the court acquitted the accused on both charges.

The appellant, Fouad Barkouk, appealed his conviction for sexual assault arising from his conduct as a driving instructor.

The appeal was allowed due to a material misapprehension of evidence by the trial judge, specifically regarding whether the appellant admitted to touching the complainant’s leg.

The court found that this error was significant in the trial judge’s reasoning and remanded the matter for further proceedings.

Sentencing of two offenders convicted of multiple drug trafficking and firearms offences.

Jason Wisdom, a mature recidivist, was convicted of possessing large quantities of fentanyl, cocaine, and methamphetamine, as well as a loaded restricted firearm and breaching prohibition orders.

He was sentenced to a total of 17 years imprisonment.

Dae-Shawn Wisdom, a younger recidivist, was convicted of possessing fentanyl, cocaine, and methamphetamine for the purpose of trafficking, and was sentenced to 7 years and 4 months consecutive to a sentence he was already serving.

The court applied the totality principle and Lord Coke's principle regarding subsequent convictions.

The applicant brought an application for a stay of proceedings, arguing his s. 11(b) Charter right to be tried within a reasonable time was infringed.

The total delay from charge to the anticipated end of trial was 47 months.

After deducting defence-caused delay and delay attributable to the COVID-19 pandemic, which the court recognized as a discrete exceptional circumstance, the net delay was calculated at 26 months.

As this fell below the 30-month presumptive ceiling for superior court cases, and the defence failed to show a sustained effort to expedite the proceedings, the application was dismissed.

The accused, charged with second-degree murder, applied to be seated outside the prisoner's dock during jury selection and trial.

He argued that sitting in the dock would reflect negatively on the presumption of innocence and impede interaction with counsel.

The court dismissed the application, holding that the seating of the accused is within the trial judge's discretion and that the customary position in the dock does not violate Charter rights or undermine the presumption of innocence.

The accused, Ghyslain Hebert, was charged with sexual assault.

The central issue was consent to sexual intercourse with the complainant, R.B. The court found the complainant's evidence credible, noting the accused's "boundary issues" and the complainant's actions being driven by fear rather than consent.

The defense of honest but mistaken belief in consent was rejected as the accused's actions (tearing clothing, telling the complainant to "shut up") were inconsistent with a reasonable belief in consent.

The Crown proved both the physical and mental elements of the offence beyond a reasonable doubt, leading to a finding of guilty.

The appellant appealed his convictions for sexual assault and sexual interference involving a 14-year-old complainant.

He argued the trial judge misapprehended the evidence of a witness regarding the complainant's post-offence conduct and failed to apply the rule against multiple convictions.

The Superior Court of Justice agreed that the sexual assault count should be stayed under the Kienapple principle.

However, the court dismissed the appeal against conviction, finding the trial judge adequately assessed the credibility of the witnesses and made no reversible error.

The duration of the Sex Offender Information Registration Act order was reduced from life to ten years.

The Crown sought a ruling on the voluntariness and admissibility of a videotaped statement made by the accused, Mathew Hayes, in a first-degree murder trial.

The defence argued the statement was involuntary due to oppressive circumstances and police trickery, including alleged threats regarding the accused's girlfriend, use of an intimidating term ("goof"), a story undermining confidence in lawyers, a "non-confrontational" comment, a statement about not incriminating oneself, and the prolonged interview length despite attempts to end it.

The court found that none of the defence's concerns, individually or collectively, raised a reasonable doubt about the statement's voluntariness.

The statement, which contained denials contradicting video evidence, was deemed admissible as post-offence conduct.

In this pre-trial application, the defence sought leave to introduce evidence of alternate suspects in a murder trial.

The court granted the defence's request to introduce evidence regarding Vanessa Tracey, finding a sufficient connection between her and the victim's death to establish an "air of reality" for the defence.

However, the court dismissed the application concerning Roger Busch and Laura Heavens, concluding that the evidence presented for them was insufficient to create the necessary connection to the crime and would lead to impermissible speculation by the jury.

The Crown brought a pre-trial application to introduce evidence of the accused's post-offence conduct, specifically an alleged threat to set his pregnant girlfriend on fire, as evidence of consciousness of guilt and to explain the girlfriend's delay in reporting a confession.

The court found that the evidence lacked probative value, as the inferences sought by the Crown (consciousness of guilt or intimidation) were not logically supported by the facts presented.

The court noted there was no evidence linking the alleged threat to the confession or to the girlfriend's silence.

Furthermore, even if the evidence had some probative value, its highly prejudicial effect, given the nature of the alleged threat, vastly outweighed its evidential worth.

The Crown's application was dismissed.

The accused was charged with robbery and being masked with intent to commit robbery following a home invasion by three masked men.

The Crown's primary evidence was the testimony of the accused's former girlfriend, who stated he confessed to the crime hours after it occurred.

The court found the girlfriend's testimony credible and corroborated by circumstantial evidence, including stolen property found at a co-perpetrator's residence and a prior minor altercation with the victim's friend.

The accused was found guilty on both counts.

Sentencing decision for leaving the scene of an accident causing death under s. 252(1.3)(b) of the Criminal Code.

The offender struck a pedestrian who was jogging in the roadway and immediately fled the scene without providing assistance, later falsely claiming he had hit a deer.

The court emphasized denunciation and general deterrence as paramount sentencing principles for hit-and-run offences, particularly where the driver leaves an injured person without determining whether assistance is required.

Although the offender pleaded guilty, expressed remorse, and had a minimal criminal record, the court held that a custodial sentence was necessary.

A five‑month custodial sentence followed by two years’ probation with community service was imposed.

Sentencing for possession of a small quantity of crack cocaine after the accused was acquitted of several firearms and assault police charges.

The court considered the proportionality principle under ss. 718 and 718.1 of the Criminal Code and weighed aggravating factors including the harmful nature of crack cocaine and the admitted intention to sell the drug.

Mitigating factors included the accused’s youth, lack of criminal record, family support, strict compliance with bail conditions, and time spent in pre-trial custody on related matters.

Applying the criteria for a discharge under s. 730(1), the court concluded that avoiding a conviction would be in the accused’s interest and not contrary to the public interest.

A conditional discharge with one year of probation and abstention from controlled substances was imposed.

The accused was tried for three counts of robbery using a firearm and one count of breach of probation arising from a home invasion robbery.

The evidence established that the accused and an accomplice attended the victims’ apartment intending to steal property and assault the occupant, while another participant wielded a sawed‑off shotgun.

The court rejected the accused’s claim that he was unaware of the firearm and accepted evidence from multiple witnesses that the firearm had been displayed and discussed beforehand.

Applying party liability under s. 21 of the Criminal Code, the court held that the accused knowingly participated in a common plan to commit a robbery in which a firearm would be used.

The accused was therefore convicted of three counts of robbery with a firearm and breach of probation.

The accused was tried on multiple counts of sexual assault, sexual interference with a person under sixteen, assault causing bodily harm, and common assault arising from a two‑year relationship with a complainant who was between 12 and 14 years old.

The Crown relied primarily on the complainant’s testimony supported by circumstantial evidence from family members, caseworkers, photographs, and other witnesses describing the accused’s possessive and violent conduct.

The defence argued the complainant fabricated the allegations and attacked her credibility based on inconsistencies in prior statements.

The court found the inconsistencies were explainable and did not undermine the overall credibility of the complainant.

The court concluded the Crown proved all essential elements of the offences beyond a reasonable doubt and entered convictions on all counts.

The accused, charged with multiple offences under the Controlled Drugs and Substances Act for possession of heroin, methamphetamine, cocaine, and hydromorphone for the purpose of trafficking, brought a Charter application seeking exclusion of drug evidence discovered while he was detained in a police “dry cell.” Police had obtained a general warrant under s. 487.01 of the Criminal Code authorizing detention until the accused passed drugs concealed in his anal cavity.

The accused argued that the warrant and the delay in bringing him before a justice violated ss. 7, 8, and 9 of the Charter and s. 503 of the Criminal Code.

The court held the warrant was valid and that the “dry cell” detention constituted the least intrusive method available to recover the drugs given the accused’s concealment method.

Even if Charter breaches occurred, the court concluded the evidence would not be excluded under s. 24(2) given the seriousness of the offences and police good faith.

The appellant appealed a conviction for operating a motor vehicle with blood-alcohol concentration exceeding 80 mg and the resulting sentence.

He argued that the trial judge erred in dismissing a Charter application alleging arbitrary detention and unreasonable search and seizure under ss. 8 and 9, asserting the police lacked reasonable grounds to arrest and demand breath samples.

The court held that the totality of circumstances—including poor driving, odour of alcohol, admission of drinking, unsteadiness, and officer observations—provided objectively reasonable grounds.

The court also concluded that even if Charter breaches occurred, the breathalyzer results would have been admissible under s. 24(2).

The conviction appeal was dismissed, but the sentence appeal was allowed in part by reducing the ignition interlock ineligibility period from 12 months to six months.

The accused brought a pre‑trial motion seeking exclusion of physical evidence under s. 24(2) of the Charter, arguing it was obtained through searches authorized by a defective general warrant.

The court found the information to obtain the warrant contained irrelevant discreditable conduct, misleading and incomplete information, and unsupported assertions about the accused’s presence near the crime scene, resulting in a breach of s. 8 of the Charter.

Because the CDSA warrant was based on information gathered through execution of the invalid general warrant, it also violated the accused’s s. 8 rights.

Applying the framework from R. v. Grant, the court held that although the Charter breach was serious and intruded upon residential privacy, the police conduct was not deliberate and the evidence was reliable and important to the prosecution.

Balancing these factors, the court declined to exclude the evidence.

In a pretrial motion in a prosecution for attempted murder, the Crown sought to admit several pieces of correspondence involving the accused and officials of a school board where he had been employed as a teacher.

The Crown argued the documents demonstrated animus and motive toward the alleged victim, a school board director.

The defence argued the letters constituted discreditable conduct evidence whose prejudicial effect outweighed any probative value.

The court reviewed the governing principles for admissibility of discreditable conduct evidence, including the balancing of probative value against prejudicial effect and the relevance of motive evidence.

The court concluded the letters were admissible because they were relevant to the accused’s state of mind and motive, and their probative value outweighed any prejudicial impact.