Criminal and Quasi-Criminal Law - SCJ

The accused, charged with murder as a co-principal in the beating death of a fellow inmate, challenged the constitutional validity of s. 17 of the Criminal Code insofar as it excludes murder from the statutory defence of duress.

He submitted that the court should read down the section to strike the exclusion.

The court noted that common law duress does not apply to a principal charged with murder and that the Court of Appeal in Aravena had indicated, in obiter, that the murder exception in s. 17 must be found unconstitutional.

Nevertheless, the court concluded that Parliament's deliberate choice to maintain the exclusion, most recently reaffirmed in 1983, was justified as a reasonable limit under s. 1 of the Charter, drawing a bright line that a threat of potential harm cannot outweigh the certain taking of a life.

The motion was dismissed.

The applicant was charged with numerous firearm offences, possession of Schedule 1 controlled substances for the purpose of trafficking, and possession of proceeds of crime arising from his arrest and execution of a search warrant at 3-42 Pendeen Avenue in Toronto on March 27, 2023.

The applicant brought a section 8 Charter application challenging the validity of the search warrant.

The court found that the Information to Obtain (ITO), after excision of inaccurate material, did not establish reasonable grounds to believe that evidence of the offences would be located at the target address.

The court concluded that the applicant's Charter rights under section 8 were breached and, applying the Grant balancing test, excluded the evidence seized from the search.

The accused was discharged at a preliminary inquiry on two counts of trafficking in a scheduled substance under the Controlled Drugs and Substances Act.

The Crown subsequently preferred an indictment that included two counts of trafficking in a substance held out to be a scheduled substance, based on the same underlying facts.

The accused brought a motion to quash these counts, arguing they were the same offences for which he had been discharged.

The court agreed, finding that trafficking is a single offence that can be committed in different ways, and therefore the Crown could not prefer an indictment for these charges under section 574 of the Criminal Code.

The application was granted and the counts were quashed.

The offender was convicted of second-degree murder for beating his wife to death with a metal mallet.

The court considered the brutal nature of the offence and the fact that the victim was his intimate partner and caregiver as significant aggravating factors.

The offender's major depressive disorder with psychotic features, his lack of prior criminal record, and his admissions to police were considered mitigating factors.

The court sentenced the offender to life imprisonment with no eligibility for parole for 14 years.

The Crown brought a motion under s. 771 of the Criminal Code for forfeiture of amounts pledged in a release order after the accused failed to appear in court.

The accused and his main sureties had written down the wrong return date, but the accused surrendered four days later.

The court found that while the sureties acted properly in remedying the failure, they did not act with due diligence to prevent it.

Given the serious nature of the original charges, the court ordered a partial forfeiture of $1,000 each from the accused and the two main sureties.

The accused brought two pre-trial motions alleging Charter violations.

The first motion alleged a violation of the right to trial within a reasonable time under s. 11(b).

The court dismissed this motion, finding that after deducting defence delay and discrete exceptional circumstances (including the COVID-19 pandemic and legislative changes to preliminary inquiries), the net delay was below the 30-month ceiling.

The second motion sought to exclude a loaded firearm under s. 24(2) due to admitted violations of ss. 7 and 10(b) during the accused's arrest.

The court dismissed this motion, concluding that the firearm was discovered independently by a civilian witness and was not obtained in a manner that infringed the accused's rights, and that its admission would not bring the administration of justice into disrepute.

The accused was charged with aggravated assault following the hospitalization of his two-month-old son with severe injuries, including multiple bone fractures and brain trauma.

The Crown relied on expert medical evidence to argue the injuries were inflicted by intentional force.

The defence presented competing expert testimony suggesting the injuries could have resulted from a stroke, infection, and metabolic bone disease.

The court found the defence experts raised a reasonable doubt regarding the cause of the injuries and acquitted the accused.

The appellant appealed his summary convictions for sexual assault and sexual interference against a seven-year-old complainant.

The appellant argued the trial judge erred in finding the offences occurred within the six-month limitation period, alleging a failure to resolve reliability concerns with the child's evidence.

The Superior Court of Justice dismissed the appeal, finding the trial judge's credibility and reliability analysis was sufficient and revealed no palpable and overriding error.

The applicant, charged with accessory after the fact to murder and arson, applied for judicial interim release under s. 522 of the Criminal Code.

The Crown alleged the applicant drove the perpetrators to meet the victim, witnessed the kidnapping, and later assisted in burning the victim's vehicle and hiding the perpetrators.

The court found the proposed release plan involving the applicant's brother and sister-in-law as sureties was weak.

The court dismissed the application, finding the applicant failed to discharge his onus on the primary (flight risk), secondary (substantial likelihood of re-offending), and tertiary (confidence in the administration of justice) grounds under s. 515(10).

The Crown appealed the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80mg.

The trial judge had excluded the breathalyzer readings under s. 24(2) of the Charter after finding a breach of the respondent's s. 10(b) right to counsel, as police failed to provide him with a lawyer's directory when he could not reach his counsel of choice.

The Superior Court of Justice found no error in the trial judge's application of the law or the Grant framework and dismissed the appeal.

The offender was convicted of sexually assaulting his intimate partner while she was highly intoxicated and asleep.

The Crown sought a sentence of two years less a day, while the defence sought nine to twelve months.

The court weighed the aggravating factors of breach of trust and profound impact on the victim against the mitigating factors of the offender's youth, lack of criminal record, remorse, and rehabilitative prospects.

The court sentenced the offender to 12 months' imprisonment followed by 24 months of probation, along with DNA and SOIRA orders.

The appellant appealed his conviction on two counts of breaching his bail.

The police arrested the appellant after observing him with an individual they believed was not his surety, contrary to his bail conditions.

The trial judge accepted the officers' evidence that the individual was not the surety, despite a description matching one of the sureties.

The Superior Court of Justice allowed the appeal and ordered a new trial, finding that the trial judge failed to address the apparent conflict in the identification evidence and its impact on the reliability of the officers' testimony.

The offender, a 26-year-old first-time offender, was convicted of unauthorized possession of a loaded prohibited firearm and carrying a concealed weapon after fleeing from police.

The court considered the offender's positive pre-sentence report, lack of criminal record, and motive of self-protection against the aggravating factor of possessing a loaded firearm while fleeing.

Finding the offender's conduct fell between a mere licensing infraction and truly criminal conduct, the court imposed a sentence of 29 months' imprisonment.

The accused faced 22 charges relating to three random attacks on women and a scheme involving fake Craigslist job postings.

The Crown alleged the accused targeted women for kidnapping and sexual assault.

The court found the accused guilty of multiple offences, including robbery, attempt kidnapping, assault with a weapon, unlawful confinement, and attempt sexual assault in relation to the physical attacks, relying heavily on circumstantial evidence, DNA, and the doctrine of recent possession.

However, the court acquitted the accused of attempt kidnapping and attempt sexual assault regarding the Craigslist scheme, finding the acts did not go beyond mere preparation and the specific intent was not proven beyond a reasonable doubt.

The accused, charged with sexual assault, applied for a stay of proceedings under s. 11(b) of the Charter, citing institutional and Crown delay.

The total delay from charge to anticipated end of trial was 27.5 months.

The court deducted three months of delay attributable to bringing the application, resulting in a net delay of 24 months.

As the delay fell below the 30-month ceiling established in Jordan, the onus was on the accused to show the delay was unreasonable.

The court found the accused failed to demonstrate that the case took markedly longer than it reasonably should have, particularly given the transitional tolerance for institutional delay.

The application for a stay was dismissed.

The applicant, Zekrollah Walizadah, sought an order under s. 745.6 of the Criminal Code to reduce his period of parole ineligibility for first-degree murder.

The pre-screening judge applied the "substantial likelihood" threshold, considering the applicant's character, conduct while serving the sentence, the nature of the offence, victim information, and remorse.

Despite positive conduct in custody, the applicant's continued failure to fully accept responsibility for the planned and deliberate nature of the murder and the extreme violence inflicted was a significant negative factor.

The application was dismissed, as the court was not satisfied there was a substantial likelihood that a jury would unanimously agree to reduce the parole ineligibility period.

The applicant sought a second bail review after his initial release was revoked by a Superior Court judge.

The applicant argued the reviewing judge erred in law by giving insufficient weight to the proposed plan of release under the secondary and tertiary grounds for detention, and by denying natural justice.

The court dismissed the application, finding no errors of law or inappropriate weighing of factors by the reviewing judge, who had properly concluded the applicant posed a substantial risk of reoffending and would not abide by any plan of release.

The accused applied to exclude intercepted communications between them from use in a search warrant information, wiretap authorization affidavit, and at trial, arguing the communications were protected by marital privilege under s.4(3) of the Canada Evidence Act.

The court held that marital communications privilege is testimonial in nature and does not prevent the interception of communications or their use in investigative affidavits, though they generally cannot be compelled in court testimony without the recipient spouse’s consent.

The accused further argued that limiting the privilege to legally married spouses violated s.15 of the Charter by excluding common-law partners.

The court found the accused had not established that their relationship was analogous to marriage and therefore they could not benefit from the privilege in any event.

The application to excise the communications was dismissed and the intercepted communications were held admissible.

The accused was charged with possession and making available child pornography after police found illicit images on his computer, which was running the LimeWire peer-to-peer file sharing program.

The accused pled guilty to possession but contested the making available charges, arguing he lacked the requisite mens rea.

The court found that the accused had limited technical knowledge, did not know deleted images were saved, and took active steps to prevent file sharing once he learned of the risk.

The court rejected the Crown's argument of wilful blindness and acquitted the accused of making available child pornography.

The Crown sought to admit a statement made by the accused during a polygraph interview.

The accused argued the statement was involuntary because the police officer used unsettling questions and failed to inform him that he had passed the polygraph test before continuing the interrogation.

The court applied the Oickle framework and found that the accused had an operating mind, was not subjected to threats or inducements, and understood his rights to leave or contact counsel.

The statement was ruled voluntary and admissible.