Criminal and Quasi-Criminal Law - SCJ

Devin Langlois was charged with sexual assault and sexual interference involving a 15-year-old complainant (C.S.).

The court found C.S.'s testimony regarding consent unreliable due to inconsistencies, leading to reasonable doubt on the issue of actual consent.

However, the court proceeded to analyze the defence of mistake of age under s. 150.1(4) of the Criminal Code.

Despite the accused's claim of believing C.S. was 18, the court identified numerous "red flags" (e.g., lack of age/schooling information, C.S.'s immaturity, no driver's license) that should have prompted further inquiry.

The court concluded that the accused failed to take all reasonable steps to ascertain C.S.'s age and was therefore reckless or wilfully blind regarding her underage status.

Consequently, the defence of mistake of age was negated, and Mr. Langlois was found guilty of both sexual assault and sexual interference.

Alexander Clarke pleaded guilty to robbery with a firearm, unlawful confinement, and having his face masked with intent to commit an indictable offence.

This was his eighth robbery conviction, committed while on parole for previous robberies.

The Crown sought a long-term offender designation and a 10-year sentence followed by a 10-year long-term supervision order (LTSO).

Defence counsel agreed to the long-term offender designation but sought a 6.5-8 year sentence and a 3-5 year LTSO.

The court found Clarke to be a long-term offender, applying the "step principle" for repeat offenders, and sentenced him to a total of nine years imprisonment (with 56.25 months credit for presentence custody) and an eight-year LTSO.

The court emphasized the need for specific deterrence and public protection, while also acknowledging the offender's efforts at rehabilitation and expressing hope for his future.

The applicant, one of three co-accused charged with murder, brought a pre-trial application to exclude a video recovered from his cellphone.

The video depicted the applicant holding a firearm with a caption containing rap lyrics referencing a shot to the head, which mirrored the victim's cause of death.

The applicant argued the video was irrelevant and its prejudicial effect outweighed its probative value.

The court dismissed the application, finding the video was sufficiently proximate in time to the murder and admissible as a party admission, subject to limiting instructions to the jury regarding out-of-court statements and unconscious racial bias.

The accused pleaded guilty to drug trafficking and firearms offences, including possession of a loaded prohibited firearm.

Prior to sentencing, the court found two Charter violations regarding a wiretap intercept of a solicitor-client call and a breach of the right to counsel upon arrest, but dismissed a challenge to a strip search.

At sentencing, the court weighed the serious aggravating factors of the offences against exceptional mitigating factors, including the accused's complete reformation while on bail, his successful music career, his community service mentoring at-risk youth, and the Charter breaches.

The court concluded that a conditional sentence of two years less a day was appropriate to address denunciation and deterrence while supporting the accused's rehabilitation.

The accused was charged with possession of a firearm and ammunition after police executed a search warrant and found the contraband hidden in a basement where the accused was staying.

At the close of the Crown's case, the defence brought a motion for a directed verdict.

The court found that while there was circumstantial evidence the accused had control of the basement, there was no evidence he had knowledge of the hidden firearm and ammunition.

The motion for a directed verdict was granted and the accused was acquitted of all charges.

This is a sentencing decision for Hesham Aly, who was found guilty by a jury of fraudulent personation with intent to cause disadvantage, contrary to s. 403(1)(c) of the Criminal Code.

Aly, a former social worker, impersonated two former colleagues and disclosed confidential client information from social service agencies to various organizations and media outlets, motivated by revenge after his termination and a human rights complaint.

The court found numerous aggravating factors, including the planned and deliberate nature of the acts, malice, sophistication, significant impact on victims and organizations, breach of trust, and betrayal of professional standards.

Aly absconded before sentencing.

The court sentenced Aly to 4 years imprisonment, emphasizing denunciation and deterrence due to the egregious breach of trust and harm caused to vulnerable persons and community institutions.

The offender was found guilty of possessing a loaded 9mm handgun with an over-capacity magazine in his car, while bound by two weapons prohibitions and trafficking drugs.

The court applied the Kienapple principle to conditionally stay the s. 92(1) charge.

Emphasizing denunciation and deterrence for gun crimes associated with drug trafficking, the court imposed a total sentence of 4 years (minus 10 days) for the firearm and breach offences, consecutive to a prior sentence for the drug offences.

The offender received statutory credit for pre-sentence custody plus 150 days of enhanced credit for harsh conditions due to lockdowns and the COVID-19 pandemic.

The applicant, D.P., sought a review of a detention order for multiple sexual assault charges.

The Crown conceded that the COVID-19 pandemic constituted a material change in circumstances, requiring a de novo review of the detention on secondary and tertiary grounds.

The court found the proposed bail plan, even with electronic monitoring and increased surety, insufficient to address public safety concerns given the nature of the alleged serial sexual assaults and the sureties' inability to supervise.

The court also found that releasing the applicant would erode public confidence in the administration of justice due to the gravity of the offences, the strong Crown case, and the horrifying circumstances, despite the COVID-19 pandemic's impact on detention centers.

The application for review of the detention order was dismissed.

The applicant, who had pled guilty to multiple counts of fraud and received a 360-day sentence, appealed his conviction and sentence.

He brought an application under s. 684 of the Criminal Code for the assignment of counsel for his summary conviction appeal, arguing his guilty plea was uninformed regarding the start date of his sentence.

The court dismissed the application, finding no arguable issue as the sentencing judge had clearly explained the sentence and the applicant, a seasoned offender, raised no concerns.

The court also noted the applicant was capable of representing himself.

A Crown motion to summarily dismiss the appeal was dismissed without prejudice due to lack of notice.

The offender pleaded guilty to second degree murder for shooting his father and subsequently attempting to burn the body.

The Crown sought 15 years of parole ineligibility, while the defence sought 12 years, citing the offender's guilty plea, remorse, and significant rehabilitative efforts while in custody.

The court weighed the aggravating factors, including the domestic nature of the killing and the indignities to the body, against the mitigating factors.

The court sentenced the offender to life imprisonment with no eligibility for parole for 13 years.

The appellant appealed his summary conviction for driving with a blood-alcohol level over 80 mgs.

The trial judge found a breach of the appellant's right to counsel under s. 10(b) of the Charter but admitted the Intoxilyzer results under s. 24(2).

On appeal, the court found the trial judge erred in his s. 24(2) analysis by treating the appellant's acquittal on the companion impaired driving charge as an alternative remedy.

Conducting a fresh s. 24(2) analysis, the appeal court concluded the s. 10(b) breach was minor and had minimal impact on the appellant's Charter-protected interests.

Given the high reliability and importance of the breath samples, the evidence was admissible.

The appeal was dismissed.

The applicant, charged with fraud related to an alleged RRSP stripping scheme, brought a Charter application under ss. 8 and 24(2) to exclude evidence seized from various financial institutions and his residence.

He argued the affiant made intentional misrepresentations and omissions in the Informations to Obtain (ITOs).

The court conducted a Garofoli review and found that, despite some minor errors and one misrepresentation regarding a CRA auditor's opinion, there remained sufficient evidence upon which the issuing justices could have granted the authorizations.

The court also found the applicant had a negligible expectation of privacy in the bank and business records.

The application was dismissed, and the court noted that even if a breach had occurred, the evidence would be admissible under s. 24(2).

Jordan Osborne was charged with first-degree murder.

The Crown sought to admit his video-recorded confession into evidence.

Defence counsel argued the confession was involuntary due to police misrepresentations, implicit threats or promises regarding a reduced charge, and oppressive conditions (a thin jumpsuit).

The court, applying the common law confessions rule from *R. v. Oickle*, found that the police conduct, including statements about the seriousness of the charge and the potential for a lesser charge based on intent, did not constitute an explicit or implicit threat or promise strong enough to overbear the accused's will.

The court also found the jumpsuit did not create oppressive conditions.

The confession was deemed voluntary and admissible.

The applicant sought an adjournment of his criminal trial due to defence counsel's unforeseen injury.

The court granted the adjournment, vacating the June 12, 2017 trial date and rescheduling it for December 11, 2017.

The ruling also provided practice points regarding the proper procedure for adjournment applications under Rule 26, emphasizing the need for a proper record and specific information in affidavits, particularly in light of the R. v. Jordan decision and the SCJ Provincial Practice Direction.

During a murder trial, the Crown sought to admit preliminary hearing testimony of a witness, Mr. Nassirnia, as substantive evidence under the principled exception to the hearsay rule (KGB application).

Mr. Nassirnia could no longer recall incidents he testified about at the preliminary hearing.

Defence counsel objected, arguing the preliminary hearing evidence lacked sufficient reliability due to the witness's apparent lack of genuine recollection, having repeatedly refreshed his memory from a police statement.

The court found that the necessity requirement was met and that sufficient indicia of reliability were present, particularly the oath and opportunity for cross-examination at the preliminary hearing, and the witness's availability for cross-examination at trial.

The court ruled the evidence admissible, with a direction that Crown counsel should first attempt to refresh the witness's memory with his police statement at trial.

The applicant, who had been found guilty of robbery with a firearm and aggravated assault, applied to re-open his trial and declare a mistrial.

The application was based on the Crown's late disclosure of an occurrence report detailing withdrawn drug charges from 2003 against a witness.

The court applied the Palmer test for fresh evidence, as adapted in Kowall for re-opening a defence case.

The court dismissed the application, finding that the defence could have obtained the report with due diligence, the evidence was not relevant to a decisive issue, and it would not have affected the trial's outcome.

The defendant, Marcello Fracassi, was convicted of impaired driving causing death and impaired driving causing bodily harm.

The court considered sentencing principles, including denunciation and general deterrence, and reviewed the evolving sentencing ranges for such offences.

Aggravating factors included the defendant's choice to drink and drive, the fatal and injurious consequences, his high blood alcohol concentration, and prior driving infractions.

Mitigating factors included his first-time offender status, genuine remorse, strong community support, and efforts to address an undiagnosed alcohol addiction.

The court imposed a sentence of six years in the penitentiary, with credit for pre-sentence custody and bail conditions, resulting in a net sentence of 5 years and 6 months, along with a seven-year driving prohibition.

The applicant sought declarations that a regulation prohibiting abusive or insulting language in Niagara Parks infringed his freedom of expression under the Charter, after he was charged for swearing at police officers while holding a profane political sign.

The court held that the regulation was not vague or overbroad, and that given the historical and actual function of the park as a natural and tourist attraction, abusive language was likely not protected speech.

Alternatively, any infringement was justified under section 1 of the Charter.

The application was dismissed in its entirety.

The accused was arrested without a warrant for possession of methamphetamine for the purpose of trafficking based on information provided by a confidential informant.

Following her arrest, she handed over methamphetamine to police.

The accused brought a Charter application to exclude the evidence, arguing the arrest lacked reasonable and probable grounds.

The court dismissed the application, finding the informant's tip was sufficiently reliable and detailed to provide reasonable and probable grounds for the arrest.

The court further held that even if the arrest was unlawful, the evidence would not be excluded under section 24(2) of the Charter.

The accused was charged with conspiracy to commit robbery and multiple firearms offences related to a planned armoured truck robbery.

The accused testified that he believed he was participating in an 'inside job' where no firearms would be used and the guards would cooperate.

The trial judge applied the W.(D.) framework and rejected the accused's testimony as unbelievable, finding it inconsistent with common sense and the circumstantial evidence, including the presence of loaded firearms, disguises, and the lack of identification on the participants.

The court found the accused guilty of conspiracy to commit robbery and the firearms possession charges, but not guilty of altering a firearm's serial number due to lack of evidence.