Criminal and Quasi-Criminal Law - SCJ

The Crown appealed a conditional discharge sentence imposed on the respondent for distributing intimate images and breach of a release order.

The Crown argued the sentencing judge erred by imposing a probation order akin to a conditional sentence, failing to adequately address denunciation and deterrence, and concluding the discharge was not contrary to public interest.

The appeal court dismissed the appeal, finding the sentencing judge did not err in principle or impose an unfit sentence, emphasizing the individualized nature of sentencing and the deference owed to the sentencing judge's discretion.

A jury found the accused guilty of child luring and making sexually explicit material available to a child, involving communications with an undercover police officer posing as a 15-year-old girl.

The court considered the circumstances of the offences, the accused's background (first offender, difficult childhood, mental health issues, low risk to reoffend, significant collateral consequences), and the parties' sentencing positions.

The Crown sought 30 months imprisonment, while the defence sought a conditional sentence or 14 months.

The court rejected the Crown's proposed sentencing range of three to five years for these offences, aligning with the view that a new range has not yet been definitively established post-Friesen.

It also found that a conditional sentence was not appropriate given the gravity of the offences and the need for denunciation and deterrence, despite mitigating factors.

The accused was tried for second-degree murder after stabbing her son while under the influence of crack cocaine.

The defence sought to have the defence of non-mental disorder automatism left with the jury, arguing the accused was in a state of drug-induced psychosis.

The trial judge ruled there was no air of reality to the defence, as the defence's own psychiatric expert testified the accused likely had control over her actions and understood their lethality.

The defence was not put to the jury, and the accused was convicted.

The Crown sought to introduce evidence of the accused's post-offence travel to Bermuda as circumstantial evidence in a trial for exporting fentanyl.

The accused objected, arguing the evidence was more prejudicial than probative and invited moral prejudice based on religion and economic status.

The court found the travel records relevant as part of a matrix of circumstantial evidence connecting the accused to the offence.

The court dismissed the accused's arguments regarding prejudice, concluding that the probative value of the evidence outweighed any minimal prejudicial effect, and ruled the evidence admissible.

The appellant appealed his summary conviction for operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued the trial judge erred in finding the breath samples were taken 'as soon as practicable' and improperly took judicial notice of police procedures regarding meetings between arresting officers and breathalyzer technicians.

The Superior Court of Justice dismissed the appeal, finding the trial judge correctly applied the law, properly took tacit judicial notice based on common experience, and reasonably concluded the police acted with reasonable promptness.

The defendant, charged with fraudulent personation following data breaches at his former employer, brought an application alleging a breach of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The court calculated the total delay from the date the information was sworn and deducted periods of defence delay, including time spent pursuing resolution discussions and delays in obtaining instructions.

The net delay was found to be 28 months and 6 days, which is below the 30-month presumptive ceiling for superior courts.

The defendant failed to establish that the delay was unreasonable, and the application was dismissed.

The court also noted in obiter that the COVID-19 pandemic would constitute exceptional circumstances justifying delay.

The appellant appealed the trial judge's dismissal of his application for a stay of proceedings under s. 11(b) of the Charter.

The appellant argued that a period of delay caused by missing video disclosure should not have been attributed to the defence.

The Superior Court of Justice found no error in the trial judge's conclusion that defence counsel failed to exercise due diligence by not reviewing the disclosure until the eve of trial.

The appeal was dismissed as the net delay fell well within the Jordan ceiling.

The accused was charged with extortion and firearms offences.

Due to the COVID-19 pandemic, his jury trial was suspended, resulting in a delay beyond the 30-month ceiling.

The accused brought a s. 11(b) Charter application, arguing that the suspension of jury trials was an unconstitutional overreaction to the pandemic and seeking to call expert medical evidence to challenge the lockdown measures.

The Crown brought an application to summarily dismiss the accused's motion.

The court granted the Crown's application, finding that the Chief Justice's decision to suspend jury trials was an exceptional circumstance under the Jordan framework, regardless of whether it was the correct public health response, and that the accused's motion had no reasonable prospect of success.

The appellant, a driving instructor, appealed his conviction for sexual assault following a guilty plea, arguing the plea was not voluntary or unequivocal because he did not understand the charges due to language difficulties.

The court heard fresh evidence from the appellant, his friend who acted as an interpreter, and his former trial counsel.

The court rejected the appellant's evidence, finding that he understood the allegations and the consequences of his plea, and that his plea was both voluntary and unequivocal.

The appeal was dismissed.

The accused was charged with fraud over $5,000 after borrowing over $1.5 million from various acquaintances, ostensibly for short-term mortgage loans, and subsequently declaring bankruptcy.

The Crown alleged the accused deceived the lenders and gambled the funds away.

The Superior Court of Justice acquitted the accused, finding that while he likely took advantage of the lenders and had a gambling problem, the Crown failed to prove beyond a reasonable doubt that the specific funds borrowed were gambled away or used for purposes other than what was represented.

The Crown brought a pre-trial application to determine the voluntariness of video-recorded statements made by the accused during a police interview.

The accused argued the statements were involuntary, primarily asserting he lacked an operating mind due to prior drug use and mental health issues, and that police failed to provide a standard primary caution before the interview.

The court applied the confessions rule framework, finding no evidence of threats, promises, oppression, or police trickery.

The court concluded the accused possessed an operating mind, as he demonstrated cognitive ability, knew he was speaking to a police officer, and understood the potential consequences of his statements, having received cautions earlier and spoken to counsel.

The statements were ruled voluntary and admissible.

The applicant brought an application for certiorari raising multiple complaints regarding his prior drug convictions, including alleged disclosure failures, abuse of process, and delay under s. 11(b) of the Charter.

He also sought to review the denial of a private prosecution and the quashing of related subpoenas.

The Superior Court dismissed the application, holding that it lacked jurisdiction to review an earlier conviction made in the same court, noting that such matters must be directed to the Court of Appeal.

The court further found that the private prosecution issues were procedurally defective and brought in the wrong venue.

The Crown brought an application to remove Susan von Achten as solicitor of record for Mladen (Michael) Ivezic, who is jointly charged with first-degree murder alongside Demitry Papasotiriou-Lanteigne.

Ms. von Achten had previously provided legal assistance to Mr. Papasotiriou-Lanteigne in a civil claim related to the matrimonial home and a police complaint, while also acting for Mr. Ivezic in the murder prosecution.

The court found a realistic prospect of conflict of interest due to the dual representation and the inevitable overlap between the civil and criminal proceedings.

Despite waivers from both accused, the court determined that Ms. von Achten could not satisfy the difficult burden of rebutting the presumption of confidential information being imparted.

The court emphasized that the potential for conflict, including the possibility of cross-examining a former client, undermined public confidence in the administration of justice.

The application to remove counsel was granted.

During jury selection, the self-represented accused sought to challenge prospective jurors for cause based on pretrial publicity and racial bias.

On his own motion, the trial judge ordered that prospective jurors and sworn jurors (after completing their duties as triers) be excluded from the courtroom during the challenge for cause process.

The court held that exclusion was necessary to prevent exposure to prejudicial information, limit the impact of the accused's disruptive remarks, and effectively manage court resources.

The applicant, charged with three counts of first degree murder relating to her former husband and his parents, applied for judicial interim release.

The Crown opposed the application, arguing the applicant posed a flight risk, a threat to the administration of justice, and that her release would undermine public confidence.

The court reviewed the strong circumstantial case against the applicant, her history of breaching court orders, and the proposed plan of supervision involving electronic monitoring.

The court concluded that the applicant failed to show cause for release on the primary, secondary, and tertiary grounds, and dismissed the bail application.

The accused was charged with two counts of robbery involving two separate taxi drivers on consecutive nights.

In both incidents, two men entered the taxi, directed the driver to a location, and then robbed the driver using a weapon while demanding cash, cell phones, and keys.

The Crown relied on the consistent testimony of the taxi drivers, onboard CCTV camera images, and a palm print found on one of the vehicles.

The court found the evidence of identity and participation compelling, rejecting the defence's arguments regarding the reliability of the CCTV images and the victims' observations.

The accused was found guilty as a party to both robberies.

On a pre-trial application in a criminal jury matter, the accused sought permission to remain seated at counsel table or, alternatively, directly behind defence counsel rather than in the defendant’s box.

The court held that although the customary position of an accused is in the dock and the Criminal Code is silent on courtroom seating, the trial judge retains discretion to depart from that practice.

In the particular courtroom, the glass-enclosed design of the defendant’s box carried a stigma that could reasonably influence the jury and also impeded counsel-client communication.

The application was granted in part, and the accused was permitted to sit behind defence counsel for the duration of the trial unless otherwise ordered.

The accused was sentenced following jury convictions for assault causing bodily harm and two counts of forcible confinement, along with a guilty plea to assault.

The offences arose from a vigilante-style attack in which the accused and several associates forcibly removed two individuals from a nightclub and violently assaulted them in an alley after suspecting them of vandalizing a vehicle.

The assault resulted in severe and permanent injuries, including a traumatic brain injury and significant psychological disorders.

The court emphasized denunciation and general deterrence given the planned, group-based nature of the revenge attack and the profound harm to the victim.

After weighing aggravating and mitigating factors, the court imposed a global custodial sentence of three and a half years.

The applicant, who was convicted of first degree murder and sentenced as a youth to ten years, applied for an annual review of his sentence under s. 94(6) of the Youth Criminal Justice Act.

He sought to serve the remaining two years of his custodial sentence in open custody to attend college, rather than being transferred to an adult provincial facility upon turning twenty-one.

The court found that the applicant had made tremendous rehabilitative gains, including completing high school despite a learning disability, and demonstrated significant maturity.

The application was granted, and the sentence was varied to open custody to reward his progress and further his rehabilitation.

The accused applied for a bail review under s. 520(1) of the Criminal Code after being denied interim release on charges related to a sophisticated car theft enterprise.

The Crown conceded a material change in circumstances as drug charges were withdrawn, shifting the onus to the Crown to justify detention on the secondary ground.

The accused proposed a new release plan involving his mother as surety with an increased monetary pledge and electronic monitoring.

The court found the mother lacked effective control over the accused and that electronic monitoring was insufficient to mitigate the substantial risk of the accused committing further offences.

The application for release was dismissed.