Criminal and Quasi-Criminal Law - SCJ

This is a summary conviction appeal from convictions for over-80 impaired driving and failing to remain at the scene of an accident.

The appellant challenged the trial judge's finding of identity, arguing his post-arrest utterances were ambiguous and that the trial judge reversed the burden of proof.

The appellant also challenged the dismissal of his s. 8 Charter application, asserting a lack of reasonable and probable grounds for detention and arrest.

The appellate court dismissed the appeal, affirming the trial judge's common-sense interpretation of the utterances as an admission of driving and upholding the finding of reasonable and probable grounds for arrest based on the totality of evidence.

The applicant, Andrew Rocha, sought a stay of proceedings for charges of possession of cocaine for trafficking and possession of proceeds of crime, alleging police stole money and drugs during a search warrant execution, violating his s. 7 Charter rights.

The court found approximately $6000 of seized cash was missing and inferred it was taken by police officers involved in the investigation.

This misconduct was deemed an abuse of state power and a breach of s. 7 of the Canadian Charter of Rights and Freedoms.

Given the egregious nature of the police misconduct and the lack of an adequate alternative remedy, the court granted a stay of proceedings to dissociate the justice system from the impugned conduct, despite the strong societal interest in a trial on the merits.

Following his conviction for child luring, the applicant brought an entrapment application seeking a stay of proceedings.

The conviction arose from a police sting operation targeting individuals seeking juvenile prostitutes on an online classifieds website.

The court found that the police had a reasonable suspicion to investigate the virtual space and that the undercover officer introduced the poster's underage status early in the conversation, distinguishing the case from others where entrapment was found.

The application was dismissed.

The accused were charged with importing cocaine into Canada after arriving at Pearson International Airport from St. Lucia with cocaine hidden in their suitcases.

They admitted to the importation but raised the defence of duress, claiming they were threatened at gunpoint and tortured by men in St. Lucia who forced them to carry the drugs.

The court rejected the defence, finding the accused's testimony lacked credibility and was contradicted by their actions and communications.

The court further held that even if the threats had occurred, the accused had a safe avenue of escape by reporting the matter to Canadian authorities upon arrival.

Both accused were convicted.

The appellant appealed his summary convictions for impaired driving and driving 'over 80'.

He argued the trial judge provided insufficient reasons for the impaired driving conviction and erred in dismissing a section 8 Charter motion regarding a delayed breath demand.

The summary conviction appeal judge found the trial judge's reasons met the functional test for sufficiency.

The court also upheld the trial judge's finding that the breath demand, made 15 minutes after arrest because the officer forgot in the chaotic scene, was made 'as soon as practicable'.

The appeal was dismissed.

The applicant pleaded guilty to producing marijuana and cannabis resin.

The Crown initially sought a mandatory minimum sentence but later withdrew its notice, rendering the applicant's constitutional challenge to the mandatory minimum provision moot.

The applicant argued the court should still hear the challenge based on the Borowski principles.

The court declined to exercise its discretion to hear the moot challenge, noting that a similar constitutional issue was already under appellate review, the provision did not create an inflationary floor for sentencing, and hearing the application would unduly consume judicial resources.

The offender pleaded guilty to producing marijuana after police found 29 plants in his home, which he shared with his 13-year-old daughter.

He grew the marijuana for personal use to manage chronic pain and sold surplus to friends.

The Crown initially sought a mandatory minimum sentence of six months but withdrew its notice, rendering a constitutional challenge moot.

The court considered the offender's lack of a criminal record, guilty plea, remorse, and positive rehabilitation efforts.

The court imposed a suspended sentence and 18 months of probation.

During a joint trial, counsel for one of the co-accused sought directions on the appropriate timing to introduce propensity or bad character evidence against the other co-accused through cross-examination of a Crown witness (a 'Pollock & Morrisson' application).

The court ruled that to maintain full answer and defence and procedural fairness, notice of such an application must be provided at the conclusion of the Crown's examination-in-chief, prior to the commencement of cross-examination by the co-accused's counsel.

The accused was charged with importing cocaine after a secondary customs inspection at the airport revealed cocaine hidden in bags of dried soy product.

The accused brought a pre-trial application to exclude statements made to border officers, arguing he was detained prior to his arrest without being advised of his right to counsel, violating ss. 7, 10(a), and 10(b) of the Charter.

The court found that the accused was not detained until the officer discovered the contraband, at which point he was arrested and given his rights.

The court also found the statements were voluntary.

The application was dismissed and the evidence was ruled admissible.

The offender was convicted by a jury of second degree murder and indignity to human remains after killing a young woman and dismembering and disposing of her body parts in the community.

At sentencing, the court considered the jury’s recommendation regarding parole ineligibility, the offender’s character, and the aggravating and mitigating circumstances.

Significant aggravating factors included the methodical dismemberment of the body, concealment and disposal of remains, deception of investigators, and lack of demonstrated remorse.

Applying the principles from the Supreme Court of Canada regarding parole ineligibility for second degree murder, the court determined that the statutory minimum of ten years was insufficient.

The offender was sentenced to life imprisonment with parole ineligibility set at seventeen years, with a concurrent sentence for indignity to human remains.

The accused was arrested and interviewed by police after making statements to undercover officers.

The Crown did not intend to introduce the police interview.

The defence brought an application to introduce specific exculpatory portions of the police interview, arguing they amplified the accused's earlier statements to the undercover officers.

The Crown opposed, arguing the statements were hearsay, self-serving, and would allow the accused to avoid cross-examination.

The court granted the application, finding the statements were an amplification of the earlier undercover interview and that the Crown would not be unfairly disadvantaged as it could introduce other parts of the interview.

The appellant appealed his conviction for operating a motor vehicle 'over 80', arguing the trial judge misapprehended evidence regarding his 'slurred' speech when finding the arresting officer had reasonable and probable grounds for a breath demand.

The Superior Court of Justice dismissed the appeal, finding the trial judge correctly understood the officer's definition of slurring as 'slow and deliberate speech' and that, even if mistaken, the error was not material to the overall finding of reasonable and probable grounds based on multiple indicia of impairment.

The accused brought a pre‑trial application seeking permission to challenge prospective jurors for cause due to extensive pre‑trial publicity surrounding a homicide prosecution.

The parties agreed on five proposed voir dire questions addressing jurors’ exposure to media coverage and potential pre‑formed opinions, but disagreed on a sixth question referencing the alleged dismemberment of the deceased.

The court considered the distinction between prejudice against the accused and generic prejudice arising from the nature of the offence, as discussed in appellate authorities.

The judge held that the sixth question constituted an impermissible offence‑based question and that the presumption of juror impartiality had not been displaced.

The challenge for cause was permitted but the proposed sixth question was excluded.

Pre-trial evidentiary ruling in a homicide prosecution concerning the admissibility of photographs of the deceased taken prior to death.

The Crown sought to introduce several social photographs to show the victim’s physical stature and to humanize the victim before the jury.

The defence argued the photographs lacked probative value and risked eliciting sympathy from the jury, offering instead to concede the victim’s size and stature through an agreed statement of facts.

Applying the probative value versus prejudicial effect analysis from established authorities, the court concluded that one photograph had limited but legitimate probative value and minimal prejudicial effect.

The court permitted the Crown to introduce a single photograph depicting the victim’s small stature, subject to appropriate jury instructions.

The Crown sought to admit a young child complainant’s statements to her mother and videotaped police interview as substantive evidence in a blended Khan and KGB voir dire after the child recanted and testified the allegations were a joke.

The court held that necessity was established, but threshold reliability was not.

The mother’s repeated and highly suggestive questioning, the child’s one-word acquiescent responses, the absence of corroborative physical evidence, the child’s multiple recantations to several sources, and deficiencies in the police interview process undermined trustworthiness.

The videotaped statement was further weakened by the interviewer’s failure to impress upon the child the importance of truth-telling or secure a meaningful promise to tell the truth.

The hearsay statements were inadmissible and, in any event, the court held it would have had reasonable doubt as to ultimate reliability; the accused was acquitted on both counts.

The accused applied to exclude firearms evidence seized pursuant to a search warrant, alleging the warrant was invalid and violated s. 8 of the Charter.

The challenge relied on the Garofoli framework and argued that the Information to Obtain relied on insufficiently credible and corroborated confidential source information and that redactions impaired full answer and defence.

After considering the redacted ITO, a judicial summary of confidential information, and cross‑examination of the affiant, the court held the issuing justice could reasonably have authorized the warrant.

The court found the confidential source information sufficiently compelling and corroborated by police investigation.

In the alternative, even if a breach occurred, the evidence would not be excluded under the s. 24(2) Grant analysis.

The accused was tried on allegations of historical sexual assault, touching for a sexual purpose, and threats of death involving a child complainant.

The court found the complainant credible and forthright, with some confirmatory support from other evidence, but held that credibility alone did not resolve the case.

Defence evidence concerning opportunity, contradictions on material surrounding circumstances, memory concerns, and the absence of potentially confirmatory witnesses left the court with a reasonable doubt.

The accused was acquitted on all counts.

The offender pleaded guilty to two counts of assault causing bodily harm arising from a violent attack involving a bottle that injured two victims.

The offences occurred approximately sixteen years before sentencing, during which time the offender relocated, established employment, maintained a stable relationship, and demonstrated rehabilitation.

The court considered Gladue principles given the offender’s Indigenous background, as well as the long delay between the offence and sentencing and the offender’s significant rehabilitative efforts.

Balancing denunciation and general deterrence against rehabilitation and the restraint principle under s. 718.2(e) of the Criminal Code, the court declined to impose custodial or conditional sentence imprisonment.

A suspended sentence with probation and community service was imposed along with ancillary orders.

Reasons for sentence following jury convictions for multiple sexual offences against a child aged 7 to 8, and two assaults by one offender.

The court held that denunciation, deterrence, and separation from society had to predominate in sentencing adult offenders who sexually abused a vulnerable child in a position of trust.

Applying the appellate authorities on child sexual abuse sentencing and the pre-sentence custody credit framework from Summers, the court imposed a 6-year global sentence on one offender with 1.5:1 credit, and a maximum reformatory sentence on the co-offender with 1:1 credit.

Ancillary DNA, weapons, s. 161, and sexual offender registration orders were also made.

The applicant, a lawyer charged with money laundering and possession of property obtained by crime, sought to vary or vacate three restraint orders freezing his bank and securities accounts.

He argued the orders were based on information obtained in breach of his s. 8 Charter rights, PIPEDA, and a production order, and that the banks acted as state agents.

The court dismissed the application, finding the accounts were properly restrained as offence-related property or proceeds of crime.

The court held the applicant had no reasonable expectation of privacy in the banking information disclosed, the banks acted independently to protect their own interests and not as state agents, and the disclosures complied with PIPEDA.

The court also found the CRA tax information was properly acquired and used.