Criminal and Quasi-Criminal Law - SCJ

The Attorney General of Ontario brought a motion for a forfeiture order under s. 3 of the Civil Remedies Act for $79,220 in Canadian currency.

The funds were seized from the residence of an individual associated with drug trafficking and other criminal activity.

The court found, on a balance of probabilities, that the money constituted proceeds of illegal activity, citing various indicia such as the manner of bundling, the individual's criminal record, and his identification as a drug dealer.

No one came forward to claim the funds, and the court determined that forfeiture was in the interest of justice.

The motion for forfeiture was granted.

The mother (S.M.) brought a motion seeking access to and use of youth criminal justice records and Children's Aid Society (CAS) records concerning her child in ongoing child protection proceedings.

The court clarified that CAS records containing youth criminal involvement information are not Youth Criminal Justice Act (YCJA) records and can be disclosed without a youth court order.

It also determined which specific YCJA records were relevant and necessary for use in the child protection proceedings, applying the Wagg and Bailey tests, emphasizing the paramount purpose of the Child, Youth and Family Services Act (CYFSA) to promote the best interests of children and the need for fulsome information before the court.

The offender, a homeless Black man, pleaded guilty to manslaughter after striking another homeless man with a skateboard following a series of altercations.

The victim had directed racial slurs at the offender prior to the assault.

The court considered the offender's background, including the impact of anti-Black racism, childhood abuse, and undiagnosed schizophrenia, as detailed in an Enhanced Pre-Sentence Report.

The court imposed an effective sentence of 5 years and 6 months, which was reduced to 17 months of further custody and 18 months of probation after accounting for pre-trial custody and harsh conditions.

The accused brought several pre-trial applications, including to quash the indictment, change venue, for particulars, for further disclosure, for examination for discovery of investigative officers, and for a stay of proceedings for abuse of process.

The court dismissed the applications to quash the indictment, change venue, for examination for discovery, and for third-party records.

The application for particulars was partially granted, and an order for further disclosure, including a Laporte inventory, was made.

The application for a stay of proceedings for abuse of process was not granted but may be revisited at trial.

The offender pleaded guilty to possession of cocaine and marijuana for the purpose of trafficking.

The Crown sought a four-year sentence, while the defence sought a conditional sentence or two years.

The court found that a four-year sentence was appropriate given the significant quantities of drugs involved.

However, the court granted enhanced credit for pre-sentence custody, strict bail conditions, a s. 10(b) Charter breach regarding the right to counsel, and the harshness of serving a sentence during the COVID-19 pandemic.

The final sentence imposed was three years in custody.

The defendants were charged with various drug and firearms offences following the execution of a search warrant at a residence.

The Crown's case relied on circumstantial evidence to prove possession.

The court found the first defendant guilty of possession of cocaine for the purpose of trafficking based on drugs found near where she was sleeping, but not guilty regarding drugs found in a common kitchen area.

The second defendant, the principal occupant, was found guilty of possessing MDMA found in her bedroom, but not guilty of possessing the cocaine.

The careless storage of a firearm charge against the second defendant was dismissed due to an evidentiary gap regarding the standard of care.

The accused was charged with possession of cocaine for the purpose of trafficking after police found drugs in a safe inside an apartment.

At the conclusion of the Crown's case, the defence moved for a directed verdict of acquittal.

The court applied the test for a directed verdict, finding that while there was some circumstantial evidence of control via a key found on a keychain used by the accused, there was no evidence from which a jury could infer the accused had knowledge of the cocaine hidden in the safe.

The motion was granted and a directed verdict of acquittal was ordered.

During a second trial for second-degree murder, the Crown applied under section 715 of the Criminal Code to admit the prior trial testimony of a key witness who had left Canada for Ghana just before the trial commenced.

The court reviewed the principles from R. v. Potvin and subsequent jurisprudence regarding the principled approach to hearsay and the Crown's obligation to make reasonable efforts to secure testimony.

The court dismissed the application, finding that the Crown failed to establish necessity as it had not pursued alternatives like commission evidence or offered to fund the witness's return, and that admitting the evidence would operate unfairly against the accused.

The accused, charged with possession of cocaine for the purpose of trafficking, brought an application seeking disclosure of the identity of a confidential source.

The accused argued the source acted as a police agent rather than a confidential informant by engaging in drug transactions during the investigation.

After applying the Garofoli Step 6 procedure and holding an in camera hearing, the court concluded the source acted solely as a confidential informant and was entitled to informer privilege.

The application was dismissed.

The appellant appealed his conviction for dangerous driving and the imposed sentence.

The trial judge found the appellant's driving in a parking lot, involving excessive speed, fishtailing, and loss of control, constituted a marked departure from a reasonably prudent driver's conduct.

The appeal court upheld the trial judge's findings of fact and application of the dangerous driving test, finding no palpable and overriding error.

The appeal against the 18-month driving prohibition was also dismissed, considering the appellant's prior drinking and driving convictions.

The accused, charged with sexual assault, brought a pre-trial motion under s. 276.2 of the Criminal Code to introduce evidence of prior consensual sexual activity with the complainant, M.M., at a strip club.

The accused argued this evidence was necessary to explain the presence of his DNA on a vaginal swab taken from M.M. hours after the alleged assault and to challenge M.M.'s credibility regarding her earnings that night.

The court applied the two-step Darrach procedure, finding the accused's affidavit sufficiently detailed and his evidence credible enough to raise a reasonable doubt.

The court determined the evidence was admissible as it was a specific instance of sexual activity, relevant to an issue at trial (explaining DNA), and had significant probative value not outweighed by prejudice, upholding the accused's right to make full answer and defence.

Garth Bent was found guilty of indecent assault of a male person, committed in 1982 when the victim was 13 and Bent was 22, acting as a camp leader.

This sentencing decision followed a trial, and Bent had a prior record from 2009/2010 for similar historical sexual offences for which he received a conditional sentence.

The court considered aggravating factors such as breach of trust and victim vulnerability, and mitigating factors including Bent's self-initiated withdrawal from youth work, voluntary counselling, and apologies to other known victims, as well as his crime-free life for 35 years.

The court found that specific deterrence and rehabilitation were not relevant, and imposed a 12-month conditional sentence, a life-term SOIRA order, and declined a weapons prohibition order by applying the most lenient statutory regime available between the time of the offence and sentencing.

This mid-trial ruling addresses Corbett applications by three accused (Brandon Barreira, Chad Davidson, and Joshua Barreira) in a first-degree murder trial.

Brandon and Chad sought to exclude their criminal convictions from cross-examination, while Joshua sought reconsideration of a previous ruling regarding his convictions.

The court applied the Corbett factors, balancing the probative value of the records against their prejudicial effect.

For Brandon and Chad, their youth records were excluded due to their age, similarity to adult convictions, and the policy objectives of the Youth Criminal Justice Act.

However, their adult criminal records were deemed admissible due to a continuous pattern of criminal conduct relevant to credibility.

Joshua's request to edit specific convictions (possession of firearm/ammunition contrary to prohibition order and counsel to commit murder) was denied, as the court found the full description relevant to his credibility and not overly prejudicial given the trial context.

During a joint trial for first degree murder, one of the accused brought two evidentiary applications.

The first application sought to exclude evidence of his spouse's conviction for accessory after the fact to murder, arguing it lacked probative value and was highly prejudicial.

The court granted this application, finding the conviction's probative value regarding the spouse's credibility was substantially outweighed by the overwhelming prejudice it would cause to a co-accused.

The second application was a Corbett application to exclude the accused's prior criminal record from cross-examination if he chose to testify.

The court partially granted this application, excluding the accused's youth record and one adult firearms conviction to prevent undue prejudice, but permitting cross-examination on the remainder of his extensive adult record as it demonstrated a continuing disregard for the law relevant to his credibility.

The appellant appealed his conviction for a blood-alcohol offence, arguing that the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay.

The appellant contended that a 7.5-month adjournment, characterized as neutral time by the trial judge, was in fact Crown-caused delay due to a belated expert report on a post-driving drinking scenario.

The court applied the *Jordan* framework, finding that the total delay was 26 months and one week.

However, after attributing 9.5 months of delay to the defence (including the 7.5-month adjournment due to tactical choices and scheduling conflicts), the net delay was less than 16 months, falling below the 18-month ceiling.

The court dismissed the appeal, concluding there was no unreasonable delay.

The Crown appealed a sentencing decision where victim surcharges were ordered concurrently for two theft offences.

The court examined whether victim surcharges, considered ancillary orders rather than fines or penalties, could be imposed concurrently.

It concluded that there is no legal impediment to concurrent victim surcharge orders, consistent with the totality principle and judicial discretion in sentencing, and that the jurisprudence precluding concurrent fines does not apply.

The appeal was dismissed, and the concurrent victim surcharge orders were upheld.

The appellant appealed convictions for two counts of assault and two counts of assault with a weapon arising from incidents in a domestic relationship.

The appellant argued the trial judge improperly relied on prior consistent statements made by the complainant to neighbours to bolster her credibility.

The appeal court reviewed the evidentiary record and the trial judge’s reasons and concluded the impugned passage was ambiguous but did not demonstrate legal error.

Applying the presumption that trial judges know and apply the law, the court held the trial judge was presumed to have relied only on admissible aspects of the neighbours’ evidence such as demeanour and observed injuries.

The appellant failed to establish that the trial judge improperly used prior consistent statements, and the convictions were upheld.

The accused applied to quash production orders and search warrants obtained during a CRA criminal investigation into alleged tax-related fraud.

He argued that the Income Tax Act had not been proven to have received Royal Assent, that Ontario Court of Justice judges lacked jurisdiction to issue the warrants, and that requests for his tax returns violated his Charter rights under ss. 7 and 8.

The court rejected these arguments, holding that consolidated statutes published by the Minister constitute evidence of the statute’s existence, that Criminal Code investigative powers permit warrants issued by a justice, and that the requests to file overdue tax returns did not violate the Charter.

After excising references to the accused’s later tax returns from the information to obtain, the court found that reasonable grounds for the search warrants remained.

The accused brought pre-trial applications challenging the voluntariness of a videotaped police statement, seeking leave to cross-examine the affiant on a wiretap affidavit, and alleging that an intercepted private communication breached s. 8 of the Charter and should be excluded under s. 24(2).

The court held the Crown proved voluntariness beyond a reasonable doubt, rejecting the claim that the statement was induced by promises concerning the accused's brother.

Relying on appellate authority, the court refused leave to cross-examine the affiant on whether the accused was a primary or secondary known person because the distinction had no legal significance.

The court further held there was an ample basis for the authorization and no s. 8 breach, and in any event would not have excluded the evidence under the Grant framework.

The accused applied under ss. 8 and 24(2) of the Charter to quash a search warrant executed at a residence where police discovered a large marijuana grow operation.

The application alleged that the affiant mischaracterized hydro‑consumption data, failed to provide full and frank disclosure in the Information to Obtain, and lacked reasonable and probable grounds.

The court conducted a Garofoli review and held that the ITO, even after minor excisions, contained sufficient evidence including hydro‑consumption patterns, repeated odour detections of marijuana, and surveillance observations distinguishing the target residence from neighbouring properties.

The warrant was therefore validly issued.

Alternatively, even if a breach had occurred, the evidence would have been admitted under s. 24(2) because the police acted in good faith and the evidence was reliable and central to the prosecution.