Criminal and Quasi-Criminal Law - SCJ

On a summary conviction appeal from convictions and acquittals arising from domestic allegations, the appellant challenged the assault conviction on grounds including improper use of prior consistent statements, misapprehension of evidence, and reliance on prior case reasoning.

The appeal court held the trial reasons, read as a whole, did not show impermissible credibility bolstering and disclosed no material misapprehension affecting the verdict.

The court found it was open to the trial judge to reject the appellant’s explanation for the injury evidence and to accept corroborative value in contemporaneous photographs.

The court further held the circumstantial-evidence argument was inapplicable because the case included direct testimony and proper reasonable-doubt analysis.

The summary conviction appeal was dismissed and the assault conviction was upheld.

The defendant, Thomas Nsiah, was charged with possession of cocaine and fentanyl for trafficking and possession of property obtained by crime.

The court found that a strip search conducted by police at the detachment violated the defendant's section 8 Charter rights, as it was unreasonable and unauthorized, lacking proper grounds or procedure.

Applying the Grant analysis, the court excluded the drug evidence obtained from the vehicle.

In the alternative, the court found that the Crown failed to prove beyond a reasonable doubt that the defendant had knowledge and control of the concealed drugs, given the lack of forensic evidence linking him to the hidden compartment and the vehicle's non-ownership by the defendant.

J.W. was found guilty by a jury on six counts including choking to overcome resistance to sexual assault, assault causing bodily harm, sexual assault, and forcible confinement, stemming from a domestic relationship between 2013-2015.

The court, in its reasons for sentence, considered the serious and ongoing nature of the abuse, its profound impact on the victim, and the aggravating factor of domestic partner abuse.

Despite mitigating factors such as no prior criminal record and strong community support, the court found a conditional sentence inappropriate due to the gravity of the offences.

The total sentence imposed was six years incarceration, with specific terms for each count, and ancillary orders including a non-communication order, DNA order, lifetime firearms prohibition, and a 20-year Sexual Offender Information Registry order.

A defendant was charged with sexual assault against a complainant, his stepdaughter, occurring in Brampton between 2013 and 2014.

The prosecution relied on the complainant's testimony, corroborated by her mother's evidence of the defendant's prior admission of sexual assault against the complainant in another jurisdiction (uncharged offences), admitted as similar fact evidence.

The defence challenged the credibility and reliability of both the complainant and her mother, citing the complainant's history of lying, recantations, mental health issues, and amicable electronic communications with the defendant.

The court found the complainant's evidence credible despite its flaws, accepting explanations for inconsistencies and her complex relationship with the defendant.

The court found the mother's testimony regarding the defendant's admission after a suicide attempt to be convincing and confirmed by the mother's later physical confrontation with the defendant.

The similar fact evidence from the other jurisdiction was deemed highly probative.

The court rejected the defendant's denials and found him guilty beyond a reasonable doubt.

Awaleh Ismail Hassan pleaded guilty to possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code, stemming from a shootout where his friend was killed and he was injured.

The Crown sought a sentence of three years and six months imprisonment, while the defence requested a suspended sentence or time served.

The court considered the paramount principles of denunciation and deterrence for gun-related crimes, alongside significant mitigating factors including the accused's guilty plea, remorse, difficult background, lack of relevant criminal record, family support, and the harsh conditions of his pre-sentence custody, including medical neglect and the impact of anti-Black racism.

The court sentenced Mr. Hassan to two years less one day imprisonment, with enhanced credit for pre-sentence custody, resulting in one additional day of imprisonment followed by two years probation.

Ancillary orders included a lifetime weapon prohibition and a DNA order.

During a trial for drug trafficking and weapons offences, the defence brought an application under s. 24(1) of the Charter to exclude a full cell phone extraction report due to late disclosure by the Crown.

The Crown had disclosed a partial report earlier but only provided the full report on the day evidence was to commence.

The court found that while the full report should have been disclosed earlier, the late disclosure did not warrant exclusion of the evidence.

The court held that a one-week adjournment was sufficient to allow the defence to review the report and attenuate any prejudice, ensuring the accused's right to make full answer and defence under s. 7 of the Charter.

The accused, Jamal Osborne-Adams, was charged with assault causing bodily harm following an incident at a Pizza Pizza restaurant.

The court rejected the accused's defence of self-defence and implied consent, finding him to be the aggressor throughout the altercation.

The judge found that the accused's actions were disproportionate and unreasonable, and that he intended to inflict serious bodily harm or was reckless as to whether such harm would ensue.

The accused was found guilty as charged.

The Crown applied to admit an audio-taped hearsay statement from Nisan Nirmalendran, a deceased witness, regarding the 2012 Eaton Centre shooting where the accused, Christopher Husbands, admitted firing shots.

Husbands' defence was not criminally responsible due to PTSD and dissociation.

The court dismissed the Crown's application, finding the statement lacked necessity due to other available evidence and failed to meet the threshold reliability criteria.

Key reasons for denying admissibility included the absence of an oath or affirmation, lack of cross-examination, potential tainting from news reports, and significant motives for the declarant to fabricate or downplay his actions.

Emiliana Piccinini, a legal assistant and bookkeeper, was charged with theft over $5000 and fraud over $5000 for allegedly receiving unauthorized excess payments disguised as payroll from her employer's law firm between 2011 and 2014.

Piccinini asserted these payments were authorized fees owed to her from a prior agreement.

The court found Piccinini's evidence to be internally inconsistent, unreliable, and unsupported by credible evidence or bank records, particularly regarding the alleged fee arrangement and her explanations for the numerous extra payments.

Conversely, the court accepted the employer's and accountant's testimony as credible and reliable.

Consequently, Piccinini was found guilty of fraud over $5000, with the theft charge conditionally stayed under the Kienapple principle.

The applicants, a consortium of media organizations, sought to lift sealing orders and prevent a publication ban on judicial authorizations, including a search warrant, related to an investigation into Vice-Admiral Mark Norman for allegedly leaking cabinet confidential information.

Vice-Admiral Norman and the Crown argued for a publication ban to protect his fair trial rights, while interveners (Chantier Davie Canada Inc. and Federal Fleet Services Inc.) sought to maintain sealing orders for commercially sensitive pricing data.

Applying the Dagenais/Mentuck test, the court found no serious risk to the proper administration of justice or fair trial rights from extensive publicity, noting that jurors are presumed capable of impartiality and that the alleged misconduct did not create an "unshakable stigma." The court also considered the impact of social media on the efficacy of publication bans.

The application to lift sealing orders and deny a publication ban was largely granted, with the exception of specific commercial pricing information from the interveners and uncontested redactions for cabinet confidentiality and third-party personal information.

The Applicant, charged with first-degree murder, sought to exclude call detail records obtained via search warrants, arguing violations of his s. 8 Charter rights.

The Applicant contended that the Informations to Obtain (ITOs) contained inaccuracies, lacked reasonable grounds to believe the records would afford evidence, and that police failed to file Reports to Justice as required by s. 489.1 of the Criminal Code.

The court found that while there were minor inaccuracies in the ITOs, they were made in good faith and, once excised, sufficient grounds remained for the warrants.

The court also found that the police's failure to file Reports to Justice constituted a s. 8 Charter breach but, following established jurisprudence, determined that this technical breach did not warrant the exclusion of evidence under s. 24(2) of the Charter, especially given the serious nature of the charge.

The application to exclude evidence was dismissed.

The defendant was charged with five counts related to theft, breaking and entering, and possession of stolen property for trafficking.

The Crown presented circumstantial evidence, including cell phone records, financial difficulties of the defendant, and inconsistencies in his statements to police.

The defendant denied the charges, claiming the coins sold were his own and that he was unaware of the theft at the time of initial sales.

The court found the defendant's evidence not credible and concluded that the only rational conclusion was his guilt based on the totality of circumstantial evidence.

During a murder trial, the Crown sought to admit hearsay statements made by the deceased concerning his belief that the accused had orchestrated a prior theft of his money.

The defence objected on the basis that the statements would introduce prejudicial and untestable allegations of bad character.

The court held that the deceased’s statements were admissible as evidence of the declarant’s state of mind and were relevant to establishing potential motive and context for confrontation between the deceased and the accused.

However, the court limited the scope of admissibility to the deceased’s belief itself and excluded statements recounting the accused’s alleged response about the stolen money.

The jury would receive a limiting instruction restricting the use of the evidence to motive rather than proof of bad character.

The Attorney General sought forfeiture of $10,000 seized from an individual during an arrest under the Civil Remedies Act, 2001.

The court considered circumstantial evidence including the manner in which the cash was bundled, the circumstances of the seizure late at night, the respondent’s criminal record, and inconsistent explanations regarding the source and purpose of the funds.

Applying the balance of probabilities standard, the court found the respondent’s explanation of savings from employment not credible and insufficient to rebut the inference that the funds were connected to unlawful activity, particularly drug trafficking.

The court held the money constituted proceeds of unlawful activity, an instrument of unlawful activity, or both.

The application for forfeiture was granted.

During a jury trial for multiple robbery-related offences, the accused brought a motion for a directed verdict on a count alleging use of an imitation firearm while committing a robbery under s. 85(2) of the Criminal Code.

The court applied the directed verdict test and considered whether there was sufficient admissible evidence upon which a properly instructed jury could reasonably conclude that an imitation firearm was used in the robbery of the particular complainant.

While evidence supported that an imitation firearm was used in robberies against other victims during the same incident, there was no evidence that such a weapon was used in the robbery of the specific complainant named in Count 2.

The court held that party liability or common purpose principles could not substitute for proof that an imitation firearm was actually used in the commission of that robbery.

The motion for a directed verdict was granted and the count was dismissed.

The accused applied under s. 462.34(1) of the Criminal Code for access to funds seized by police as alleged proceeds of crime in order to pay legal fees while facing multiple serious criminal charges including kidnapping and murder.

The court applied the three‑part test requiring proof of an interest in the funds, the absence of other assets or means to fund legal expenses, and the absence of competing ownership claims.

While the Crown conceded the accused had an interest in the seized funds, the court found he failed to establish that he lacked other available assets.

Given extensive evidence of undisclosed or unaccounted assets and the applicant’s lack of credibility, the court was not satisfied on a balance of probabilities that no other means existed to fund counsel.

The accused applied for a directed verdict of acquittal after the Crown closed its case on a charge of attempted murder.

The Crown relied primarily on eyewitness recognition evidence from the complainant, who identified the accused through photo line-ups and an in-dock identification.

The defence argued the identification narrative was irreparably tainted by flawed police photo line-up procedures and minimal prior familiarity between the witness and the accused.

The court held that although the December 6, 2010 photo line-up was not ideal and raised legitimate concerns, it still met the threshold reliability required to be left to the jury.

The court concluded that the complainant’s recognition evidence and in-dock identification, if believed, could support a conviction beyond a reasonable doubt and therefore the matter should proceed to the jury.

The accused applied for a stay of proceedings alleging a breach of the right to trial within a reasonable time under s. 11(b) of the Charter.

The charges, including attempted murder, were laid in 2002 but the accused was not arrested until 2009 while residing in South Korea, resulting in approximately 11 years of delay before trial.

The court held that the Crown failed to take reasonable steps to bring the accused to trial despite knowing his whereabouts and having extradition options available.

Most of the delay was attributable to Crown inaction rather than inherent requirements or actions of the accused.

Given the exceptional delay and resulting prejudice to liberty, security, and fair trial interests, the court concluded that the accused’s s. 11(b) rights were violated.

In a first-degree murder prosecution, the Crown brought a Mohan application seeking to qualify a forensic psychiatrist as an expert to give opinion evidence regarding automatism.

The defence argued that the proposed expert’s methodology lacked reliability and that prior judicial criticism of his opinions should preclude qualification.

The court reviewed the admissibility criteria for expert evidence set out in R. v. Mohan, including relevance, necessity, absence of an exclusionary rule, and proper qualification.

While acknowledging some concerns about the expert’s prior reports and methodology, the court found that he possessed sufficient expertise in forensic psychiatry and that automatism is primarily a legal concept closely related to dissociative states recognized in psychiatry.

The expert was therefore qualified to give opinion evidence in forensic psychiatry, including on the issue of automatism.

The Crown brought an application concerning the forfeiture and destruction of devices seized during a criminal investigation involving materials potentially subject to solicitor-client privilege.

The court reviewed the draft order submitted on consent by the parties and determined that it should issue with modifications requiring a detailed report describing the manner in which the seized devices and forensic images were destroyed.

The court held that judicial supervision over materials seized from a law office includes oversight of their ultimate destruction in order to preserve confidence in the protection of solicitor-client privilege.

The parties were invited to make written submissions regarding the proposed amendments before the order would be finalized.