Criminal and Quasi-Criminal Law - SCJ

This criminal trial concerned 17 counts of domestic abuse allegations against the accused, Leon Giardino, involving his former spouse, Santina Giardino, between 2013 and 2021.

Charges included assault, assault with a weapon, choking, mischief, uttering threats, and failing to comply with release orders.

The court applied the W.(D.) framework for assessing conflicting testimony.

The judge found the accused guilty of 10 counts, including multiple assaults, assault by choking, uttering threats, and one count of failing to comply with a release order, while acquitting on other charges due to insufficient evidence or reasonable doubt.

The accused was charged with sexual assault, two counts of assault, and uttering threats against his common law spouse and their son.

The Crown sought to admit cross-count evidence of discreditable conduct to provide context to the abusive relationship and explain the delay in reporting.

The court admitted the evidence, finding its probative value outweighed any prejudice.

The court rejected the accused's testimony as not credible and found the evidence of the spouse, children, and an independent witness to be reliable and consistent.

The accused was found guilty on all counts.

The accused faced charges for home invasion robberies in Oakville and Scarborough.

The Crown filed a direct indictment, vacating a scheduled trial on the Scarborough charges.

The accused brought an application for a stay of proceedings, arguing the direct indictment was an abuse of process.

The Crown brought an application to admit similar fact evidence across the counts and from a separate Toronto incident.

The court dismissed the abuse of process application, finding the Crown's conduct was a bona fide effort to preserve evidence and avoid multiple proceedings.

The court granted the similar fact evidence application for the counts on the indictment but dismissed it for the extrinsic Toronto evidence, finding its prejudicial effect outweighed its probative value despite DNA evidence.

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

He argued the arresting officer lacked reasonable and probable grounds for a breath demand because she mistakenly arrested him for 'over 80' instead of 'impaired driving', and that the trial judge erred in admitting the breath samples under s. 24(2) of the Charter.

The Summary Conviction Appeal Court dismissed the appeal, finding the officer had both subjective and objective grounds to make the breath demand based on the totality of the circumstances, and that the trial judge correctly admitted the evidence despite the minor s. 9 Charter breach.

During a trial for second degree murder, the accused brought a Corbett application to edit his extensive criminal record before testifying.

The accused argued that Gladue principles should be applied to the Corbett analysis, given his Indigenous background and the systemic discrimination faced by Indigenous persons.

The court agreed, holding that an accused's Indigenous background and the systemic factors contributing to their criminal record are relevant to balancing the probative value and prejudicial effect of the record.

The application was granted, and the court excluded the accused's prior crimes of violence and older youth offences, while permitting cross-examination on crimes of dishonesty.

The accused faced charges of sexual assault, sexual touching, and invitation to sexual touching arising from historical allegations by his step-daughter.

The trial turned entirely on credibility and reliability because the Crown case rested on the complainant's evidence alone, while the defence relied on contradictions, delayed disclosure, collateral impeachment evidence, and the mother’s evidence about opportunity.

The court held that delay alone could not support an adverse inference, but found significant credibility and reliability concerns in the complainant’s evidence, including inconsistencies on material and collateral matters.

Preferring the mother’s evidence on key contextual points and concluding the Crown had not met the burden of proof, the court acquitted on all counts.

In a judge-alone historical sexual abuse trial, the court assessed competing testimony from the complainant, family witnesses, and the accused concerning allegations of repeated sexual abuse by an adoptive father over several years during the complainant's childhood.

Applying the W.D. framework, the court rejected the accused's denial, accepted the complainant's evidence as credible and reliable, and found material support in sibling evidence concerning opportunity, missing clothing, tampons, and nighttime activity in the home.

The court held that delayed disclosure and continued emotional attachment to the abuser did not undermine credibility in the circumstances.

Convictions were entered on counts of buggery, indecent assault, and sexual assault, and the gross indecency count was stayed under the Kienapple principle.

On an application to exclude an accused's police statement in a prosecution involving alleged human trafficking and sexual offences against underage complainants, the court found breaches of ss. 10(a) and 10(b) of the Charter.

Although the accused had been advised he was under arrest for human trafficking and had spoken with counsel, police later questioned him extensively about sexual assault, sexual interference, and invitation to sexual touching without advising him that those offences were under investigation or renewing his right to counsel in relation to that changed jeopardy.

Applying the Grant framework, the court held the breach was serious, significantly impaired the accused's informed choice and right against self-incrimination, and exclusion would not undermine adjudication on the merits because other evidence remained available.

Specified portions of the statement were excluded.

Sentencing decision following jury convictions for prostitution-related offences and assault arising from the accused's grooming of an adult complainant through an intimate relationship and exploiting her in the sex trade.

The court held denunciation and deterrence were the dominant sentencing principles, but distinguished authorities involving minors, prolonged coercion, or more complete domination.

Applying the factual findings that the complainant retained some autonomy, was not generally acting out of fear during the relationship, and that the exploitation was serious but not at the highest end, the court imposed 20 months' incarceration on the principal prostitution counts, concurrent, and a concurrent two-month sentence for assault.

The court stayed one count under the Kienapple principle, denied any credit for restrictive bail, and imposed ancillary DNA, weapons prohibition, no-contact, and probation orders.

The accused brought a late Charter application seeking exclusion of evidence obtained following a Highway Traffic Act roadside stop, alleging violations of ss. 8, 9, and 10 of the Canadian Charter of Rights and Freedoms.

The application was served 11 days before trial rather than the 30 days required under the Criminal Proceedings Rules for the Superior Court of Justice.

The court refused to abridge the notice period, finding the application should have been brought much earlier and that the alleged factual basis for the Charter challenge emerged only on the eve of trial without supporting evidence.

The court further held there was no air of reality to the proposed Charter claim and noted the accused’s own position that the vehicle was not his undermined any reasonable expectation of privacy.

The Charter application was therefore not permitted to proceed.

The Crown brought a voir dire seeking a ruling that several statements made by the accused during a traffic stop were voluntary and admissible.

The accused argued the statements were compelled and obtained in breach of the right to counsel under s. 10(b) of the Charter once the police questioning shifted from Highway Traffic Act compliance to a criminal drug investigation.

The court held that the initial statements relating to vehicle ownership and the first response regarding illegal items were voluntary and admissible because they occurred during a lawful traffic stop and before the investigative focus changed.

However, the final statement admitting additional drugs was obtained after the accused should have been cautioned and informed of the right to counsel, and was therefore excluded.

Despite the Charter breach, the physical evidence seized from the vehicle was admitted under the Grant analysis because it would have been inevitably discovered during vehicle impoundment and inventory.

The Crown brought a similar fact application in a criminal trial involving allegations that an elementary school teacher sexually touched several young students.

The Crown sought to have the testimony of certain complainants admitted as circumstantial evidence supporting the allegations of other complainants.

Applying the framework from R. v. Handy, the court considered whether the proposed evidence had sufficient probative value to outweigh its prejudicial effect.

The court found that many of the alleged incidents were only generically similar and therefore did not meet the threshold for admissibility.

However, evidence of three specific incidents involving classroom demonstrations and physical manipulation of students was sufficiently similar and reliable to be admitted as similar fact evidence.

The appellant appealed summary conviction offences for impaired operation and having care or control of a motor vehicle with blood alcohol exceeding the legal limit.

The appellant had been found asleep in the driver’s seat of his parked truck and argued he intended only to sleep and drive later after sobering up, thereby rebutting the statutory presumption of care or control under s. 258(1)(a) of the Criminal Code.

Relying on Supreme Court of Canada authority interpreting the requirement of a realistic risk of danger, the court held that a stated intention to drive later does not automatically rebut the presumption.

Even without a contemporaneous intention to drive, a realistic risk of danger may arise where an intoxicated person remains in a position to set the vehicle in motion.

The court concluded the presumption was not rebutted and upheld the conviction.

The accused was charged with robbery while armed with an imitation firearm.

The Crown case depended primarily on eyewitness identification by the complainant, including a photo line-up identification and an in-court identification.

The court held that the photo line-up was problematic because the accused was the only person displaying distinctive features previously described by the witness, including a forehead scar and afro hairstyle.

Given the well‑recognized dangers of eyewitness identification and the lack of confirmatory evidence, the court assigned little weight to the identification evidence.

The Crown failed to prove identity beyond a reasonable doubt and the accused was acquitted.

The accused were arrested after police conducted a high-risk takedown of a parked vehicle based on an uncorroborated confidential informant tip alleging cocaine was inside.

Officers arrested the occupants at gunpoint and searched the vehicle, discovering cocaine and a loaded prohibited firearm.

The court held the police lacked reasonable and probable grounds to arrest or search, as the tip was vague, the source’s credibility was not established, and there was no meaningful corroboration.

The warrantless arrest and search breached the accused’s rights under ss. 8 and 9 of the Charter.

Applying the s. 24(2) framework from Grant, the court found the police conduct deliberate and serious and excluded the evidence, resulting in acquittals.

Following a judge-alone criminal trial involving historical intrafamilial sexual assault allegations by two complainants, the court first rejected the Crown’s similar fact application.

Applying the similar fact framework, the court found material inconsistencies, a realistic possibility of collusion, long temporal separation, generic rather than distinctive similarities, and an intervening medical event said to affect the proposed inference.

On the merits, applying the credibility framework in W.(D.), the court accepted the accused’s denial evidence as credible and held the Crown had not proved any of the six counts beyond a reasonable doubt.

The accused was acquitted on all counts.

In a criminal prosecution alleging historical sexual offences against two protected complainants, the Crown brought a mid-trial application to admit each complainant’s evidence as similar fact evidence on a count-to-count basis.

Applying the framework in Handy, the court held the evidence was admissible to demonstrate a situation-specific propensity to sexually abuse young male family members, to negate fabrication, and to assist in assessing credibility and reliability.

The court found extensive contextual and behavioural similarities, no realistic basis for collusion, and a high degree of probative value that outweighed the risk of moral or reasoning prejudice.

The Crown’s application was granted and the evidence was admitted.

In a historical sexual abuse trial involving multiple complainants and allegations spanning several decades, the court applied the W.(D.) framework together with a reliability-focused analysis drawn from recent jurisprudence on historical evidence.

The court held that one gross indecency charge alleged after repeal of the offence had to be quashed, directed acquittals on additional counts that could not be proven, and admitted count-to-count similar fact evidence as between the remaining complainants.

The accused's testimony was rejected as not credible and tailored, but the court distinguished between credibility and reliability in assessing the complainants' evidence.

One complainant's evidence was found credible and reliable and sufficiently corroborated in important respects, resulting in a conviction for gross indecency; the other complainant's evidence was found sincere but unreliable in material respects, resulting in acquittals on those counts.

On a dangerous offender application following conviction for sexual assault and breach of recognizance, the court found the offender's lengthy record of sexual violence, repeated denial of responsibility, failure on community supervision, failed sex offender treatment, and high actuarial and clinical risk assessments established the statutory dangerous offender criteria beyond a reasonable doubt.

The court further held there was no reasonable possibility of eventual control of the offender's risk in the community within the meaning of the long-term offender regime.

The offender's asserted willingness to take future treatment and anti-androgen medication was rejected as speculative given his entrenched denial, prior treatment non-engagement, antisocial personality disorder, paraphilias, and poor prognosis.

An indeterminate sentence was imposed, together with a concurrent sentence for breach, a lifetime weapons prohibition, and lifetime SOIRA compliance.

Sentencing for two sexual assaults committed against the same complainant in the context of a dating relationship, together with a breach of probation.

The court emphasized denunciation and deterrence, treated the domestic nature of the offences, the offender's prior robbery record, and the complainant's victim impact as aggravating factors, and weighed the guilty plea, remorse, family support, employment history, and substance abuse efforts as mitigating factors.

The court gave significant mitigating effect to almost two years of strict bail terms akin to house arrest, including confinement to the home and prohibitions on computer and cellphone use.

A custodial sentence of 18 months less 13 months' credit was imposed, followed by probation and ancillary orders.