Criminal and Quasi-Criminal Law - SCJ

Michael Malabre was convicted following a jury trial of possessing cocaine and fentanyl for the purpose of trafficking and possessing the proceeds of crime under $5,000.

The Crown sought a penitentiary sentence of five to seven years, while the defence requested a conditional sentence of 18 to 24 months, citing pre-trial custody conditions and the effects of anti-Black racism.

The court found a conditional sentence inappropriate, imposing a sentence of four years and nine months incarceration.

The judge considered aggravating factors including the dangerous nature and quantity of drugs (fentanyl), the commercial scale of the trafficking, evidence of prior sales, and the mixing of drugs.

Mitigating factors included the offender's youth, difficult upbringing, and harsh pre-trial detention and stringent bail conditions.

The court found insufficient evidence to connect anti-Black racism to the offender's moral blameworthiness in this specific case.

This criminal trial concerned Justin Europe, who was charged with multiple offences related to human trafficking, procuring, receiving material benefits from sexual services, advertising sexual services, assault, aggravated assault, and threatening.

The central issue was the credibility and reliability of the complainant, L.G.'s, evidence.

The court found the accused guilty of human trafficking, procuring, receiving material benefits from human trafficking and sexual services, advertising sexual services, aggravated assault, and threatening death.

He was found not guilty of simple assault and threatening to kill a dog due to insufficient evidence.

The court emphasized the dynamics of the relationship, L.G.'s fear, and the accused's conduct in reinforcing that fear to profit from her work.

The applicant sought extensive disclosure from the Crown and Peel Regional Police (PRP) under Stinchcombe and O'Connor, and a sealing order for application materials.

The disclosure requests stemmed from suspicions of targeting and police misconduct related to a vehicle stop and subsequent arrest for firearms and drug offences.

The court denied most disclosure requests where the information did not exist (e.g., historical CPIC snapshots, specific informant recruitment policies) or where likely relevance was not met.

However, the court ordered the production of officer notes and "will say" statements regarding an off-camera interview where the applicant was asked to become a confidential informant, and specific notes of an officer related to a BOLO broadcast.

The sealing order request was denied as the applicant failed to meet the Dagenais/Mentuck test for restricting the open court principle.

The appellant, Sarah Sefton, appealed her conviction for driving over 80, arguing the trial judge erred in dismissing her Charter application to exclude breath test results.

The trial judge had found multiple s. 10(b) Charter breaches (delay in facilitating counsel, failure to advise right to wait for counsel of choice) but dismissed the s. 24(2) Charter application, deeming the breath test minimally intrusive.

The appeal court found the trial judge erred in her s. 24(2) analysis by focusing solely on the physical intrusiveness of the breath test rather than the broader impact of the denial of the right to counsel without delay on the accused's protected interests.

Re-evaluating the Grant factors, the appeal court concluded that the serious and multiple breaches of the right to counsel, including prolonged detention without access to a "lifeline" of advice, warranted the exclusion of the breath test samples.

The defendant, C.R., was charged with sexual assault and sexual interference involving his step-grandson, T.C., then 10-11 years old.

The trial judge, sitting without a jury, assessed the credibility and reliability of both the complainant's and the accused's testimony.

Despite finding the complainant generally credible and the allegations highly likely, the judge found that inconsistencies in the complainant's evidence, coupled with the absence of serious flaws in the accused's denial, prevented the Crown from proving guilt beyond a reasonable doubt.

The accused was acquitted.

The creditor brought two motions to enforce a restitution order against a former employee convicted of theft.

The first motion sought to compel the debtor to reattend a judgment debtor examination after she evaded service and failed to appear.

The second, brought without notice, sought leave to issue a writ of seizure and sale more than six years after the original order.

The court granted both motions, permitting service via social media and mail, and confirming that a restitution order entered as a civil judgment attracts post-judgment interest by operation of law.

Ms. Blake sought a stay of proceedings under sections 7 and 11(d) of the Charter, alleging pre-charge delay and lost evidence prejudiced her right to a fair trial.

The court found no evidence of egregious Crown conduct or bad faith.

It determined that Ms. Blake failed to prove actual prejudice, as the lost evidence (cell phone communications, business documentation, and an initial police statement from Mr. Ocran) did not prevent her from presenting a defence, even if it made it more difficult.

The court also noted that some evidence was never in state possession and that police are not obligated to pursue specific defence-directed investigations.

The application for a stay was dismissed.

The accused was tried on historical sexual offence charges alleging abuse by a stepfather against two stepsons over many years in the family home.

The court treated the case as turning on credibility and reliability, considered the principles governing delayed disclosure, prior inconsistent or incomplete accounts, and the effect of extensive criminal records involving dishonesty on witness assessment.

Applying the W. (D.) framework, the court held the complainants' evidence did not provide a basis to reject the accused's denials and that reasonable doubt remained.

All counts were dismissed.

The accused was tried on a single count of sexual assault arising from alleged non-consensual sexual contact with a workplace subordinate during an overnight work-related gathering.

The court reviewed the reasonable doubt standard, the law of consent under ss. 273.1 and 273.2 of the Criminal Code, and the principles in Ewanchuk concerning implied consent and honest but mistaken belief in consent.

Although the complainant's prior accounts contained omissions and incremental disclosure, the court found these did not undermine the core of her evidence and rejected the defence theory that the allegation was fabricated for financial gain.

The court accepted the complainant's evidence that there was non-consensual touching both near the stage and in the trailer and entered a finding of guilt.

The court considered whether the accused's email communications constituted an agreement or arrangement, by telecommunication, to commit sexual interference with a child under s. 172.2(1)(b) of the Criminal Code.

Applying the framework drawn from Legare, the court held that the communications went beyond fantasy or a preliminary meeting and established a concrete plan to sexually assault a child the accused believed to be nine years old.

The court rejected arguments that the copied email record was too incomplete to support conviction and also rejected the submission that the accused lacked knowledge of the child's age.

A finding of guilt was entered on the sole count.

Sentencing decision following jury convictions for multiple serious sexual offences committed against three young complainants, including sexual assault, sexual exploitation, and sexual interference in a parental or trust context.

The court considered Gladue principles because the offender asserted Aboriginal ancestry, but found the evidentiary record insufficient to identify meaningful background factors or culturally appropriate sanctions.

Given the aggravated, repeated, and highly invasive nature of the offences, the court held that denunciation, deterrence, and separation from society predominated.

A total sentence of eight years was imposed, reduced by pre-sentence custody credit to 6 years and 326 days, together with multiple ancillary orders and victim surcharges.

Following a judge-alone criminal trial, the court convicted the accused of sexual assault and sexual interference arising from historical sexual abuse of his young daughter.

The central issue was credibility and reliability in a case involving delayed disclosure, a prior childhood denial, and competing testimony from the complainant and the accused.

Applying the governing principles respecting child witnesses, delayed disclosure, and the W.(D.) framework, the court found the complainant’s evidence credible, reliable, and compelling, and rejected the accused’s denial.

The court held that the Crown proved beyond a reasonable doubt that the accused placed his penis in the complainant’s mouth for a sexual purpose while she was under sixteen and incapable of consent.

The Crown appealed a summary conviction acquittal for care or control of a motor vehicle while having a blood alcohol concentration exceeding the legal limit.

The accused had been found seated in the driver’s seat of a running vehicle in a pub parking lot with breath readings of 110 and 100 mg/100 ml.

The trial judge concluded there was no realistic risk of danger and that the accused had rebutted the statutory presumption of care or control based on an alleged alternate plan to obtain a ride.

The appeal court held that the trial judge misapplied the test from R. v. Boudreault by focusing on visible impairment rather than the legal significance of an over‑80 reading and by treating a vague or unimplemented plan as sufficient to rebut the presumption.

The acquittal was set aside and a conviction substituted.

The appellant appealed a conviction for refusing to comply with an approved screening device breath demand under s. 254(5) of the Criminal Code.

The trial judge found that the accused intentionally failed to provide a proper breath sample despite repeated instructions.

On appeal, the appellant argued that the trial judge provided insufficient reasons, misplaced the onus of proof regarding proper operation of the device, and misapprehended expert evidence concerning the effects of blocking the device’s exhaust vent.

The appeal court held that although the reasons were sufficient, the trial judge misapprehended the expert evidence and incorrectly concluded that it did not align with the officers’ testimony.

This misapprehension was material to the finding that the accused feigned attempts to provide a breath sample and therefore refused the demand.

Following conviction after trial for sexual assault, the court imposed a custodial sentence for intercourse with a complainant who was intoxicated, intermittently conscious, and incapable of consenting.

The court treated the complainant's vulnerability and the fact of unprotected intercourse as aggravating, while recognizing the offender's lack of record, work history, and community support as mitigating.

Immigration consequences were considered but not permitted to distort proportionality.

A sentence of two years less a day, less Summers credit, followed by two years probation and multiple ancillary orders, was imposed.

Sentencing decision arising from a planned group confrontation in a tunnel that led to robbery, assault, humiliation, and wounding of the victim.

The court found both offenders were youthful first offenders with strong rehabilitative progress and limited responsibility for the later escalation of violence, which neither was found to have caused or foreseen.

Applying the principles in ss. 718, 718.1, and 718.2 of the Criminal Code, the court declined to place primary weight on general deterrence and denunciation to the extent urged by the Crown.

One offender received a suspended sentence, 12 months' probation, and community service, while the other received 40 days intermittent custody followed by probation and community service, together with DNA and weapons prohibition orders.

The accused applied under s. 462.34(4)(c)(ii) of the Criminal Code for the release of seized funds to pay legal expenses in defending multiple drug and property-related charges.

The Crown conceded the accused owned the seized funds and that no other person had a lawful interest in them but argued the accused had “other means” to fund his defence because he had been granted legal aid.

The court held that the existence of a legal aid certificate constitutes “means” available within the meaning of s. 462.34(4), unless the accused demonstrates that the level of funding imperils the right to a fair trial.

Finding no evidentiary basis that the legal aid funding created such a risk, the court concluded the statutory preconditions were not met.

The application for restoration of seized funds for legal expenses was dismissed.

The appellant appealed a conviction for driving with excess blood alcohol, arguing that the trial judge erred in relying on pre‑Charter roadside statements, improperly accepted police testimony about statements not recorded in the officer’s notebook or disclosure, reversed the burden on a Charter application, and wrongly concluded the officer had reasonable and probable grounds to make an Intoxilyzer demand.

The court held that roadside statements may be used on a Charter application to assess the reasonableness of the officer’s grounds.

The absence of notebook entries does not automatically render police evidence unreliable and credibility findings are owed deference on appeal.

Considering the circumstances, including the approved screening device result and the officer’s belief about recent consumption, the trial judge’s findings were open on the evidence.

Sentencing decision involving two offenders who pleaded guilty to charging a criminal interest rate and extortion arising from a long‑running loan‑sharking operation.

The offenders charged borrowers an effective annual interest rate of approximately 520% and used threats and violence to collect payments.

The court considered denunciation and deterrence under s. 718 of the Criminal Code but found that conditional sentences remained legally available due to the timing of the offences.

Despite significant aggravating factors, including exploitation of vulnerable borrowers and organized criminal activity, the court imposed conditional sentences given the offenders’ guilty pleas, lack of prior criminal records, restitution, and other mitigating circumstances.

Conditional sentence orders, restitution, forfeiture, fines, probation, and ancillary orders were imposed.

The accused was charged with threatening death, threatening a justice participant, and breaching a bail condition by communicating with a complainant during a courthouse break while a sexual assault preliminary inquiry was ongoing.

The Crown alleged that the accused yelled a threatening phrase toward the complainant as he re-entered the courthouse.

The court found significant credibility and reliability concerns in the complainant’s evidence, including shifting accounts about her location, inconsistencies with surveillance video, and an implausible allegation of a subsequent in-court threat.

The supporting witness did not observe the accused speaking and relied largely on inference.

Considering the totality of the evidence, including surveillance footage and investigative gaps, the court concluded the Crown failed to prove the allegations beyond a reasonable doubt.