Criminal and Quasi-Criminal Law - SCJ

The court sentenced K.P. to 16 years in custody for attempted murder and related offences arising from a pattern of intimate partner violence, including multiple attempts to poison the complainant with fentanyl and hiring a hitman to kill her.

The decision details the facts found by the jury, the aggravating and mitigating factors, and the harsh pre-sentence custody conditions experienced by the offender.

The court considered the offender’s mental health and addictions, but found his moral blameworthiness to be high due to planning, deliberation, and lack of remorse.

The sentence was reduced from 21 to 16 years to account for the particularly harsh pre-trial detention conditions.

The court considered the admissibility of discreditable conduct evidence in a judge-alone trial for first-degree murder and attempted murder.

The Crown sought to introduce evidence that the accused, O.W., threatened the deceased with a firearm on Instagram Live hours before the homicide, and a video showing O.W. associating with J.A. (the co-accused) who brandished a handgun.

The court found both pieces of evidence highly probative to issues of motive, animus, intent, and identification, and held that their probative value outweighed any prejudicial effect, especially given the reduced risk of prejudice in a judge-alone trial.

The application to admit the evidence was granted.

The defendants were tried on charges including reckless discharge of a firearm, possession of restricted and prohibited firearms, and possession of property obtained by crime.

The charges arose from an incident where multiple shots were fired from a stolen white pick-up truck in a residential area.

The court found beyond a reasonable doubt that the defendants were occupants of the vehicle, acted in a joint enterprise, and intentionally discharged the firearms while reckless to the safety of others.

Both defendants were found guilty on all counts.

The accused was convicted of intentionally discharging a firearm and several other weapons offences after firing 13 shots at a fleeing vehicle in downtown Ottawa.

At the time, he was bound by a recognizance prohibiting him from possessing firearms.

The Crown sought a 9-year sentence, while the defence sought 4 years plus credit for stringent bail conditions.

The court imposed a total sentence of 8 years imprisonment, finding the offence fell at the lower end of the range for serious firearms offences since no one was injured by the accused's shots.

The court also granted 12 months of enhanced credit for the restrictive house arrest and curfew conditions the accused endured while on bail.

The Crown applied under s. 521(1) of the Criminal Code for a review of a Justice of the Peace's decision to release the accused on strict conditions.

The Crown argued the Justice of the Peace erred in considering the rareness of detention on the tertiary ground as a guiding principle and in giving inappropriate weight to electronic monitoring and COVID-19 delays.

The court found no error in the Justice of the Peace's analysis regarding the tertiary ground or the weight given to electronic monitoring and COVID-19's impact on trial delays.

The Crown's application was dismissed, and the accused's release was maintained.

The defendant, Nafi Selmanovski, was charged with sexual interference and sexual assault against a complainant who was under 16 years old at the time of the alleged offences.

The Crown presented evidence from the complainant and another former employee.

The defendant did not testify.

The court found numerous material inconsistencies in the complainant's evidence, both internal and external, which undermined credibility and reliability.

The court also noted a potential motive for fabrication by the complainant, who faced criminal charges involving police at the time of reporting.

Consequently, the Crown failed to prove guilt beyond a reasonable doubt, and the defendant was acquitted on all counts.

M.M. sought a bail review of a detention order, arguing a material change in circumstances due to COVID-19 and his underlying health conditions.

The applicant, charged with multiple drug trafficking and compliance offences, proposed a release plan with a surety (K.D.) and GPS monitoring.

The court accepted the COVID-19 pandemic as a material change but ultimately found the proposed surety unsuitable due to a shared history of drug addiction with the applicant, which jeopardized the applicant's sobriety and the plan's ability to mitigate secondary grounds risks.

The court also considered the strong Crown's case and the public's confidence in the administration of justice.

The bail review application was dismissed, and the applicant remained detained on secondary and tertiary grounds.

The applicant, Aiko Hamasaki, brought a motion to exclude a statement she gave to police, alleging violations of her Charter rights under sections 10(a) and 10(b).

The court found no breach of section 10(a) regarding the information provided upon arrest.

However, the court found a breach of section 10(b) when a police officer suggested Ms. Hamasaki consult a lawyer "more versed in criminal law" than her immigration lawyer, Matthew Wong, after she had expressed a desire to contact Mr. Wong.

This unsolicited advice was deemed an impermissible interference with her right to counsel of choice, especially given her vulnerable state and the power imbalance.

Consequently, the statement was excluded from evidence under section 24(2) of the Charter.

The Crown sought to vacate the accused's release order on a bail review under section 521 of the Criminal Code, arguing the initial release was "clearly inappropriate" or that a "material change in circumstances" (new video evidence) justified detention.

The court dismissed the Crown's application, finding the Justice of the Peace's decision was not "clearly inappropriate" and that the video evidence did not constitute a material change.

However, the court recognized the COVID-19 pandemic as a material change in circumstances, but held it did not, on its own, justify reopening a hearing where the accused was already released.

Colleen Cahill, charged with multiple provincial and federal offences including theft, break and enter, and administration of justice offences, sought a bail review under s. 520 of the Criminal Code after being detained on primary and secondary grounds.

The Superior Court of Justice granted judicial interim release, finding that the COVID-19 pandemic constituted a material change in circumstances, particularly given Cahill's HIV-positive status and chronic lung disease, which placed her at significant risk in detention.

The court determined that her proposed release plan, involving supervision by the John Howard Society and continuation of a methadone program, sufficiently mitigated the risks of non-attendance and reoffending, and that her release would not undermine confidence in the administration of justice.

The applicant sought a bail review under section 520(1) of the Criminal Code, requesting vacation of a prior detention order.

The application was based on two alleged material changes in circumstances: a new release plan with different sureties (uncle and aunt) and the prevalence of COVID-19 in society and jails.

The court dismissed the application, finding that neither the new release plan nor the COVID-19 pandemic, without specific medical evidence for the applicant, constituted a material change sufficient to warrant release on secondary or tertiary grounds.

The court emphasized the escalating gravity of the alleged firearm and drug offences and the applicant's history of breaching bail conditions.

The applicant, George Flowers, sought a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging breaches of his section 11(b) right to a trial and sentencing within a reasonable time.

The charges involved aggravated sexual assault.

The application was based on three grounds: unreasonable pre-verdict delay, unreasonable post-verdict delay exceeding the presumptive ceiling set by R. v. Charley, and unreasonable post-verdict delay even if below the ceiling.

The court found that the net pre-verdict delay was below the Jordan ceiling and the applicant failed to demonstrate unreasonable delay.

For post-verdict delay, the court accepted that dangerous offender proceedings under Part XXIV of the Criminal Code constituted exceptional circumstances, and the net post-verdict delay, after accounting for these circumstances, did not exceed the Charley ceiling.

Consequently, the application for a stay of proceedings was dismissed.

Jeremy Kandhai pleaded guilty to possession of a prohibited firearm with accessible ammunition and breach of a firearms prohibition order.

The sentencing was expedited due to the COVID-19 pandemic.

The court considered the 30 months (45 months with 1.5x credit) pre-trial custody, enhanced credit for lockdowns, an early guilty plea, and an assault suffered by the accused in custody.

The judge determined that the appropriate overall disposition was time served, emphasizing the increased hardship of incarceration during the pandemic as a significant factor.

The accused, D.B., was charged with multiple counts of sexual assault, robbery, and other offenses involving two complainants, L.G. and E.H., on a single indictment.

D.B. applied to sever the charges relating to L.G. from those relating to E.H. and also sought to admit evidence under s. 276 of the Criminal Code regarding L.G.'s past willing sexual services for drug debts.

The court granted the severance application, finding insufficient factual nexus between the incidents and a significant risk of propensity reasoning by the jury.

It also determined that the Crown's similar fact evidence application was unlikely to succeed.

The s. 276 application was dismissed, as the proposed evidence was deemed inadmissible under s. 276(1) and (2) of the Criminal Code, serving no purpose other than to support an inference of past consent, which is prohibited.

Dia Eddin Hanan was sentenced for manslaughter, possession of a loaded restricted firearm, and discharge of a firearm with intent to wound, following a jury trial where he was acquitted of second-degree murder and attempted murder.

The court made specific factual findings for sentencing, including that Hanan brought the gun, initiated the shooting, and shot one victim in the back as he fled, causing permanent paralysis.

The global sentence imposed was 15 years imprisonment, reduced to 12 years and 7 months after accounting for pre-sentence custody and stringent bail conditions.

The court emphasized denunciation and deterrence due to the gravity of the offences, which resulted in one death and one lifetime paralysis.

The Crown applied under s. 9(2) of the Canada Evidence Act to cross-examine its own witness, S.B., on a prior inconsistent statement.

The accused opposed, arguing the statement's reliability was compromised due to the circumstances of its taking, including S.B.'s detention without Charter or Youth Criminal Justice Act rights being provided, and aggressive police questioning.

The court found S.B. was detained, not informed of her rights to counsel or to remain silent, and was a young person whose YCJA rights were breached.

The court also noted the unrecorded initial questioning and the coercive nature of the police interview.

Concluding that the statement's reliability was questionable and that granting the application would not serve the ends of justice, the court dismissed the Crown's application.

Jeffrey Persad pleaded guilty to firearms and drug trafficking offences.

The parties jointly submitted a nine-year imprisonment sentence, with standard credit for presentence custody.

The dispute centered on enhanced credit for harsh conditions at the Toronto South Detention Centre (TSDC), where the offender experienced frequent lockdowns due to staff shortages.

The Crown proposed an additional 0.5:1 credit for lockdown days, while the offender sought 2.5:1.

The court, acknowledging the inhumane and persistent conditions at the TSDC as deliberate state misconduct, awarded an enhanced credit of 1.5:1 for each of the 475 lockdown days, in addition to the standard 1.5:1 credit for 1010 days in custody.

The final sentence was nine years, effectively reduced to 33 months after all credits.

The offender, a high school teacher, was convicted of voyeurism after surreptitiously recording videos of female students' cleavage using a pen camera over an 18-month period.

The Crown sought 12 to 18 months' imprisonment, while the defence sought an 18-month conditional sentence.

The court emphasized the significant breach of trust, the vulnerability of the underage victims, and the need for denunciation and general deterrence.

Finding that a conditional sentence would not adequately address these principles, the court imposed a sentence of 6 months' imprisonment followed by 12 months' probation.

The applicants, charged with robbery, assault, and weapons offences, brought a pre-trial application to exclude evidence obtained through intercepted communications.

The court previously found that the wiretap authorization was issued without reasonable and probable grounds, violating the applicants' s. 8 Charter rights.

Applying the Grant framework under s. 24(2) of the Charter, the court found the state conduct to be at the more serious end of the spectrum and the impact on the applicants' privacy rights to be significant.

The court concluded that admitting the evidence would bring the administration of justice into disrepute and ordered the intercepted communications excluded.

The applicants, who were facing separate jury trials, brought a pre-trial 'Kokopenace' application challenging the constitutionality of the 2015 Thunder Bay jury roll.

They sought a publication ban on the proceedings under s. 648 of the Criminal Code or, alternatively, under the common law Dagenais/Mentuck test.

The court granted a partial publication ban to prevent potential jurors from drawing adverse inferences against the applicants, specifically prohibiting the publication of their identities, the facts of the allegations, and the fact that one applicant had previously brought a similar application.