Criminal and Quasi-Criminal Law - SCJ

The appellant, Jack Stelwagen, appealed his conviction for sexual assault, arguing that comments made by the trial judge during scheduling proceedings about his ability to hear a section 11(b) Charter application gave rise to a reasonable apprehension of bias and that a mistrial should have been declared.

The Superior Court of Justice reviewed the history of the case, including prior applications and appeals, and concluded that the trial judge’s comments did not demonstrate bias or a closed mind.

The appeal was dismissed.

This ruling addresses the admissibility of Crown-led sexual history evidence in a sexual assault prosecution.

The court applies the two-stage procedure set out in sections 278.93 and 278.94 of the Criminal Code, as clarified by the Supreme Court in R. v. Kinamore, to determine whether evidence of the complainant’s online sexual activity is admissible.

The court finds the evidence relevant to the Crown’s theory of mens rea and the genesis of the alleged abuse, and concludes that its probative value outweighs any prejudicial effect, subject to limitations on the degree of detail permitted at trial.

The accused, I.T., a young Black youth charged with second-degree murder, brought a Corbett application to exclude or sanitize parts of his youth record for the purpose of assessing his credibility if he were to testify.

The court considered the traditional Corbett factors (nature, remoteness, similarity of convictions, and attack on Crown witness credibility) and, significantly, extended the consideration of systemic anti-Black racism, drawing on principles from R. v. King and R. v. Morris.

The application was allowed in part: a conviction for assault peace officer was excluded, firearm possession convictions were sanitized to "possession of a restricted weapon" and "possession of a restricted weapon contrary to a prohibition order", and a robbery conviction was substituted with "assault and theft".

The court found that these modifications balanced the probative value of the record against the heightened prejudicial effect due to racial stereotypes and the risk of improper propensity reasoning.

The accused, a 67-year-old with a heart condition, brought a detention review under s. 525 of the Criminal Code, arguing his vulnerability to COVID-19 warranted release.

He was detained on charges of attempting to purchase a firearm while prohibited, following a previous conviction for serious domestic violence offences against his ex-wife.

The court acknowledged the accused's heightened risk from COVID-19 but found the jail had implemented rigorous mitigation protocols.

Balancing the Gladue factors and pandemic risks against the substantial likelihood that the accused would cause serious harm to his ex-wife if released, the court concluded his detention remained necessary on secondary grounds.

The application was dismissed.

The applicant, charged with first-degree murder and robbery, sought a bail review under s. 522 of the Criminal Code, arguing that the COVID-19 pandemic constituted a material change in circumstances.

The court agreed that the pandemic was a material change, granting jurisdiction to review the detention order.

However, the court found that the applicant's detention remained necessary on both the secondary and tertiary grounds.

Despite a strict proposed release plan involving house arrest and electronic monitoring, the court concluded there was a substantial likelihood the applicant would commit further offences and that his release would undermine public confidence in the administration of justice given the gravity and circumstances of the alleged offences.

The accused was charged with sexual assault and sexual interference against his 11-year-old son.

The allegations arose from a single incident in the fall of 2017.

The trial judge applied the W.(D.) framework to assess the credibility of both the complainant and the accused.

The judge found both the complainant and the accused to be credible and compelling witnesses.

As the judge was unable to resolve the conflicting testimony and was left with a reasonable doubt, the accused was acquitted of both charges.

The offender pleaded guilty to possessing a loaded restricted firearm, a prohibited device, breaching two prohibition orders, and possessing cocaine for the purpose of trafficking.

The Crown sought a 6-year global sentence, while the defence sought 5.5 years.

The court imposed a global sentence of 5.5 years, granting 37 months of Summers credit for pre-sentence custody and an additional 11 months of Duncan credit due to harsh conditions at the Toronto South Detention Centre, exacerbated by the COVID-19 pandemic.

The offender was ordered to serve a further 18 months in custody.

The accused, a Traditional Chinese Medicine practitioner, was charged with three counts of sexual assault against three former patients.

The Crown alleged the accused touched the complainants in a sexual manner under the guise of 'energy work' and medical treatment.

The court dismissed the Crown's similar fact application, finding the evidence across counts was either not probative of the sexual nature of the touching or too dissimilar.

The court acquitted the accused on all counts, finding the testimony of one complainant unreliable and harbouring a reasonable doubt as to whether the touching of the other two complainants was of a sexual nature rather than for a clinical purpose.

A criminal trial where the accused, Muhammad Iqbal, was charged with assault with a weapon, possession of a weapon, break and enter, and theft under $5,000.

A voir dire was held to determine the admissibility of Iqbal's videotaped statement to police, which the defence sought to exclude due to alleged Charter violations (s. 10(a) and 10(b)).

The court found Iqbal was psychologically detained and not properly informed of the reasons for detention or his right to counsel, leading to the exclusion of the statement under s. 24(2) of the Charter.

During the trial on the merits, the Crown relied on the complainant's eyewitness identification and circumstantial evidence, while the defence presented an alibi.

The court rejected the alibi as fabricated and found Iqbal guilty on all four counts, concluding that his presence near the scene, combined with his deceptive alibi, led to the irresistible conclusion of guilt.

During jury selection, a sworn juror advised the court that he was an electrician foreman and his absence would prevent apprentices from working, causing hardship.

The court considered whether the juror could be discharged and replaced before the trial commenced.

Applying section 644(1.1) of the Criminal Code, the court found the juror's circumstances constituted 'other reasonable cause' and discharged him, allowing for a replacement to be selected from the panel.

The applicant sought to sever count 1 (aggravated sexual assault) from an indictment containing four counts, arguing that the interests of justice required it.

The Crown opposed the severance.

The court, applying the factors from R. v. Last, balanced the risk of prejudice to the accused against the public interest in a single trial.

Given the applicant's waiver of his Section 11(b) rights regarding delay, the court found that the applicant met the onus to establish that severance was in the interests of justice.

The accused, Michael Lights, was charged with dangerous driving causing bodily harm and criminal negligence causing bodily harm following a collision.

The defense argued that the Crown had not proven beyond a reasonable doubt that Lights was the driver.

The court found the evidence overwhelming that Lights was the driver, based on witness testimony, identification via health card, and consistent descriptions.

The court then applied the legal principles for dangerous driving and criminal negligence, finding that Lights' conduct—speeding through a red light with non-functional lights, low brake pads, and bald tires on wet roads—constituted a marked departure from the standard of a reasonably prudent driver and demonstrated wanton disregard for the safety of others.

Lights was found guilty on all four counts.

The accused brought a Garofoli application alleging a s. 8 Charter breach and seeking to exclude evidence obtained through a search warrant.

As a preliminary step, they sought leave to cross-examine the affiant and several sub-affiant police officers regarding the Information to Obtain supporting the warrant.

The court reviewed the governing test from Garofoli and Pires and emphasized that cross-examination is permitted only where it is reasonably likely to assist in determining whether the issuing justice had sufficient grounds.

Most proposed areas of questioning were rejected as speculative, irrelevant, or risking disclosure of confidential informant identities.

Limited cross-examination was permitted on specific issues relating to informant independence, the meaning of “successful result” in relation to informant compensation, certain TPS disclosure materials, and errors in the ITO.

The appellant appealed a conviction for sexual assault arising from an alleged improper search conducted during an arrest.

The appeal argued that the trial judge erred by admitting and relying on a prior consistent statement made by the complainant to another officer, by failing to consider inconsistencies in the complainant’s accounts of the searches, and by failing to weigh credibility concerns arising from the complainant’s admitted dishonesty about drug use.

The court held that prior consistent statements are presumptively inadmissible and found that the trial judge improperly admitted and relied upon such a statement to bolster the complainant’s credibility.

The court concluded that the statement was used for the truth of its contents and as a significant foundation for the credibility finding.

As this constituted an error affecting an important piece of evidence, the conviction could not stand.

On a voir dire during a robbery trial, the court determined whether a police statement made by the accused was voluntary under the common law confessions rule.

The defence argued the statement was involuntary due to inducements, references to potential Children’s Aid Society involvement, and allegedly oppressive conditions including cold temperature and lack of medication for diabetes.

The court assessed the totality of the circumstances, including the accused’s demeanor, the recorded interview, and police testimony.

While acknowledging some inducements and pressure during the interview, the court found the accused retained an operating mind and was not subjected to oppressive conditions sufficient to overbear her will.

The Crown proved voluntariness beyond a reasonable doubt and the statement was admitted at trial.

The accused brought a Charter motion under s. 24(2) seeking exclusion of evidence obtained pursuant to a search warrant issued under the Controlled Drugs and Substances Act for a suspected cannabis grow operation.

They alleged the Information to Obtain contained misleading statements and inadequate disclosure and sought leave to cross-examine the affiant officer under the Garofoli framework.

The court held that the accused had standing to bring the application as residents of the searched property and permitted limited cross‑examination concerning alleged discrepancies in the officer’s description of another officer’s observations.

After reviewing the evidence and the affidavit supporting the warrant, the court concluded that reasonable and probable grounds existed for the issuance of the warrant.

The search warrant was found to be valid and the evidence admissible.

The appellant appealed a conviction for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appeal alleged that the trial judge failed to address whether the accused was given a final opportunity to provide a breath sample, misapprehended evidence regarding the accused’s attempts to blow into the approved screening device, and misapplied the credibility analysis from R. v. W.(D.).

The summary conviction appeal court held that the trial judge made clear credibility findings, reasonably rejected the accused’s evidence, and properly placed the burden of proof on the Crown.

Applying the deferential standard owed to findings of fact and credibility, the court found no reversible error in the trial decision.

The conviction was upheld.

The appellant appealed convictions for dangerous driving and failing to stop for police.

At trial, the defence argued non-insane automatism and challenged the admissibility of roadside utterances on the basis that the accused lacked an operating mind due to a severe panic attack.

The trial judge admitted the utterances after a voir dire, noting the absence of medical or psychiatric evidence, and later relied on those statements in rejecting the automatism defence and convicting the accused.

On appeal, the court held that the trial judge should have granted an adjournment to permit a forensic psychiatrist to testify on the voir dire regarding the accused’s mental state.

The appellate court found that such evidence might have raised a reasonable doubt about voluntariness and potentially affected the outcome of the trial.

The accused brought a motion to sever multiple drug trafficking and possession for the purpose of trafficking counts so that each would be tried separately before a jury.

The defence argued that the accused intended to testify on some counts but not others and that a joint trial would undermine the right to remain silent by exposing the accused to cross‑examination on all counts.

Applying the interests of justice framework from R. v. Last, the court considered both the accused’s fair trial rights and society’s interest in efficient proceedings.

The court concluded that trying the possession counts together with the earlier trafficking counts could create unfairness if the accused chose to testify on some counts but not others.

Counts 3 and 4 were severed from counts 1 and 2, while counts 1 and 2 remained joined for trial.

The accused was charged with assault and sexual assault arising from an altercation with a former partner after an argument near a bus terminal.

The Crown alleged that the accused assaulted the complainant and then forced sexual intercourse after threatening to post intimate photos online, while the defence argued self‑defence during the physical confrontation and consensual sexual activity.

The court applied the credibility framework from R. v. W.D., finding the accused’s testimony unreliable but also identifying significant credibility and reliability concerns in the complainant’s evidence, including inconsistencies, a recantation letter, delayed disclosure of key allegations, and continued contact between the parties.

Given the conflicting evidence and the weaknesses in the Crown’s case, the court concluded that the Crown had not proven the offences beyond a reasonable doubt.

The accused was acquitted on both counts.