Criminal and Quasi-Criminal Law - SCJ

This sentencing decision concerns M.S., who was found guilty of sexual interference and two counts of assault against his daughters, A1 and A2.

The court reviews the facts of the offences, the impact on the victims, the offender’s background including Indigenous heritage and intergenerational trauma, and the results of a Gladue report and Sentencing Circle.

The court considers the principles of sentencing, including denunciation, deterrence, and the appropriateness of a conditional sentence.

Ultimately, the court imposes a conditional sentence of two years less a day for sexual interference, concurrent 90-day sentences for assault, followed by two years’ probation and various ancillary orders.

The accused brought a motion seeking leave to communicate with defence counsel between the completion of the Crown's cross-examination and the commencement of re-examination, contrary to the presumptive Ontario Rules of Professional Conduct.

The court granted the motion, finding that the constitutional rights to a fair trial and full answer and defence, coupled with the gravity and complexity of the charges (four counts of first-degree murder and one of attempted murder) and the extensive nature of the accused's testimony, justified a departure from the rule.

The ruling permits counsel and client to discuss both the decision to re-examine and the proper scope of re-examination.

The offender was convicted of manslaughter for the beating death of his wife.

The court considered the severe aggravating factors, including the domestic nature of the violence, the brutality of the attack, and the offender's lack of genuine remorse.

Mitigating factors were limited to harsh pre-sentence custody conditions, including triple-bunking and loss of in-person visits due to the COVID-19 pandemic.

The court determined a fit sentence was 9.5 years imprisonment, reduced to 1684 days after applying credit for pre-sentence custody.

The appellant, a bar security guard, appealed his conviction for assault causing bodily harm after he body-slammed an unruly patron, fracturing the patron's femur.

The appellant argued the trial judge materially misapprehended the evidence by confusing a 'metal post' with a 'cement post' when assessing whether the patron caused his own fall by pushing off a structure.

The Superior Court of Justice dismissed the appeal, finding the trial judge fully comprehended the evidence, properly rejected the appellant's version of events as inconsistent with video footage, and made no palpable and overriding error in her factual or credibility findings.

Prior to the offender's sentencing, the Crown sought to file a community impact statement from the Black Action Defence Committee.

The defence objected to portions of the statement, arguing they exceeded the permissible scope under section 722.2 of the Criminal Code, and sought redactions.

The court held that while much of the statement provided necessary context regarding the impact of the offence on the Black community, two specific portions were irrelevant or inflammatory and required redaction.

The court otherwise declined to redact the statement, noting it would disregard any impermissible content.

The 80-year-old accused was convicted of sexual interference involving a 9-year-old victim whom he tutored.

The Crown sought 12 months in jail, while the defence sought a conditional sentence.

The court noted the accused's severe medical issues and the risks posed by the COVID-19 pandemic in a custodial setting.

Applying the recent decision in R. v. Sharma, which struck down the prohibition on conditional sentences for offences with a 14-year maximum penalty, the court imposed a 12-month conditional sentence, finding that incarceration would likely be a death sentence for the accused.

The applicant, charged with possession of oxycodone and hydromorphone for the purpose of trafficking, brought a Rowbotham application for state-funded legal counsel after being denied Legal Aid.

The court found that the applicant failed to provide full and complete disclosure of her financial circumstances, noting substantial unexplained deposits and gambling expenses in her bank records.

Furthermore, the court held that the applicant failed to demonstrate that her right to a fair trial would be compromised without counsel, as the trial judge has a duty to assist a self-represented accused.

The application was dismissed.

Gary Green pleaded guilty to multiple criminal offences including mischief, break and enter, theft, weapons possession, robbery, dangerous driving, flight from police, driving while disqualified, and breach of recognizance.

The court considered sentencing principles, including denunciation, deterrence, and rehabilitation, alongside significant mitigating Gladue factors due to the offender's Aboriginal status and difficult upbringing.

Despite the Crown seeking 8-10 years, the court imposed a sentence of time served plus one day, effectively crediting 3.5 years for pre-sentence custody, along with a two-year probation period and ancillary orders, emphasizing rehabilitation and the unique circumstances of Aboriginal offenders.

The court accepted a joint sentencing submission for the accused, Jason Daniel.

The sentence included credit for 189 days of pre-sentence custody (calculated at 1.5x, totaling 284 days), an additional 60 days of intermittent custody, and two years of probation.

Probation conditions included non-association with specified individuals, reporting requirements, residence approval, counselling, and prohibitions against possessing controlled drugs/substances or weapons.

A DNA order was issued, and a $200 victim fine surcharge was imposed.

The offender pleaded guilty to manslaughter after fatally stabbing a man in a bar.

The Crown sought a dangerous offender designation under s. 753(1)(a)(i) of the Criminal Code based on a long pattern of violent conduct involving unprovoked assaults and weapon use.

The court accepted psychiatric evidence that the offender suffered from schizophrenia and other disorders but found the statutory criteria for dangerous offender designation were met due to a pattern of repetitive violent behaviour and a likelihood of future violence.

However, the court concluded that an indeterminate sentence was not justified because treatment compliance, particularly injectable medication and structured supervision, created a reasonable expectation that the public could be adequately protected.

The offender was sentenced to a determinate term followed by a long-term supervision order.

Summary conviction appeals from conviction and sentence for sexual assault.

The accused argued the trial judge erred in accepting the complainant’s evidence and rejecting his testimony.

The court found the trial judge properly applied the W.(D.) credibility framework and that the guilty verdict was reasonable on the record.

However, the Crown’s sentence appeal succeeded because the trial judge erred in principle by failing to give adequate weight to denunciation and by overemphasizing rehabilitation when imposing a conditional sentence.

The conditional sentence was set aside and replaced with a custodial sentence followed by probation.

During a trial for three robberies, the Crown sought to admit a 911 call made by a victim who was unavailable to testify.

The court found that the 911 call was made almost immediately after the robbery while the victim was still in shock, leaving no opportunity for concoction or fabrication.

The court ruled the 911 call admissible under the traditional res gestae exception to the hearsay rule, and alternatively under the principled approach to hearsay, as it met the requirements of necessity and threshold reliability.

The accused, a municipal court services lead clerk responsible for reconciling daily traffic court receipts and preparing bank deposits, was charged with theft over and breach of trust by a public official after a $26,520.95 deposit disappeared.

The Crown relied entirely on circumstantial evidence showing the accused prepared the deposit documentation, had exclusive access to the office safe during the relevant period, repeatedly delayed deposits contrary to policy, and engaged in unexplained after‑hours access to the office and safe.

Evidence also established financial difficulties and a pattern of withholding deposits before the loss.

The court held that the only rational inference from the cumulative circumstantial evidence was that the accused deliberately took the deposit.

The accused was convicted on both counts.

Sentencing decision for multiple firearm, drug trafficking, and breach of prohibition order offences.

The accused was arrested while carrying a fully loaded restricted handgun and possessing crack cocaine for the purpose of trafficking while subject to firearms prohibition orders and probation.

The court applied the Kienapple rule to stay certain duplicative convictions and considered aggravating factors including the loaded firearm, connection to drug trafficking, flight from police, and breach of prior court orders.

After granting enhanced credit for pre-sentence custody under s. 719(3.1) of the Criminal Code, the court imposed a global sentence of five years’ imprisonment.

The remaining custodial term was structured as a reformatory sentence followed by a three-year probation order with multiple ancillary orders.

The appellant appealed a summary conviction for failing to comply with a demand to provide a suitable breath sample under s. 254(5) of the Criminal Code.

She argued that the trial judge’s extensive questioning of witnesses compromised the appearance of trial fairness and that the judge erred in assessing the elements of the offence, particularly regarding voluntariness and reasonable excuse.

The court acknowledged that the trial judge improperly assumed part of the Crown’s role during examinations-in-chief but found that the interventions did not undermine the overall fairness of the trial.

The court further held that the trial judge reasonably concluded that the accused intentionally failed to provide a suitable sample and rejected the explanation that cold weather and nervousness made compliance impossible.

The appeal was dismissed.

Sentencing decision following guilty pleas to three counts of fraud over $5,000 involving approximately $116,500 obtained from close family members.

The offender, a lawyer, induced the victims to invest in his company by promising high returns and providing false documentation showing fictitious profits.

The court emphasized denunciation and general deterrence, particularly where a professional abuses both a legal and familial position of trust.

Aggravating factors included the significant amount of money, multiple victims, prolonged deception, and breach of trust as a lawyer.

The court concluded that a conditional sentence was inappropriate and imposed a custodial sentence.

The Crown brought an application seeking a ruling on whether the new self‑defence provisions enacted by the Citizen’s Arrest and Self‑defence Act, which replaced former Criminal Code ss. 34–37 and came into force March 11, 2013, applied retrospectively to offences committed before that date.

The accused was charged with multiple assault‑related offences arising from an incident in his apartment and intended to rely on self‑defence and defence of property at a judge‑and‑jury trial.

The court reviewed conflicting authorities across Canadian jurisdictions regarding whether the new provisions operate prospectively only or also apply to earlier conduct.

Emphasizing the remedial purpose of the amendments and the need for clear jury instructions, the court concluded that the presumption against retrospectivity was rebutted in these circumstances.

The jury would therefore be instructed under the new self‑defence provisions.

The applicant sought the release of seized cash under s. 462.34 of the Criminal Code to fund legal expenses in pending criminal proceedings.

Police had seized more than $1 million in cash during a search that also uncovered drugs and other evidence.

The court accepted that the seized funds were available for potential release and that the applicant had established sole entitlement to the money despite arguments about possible competing claims.

However, the applicant failed to demonstrate financial need, as required under s. 462.34, given inconsistencies between his claimed lack of assets and evidence that he possessed substantial unexplained cash and lived in a mortgage-free home.

The application for release of funds for legal fees was therefore denied.

The appellant appealed a conviction for care and control of a motor vehicle with blood alcohol exceeding the legal limit and a sentence of six months’ imprisonment with a four-year driving prohibition.

The appellant argued the roadside screening demand was not made “forthwith” under s. 254(2) of the Criminal Code and alleged Charter breaches under ss. 8, 9, and 10.

The court held the demand was made promptly in the circumstances, noting the officer acted reasonably in securing the scene of a collision and arranging for an approved screening device.

However, the sentencing judge improperly treated the appellant as the cause of the collision using a balance of probabilities standard rather than proof beyond a reasonable doubt for an aggravating factor.

The conviction appeal was dismissed but the sentence appeal was allowed and the custodial term and driving prohibition were reduced.

The accused brought a defence motion seeking severance of charges in a criminal prosecution.

The court considered the request and determined that severance was not warranted in the circumstances.

The motion was denied, with the court indicating that reasons would follow.