Scott Kerwin

The applicant, charged with aggravated assault, brought a Charter motion under ss. 8 and 24(2) to exclude evidence obtained from a search of his iPhone.

He argued the Information to Obtain (ITO) lacked direct evidence that he used the phone during or after the incident, rendering the warrant facially invalid.

The Superior Court of Justice dismissed the application, finding the issuing justice was entitled to draw a common-sense inference that the applicant likely used his phone to generate relevant data during the hours surrounding the violent events.

The search warrant was upheld as lawful and valid.

The 68-year-old offender pled guilty to one count of sexual interference relating to historical offences committed in 1999 against a 12-year-old boy.

The Crown sought 30 to 36 months in custody, while the defence sought 9 to 12 months, citing the offender's significant health issues including a recent stroke and advanced Ankylosing Spondylitis.

Applying the principles from R. v. Friesen, the court emphasized denunciation and deterrence for sexual offences against children.

The court found that while the offender's health issues were a mitigating factor that reduced the sentence from what it otherwise would have been, a penitentiary term was still required.

The offender was sentenced to 30 months in custody.

Brent Loyer pleaded guilty to two counts of sexual interference involving a 14-year-old complainant.

The Crown sought 14-18 months custody, while the Defence proposed a conditional sentence of two years less a day.

The court considered aggravating factors, including the victim's significant emotional and physical harm and the offender's position of trust, and mitigating factors such as the offender's age (82), lack of prior record, and medical issues.

Applying the principles from R. v. Friesen, the court emphasized denunciation and deterrence for sexual offences against children.

The judge imposed a blended sentence: five months of incarceration for the more serious count (vaginal touching) and an 18-month consecutive conditional sentence for the other count (kissing), followed by a 36-month probation order.

Ancillary orders included DNA, weapons prohibition, SOIRA, and non-contact orders.

The Crown appealed the acquittal of the respondent on four counts of uttering death threats.

The trial judge had dismissed the charges, finding that the Crown had not established the actus reus or mens rea, concluding that the statements were "crazy talk" or "blowing off steam" given the respondent's physical injuries and mental state.

The appellate court dismissed the Crown's appeal, upholding the trial judge's findings, emphasizing the deference owed to a trial judge's factual assessments and application of legal standards to facts, and finding no palpable and overriding error.

The Appellant, Robert Meersseman, appealed his conviction for operating a motor vehicle with a blood alcohol concentration exceeding .080.

The appeal raised two issues: whether the trial judge reversed the burden of proof and whether the breath samples were obtained "as soon as practicable." The Superior Court of Justice found that the trial judge did not reverse the burden of proof, properly assessed credibility, and correctly concluded that the breath samples were taken as soon as practicable, despite a minor miscalculation of a time interval.

The court emphasized that "as soon as practicable" requires a reasonably prompt time considering overall circumstances, not an exact accounting of every moment.

The appeal was dismissed, and the driving prohibition was reinstated.

Two sentencing proceedings heard together concerning the availability of intermittent sentences in the Southwest Region.

The first accused pleaded guilty to simple possession of 16 fentanyl patches contrary to the Controlled Drugs and Substances Act.

The second accused pleaded guilty to impaired driving, a second offence.

Both accused sought intermittent sentences to maintain employment.

The court learned of the Intermittent Community Work Program, which would allow offenders to serve their entire custodial sentences in the community through temporary absence permits.

The court found that this program rendered the sentences non-custodial in nature and therefore incompatible with the statutory requirement for "appropriate accommodation to ensure compliance" under section 732(1) of the Criminal Code.

The court declined to impose intermittent sentences and remanded both offenders into custody.

The accused was convicted of careless driving and pleaded guilty to driving while licence suspended.

On April 29, 2015, the accused drove a van with six passengers on Highway 3 in Leamington when a bee entered the driver's window.

The accused became distracted by the bee and failed to maintain attention on the road despite warnings from passengers.

This resulted in multiple overcorrections, the van rolling over, and two passengers being fatally injured.

The court imposed a sentence of 30 days incarceration, a two-year driving prohibition, and a $1,000 fine.

The court found that the accused's status as both never-licenced and suspended made non-custodial sanctions ineffective as deterrents.

The accused was arrested for sexual assault.

At the police station, officers conducted a warrantless penile swab search while the accused was completely naked, without readvising him of his right to counsel.

The accused brought a motion to exclude the DNA evidence obtained from the swab, alleging violations of his rights under ss. 8 and 10(b) of the Charter.

The court found that while a penile swab can be a lawful search incident to arrest, the manner of the search violated s. 8 due to lack of privacy, unnecessary complete nudity, and poor record-keeping.

The court also found a s. 10(b) violation because the police failed to provide the accused with an additional opportunity to consult counsel before conducting the new, non-routine penile swab procedure.

Applying the Grant framework under s. 24(2), the court concluded that admitting the evidence would bring the administration of justice into disrepute and excluded the penile swab evidence.

Multiple accused charged with operating a motor vehicle with blood alcohol concentration exceeding 80 mg/100 mL brought disclosure applications seeking approximately 75 items related to breath testing devices and procedures.

The Crown resisted disclosure, arguing the requested items were either third-party records or clearly irrelevant.

The court determined that the requested maintenance logs, calibration records, and other technical documentation not already provided constituted third-party records under the O'Connor regime rather than first-party records under Stinchcombe.

The applicants failed to establish that the requested items were likely relevant to their cases, as they provided no evidentiary foundation linking the requested materials to potential malfunctioning or improper operation of the specific instruments used in their breath tests.

All disclosure applications were dismissed.

The accused was charged with operating a motor vehicle with a blood alcohol content exceeding 80 milligrams per 100 millilitres of blood.

The Crown relied on breath test results showing 250 and 259 milligrams.

The defence challenged the reliability of the test results, arguing operator error occurred when the breath technician failed to observe the mandatory 15-minute waiting period after the accused used an inhaler.

The court found that although the technician deviated from recommended procedures, the deviation did not affect the reliability of the results.

The two test samples were in close agreement, the slope detector did not invalidate the sample, and the evidence did not support that the inhaler contained alcohol.

The court rejected the accused's credibility regarding the type of inhaler used and found the Crown proved its case beyond a reasonable doubt.

The accused was charged with sexual assault against a college student intern.

After the conclusion of testimony, the defence sought to reopen the trial to introduce fresh evidence from a former college instructor regarding an alleged assault allegation the complainant had made against the instructor approximately three months prior to the incident at issue.

The defence argued this evidence was relevant to the complainant's credibility and motive to fabricate.

The court dismissed the application, finding the proposed evidence was irrelevant and collateral to the main issue, and that allowing it would interfere with the orderly conduct of the trial.