Sherif Mohamed Foda

The Crown appealed a Quebec Court of Appeal decision that quashed four convictions and entered a stay of proceedings based on a violation of the right to be tried within a reasonable time under s. 11(b) of the Charter.

The trial judge had found a s. 11(b) infringement but declined to stay proceedings on the basis that the accused had not been prejudiced by the delay.

The Court of Appeal erred by entering a stay without re-examining the reasonableness of the delays, even though the record contained a detailed statement of admissions.

The Supreme Court held that a functional analysis of the trial judge's reasons showed he considered the relevant Morin factors and reached the correct conclusion.

The defence-caused delays, including multiple unsuccessful applications and insistence on conflicted counsel, must be subtracted, and the transitional exceptional circumstance under Jordan further supported the conclusion that s. 11(b) was not infringed.

The applicant, charged with assault and mischief, applied for a stay of proceedings arguing his right to a timely trial under s. 11(b) of the Charter was violated.

The total delay from charge to anticipated end of trial was over 19 months, exceeding the 18-month presumptive ceiling.

The court analyzed four periods of alleged defence delay and found that three periods, totaling 103 days, were attributable to the defence due to inaction in scheduling the trial.

Subtracting this defence delay brought the net delay to just under 15.5 months, which fell below the presumptive ceiling.

The application for a stay of proceedings was dismissed.

The applicant, currently on trial for sexual assault in the Ontario Court of Justice, sought an order of certiorari to quash the trial judge's dismissal of his mistrial application and an order of mandamus to permit him to re-elect a jury trial.

The mistrial application was based on the late disclosure of a police occurrence report.

The Crown moved to summarily dismiss the application, arguing it constituted an impermissible interlocutory appeal.

The Superior Court agreed with the Crown, finding that the trial judge's decision regarding the disclosure regime and the mistrial was within her jurisdiction, and therefore certiorari was unavailable.

The application was summarily dismissed.

The applicant, Mohandranjan Navaratnam, sought a mistrial and permission to re-elect to a jury trial, arguing that the Crown's delayed disclosure of an occurrence report breached his Charter rights to full answer and defence and a jury trial.

The court dismissed the application, finding that the report was subject to third-party disclosure, not first-party, and that even if it were, the delay did not prejudice the applicant's rights given his prior knowledge of the incident and existing defence strategy.

This is an appeal from the dismissal of an application for extraordinary relief (prohibition and certiorari) seeking to prevent a judge from proceeding with a remote video trial and to quash a ruling for a remote trial.

The Court of Appeal dismissed the appeal as moot because the appellant's request for a full in-person trial had been accommodated.

The court declined to hear the moot appeal on public interest grounds, citing an insufficient record, the issues not being evasive of review in normal appellate process, and no evidence of a systemic problem requiring immediate resolution.

The accused brought a constitutional challenge against sections 276(2), 278.92, 278.93, and 279.94 of the Criminal Code, as amended by Bill C-51.

These provisions govern the admissibility of a complainant's sexual history and private records in sexual assault cases, requiring defence disclosure of records in their possession and granting the complainant standing with counsel at admissibility hearings.

The accused argued these amendments violated his fair trial rights, right to make full answer and defence, and right to remain silent under sections 7 and 11(d) of the Charter.

The court dismissed the application, finding the amendments constitutional.

It held that the provisions appropriately balance the accused's fair trial rights with the privacy, security, and dignity interests of sexual assault complainants, and do not infringe on the right against self-incrimination or the right to surprise in cross-examination.

The appellant appealed the 45-day impoundment of her vehicle under the Highway Traffic Act.

The vehicle was impounded after her ex-husband was caught driving it while his Ontario licence was suspended for life.

The appellant argued she exercised due diligence because she had seen his Quebec driver's licence in 2018 and noticed it in his wallet shortly before the impoundment.

The Tribunal found this did not constitute due diligence, as she failed to check the expiry date or confirm with the Ministry of Transportation whether he was legally permitted to drive in Ontario.

The appeal was dismissed and the impoundment order confirmed.

The accused brought a motion alleging a violation of the right to trial within a reasonable time under the Charter.

The information was sworn on July 31, 2017, and trial was scheduled to conclude on July 10, 2020, representing a total elapsed time of two years, eleven months, and eleven days.

The Crown argued that the defence caused significant delays, including the accused's failure to return to Toronto (approximately 18 months) and the defence's refusal to attend a pre-trial meeting due to incomplete disclosure (seven months).

The court found that the police made reasonable efforts to locate the accused and rejected the Crown's characterization of the accused as having fled.

The court also found that the defence's insistence on complete disclosure was justified based on the trial judge's notes.

After deducting the time attributable to police efforts to locate the accused, the remaining delay was one year, seven months, and eleven days, which falls below the presumptive ceiling of 18 months.

The court found that the defence had taken useful steps demonstrating sustained effort to expedite the proceedings, but was not satisfied that the trial took substantially longer than it reasonably should have.

The motion was dismissed.

Four co-accused appealed convictions arising from a large-scale police investigation into criminal gang activity in Toronto (Project Battery and Project Rx).

The appellants challenged the constitutionality of wiretap authorizations and general warrants, alleging violations of section 8 of the Canadian Charter of Rights and Freedoms.

The key issues involved: (1) material non-disclosure regarding the use of a Mobile Device Identifier (MDI); (2) warrantless police entries into common areas of condominium buildings; and (3) warrantless installation of hidden surveillance cameras in condominium hallways.

The Court of Appeal upheld the convictions but found that the warrantless installation of hidden cameras violated section 8 rights.

However, the evidence was admitted under section 24(2) of the Charter.

The appellants' convictions were dismissed except for a one-year sentence reduction for one appellant due to the trial judge's misapprehension of evidence regarding drug quantities.

The accused, charged with sexual assault with a weapon and aggravated sexual assault, brought an application under s. 276 of the Criminal Code to adduce evidence of prior sexual activity with the complainant.

The accused argued the evidence was necessary to provide context for their relationship and to challenge the complainant's credibility, as their accounts of the incident and their prior relationship differed significantly.

The court allowed the application in part, permitting the defence to adduce evidence that the parties were in an intimate, sexual relationship prior to the alleged assault to challenge credibility and provide context.

However, the court prohibited the introduction of any details regarding specific past sexual encounters, finding such details irrelevant and highly prejudicial.

The accused, charged with sexual assault and other offences, brought a motion for directions to determine whether Facebook messages exchanged with the complainant constituted a 'record' under s. 278.1 of the Criminal Code.

The defence sought to use the messages during cross-examination but argued they were not subject to the s. 278.92 admissibility regime because the complainant lacked a reasonable expectation of privacy in them.

The court adopted a procedure allowing the judge to review the messages without disclosing them to the Crown.

The court concluded that the complainant did not have a reasonable expectation of privacy in the non-sexual messages sent to the accused, considering the content, the manner of communication, the adversarial nature of their current relationship, and the policy implications.

Consequently, the messages were not deemed a 'record,' and the accused was not required to bring an application under s. 278.93 before using them at trial.

The appellant was convicted of sexual assault under s. 271 of the Criminal Code.

The complainant was heavily intoxicated and could not recall the events.

The trial judge found the complainant incapable of consenting due to intoxication and rejected the appellant's defence of honest but mistaken belief in consent, finding he had not taken reasonable steps to determine consent.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the law despite some evidentiary misapprehensions that did not affect the verdict.

The appellant appealed his convictions for assault, assault with a weapon, sexual interference, three counts of sexual assault, uttering a threat, two counts of failing to comply with a recognisance, and failure to comply with probation.

The charges stemmed from allegations made by three of the appellant's children, all of whom had cognitive deficits.

The trial judge convicted the appellant of all charges except one count of assault causing bodily harm.

The appellant challenged the conviction on grounds of material inconsistencies in witness evidence and inadequate reasons, and also sought leave to appeal his sentence of 10 years' incarceration less 34 months of pre-trial custody.

The Court of Appeal dismissed the conviction appeal, granted leave to appeal sentence, and allowed the sentence appeal to provide additional credit for pre-sentence custody.

The accused brought a motion for a stay of proceedings based on an alleged violation of their right to be tried without unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The total delay from arrest to anticipated trial completion was approximately 16.5 months, just below the 18-month presumptive ceiling established in R. v. Jordan.

The court found that the accused demonstrated meaningful and sustained efforts to expedite proceedings, that no delay was attributable to the defence, and that the Crown failed to provide timely disclosure.

The court determined that approximately six months of added delay resulted from the Crown's failure to disclose materials that could have been provided within 90-120 days of arrest.

The court granted the stay of all charges.

The appellant appealed his conviction for possession of oxycodone for the purposes of trafficking and possession of cocaine, as well as his sentence.

The Court of Appeal granted the appeal from the trafficking conviction and substituted a conviction for simple possession of oxycodone.

The appeal from the cocaine possession conviction was dismissed.

Leave to appeal sentence was granted and a sentence of time served was substituted in place of the original sentence.

Four appellants appealed their convictions for fraud over $5,000 and conspiracy to commit fraud, as well as a count of knowingly contributing to an activity of a criminal organization.

The convictions arose from a large-scale telemarketing advance fee scheme operating from multiple "boiler rooms" in the Toronto area, where telemarketers defrauded American residents by falsely promising loans from fictitious lenders and demanding advance payments.

The Crown's case relied on fingerprint evidence, surveillance evidence, and the appellants' presence at the locations.

The appellants challenged various aspects of the trial, including jury instructions, evidentiary rulings, and the reasonableness of the verdicts.

The Court of Appeal dismissed all conviction appeals, finding no reversible error in the trial judge's conduct or instructions, and concluding that the verdicts were reasonable on the evidence.

On appeal from convictions for possession of controlled substances for the purpose of trafficking and simple possession, the appellants challenged the trial judge's findings.

The appellants, common law spouses, were convicted of two counts of possession of oxycodone and Percocet for trafficking purposes, and one count of simple possession of methadone.

The trial judge found both appellants in joint possession and guilty of trafficking.

The appellants appealed on grounds including misuse of prejudicial evidence regarding child endangerment and lack of mens rea.

The Court of Appeal allowed both appeals, finding the trial judge improperly admitted and relied upon evidence of child endangerment to infer trafficking intent, and that there was insufficient evidence of the mens rea required for the respondent's conviction.

The appellant was convicted of production of marijuana and possession of marijuana for the purpose of trafficking after police entered his home without a warrant, ostensibly to check on the welfare of his autistic son who had wandered to a nearby intersection.

The police discovered a marijuana grow operation in the basement.

The trial judge found multiple Charter breaches but admitted the evidence under section 24(2).

On appeal, the court held that the police's initial warrantless entry into the home breached section 8 of the Charter and that the trial judge erred in applying R. v. Godoy beyond its limited scope.

The court also found that the trial judge erred in admitting the evidence under section 24(2), as the seriousness of the breaches and their impact on the accused's privacy interests outweighed society's interest in an adjudication on the merits.

The appellant was charged with several offences following execution of a search warrant at a residence that uncovered a marijuana grow-operation and a handgun.

At trial, the appellant challenged the validity of the search warrant under a sub-facial analysis, arguing that the information to obtain contained erroneous information and that police conduct in seeking the warrant was subversive of the pre-authorization process.

The trial judge found the warrant was valid after excising improper portions of the information to obtain, and declined to exercise a residual discretion to quash the warrant despite identifying deficiencies in the affiant's conduct.

The appellant was convicted and appealed, arguing the trial judge erred in applying a "clearest of cases" standard rather than a lower threshold for setting aside a valid warrant based on subversion of the pre-authorization process.

The applicants brought a motion under s. 8 of the Charter challenging the installation of police video surveillance cameras in the hallways of their condominium buildings.

The police had installed some cameras with the consent of condominium management prior to obtaining a general warrant, and failed to disclose these prior installations when applying for the warrant.

The court held that the warrantless installation based on management's consent did not violate s. 8, as there is a diminished expectation of privacy in condominium hallways.

While the failure to disclose the prior installations breached the duty of full, fair and frank disclosure, the court found the omission was not material to the issuance of the warrant.

The motion was dismissed.