Stephen A. Whitzman

The applicant, a 19-year-old charged with second degree murder, applied for judicial interim release.

The Crown opposed release on all three grounds, emphasizing the tertiary ground given the gravity of the charge.

The court found that the proposed plan of strict house arrest, constant supervision by the applicant's parents as sureties, and GPS ankle monitoring sufficiently mitigated the risks under the primary, secondary, and tertiary grounds.

The court granted release but increased the proposed monetary pledge from $25,000 to $150,000 to ensure the sureties and the applicant had sufficient financial incentive to comply with the strict conditions.

The appellant appealed his convictions for trafficking and possession of fentanyl and heroin, and his sentence.

The primary ground of appeal against conviction was an alleged s. 8 Charter infringement when police impersonated a drug dealer via text messages to facilitate a drug transaction.

The Court of Appeal upheld the trial judge's conclusion that there was no s. 8 Charter breach, finding that while the appellant had a reasonable expectation of privacy in his electronic communications, the police actions were justified by exigent circumstances related to public safety due to the presence of fentanyl.

The court also dismissed appeals regarding the reasonableness of the verdicts (continuity of evidence) and the sentence, affirming that the presence of fentanyl is an aggravating factor regardless of the offender's specific knowledge of its proportion.

The Crown brought an application to admit evidence of the accused's prior discreditable conduct—specifically, an incident of physical abuse against another child—to cross-examine the complainant's mother if she testified for the defence.

The Crown argued the evidence was relevant to the mother's credibility, not for propensity reasoning.

The court found the evidence constituted other discreditable conduct and applied the balancing test from R. v. L.B. The application was dismissed, as the potential prejudicial effect of distracting the jury with a collateral issue outweighed the weak probative value of the evidence.

The Crown appealed the respondent's acquittal on an 'over 80' charge.

The trial judge had found that the police officer lacked an objectively reasonable suspicion that the respondent had operated his vehicle within the preceding three hours when she made an Approved Screening Device (ASD) demand, resulting in a s. 8 Charter breach and exclusion of the breath evidence under s. 24(2).

The Superior Court of Justice dismissed the appeal, agreeing that the circumstantial evidence of the time of driving was insufficient to support a reasonable suspicion.

Although the trial judge erred in her analysis of the second Grant factor by not following binding precedent, a re-weighing of the factors still supported exclusion due to the seriousness of the officer's systemic misunderstanding of her legal obligations.

This is a ruling on a challenge to the mandatory minimum sentence provisions of the Criminal Code for a drinking and driving offence.

The applicant, Ali Haider Cheema, was found guilty of having care or control of a motor vehicle with excess alcohol and challenged the constitutionality of the mandatory minimum sentence (conviction and $1500 fine) under s.12 of the Charter, arguing it constituted cruel and unusual punishment due to the risk of removal from Canada under the Immigration and Refugee Protection Act (IRPA).

The court found that a conditional discharge was not a fit sentence for the offence, considering the gravity of drinking and driving offences and the public interest in deterrence and denunciation, even with the sympathetic personal circumstances and serious immigration consequences.

The application was dismissed, and the mandatory minimum sentence was imposed.

The Crown appealed the acquittal of the respondent, Moses Odemi, on a charge of refusing to comply with a breath demand under s. 254(5) of the Criminal Code.

The trial judge had excluded evidence (ASD test result and refusal) under s. 24(2) of the Charter due to an unlawful ASD demand (s. 8 Charter breach) and a s. 10(b) Charter breach.

The appeal court upheld the exclusion of evidence, finding the police officer's embellishment of grounds for the ASD demand to be a serious Charter breach, which outweighed other factors in the Grant analysis.

The appeal was dismissed, and the acquittal stood.

The accused, Preet Kiran Singh Gill and Suresh Sharma, were charged with importing cocaine and possession for the purpose of trafficking after approximately 25 kg of cocaine were found in their commercial tractor-trailer at the Canadian border.

The Crown's case was circumstantial, relying on evidence of undocumented stops during their return trip from California and Mr. Gill's inconsistent and untruthful statements to authorities.

The defence argued that the accused were blind couriers and the cocaine was loaded at one of the pick-up locations without their knowledge.

The court found Mr. Gill's testimony not credible due to numerous inconsistencies and deliberate deceptions, concluding that the only reasonable inference was his knowledge and control of the cocaine.

However, for Mr. Sharma, the court found a rational inference that he was unaware, as he was sleeping during the undocumented stops and was not the primary driver or decision-maker.

Mr. Gill was found guilty on both counts, while Mr. Sharma was found not guilty on both counts.

The accused, charged with sexual offences against a child, brought pre-trial applications alleging a section 7 Charter breach for lost evidence and seeking to adduce third-party suspect evidence.

The accused argued that police failed to preserve evidence by not searching his recreational vehicle at the time of the initial complaint, which would have revealed the absence of sex toys.

The court dismissed the lost evidence application, finding the existence of such evidence was speculative and the police decision not to search was reasonable.

The court also dismissed the third-party suspect application, ruling that the complainant's alleged prior statement about her father lacked sufficient connection to the specific crimes to be probative.

The accused was tried on charges of committing an indecent act in a public place and exposing his genital organs for a sexual purpose to a child under 16 at a busy public swimming pool.

The court accepted the evidence of civilian and police witnesses that the accused masturbated in the pool area and on the pool deck in the presence of families and children.

Applying the authorities on sexual purpose and intent to expose, the court held that actual observation by the child was not legally necessary, although the evidence established that the child was present, observed the conduct, and spoke to his parents about it.

The Crown proved both offences beyond a reasonable doubt.

During a trial for drug importation, the accused brought an application to exclude his video statement to police, alleging a breach of his s. 10(b) Charter rights.

The accused, whose first language is Punjabi, struggled with English during his police interview, but officers did not offer him the opportunity to speak with duty counsel in Punjabi or with an interpreter.

The court found that special circumstances arose during the interview when the accused's language difficulties became apparent, triggering a duty on police to ensure he understood his rights.

The court concluded the accused's s. 10(b) rights were breached and excluded the statement under s. 24(2) of the Charter.

The accused pleaded guilty to sexual interference and invitation to sexual touching involving his minor daughter.

The Crown sought a 5-year sentence, while the defence sought 3-4 years.

The court considered aggravating factors such as abuse of trust, the victim's young age, the duration and frequency of the assaults, and the degree of physical interference.

Mitigating factors included the guilty plea and the collateral consequences of serving time during the COVID-19 pandemic.

The court also noted the accused's own history of abuse, which explained his actions but did not serve as a mitigating factor for sentencing.

A sentence of 4 years and 6 months in penitentiary was imposed, along with a 15-year Section 161 prohibition order, a DNA order, and lifetime SOIRA registration.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued the trial judge erred in applying the presumption of accuracy under s. 320.31(1) of the Criminal Code because the Certificate of Analyst presented at trial contained a different lot number than the other documentation.

The Summary Conviction Appeal Court dismissed the appeal, finding that the trial judge reasonably relied on the totality of the evidence, including the qualified technician's testimony and a newly prepared certificate, to conclude the Crown proved the target value of the alcohol standard beyond a reasonable doubt.

The accused was tried on charges of sexual assault, sexual touching of a person under 14 for a sexual purpose, and assault arising from alleged historic abuse of his stepdaughter.

The court applied the W.(D.) framework, reviewed the law governing proof beyond a reasonable doubt, child witness evidence, and impermissible myths and stereotypes in sexual assault cases.

Although the complainant testified in a straightforward manner, the court found significant inconsistencies and gaps in the Crown’s evidence, while finding the accused’s denial internally consistent and plausible.

The court was left with a reasonable doubt on all counts and acquitted the accused.

The appellant appealed his conviction for sexual assault, arguing that his trial counsel was ineffective and failed to object to inadmissible bad character evidence.

The summary conviction appeal court found that the Crown had improperly elicited highly prejudicial bad character evidence, including allegations of violence, misogyny, and homophobia, without seeking a ruling on its admissibility.

The court declined to apply the curative proviso, finding that credibility was the central issue at trial and it was not apparent that the trial judge had disregarded the inadmissible evidence.

The appeal was allowed and a new trial ordered.

The appellant, convicted of two counts of sexual assault, two counts of assault, and one count of criminal harassment, appealed his convictions and sought leave to appeal his sentence.

The primary issue on appeal was whether the trial judge erred by applying different standards of scrutiny to the Crown and defence evidence, specifically regarding the complainant's recantations and post-offence messages, and the appellant's credibility.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no error in the trial judge's assessment of credibility or her application of legal principles concerning victim behaviour and recantations.

The accused was charged with sexually assaulting the complainant in an automobile on November 1, 2018, while driving the complainant home from a medical appointment in Toronto.

The complainant testified that the accused repeatedly touched his genitals and inner thigh over his clothing while driving, despite the complainant pretending to sleep.

The accused denied any sexual touching, claiming he only shook the complainant's shoulder to wake him and kept both hands on the wheel due to heavy traffic.

The trial judge found the complainant credible but harbored reasonable doubt about his reliability given his drowsy state and the practical impossibility of the accused simultaneously driving safely in rush hour traffic while engaging in the alleged conduct.

The accused was acquitted.

The Crown appealed the respondent's acquittal on a charge of excess blood alcohol.

The trial judge had ruled that the qualified technician's viva voce evidence regarding the certification of the alcohol standard solution was hearsay and inadmissible without a Certificate of Analyst.

The Summary Conviction Appeal Court allowed the appeal, finding that the trial judge erred in law.

The court held that the presumption of accuracy under s. 320.31(1) of the Criminal Code can be proven by the viva voce evidence of an intoxilizer technician without the need to tender a certificate of an analyst.

A finding of guilt was entered.

The offender was convicted by a jury of sexual assault, sexual exploitation, and sexual exploitation of a person with a disability against a developmentally challenged male.

The court applied the Kienapple rule to conditionally stay the sexual assault conviction but upheld the two exploitation convictions.

Emphasizing denunciation and deterrence for the severe breach of trust and invasive abuse, the court sentenced the offender to 5 years in the penitentiary for sexual exploitation and a concurrent 3 years for sexual exploitation of a person with a disability, along with ancillary orders.

This ruling addresses the relevance of evidence concerning a sexual assault complainant's lack of avoidant behaviour towards the accused.

During a trial for sexual assault and exploitation, defence counsel sought to argue that the complainant's continued association with the accused undermined his credibility.

The Crown objected, asserting this argument relied on impermissible myths and stereotypes about how sexual assault victims should behave.

The court upheld the Crown's objection, ruling that such a submission was based on a generalized, stereotypical notion of victim behaviour and was irrelevant in this specific case, particularly given the complainant's intellectual disability and suggestibility.

The court ruled on the admissibility of the defendant's prior consistent statement, a denial made when first confronted with sexual assault allegations.

The Crown objected, arguing the statement was not spontaneous and lacked a reliable record.

The court found the statement admissible under the `Edgar` exception, emphasizing its spontaneity upon initial confrontation, and also for trial fairness to complete the narrative initiated by the Crown.

The jury will be instructed on its limited use for credibility and circumstantial evidence, not for the truth of its contents.