Stephen A. Whitzman

The defendant, D.M., faced charges of sexual exploitation of a person with a disability, sexual exploitation, and sexual assault.

At the close of the Crown's case, defence counsel applied for directed verdicts of acquittal on the two sexual exploitation charges.

The court applied the Shephard test, which requires determining if there is any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict.

The core issue was whether the Crown had adduced sufficient evidence to establish a relationship of trust, dependency, or an exploitative relationship between D.M. and the complainant (W.C.), an intellectually disabled young man.

The court found ample evidence in the record to support a jury's conclusion that such a relationship existed, given W.C.'s significant intellectual disability, vulnerability, and the power imbalance in the relationship.

Consequently, the application for directed verdicts was dismissed.

The Crown appealed the acquittal of Brian Walsh on a charge of driving with a blood alcohol level "over 80".

The trial judge had found two s.8 Charter violations: lack of reasonable suspicion for an Approved Screening Device (ASD) demand and failure to administer the ASD test "forthwith" leading to the exclusion of breath samples under s.24(2) of the Charter.

The appeal court found that the trial judge erred in her assessment of "reasonable suspicion" by misapprehending evidence and incorrectly applying legal principles regarding innocent explanations.

While agreeing there was a "forthwith" violation, the appeal court found it less serious than characterized by the trial judge.

The appeal court also determined that the trial judge erred in her s.24(2) Charter analysis by overstating the gravity of the violations and incorrectly assessing the impact on the accused, particularly by considering the entire arrest procedure rather than just the minimal intrusiveness of the breath sample itself.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The Crown appealed an acquittal for impaired care or control and over 80.

The respondent was found asleep in his running car while intoxicated.

The trial judge acquitted based on the respondent's credible testimony that he had no intention to drive and had an alternate plan to walk home after recovering from an asthma attack.

The appeal court upheld the acquittal, finding no palpable and overriding error in the trial judge's factual findings and credibility assessment regarding the realistic risk of the vehicle being set in motion.

The Crown appealed the acquittal of the respondent for refusing to provide a breath sample into an approved screening device.

The trial judge acquitted the respondent because the police officer made an unlawful demand for a sample into an "approved instrument" without reasonable and probable grounds, instead of the correct "approved screening device" demand based on reasonable suspicion.

The Superior Court upheld the acquittal, affirming that a lawful demand is an essential element of the refusal offence, and disobedience with unlawful compulsion is not criminal.

The appellant appealed his sentence for three counts of dangerous driving causing bodily harm.

The Crown and defence had jointly submitted a non-custodial sentence with probation and community service, but the sentencing judge rejected the joint submission and imposed an intermittent sentence of 75 days' imprisonment, three years' probation, 240 hours of community service, a five-year driving prohibition, and a DNA order.

The appellant argued the sentencing judge erred in rejecting the joint submission and that the sentencing process was unfair.

The Court of Appeal dismissed the appeal, finding no error in principle in the rejection of the joint submission and no procedural unfairness.

The Crown appealed a conditional discharge imposed on the respondent for a sexual assault committed while highly intoxicated.

The respondent had briefly groped the victim over her clothing at a university banquet.

The Crown argued the trial judge erred in principle by overemphasizing intoxication as a mitigating factor, relying on distinguishable case law, and failing to properly weigh general deterrence and denunciation.

The Summary Conviction Appeal Court dismissed the appeal, finding no errors in principle and concluding that the sentence, while at the low end of the range, was not demonstrably unfit given the high degree of deference owed to sentencing judges.

The accused, R.M., applied for a stay of proceedings under section 24(1) of the Charter, alleging an infringement of his right to be tried within a reasonable time under section 11(b).

The total delay was 33 months, reduced to 32 months after deducting defence waiver, exceeding the 30-month presumptive ceiling for Superior Court trials established in R. v. Jordan.

The Crown argued that an error during jury selection, where an incorrect number of peremptory challenges was stated, constituted an exceptional circumstance.

The court found the error to be an unforeseen exceptional circumstance, directly causing 11 weeks of delay.

Deducting this period brought the net delay below the 30-month threshold.

Consequently, the application for a stay of proceedings was dismissed.

The offender pleaded guilty to two counts of impaired operation of a motor vehicle causing bodily harm after running a red light and striking another vehicle, causing devastating injuries to two victims.

The offender had a blood-alcohol content more than twice the legal limit and was severely sleep-deprived.

The court sentenced the 72-year-old offender to 3 years in the penitentiary, a 10-year driving prohibition, and a secondary DNA order, emphasizing denunciation and general deterrence.

The Crown appealed an acquittal for excess blood alcohol.

The trial judge found a s. 10(b) Charter breach due to the officer's failure to ensure the accused, whose first language was Portuguese, understood his right to counsel, and excluded breathalyzer results under s. 24(2).

The appeal court upheld the trial judge's finding that "special circumstances" existed, requiring police to take additional steps to ensure meaningful comprehension of Charter rights, and that the exclusion of evidence was appropriate given the seriousness of the breach and its impact on the accused.

The Crown brought an application to admit similar act evidence against Geoffrey Burnet, who was charged with three counts of exposing his genital organs to persons under 14 for a sexual purpose.

The alleged incidents involved two young complainants, K.C. and K.A., occurring at Burnet's residence in similar circumstances, including a private setting, specific clothing, and contemporaneous viewing of pornography.

The court applied the R. v. Handy framework, balancing the probative value of the evidence against its potential prejudice.

Despite a temporal gap between incidents, the court found sufficient similarities to establish a specific propensity and objective improbability of coincidence, making the evidence probative to the actus reus and the complainants' credibility.

Given it was a judge-alone trial, the risk of moral and reasoning prejudice was deemed minimized.

The Crown's application was granted.

The accused was charged with sexual assault and forcible confinement of the complainant.

The Crown's case relied heavily on the complainant's testimony regarding non-consensual sexual acts and confinement.

The accused moved to stay the charges, alleging that police failed to preserve video recordings from a doorbell security system that would have been exculpatory evidence.

The trial judge found that while evidence was lost due to a combination of police misunderstanding and the complainant's deletion of recordings, this did not constitute unacceptable negligence warranting a stay.

However, the trial judge found that the lost evidence, combined with frailties in the complainant's testimony and the accused's early and convincing denials, raised a reasonable doubt as to whether the sexual assault and forcible confinement occurred.

Both charges were dismissed.

The Crown appealed the acquittal of the respondent for operating a motor vehicle with an alcohol level exceeding 80 mg.

The trial judge had excluded breath test results under s.24(2) of the Charter, finding a s.8 violation due to the police officer's unawareness of mouth alcohol issues affecting Approved Screening Device (ASD) accuracy.

The Superior Court found that the trial judge erred in concluding a s.8 Charter violation, as sufficient time had elapsed between the last drink and the ASD test.

Furthermore, even if a s.8 breach occurred, the trial judge erred in the s.24(2) analysis by mischaracterizing the impact of the breach as significant, contrary to recent Court of Appeal jurisprudence.

The appeal was allowed, the acquittal set aside, a conviction substituted, and the matter remitted for sentencing.

The offender was convicted of sexually assaulting a 23-year-old patron at a male strip club where he worked as a dancer.

The victim had consumed alcohol but was not incapacitated.

The offender performed unprotected fellatio and vaginal intercourse on the victim despite her saying no.

The Crown sought a sentence of two years less a day, while the defence sought 12 to 15 months.

The court found the unprotected nature of the assault, the semi-public location, and the offender's persistence after being told no to be aggravating factors.

The offender was sentenced to two years less a day in custody, followed by 24 months of probation, and ordered to comply with SOIRA for 20 years.

The appellant was convicted of possession of a firearm knowing it to be obtained by crime under s. 96(1) of the Criminal Code.

On appeal, the appellant raised two grounds of appeal: (1) that the trial judge erred in finding the appellant's police statement voluntary, arguing it was tainted by an earlier involuntary statement to a non-police actor; and (2) that the admission of evidence derived from the involuntary statement rendered the trial unfair.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the derived confessions rule and no trial fairness concerns arising from the admission of the impugned evidence.

The accused applied to exclude evidence of a marihuana grow operation discovered during a police search of his residence, alleging a violation of his rights under s. 8 of the Charter.

Police responded to a 911 call regarding a male and female fighting.

Upon arrival, the officer was told by a female occupant that her special needs son had made the call while playing with the phone.

The officer conducted a safety sweep of the residence to ensure all occupants were accounted for and safe, discovering marihuana plants in plain view in the furnace room.

The court found the safety sweep was objectively reasonable given the nature of the priority call and the lack of precise information, concluding there was no s. 8 breach.

The court further held that even if a breach occurred, the evidence would not be excluded under s. 24(2) of the Charter.

The applicant, a day care provider convicted of manslaughter in the death of an infant, sought a review of a single judge's order denying her bail pending appeal.

The single judge had found that while her grounds of appeal were arguable, they were weak, and detention was necessary in the public interest.

The Chief Justice, applying the 'reasonable prospect of success' standard, agreed that the grounds of appeal regarding the admissibility of a statement and the trial judge's use of good character evidence were not sufficiently strong.

The application for review was dismissed.

The applicant, a daycare provider convicted of manslaughter in the death of a 14-month-old infant and sentenced to six years in prison, applied for bail pending appeal.

The Crown conceded the appeal was not frivolous and the applicant would surrender into custody, but argued detention was necessary in the public interest.

The Court of Appeal assessed the strength of the applicant's grounds of appeal, which included challenges to the trial judge's use of good character evidence and the admission of an unrecorded police statement.

Finding the grounds of appeal to be arguable but weak, and given the extreme seriousness of the offence, the court concluded the applicant failed to establish that her detention was not necessary in the public interest.

The application for bail pending appeal was dismissed.

The appellant appealed a conviction for driving with excess alcohol, arguing that the police lacked reasonable and probable grounds for arrest, leading to a breach of Charter rights (ss. 7, 8, 9).

The trial judge found the arrest lawful despite contradictory police testimony regarding subjective grounds.

On appeal, the court found the arrest unlawful due to the absence of subjective reasonable and probable grounds by the directing officer, which invalidated the arresting officer's actions.

Consequently, the breath samples obtained were deemed to be in breach of Charter rights.

Applying the s. 24(2) Grant factors, the court determined that the police conduct was serious and had a significant impact on the accused's rights, outweighing society's interest in adjudication on the merits.

The evidence was excluded, leading to an acquittal.

A secondary issue regarding s. 11(b) Charter rights was declined due to lack of timely objection at trial.

The applicant sought costs of $20,000 on a full recovery basis following a successful motion for temporary spousal support, arguing the respondent acted in bad faith by failing to provide financial disclosure.

The respondent argued costs should be deferred to the trial judge or no costs awarded due to divided success and financial hardship.

The court found the applicant was substantially successful and the respondent's conduct was unreasonable but did not amount to bad faith.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $14,924.77.

The accused, a daycare provider, was charged with manslaughter following the death of a 14-month-old child in her care.

The child suffered a severe skull fracture and subdural hematoma.

The court found that the accused momentarily lost her patience and intentionally assaulted the child, causing the fatal injuries.

Alternatively, the court found that the accused failed to provide the necessaries of life by delaying calling 911 for over an hour after observing the child was unresponsive and limp, which significantly contributed to the child's death.

The accused was found guilty of manslaughter.