Stephen Eric Bernstein

This decision addresses the validity of a roadside demand for a breath sample under section 320.27(1) of the Criminal Code.

The accused, Andrew Ackers, was charged with refusing to provide a breath sample and impaired operation of a motor vehicle.

The impaired driving charge was dismissed due to insufficient evidence.

The key issue was whether the police had reasonable suspicion to demand a breath sample.

The court found that despite some procedural missteps and lack of direct communication of all grounds between officers, the totality of objectively discernable facts—including the vehicle accident, the accused fleeing the scene, witness reports of intoxication, and the accused’s glossy eyes—constituted reasonable suspicion.

The accused was found guilty of refusing to provide a breath sample.

Nancy White was found guilty of two counts of sexual assault and two counts of sexual interference, with the sexual assault convictions conditionally stayed under the Kienapple principle.

The offender, aged 37, engaged in vaginal intercourse and oral sex with the 14-year-old victim, S.B., on two separate occasions in 2020, abusing her position of trust as a family friend.

The Crown sought a sentence of 7-8 years incarceration, while the defence requested a conditional sentence of two years less a day, followed by three years probation, citing the offender's new baby and health issues.

The court rejected the conditional sentence, emphasizing the need for denunciation and deterrence in child sexual assault cases, and found the health issues not to be exceptional circumstances.

Distinguishing the case from more severe precedents, the court imposed a global sentence of 3.5 years incarceration, to be served concurrently for the sexual interference convictions.

Additional orders included a DNA order, a 10-year weapons prohibition, 20-year SOIRA registration, and a 10-year no-contact order with the victim and his family, with the victim surcharge waived.

Davide Manganiello was charged with possession of child pornography.

Halton Regional Police executed a search warrant at his residence and seized a Lenovo desktop computer containing child pornography files.

The sole issue at trial was whether Mr. Manganiello was in possession of these files.

The defence argued that multiple individuals had access to his unlocked computer and apartment, suggesting someone else could have downloaded the files.

The court found the accused's testimony to be vague, inconsistent, and unbelievable, rejecting his defence theory as implausible.

Based on the circumstantial evidence, the court concluded that the only reasonable inference was that Mr. Manganiello was in possession of the child pornography files and found him guilty.

The applicant, facing firearms charges, brought a Charter application alleging violations of his ss. 8, 9, and 10(b) rights due to racial profiling during a police search and detention.

The court found that the safety search and subsequent search of his person, belongings, and vehicle were unlawful and tainted by unconscious racial bias, constituting breaches of ss. 8 and 9.

While the initial 10(b) rights during the Cannabis Control Act investigation were suspended due to brief roadside detention, the post-arrest delay in providing access to counsel was an unreasonable breach of s. 10(b).

Applying the Grant factors, the court concluded that admitting the firearm would bring the administration of justice into disrepute, particularly given the serious nature of the racial profiling and the systemic issues it represents.

The firearm was excluded.

A lawyer with over 30 years of practice pleaded guilty to bigamy and forgery.

The accused created a forged divorce order to deceive his paralegal into believing he was divorced, then married her while still legally married to his wife of 30 years.

He also forged a certificate of divorce to obtain a marriage licence.

The court imposed a six-month conditional sentence with progressive restrictions, community service, and mandatory reporting, balancing the aggravating factors of document forgery and breach of professional trust against mitigating factors including his lack of criminal record, guilty plea, and genuine remorse.

A youth, L.L., charged with second-degree murder, applied for bail.

The Crown sought detention on secondary and tertiary grounds under the Youth Criminal Justice Act.

The court found that the Crown did not meet its onus, emphasizing the strong presumption of release for youth and the requirement of exceptional circumstances for tertiary ground detention.

The proposed plan of release with residential and community sureties was deemed adequate, and L.L. was released on house arrest with conditions.

The offender pleaded guilty to sexual interference of a seven-year-old child and was convicted after trial of making child pornography.

The offender sexually assaulted the victim in her home in the early morning hours while the victim's father videotaped the abuse.

The offender had previously watched multiple videos of the victim being sexually abused by her father before participating in the assault.

The court imposed a global sentence of seven years in penitentiary less credit for pre-sentence custody, with the child pornography conviction resulting in a consecutive sentence of one year and four months.

The accused was charged with making child pornography contrary to section 163.1(2) of the Criminal Code.

The accused had pleaded guilty to sexual interference but entered a not guilty plea to the making child pornography charge.

The Crown alleged that the accused had actual knowledge that his friend was videotaping the sexual assault of a seven-year-old child, or alternatively, that the accused was wilfully blind to this fact.

The trial judge found the accused guilty based on the totality of the evidence, including the accused's prior knowledge of similar videotaping by the friend, the close proximity of the videotaping device during the assault, and the accused's implausible testimony regarding his lack of awareness.

The accused, Reshane Hayles-Wilson, was convicted of second-degree murder after a jury trial.

The court determined the period of parole ineligibility, which is mandatory life imprisonment with a discretion between 10 and 25 years.

Considering aggravating factors such as the planned nature of the murder, the use of a loaded handgun in a public place, the danger to the public, and the accused's association with a criminal gang, alongside mitigating factors like his young age, lack of prior criminal record, family support, and remorse, the court set the parole ineligibility period at 15 years.

A 24-year-old first-time offender was convicted of sexual assault against a 16-year-old victim.

The assault occurred when the offender, who was intoxicated, engaged in non-consensual sexual contact with the victim despite repeated verbal objections.

The Crown sought a 12-month custodial sentence, while defence counsel sought a suspended sentence with probation or a conditional sentence.

The court imposed a 12-month conditional sentence of imprisonment to be served in the community, finding that rehabilitation and specific deterrence were paramount considerations for a youthful first offender, and that a conditional sentence was consistent with sentencing principles despite the serious nature of the offence.

At a preliminary inquiry into Project Neebing, the Crown sought to commit the defendant to stand trial on seven charges including trafficking in cocaine and production of methamphetamine.

The defendant was discharged on the marijuana possession charge but the Crown sought to proceed on two disputed counts.

The court found sufficient evidence that a properly instructed jury could convict on both the trafficking and production charges based on circumstantial evidence, including intercepted communications, surveillance, and physical evidence of drug production materials and controlled substances seized from two residences associated with the defendant.

The accused pleaded guilty to possessing 7 kilograms of cocaine for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

At sentencing, the court considered the harsh conditions of pre-sentence custody endured by the accused, including 115 days of lockdown (approximately one-third of his custody time), double bunking, denial of religious accommodation, and significant mental health impacts.

The Crown sought 7 years and 5.5 months; the defence sought 6 years and 5 months with enhanced credit for pre-sentence custody.

The court imposed a sentence of 6 years and 10 months, applying enhanced credit of 29 months for pre-sentence custody conditions, resulting in a further sentence of 4 years and 7 months to be served in federal penitentiary.

The appellant appealed a conviction for refusing to provide a breath sample, raising two grounds: whether the officer had reasonable suspicion for the demand under s. 254(2) of the Criminal Code, and whether the appellant had a reasonable excuse due to a mistake of law.

The court found that the trial judge correctly determined that the officer had reasonable suspicion based on the totality of circumstances, including the smell of alcohol from the vehicle and later from the appellant's breath in the cruiser.

The court also rejected the argument of reasonable excuse based on officially induced error, affirming the trial judge's assessment of the evidence.

The appeal was dismissed.

In a homicide prosecution arising from two fatal stabbings following a boat cruise event, the Crown sought to admit hearsay statements made by the deceased identifying the assailant and statements of unidentified bystanders overheard during a related fight.

The court considered the res gestae exception and the principled approach to hearsay under authorities including Starr, Mapara, and Khelawon.

Although necessity was established for the deceased’s statements, the court found reliability lacking due to contradictory identifications, the dark and chaotic conditions of the incident, and the declarant’s misidentification of another individual.

The court also rejected the admission of anonymous bystander statements because their circumstances did not demonstrate spontaneity or reliability and carried a high risk of prejudice.

Only the deceased’s initial spontaneous exclamations describing the stabbing, but not identifying an assailant, were admitted.

Two aboriginal offenders were sentenced following guilty pleas to serious offences.

The first offender pleaded guilty to possession of stolen motor vehicles, operating vehicles while disqualified, robbery, and use of an imitation firearm in commission of an indictable offence.

The second offender pleaded guilty to dangerous operation of a motor vehicle causing bodily harm and failing to stop for police pursuit causing bodily harm.

The court applied Gladue principles regarding sentencing of aboriginal offenders while emphasizing denunciation and deterrence given the seriousness of the offences and prior criminal records.