Stuart W. Konyer

Alan Todd was charged with communicating and making an agreement to commit sexual assault and sexual interference with a person he believed to be under 16, contrary to s.172.2(1)(b) of the Criminal Code.

The Crown needed to prove beyond a reasonable doubt that the agreement was genuine, not merely words or role-playing.

The evidence included electronic communications with an undercover officer posing as a mother of a 12-year-old girl, truthful personal details provided by Todd, and his presence at the arranged meeting location.

Todd claimed the conversations were fantasy role-playing and that he never believed the child existed.

The court found his testimony internally inconsistent and illogical, concluding that Todd genuinely intended to enter into the agreement.

He was found guilty on both counts.

Davison Weir pleaded guilty to three counts of dangerous driving causing bodily harm.

The Crown sought a 30-month jail sentence, while the defence requested a conditional sentence.

The court found the offences exceptionally serious due to extreme speed in a residential area, resulting in severe, life-threatening injuries to two children and serious injuries to another driver.

Despite mitigating factors such as a guilty plea, genuine remorse, and good character, the court emphasized that denunciation and deterrence were paramount.

A conditional sentence was deemed disproportionately lenient given the intentional risk-taking and degree of responsibility.

The court imposed a sentence of 12 months imprisonment, followed by 2 years of probation, a 4-year driving prohibition, and victim surcharges.

The young person A.H. was charged with multiple counts of assault, sexual assault, uttering threats, and breach of a lawful order against A.M., a young person with whom he had a brief relationship.

The trial focused on the credibility and reliability of A.M.'s and A.H.'s testimonies, as A.H. denied all allegations.

The court found A.M.'s testimony to be credible and reliable, corroborated by other evidence, and rejected A.H.'s testimony due to inconsistencies and evasiveness.

A.H. was found guilty on all counts.

The defendant, Ciara Jenks, brought a Jordan application for a stay of proceedings due to unreasonable delay, alleging a breach of her s.11(b) Charter right.

The court found a total delay of 665 days (21.9 months), exceeding the 18-month presumptive ceiling for provincial court cases.

The judge attributed 42 days of the delay to the defence for unhelpful boilerplate disclosure requests and failure to bring issues to the court's attention, reducing net delay to 623 days (20.5 months).

The Crown was found responsible for significant disclosure delays and an inflexible approach to scheduling.

The court also acknowledged its own role in the delay by not intervening earlier.

The Crown's argument for further pandemic-related deductions was rejected due to lack of specific evidence.

The court concluded that the defendant's Charter right was infringed and stayed the charge.

The defendant, Timothy Tafilica, brought an application for a stay of proceedings, alleging a breach of his s. 11(b) Charter right to be tried within a reasonable time.

The total delay was 785 days (25.8 months).

The court calculated defence delay, attributing 57 days for a cancelled Crown Pre-Trial (CPT) and 105 days for defence unavailability for trial dates.

The net delay was 623 days (20.8 months), exceeding the 18-month Jordan ceiling.

The Crown argued for a deduction due to the COVID-19 pandemic, but the court found no evidence that the pandemic specifically caused the delay in this case, noting that local resource issues predated and contributed to delay.

The court granted a stay of proceedings.

The defendant was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration exceeding the legal limit.

The court addressed several Charter claims, including detention, right to counsel (s.10(b)), and right to be informed of the reason for detention (s.10(a)), as well as the admissibility of breath samples and the element of care or control.

The court found the defendant was detained prior to the ASD demand.

While the s.10(b) right to counsel was justifiably delayed due to medical concerns and investigative duties, a brief breach of the s.10(a) right to be informed of the reason for detention occurred.

However, applying the Grant factors, the court declined to exclude the evidence, finding the breach inadvertent, its impact minimal, and the public interest in a trial on the merits high.

The court also found that the breath samples were taken as soon as practicable and that the Crown proved impairment by alcohol and the element of care or control, leading to a finding of guilt on both counts.

The defendant, Brett Hicks, was charged with alcohol-impaired driving and refusing to provide a breath sample.

The court found the Crown failed to prove impairment beyond a reasonable doubt.

The breath demand was deemed unlawful because the officer failed to observe the required 15-minute waiting period for mouth alcohol dissipation, rendering the ASD result unreliable.

The court also found a breach of the defendant's s.10(b) Charter right to counsel, as police made only token efforts to contact his counsel of choice and failed to inform him of his right to wait, which rendered his refusal provisional.

Furthermore, the police's degrading treatment of the defendant in the holding cell, specifically denying him toilet paper and observing him use his mask, constituted an unreasonable search and seizure under s.8 of the Charter.

Consequently, the defendant was acquitted on both criminal charges, and related provincial offences were proven but stayed due to the s.8 Charter infringement.

The accused, Blake Stacey, pleaded guilty to touching a 15-year-old for a sexual purpose, contrary to s.151 of the Criminal Code.

The court considered sentencing objectives of denunciation and deterrence as primary in child sexual offence cases, alongside significant mitigating factors including the accused's guilty plea, Indigenous background (Gladue factors), and substantial rehabilitative efforts.

The accused had suffered childhood sexual abuse linked to Indian day schools and was at a low point due to trauma and substance abuse at the time of the offence.

The Crown sought 3-4 years imprisonment, while the defence sought 2 years.

The court imposed a sentence of 30 months (2.5 years) imprisonment, finding it sufficient given the mitigating factors.

The court also imposed a 20-year Sex Offender Information Registration Act order, a DNA order, and specific s.161 Criminal Code orders for 10 years, prohibiting communication with the victim and certain internet use with minors, but declined broader prohibitions on attending places where children congregate or positions of trust.

This decision addresses two pre-trial applications in a criminal case involving an internet luring charge.

The accused sought to exclude electronic messages (Facebook) on the basis of an unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms.

The Crown sought to admit a statement made by the accused to the investigating officer, arguing its voluntariness.

The court found that the accused had a reasonable expectation of privacy in the electronic communications, and the warrantless search by police was a serious Charter infringement, leading to the exclusion of the evidence under section 24(2) of the Charter.

The court also found that the Crown failed to prove beyond a reasonable doubt that the accused's statement was voluntary, citing inadequate cautioning and record-keeping by the police, rendering the statement inadmissible.

Christopher Graham pleaded guilty to possessing child pornography.

The defence challenged the mandatory minimum punishment of one year imprisonment, arguing it infringed sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

The Crown conceded the s.12 infringement based on R. v. John, leading the court to find the mandatory minimum inapplicable.

The central issue was whether a conditional sentence was appropriate, with the defence advocating for it and the Crown seeking 15 months imprisonment.

The court emphasized that denunciation and deterrence are paramount in child pornography cases, citing R. v. T.J. and R. v. M.M., and concluded that a conditional sentence would be insufficient.

Despite the offender's rehabilitative needs and lack of prior record, a carceral sentence was deemed proportionate.

The court imposed a sentence of 10 months imprisonment, followed by 2 years probation, a DNA order, a 10-year SOIRA order, and forfeiture of seized devices.

While declining broader s.161 prohibition orders due to no risk of hands-on offences, the court imposed a 10-year internet prohibition under s.161(1)(d) with specific conditions to address the risk of online offending.

The defendant, William Leahy, was charged with operating a motor vehicle while his ability was impaired by a drug.

He was found passed out in the driver's seat of his vehicle with the engine running.

The court addressed whether the defendant rebutted the statutory presumption of care or control under s. 320.35 of the Criminal Code, and if so, whether the Crown proved de facto care or control by demonstrating a realistic risk of danger.

The court found that the defendant rebutted the presumption, distinguishing prior case law (Hatfield and Miller) by emphasizing that the impaired occupancy of the driver's seat did not begin with an intention to set the vehicle in motion.

The court also found no realistic risk that the defendant would change his mind and drive or unintentionally set the vehicle in motion.

Consequently, the defendant was found not guilty.

This decision concerns a s. 24(2) Charter application to exclude evidence (a firearm) obtained following an invalid search warrant and unconstitutional police entry.

The court applied the three-factor test from R. v. Grant, finding the police conduct (gross negligence in preparing the Information to Obtain, misleading statements, lack of investigation, and warrantless entry) to be extremely serious.

While the impact on the accused's privacy interest was moderate (as he was not a resident), the seriousness of the police misconduct outweighed society's interest in adjudicating the case on its merits.

The court concluded that admitting the evidence would bring the administration of justice into disrepute, and therefore excluded the firearm against all accused.

This decision addresses a Garofoli application to review a search warrant for firearms-related offences.

The Information to Obtain (ITO) used to secure the warrant contained significant false, misleading, and unconstitutionally obtained information, which was excised on review.

The court assessed whether, based on the amended record, reasonable grounds existed to believe an offence was committed and that evidence would be found at the residence.

While a thin basis for believing an offence was committed was found, the court concluded there were no reasonable grounds to believe evidence of the offence would be found at the residence.

This was primarily due to the lack of a direct connection between the firearm and the residence, the fact that the accused was not in possession of the firearm upon arrest, and the extensive misleading information in the original ITO undermining the affiant's credibility.

The search was deemed unreasonable, constituting a s.8 Charter breach.

The s.24(2) Charter analysis regarding the admissibility of seized evidence was deferred.

The Crown applied for orders allowing a police witness to testify remotely and the accused, Y.A., to attend a preliminary inquiry remotely via videoconference due to the temporary suspension of in-person proceedings amidst the COVID-19 pandemic.

Y.A. opposed, arguing lack of jurisdiction and that remote attendance would impact the fairness of the proceedings.

The court granted both applications, finding jurisdiction under sections 714.1, 715.25, and 715.23 of the Criminal Code.

The judge concluded that remote proceedings would serve the proper administration of justice, ensure fair and efficient proceedings, and enhance access to justice, without prejudicing the accused, especially given the significant delays already incurred.

Craig Colton pleaded guilty to multiple drug trafficking and possession offences.

The Crown sought a penitentiary sentence (24-30 months), while the defence sought a conditional sentence.

The court determined Colton was a street-level trafficker, not mid-level, and considered his personal circumstances, including childhood trauma, addiction, and rehabilitation efforts.

The judge concluded that an upper reformatory sentence was fit and that a conditional sentence, with strict conditions including home confinement and electronic monitoring, would adequately achieve sentencing principles of denunciation and deterrence while fostering rehabilitation.

The accused was charged with driving while impaired by a drug following a traffic stop on Highway 118.

The Crown alleged the accused's ability to drive was impaired by a central nervous system depressant based on poor driving observations, a failed roadside sobriety test, and a Drug Recognition Expert evaluation.

The accused's urine tested positive for Olanzapine, an anti-psychotic medication.

The court found multiple Charter breaches: the accused was not promptly informed of his right to counsel following arrest, the Drug Recognition Expert evaluation demand was not made as soon as practicable, and the accused was arbitrarily detained after the investigation was completed.

The court excluded the evidence of the Drug Recognition Expert evaluation and urine analysis under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted.

Two accused were tried jointly on charges arising from their involvement with two 15-year-old girls who engaged in prostitution at a Peterborough motel.

The Crown alleged that the accused knowingly permitted the girls to use a hotel room for prohibited sexual activity, and that one accused exercised influence over the girls' movements.

The trial judge found both accused guilty of knowingly permitting minors to engage in prohibited sexual activity under s. 171 of the Criminal Code.

However, the trial judge acquitted one accused of exercising influence over the girls' movements, finding insufficient evidence of exploitation or coercion.

The other accused was convicted of receiving money derived from illegal sexual services and possession of cocaine.

The accused was charged with dangerous driving causing bodily harm and possession of marijuana following an incident in a parking lot where she struck a person with her vehicle.

The accused admitted to possession of marijuana but claimed self-defence for the dangerous driving charge.

The court found that the accused had been lured to a location where she was surrounded by a hostile group of twelve people, some of whom had previously assaulted her.

The court determined that the accused reasonably believed she faced a threat of force and that her actions in attempting to escape were reasonable in the circumstances.

The dangerous driving charge was dismissed on the basis of self-defence, but the accused was convicted of possession of marijuana.

The accused was charged with assault causing bodily harm following an altercation at a nightclub on Halloween.

The accused struck the complainant in the face with a glass she was holding, causing a laceration requiring 18 stitches.

The accused claimed she responded reflexively to a punch thrown by the complainant.

The court found there was an air of reality to the claim of consensual fight and determined the Crown failed to prove beyond reasonable doubt that the accused intended to inflict bodily harm.

The accused's instantaneous reflexive response, the fact that she too was injured by the broken glass, and the absence of any deliberate throwing of the glass supported her account.

The accused was acquitted.

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

The accused challenged the admissibility of breath sample analysis results, alleging breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The Crown conceded one breach of section 10(b) rights.

The court found breaches of sections 8, 9, and 10(b), but determined that exclusion of the evidence would not be warranted under section 24(2) of the Charter.

The accused was found guilty.