Suhail A.Q. Akhtar

Ian Ohab, charged with first-degree murder, brought a motion for a directed verdict of acquittal on the first-degree murder count.

The Crown argued that evidence of sexual assault and forcible confinement provided the basis for first-degree murder under s. 231(5) of the Criminal Code.

The court, applying the test for a directed verdict, found no evidence capable of supporting an inference of sexual assault or unlawful confinement.

Consequently, the motion was granted, and the accused will stand trial for second-degree murder only.

The applicant sought to exclude evidence (a firearm and ammunition) found in his home, alleging breaches of his s. 8 and s. 9 Charter rights.

The court found the police had reasonable and probable grounds to arrest the applicant based on confidential informant information and surveillance, dismissing the s. 9 claim.

While the court found the search warrant was validly issued, it held that the police breached s. 8 by entering and 'freezing' the applicant's residence without a warrant, as there were no exigent circumstances.

However, applying the Grant test under s. 24(2), the court concluded the evidence should not be excluded because the police acted in good faith and the evidence was highly reliable.

The offender was convicted by a jury of aggravated assault and acquitted of carrying a concealed weapon after stabbing the victim during a bar fight.

The victim was the initial aggressor, punching the offender unprovoked, but the offender retaliated by drawing a knife and stabbing the fleeing victim in the back.

The court found beyond a reasonable doubt that the knife belonged to the offender, despite the mixed verdict.

The court rejected arguments to artificially reduce the sentence to avoid deportation consequences or to grant enhanced credit for harsh jail conditions without evidence.

The offender was sentenced to 3 years' imprisonment, less credit for pre-sentence custody.

The appellant, Rohan Shawn Getfield, appealed his conviction and sentence, arguing his guilty plea was uninformed due to a lack of advice on adverse immigration consequences.

The Crown applied for an order that the Superior Court of Justice Protocol – Allegations of Incompetence applies, requiring the appellant to waive solicitor-client privilege.

The court found that an appeal based on an uninformed plea implicitly alleges ineffective assistance of counsel and constitutes a miscarriage of justice, thereby triggering the Protocol.

The court also held that such an allegation results in an implied waiver of solicitor-client privilege to allow the Crown and the court to properly investigate and respond.

The Crown's application was granted, requiring the appellant to provide a waiver of solicitor-client privilege for the appeal to proceed.

The Crown appealed a trial judge's decision to stay criminal harassment and distribution of intimate images charges against the respondent due to alleged late and incomplete disclosure.

The trial judge found the Crown breached its disclosure obligations regarding police notes of conversations with the complainant, which the defence claimed were necessary to determine a potential conflict of interest.

On appeal, the Superior Court found the trial judge erred in concluding the Crown breached its disclosure obligations, as the requested information was irrelevant and the defence was engaged in a fishing expedition.

The court also found the trial judge erred in his application of the stay of proceedings test and in finding a conflict of interest had crystallized.

The stay was lifted and a new trial ordered.

The defendant, Bradley Cheveldayoff, was sentenced for manslaughter after being acquitted of second-degree murder.

The incident involved a physical altercation followed by Cheveldayoff shooting the unarmed victim, Gabriel Nikov, six times in the back as he walked away.

The court considered Cheveldayoff's violent criminal record, his disregard for court orders (carrying a firearm while prohibited), and the severe impact on the victim's family.

While acknowledging the initial provocation, the court found a significant disconnect between the scuffle and the fatal shooting.

The Crown sought 18-19 years and delayed parole, while the defence sought 8-12 years and opposed delayed parole.

The court imposed a sentence of 16 years, reduced to 12 years after credit for pre-sentence custody and harsh detention conditions, but declined to impose delayed parole under s. 743.6 of the Criminal Code, finding the overall sentence sufficient for denunciation and deterrence.

The Crown appealed a conditional discharge sentence imposed on the respondent for assault and sexual assault of a minor.

The Superior Court found the original sentence manifestly unfit, emphasizing that denunciation and general deterrence are primary considerations for serious crimes involving the abuse of a person under 18, as per ss. 718.01 and 718.1 of the Criminal Code.

The sentencing judge erred by overemphasizing rehabilitation, failing to adequately consider aggravating factors, and not explaining why a conditional discharge was not contrary to the public interest.

The appeal was allowed, and a four-month custodial sentence was substituted.

This decision addresses two applications within a second-degree murder trial.

First, the defence sought an order compelling the Crown to call a witness, Malique Kamara, whose statements were inconsistent and whose latest account radically contradicted previous versions.

The court dismissed this application, affirming the Crown's prosecutorial discretion and the absence of a duty to call a witness it deems unreliable, even if previously indicated.

Second, the defence applied to have the partial defence of provocation left to the jury.

The court granted this application, finding that there was an "air of reality" to the subjective elements of suddenness and loss of control, and a "real doubt" regarding whether an ordinary person subjected to the assault would form the intention to commit murder and act upon it, thus warranting the defence to be considered by the jury.

In a second-degree murder trial, the court adjudicated four evidentiary applications.

The defence was permitted to introduce evidence of the deceased's prior violent disposition to support self-defence or provocation, with a corresponding right for the Crown to adduce reply evidence of the accused's violent antecedents to ensure trial fairness.

A hearsay utterance by the deceased, indicating an intent to rob the accused, was admitted under the "statement of present intention" exception, satisfying necessity and reliability criteria despite witness inconsistencies.

Lay opinion evidence was largely excluded, save for an observation of the accused's emotional state.

Finally, a post-offence video depicting the accused re-enacting the shooting was deemed admissible as circumstantial evidence relevant to identity and to rebut self-defence.

The appellant appealed his convictions for impaired driving and refusing to provide a breath sample.

He argued the trial judge erred by not staying proceedings due to the police's failure to video record his arrest and transport, and by failing to adequately consider a defence witness's testimony.

The Superior Court of Justice dismissed the appeal, finding that the police had no duty to create video evidence and that the trial judge provided sufficient reasons for rejecting the defence witness's testimony.

The Crown brought an application for certiorari with mandamus in aid to quash a preliminary inquiry judge's order discharging the accused on charges related to human trafficking.

The accused had booked hotel rooms used by co-accused to exploit a 16-year-old complainant.

The Superior Court found that the preliminary inquiry judge committed jurisdictional errors by failing to consider the totality of the circumstantial evidence and failing to draw reasonable inferences favourable to the Crown regarding the accused's knowledge of the exploitation.

The application was granted, the discharge was set aside, and mandamus was issued directing committal for trial.

The accused was charged with multiple counts of sexual assault against his wife and daughter.

The Crown brought two applications: one for the admission of uncharged prior discreditable conduct towards both complainants, and a second for the application of the similar fact rule to allow evidence of each count to apply to other counts.

The court granted the first application, admitting prior discreditable conduct for each complainant.

The second application was granted in part, allowing similar fact evidence for counts pertaining to the same complainant but denying its use between different complainants due to lack of sufficient similarity.

Following jury convictions for repeated sexual offences against the offender's spouse and daughter, the court imposed sentence.

The court rejected a Kienapple argument because the sexual interference count involving the daughter was legally distinguished by the victim's age and factually distinguished by the relevant time period.

Emphasizing denunciation and deterrence for intrafamilial sexual violence, breach of trust, repeated assaults, planning, intimidation, and lasting victim impact, the court fixed a global sentence of six years.

The sentence was structured through consecutive terms for the separate victim groupings, together with no-contact, DNA, weapons prohibition, and sex offender registration orders.

The appellant appealed his 'Over 80' conviction, arguing his s. 10(b) Charter rights were breached when police failed to contact his wife (a non-criminal lawyer) and he spoke to duty counsel instead.

The Crown cross-appealed the trial judge's failure to render a verdict on the impaired driving charge and the failure to impose the mandatory minimum driving prohibition due to a s. 9 Charter breach.

The Superior Court dismissed the conviction appeal, finding no s. 10(b) breach as the appellant willingly spoke to duty counsel.

The Court allowed the Crown's cross-appeals, remitting the impaired driving charge for a verdict and imposing the mandatory 12-month driving prohibition, holding that s. 24(1) of the Charter cannot be used to reduce a sentence below a statutory minimum absent a constitutional challenge to the provision itself.

The Crown appealed a sentencing decision in which the judge refused to impose an order under the Sex Offender Information Registration Act (SOIRA) following the respondent's guilty plea to sexual assault.

The Superior Court of Justice found that the sentencing judge committed a jurisdictional error, as the Criminal Code mandates a SOIRA order for designated offences, including sexual assault, leaving no discretion to refuse.

The court granted certiorari to quash the original order and imposed a 10-year SOIRA order.

The applicant, charged with possession of proceeds of crime and possession of cocaine for the purpose of trafficking, brought an application to stay the proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay was approximately 44 months.

The court found that the period during which the applicant was out of the country and the subsequent extradition process constituted a discrete event.

Deducting this period brought the net delay well below the 30-month presumptive ceiling established in Jordan.

The application was dismissed.

During a trial for an ATM break-in, the Crown applied to adduce non-expert opinion evidence from a police officer identifying the accused from video surveillance footage.

The officer had observed the accused on seven prior occasions during surveillance operations.

Applying the Leaney test, the court found the officer was sufficiently familiar with the accused and in a better position than the trier of fact to identify him.

The evidence was ruled admissible.

The appellant appealed his convictions and sentence for sexual assault, assault, and mischief arising from incidents involving his wife.

He argued the sexual assault conviction was unreasonable and that the trial judge failed to conduct a proper W.(D.) analysis of the evidence.

The Superior Court of Justice dismissed the conviction appeal, finding sufficient evidence to support the sexual assault conviction and that the trial judge properly assessed credibility under the W.(D.) framework.

The sentence appeal was also dismissed, as the 73-day intermittent sentence was not demonstrably unfit.

The Crown sought to adduce a statement made by the accused to police after he turned himself in.

The accused had refused to be video or audio recorded but agreed to answer questions, which the officer noted down.

The defence opposed the admission of the statement, arguing it was involuntary due to the police's failure to video record the interview as required by appellate jurisprudence.

The court found that the police did not deliberately avoid recording the statement, but rather respected the accused's refusal to be recorded while answering questions.

The court concluded beyond a reasonable doubt that the statement was voluntary and admissible.

The appellant appealed his convictions for impaired driving and driving with a blood alcohol content over 80 mg.

He argued the trial judge erred in finding impairment by alcohol, relying on the toxicologist's evidence, and dismissing his Charter applications under sections 8, 9, and 10(b).

The Superior Court of Justice found no errors in the trial judge's assessment of the evidence or her Charter rulings, concluding that the appellant was not detained prior to arrest and that the breath demand was made as soon as practicable.

The appeal was dismissed.