Susan M. Chapman

This decision addresses multiple Charter breaches arising from the detention, search, and arrest of Omar Yaqubi in Toronto's Entertainment District.

The court found breaches of sections 7, 8, 9, and 10(b) of the Charter, including arbitrary detention without reasonable suspicion, unlawful search without safety justification, and failure to promptly inform and facilitate the right to counsel.

The court excluded the evidence obtained during the unlawful detention and search pursuant to section 24(2) of the Charter.

Alternatively, a stay of proceedings was directed due to the loss of critical evidence caused by police muting body-worn cameras and failure to preserve key witness information, impairing the accused's right to make full answer and defence.

The accused, Afrah Mohamed, was charged with unauthorized possession of a firearm and ammunition.

He brought a Charter application to exclude evidence, which was dismissed.

The central issue at trial was whether the Crown proved beyond a reasonable doubt that he was in constructive possession of the firearm and ammunition found during a search.

The court found that the Crown failed to prove constructive possession, as the evidence did not establish the accused's knowledge and control of the items beyond a reasonable doubt.

The accused was found not guilty.

The accused, Jing Wen Shi, was charged with failing to provide the necessities of life to her newborn baby, contrary to section 215(2)(a)(ii) of the Criminal Code, after giving birth alone at home.

The Crown alleged she knew of the pregnancy and purposely neglected the baby.

The defence argued she was unaware of the pregnancy until labour and was physically incapacitated by shock and blood loss.

The court found reasonable doubt regarding her prior knowledge of pregnancy and her physical capacity to act, concluding that her actions did not amount to a marked departure from the standard of care of a reasonably prudent parent in the circumstances.

The accused was found not guilty.

The accused, Ashton Bell, faced serious firearms charges and brought a Charter application under s. 24(2) to exclude evidence (a firearm) alleging breaches of ss. 8, 9, 10(a), and 10(b), primarily due to racial profiling during a traffic stop, search, and arrest.

The Crown conceded a s. 10(b) breach (delay in access to counsel) but argued for admission of evidence.

The court found no racial profiling or s. 8/9 breaches, but confirmed the s. 10(b) breach.

Applying the Grant test, the court determined that admitting the firearm would not bring the administration of justice into disrepute, given the less serious nature of the breach, minimal impact on the accused, and high societal interest in adjudicating serious firearms offences.

The evidence was admitted, leading to conviction on all charges.

The accused, Luz Adriana Gonzalez-Valbuena, pleaded guilty to ten counts of human trafficking, one global count of receiving material benefit from human trafficking, and eight counts of withholding travel documents for the purpose of human trafficking.

The court considered the sophisticated and industrial-scale nature of the labour trafficking scheme, which exploited vulnerable Mexican foreign nationals over four years, involving threats, illegal deductions, and substandard living conditions.

Aggravating factors included the duration, number of victims (21), severe victim impact, and the accused's prior criminal record.

Mitigating factors included an early guilty plea, the accused's own history as a victim of sexual trafficking, and harsh pre-sentence custody conditions.

The Crown sought 11 years custody, while the defence sought 6-7 years.

The court imposed a global sentence of 8 years custody, minus presentence custody credit.

The Crown applied to have the offender declared a dangerous offender following convictions for aggravated assault and other violent offences.

The court found the offender met the criteria for dangerous offender designation, including a high likelihood of harmful recidivism and intractable violent conduct, despite the offender's claims of willingness to engage in treatment.

However, the court declined to impose an indeterminate sentence, opting instead for a lengthy determinate sentence of 14 years (minus pre-trial custody) followed by a 10-year long-term supervision order, finding that external controls and potential future treatment could adequately manage the risk to public safety.

The accused, Andrew Lawson, brought a s. 11(b) Charter application for a stay of proceedings due to unreasonable delay, exceeding the 18-month Jordan ceiling.

The total delay was 19 months and 23 days.

The court found that the delay was primarily due to late disclosure, but attributed a significant portion of this delay (approximately 4 months) to the unforeseen impact of the COVID-19 pandemic on Crown disclosure processes, which constituted a discrete exceptional circumstance.

After subtracting this period, the net delay fell below the Jordan ceiling, and the application was dismissed.

The Crown, supported by the defence, applied to vary the respondent's undertaking conditions to facilitate his participation in a Partner Assault Response (PAR) program.

A Justice of the Peace had previously declined similar variations, citing *R. v. Valentine*.

The court, disagreeing with *Valentine*, found the proposed consent bail conditions necessary, reasonable, and sufficiently linked to public protection under s. 515(10) of the *Criminal Code*, particularly in domestic violence cases.

The application was granted, varying the bail terms to allow PAR program participation and conditional contact with the complainant.

The accused was charged with public mischief and criminal harassment arising from her interactions with police regarding concerns about her son being abused by his father.

At the conclusion of the Crown's case, the defence brought a motion for a directed verdict.

The court granted the motion, finding that the Crown failed to adduce sufficient evidence on the essential elements of both offences.

Specifically, the Crown provided no clear evidence of the specific false allegation constituting the actus reus of mischief, no proof of falsity, and no evidence of the accused's knowledge that her allegations were false.

Regarding criminal harassment, the court found that the accused's lawful calls to police did not constitute prohibited conduct under section 264 of the Criminal Code, and that the accused's conduct did not cause the complainant to reasonably fear for his safety within the meaning of the statute.

The accused was convicted of multiple offences including assault, assault with a weapon, sexual assault with a weapon, uttering threats, choking, unlawful confinement, breach of recognizance, and mischief, all arising from a protracted campaign of domestic abuse against his former domestic partner and mother of his child between January 2016 and May 2017.

The accused absconded and did not attend sentencing.

The court imposed a global sentence of 2 years less 1 day custody with 3 years probation, with consecutive sentences on the most serious counts (sexual assault with a weapon and forcible confinement).

The sentence reflects the serious nature of the offences, the vulnerability of the victim, the duration and escalating pattern of abuse, and the presence of children during some incidents.

The accused pleaded guilty to aggravated assault committed against his intimate partner in March 2017.

Following a Gardiner hearing, the court found that the assault occurred in the context of a domestic relationship.

The accused had an extensive criminal history including numerous convictions for violence against women.

The court sentenced the accused to five years custody, with credit for 884 days of pre-sentence custody at the usual 1.5 to 1 ratio, resulting in a net sentence of two years and three months.

A DNA order and lifetime weapons prohibition were also imposed.

The accused was charged with assault with a weapon, sexual assault, and forcible confinement arising from an incident on October 31, 2017, in a residential condominium building.

The accused, a custodian at the building, lured the complainant to a secluded stairwell by deception, brandished a knife, and positioned his crotch near her face while restraining her with his forearm.

The complainant resisted and screamed until a neighbor intervened.

The trial judge found the accused guilty on all three counts, determining that the conduct constituted an actual sexual assault (not merely attempted), as the accused deliberately violated the complainant's sexual integrity through the positioning of his genitals near her face in a threatening context, combined with physical restraint.

The accused was charged with sexual assault, assault, forcible confinement, theft, mischief, and uttering a death threat arising from events between February and October 2016 in a domestic relationship.

The trial turned on credibility between the complainant and the accused.

While the court found the complainant generally credible despite some concerns about her truthfulness regarding peripheral matters, it determined that the Crown had not proven most charges beyond a reasonable doubt due to lack of corroboration.

However, the court found the accused guilty of assault (scratching the complainant's neck on October 29-30, 2016) and mischief (breaking the complainant's cell phone at Pacific Mall), as these incidents were corroborated by physical evidence and circumstantial facts.

The accused was charged with assault with a weapon, assault causing bodily harm, and carrying a weapon for the purpose of committing an offence.

The Crown's case was that the accused struck the complainant with a baseball bat during an altercation over payment for services.

The accused claimed self-defence, asserting that he was attacked by multiple men on the construction site and used the bat defensively.

The court found significant inconsistencies and frailties in the Crown's witnesses' testimony, particularly regarding the sequence of events and the injuries sustained by the accused.

The documented injuries on the accused were inconsistent with the Crown's version of events and raised a reasonable doubt as to whether the accused acted in self-defence.

The court acquitted the accused on all three counts.

The accused was charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code following the discovery of 148 images on USB devices seized from his residence.

The central issue was whether the material possessed constituted child pornography within the meaning of the Criminal Code.

The court found that the images, depicting prepubescent boys in sexualized poses while clothed or partially clothed, met the statutory definition of child pornography as they depicted sexual organs or anal regions as their dominant characteristic for a sexual purpose.

The accused was found guilty.

The accused was charged with impaired care or control and "over 80" under the Criminal Code.

The Crown alleged the accused was intoxicated and in the driver's seat of a vehicle in a parking lot.

The defence challenged the arrest on Charter grounds and argued the presumption of care or control was rebutted by the accused's testimony that he had decided not to drive home.

The court found reasonable and probable grounds for arrest, rejected the Charter challenges, and convicted the accused on both counts, finding that the presumption was not rebutted and that actual care or control was proven beyond a reasonable doubt.

The accused was charged with impaired driving, driving with a blood alcohol level over 80 mg per 100 ml of blood, and Highway Traffic Act offences related to being a novice driver with a blood alcohol level exceeding zero.

The defence raised Charter violations regarding the arrest and the right to counsel, alleging language barriers.

The court found that the police had objective grounds to arrest the accused based on the serious single-vehicle collision, witness observations of reckless driving, and indicia of impairment.

The court also found no breach of the right to counsel, determining that special circumstances related to language comprehension did not exist.

On the merits, the court found overwhelming evidence of impairment and identified the accused as the driver beyond a reasonable doubt.