Thomas F. Balka

The accused was charged with sexually assaulting the complainant on July 9, 2016.

The Crown's case was straightforward: the accused engaged in non-consensual sexual contact with the complainant while she slept.

The central issue was not whether the sexual conduct occurred, but whether the accused's actions were involuntary.

The accused did not dispute the complainant's account of events or that the touching violated her sexual integrity.

Instead, the defence asserted the accused was in a state of automatism—specifically, a confusional arousal or sexsomnia—and therefore acted involuntarily and without criminal responsibility.

The trial examined evidence of the accused's catastrophic head injury, documented family history of parasomnias, prior similar incidents, and expert evidence regarding sleep disorders to determine whether the accused's conduct was involuntary and, if so, whether it constituted mental disorder automatism.

The defendant was convicted after trial of sexual assault and sexual interference against a 15-year-old victim.

The Crown sought a sentence of 12 months jail followed by two years probation, while the defence urged the mandatory minimum of 90 days intermittent.

The court dismissed an adjournment application seeking to introduce fresh evidence and proceeded to sentencing.

The defendant was sentenced to 90 days incarceration served intermittently on weekends, three years probation with strict conditions including a 200-metre no-contact order, DNA order, 10-year weapons prohibition, 10-year SOIRA order, and s. 161 order prohibiting contact with persons under 14 years of age.

The defendant, G.S., was charged with sexual assault, sexual interference (touching for a sexual purpose a person under 16), and exposing genital organs to a person under 16.

The complainant, JH, a 7-year-old, provided conflicting accounts of the alleged events to her mother, police, and in court.

The court found that the mother's emotional reaction and police questioning techniques likely intimidated the child, making her testimony unreliable.

The defendant and his wife denied all allegations, and their testimony was believed.

Applying principles from R. v. W.(D.), the court found that the Crown had not proven its case beyond a reasonable doubt, and all counts were dismissed.

The accused was charged with having care or control of a motor vehicle while blood alcohol concentration exceeded the legal limit.

The Crown sought to rely on breath sample analysis results.

The defence raised Charter violations: (1) a section 8 unreasonable search and seizure claim regarding the Approved Screening Device demand; (2) section 10(b) right to counsel violations, including failure to reinform of rights upon a second arrest and failure to facilitate contact with counsel of choice.

The Crown conceded one 10(b) breach.

The court found the section 8 claim failed but upheld the section 10(b) breach regarding counsel of choice.

Under section 24(2), the court excluded the breath sample evidence due to the serious and wilful disregard by multiple officers for the accused's right to counsel, despite minimal actual impact on the accused's interests and the reliability of the evidence.

The defendant was charged with operating a motor vehicle while over 80 milligrams of alcohol per 100 millilitres of blood.

A police officer lawfully stopped the defendant for traffic violations and sobriety concerns.

The officer formed reasonable suspicion and administered an approved screening device test, which the defendant failed.

However, the officer delayed providing Charter rights to counsel by approximately 10 minutes after arrest.

The defendant brought a Charter application alleging a breach of s. 10(b) rights and sought exclusion of breath samples under s. 24(2).

The court found a s. 10(b) breach but declined to exclude the evidence, finding the nexus between the breach and the evidence too tenuous and that admission would not bring the administration of justice into disrepute.

The defendant was convicted.

The defendant was charged with operating a motor vehicle "Over 80" following a police investigation on December 10, 2015.

The defendant challenged the lawfulness of the investigation by bringing a blended Charter application and trial, alleging breaches of Sections 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms.

The defendant argued that the officer improperly delayed providing rights to counsel regarding a marijuana possession charge in order to prioritize the drinking and driving investigation.

The court dismissed the Charter application and found the defendant guilty, holding that the officer lawfully conducted the sobriety investigation within the parameters of Highway Traffic Act authority and that the officer was not obligated to immediately provide rights to counsel regarding the possession charge.

The defendant was charged with care and control of a motor vehicle with a blood alcohol level exceeding the legal limit.

The Crown alleged the defendant was driving with a blood alcohol level of 131 and 124 (legal limit 80).

The defendant challenged the admissibility of the breath test evidence on Charter grounds, arguing that police violated her right to counsel under section 10(b) by failing to advise her of this right during a five-minute delay between the approved screening device demand and the roadside breath sample.

The court rejected the Charter challenge, finding the demand was made "forthwith" as required by section 254(2) of the Criminal Code, and that the brief delay was justified to ensure an accurate test result.

The court also rejected other defence arguments regarding identity, the intoxilyzer procedure, and the approval status of the screening device.

The defendant was found guilty.

The defendant pleaded guilty to possession of child pornography and making child pornography available to others contrary to sections 163.1(3) and (4) of the Criminal Code.

Police executed a search warrant at his home and seized his computer and two memory sticks containing three child pornography video files and 4,176 pictures and 144 videos of child pornography.

A chat log revealed the defendant discussing sadistic acts with a person in the United States.

The defendant, a 63-year-old certified accountant with a prior similar conviction in Manitoba in 2005, was sentenced to an additional two years in jail (effective sentence of three years and 24 days including pre-trial custody), followed by three years of probation, along with ancillary orders including firearm prohibition, DNA sampling, sex offender registry compliance, and restrictions on proximity to children and computer use.

The applicant medical centre sought to vary a production order requiring it to produce a patient's medical records, including insulin pump data stored on a third-party website.

The Crown argued the centre had possession and control of the data because it had the patient's permission to access the website.

The Superior Court of Justice held that the centre did not possess or control the data on the third-party website at the time it received the order, as it only accessed the data during patient visits.

The application was granted and the production order was varied to exclude the requirement to obtain data from the third-party website.

Several accused brought Garofoli applications seeking exclusion of evidence obtained through multiple Part VI wiretap authorizations in a large drug trafficking investigation.

They argued the affidavits failed to establish reasonable and probable grounds and improperly named them as known parties under s. 185(1)(e) of the Criminal Code.

The court held that one authorization related to a homicide investigation lacked sufficient grounds on the edited record and therefore violated s. 8 of the Charter; intercepted room‑probe communications from a residence were excluded under s. 24(2).

However, the court found that the principal drug trafficking wiretap authorizations were supported by reasonable grounds based on confidential informant information, surveillance, phone records, and associations among targets.

Applications to exclude evidence obtained under those authorizations were dismissed.

The applicants brought a preliminary motion in advance of a Garofoli application seeking excision of all references to a vehicle stop and resulting seizures that had previously been found to violate Charter rights.

The impugned events were relied upon in affidavits supporting Part VI wiretap authorizations, a production order for subscriber records, and search warrants for cellular phone contents.

The Crown argued that the applicants lacked standing to seek excision of evidence obtained in violation of third parties’ Charter rights.

The court held that where illegally obtained evidence forms part of the grounds for authorizations affecting the applicants’ privacy interests, the applicants are entitled to challenge the legality of that evidence and seek its removal from the supporting materials.

All references to the unlawful vehicle stop, arrests, and seizures were ordered excised from the affidavits and informations to obtain.

The applicants, charged with drug-related offences, brought a Section 8 Charter application to exclude evidence obtained from Dialled Number Recorder and tracking warrants.

They argued the Information to Obtain (ITO) was deficient due to unconfirmed confidential informant tips, tainted informant pools from police misconduct, and material non-disclosure by the affiant.

The court strongly condemned the egregious conduct of one officer and the sloppiness of the affiant in failing to disclose relevant police reports.

However, after excising inaccuracies and reading in omissions, the court found the remaining reliable information still provided reasonable grounds to suspect the applicant was trafficking drugs.

The application to exclude evidence was dismissed.

The defendant was charged with possession of cocaine for the purpose of trafficking following a traffic stop for an expired vehicle registration.

The defendant challenged the lawfulness of his arrest and the subsequent search of his vehicle, claiming violations of sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The defendant sought to exclude the cocaine evidence under section 24(2) of the Charter.

The court found that the officer had reasonable and probable grounds to arrest the defendant for possession of marijuana based on the smell of burnt marijuana, the defendant's nervous demeanor, and his apparent attempt to conceal something in the vehicle's centre console.

The court dismissed the application to exclude the evidence.

The accused was charged with impaired driving and driving with a blood alcohol level over .08 after being observed driving erratically by a witness who called police.

A police officer attended the accused's residence and made observations of impairment including unsteadiness, glassy and watery eyes, slurred speech, and the odour of alcohol on the accused's breath.

The defence challenged the admissibility of the officer's observations on grounds of breaches of sections 8, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found the observations admissible and convicted the accused on both charges.

The accused brought a Garofoli application seeking to invalidate a search warrant and exclude evidence under s. 24(2) of the Charter on the basis that the warrant failed to specify the execution date.

The accused argued the omission rendered the warrant unconstitutional and sought exclusion of both the seized evidence and later intercepted statements alleged to flow from the unlawful search.

The court held that the absence of a specified search date was a technical irregularity that did not undermine the validity of the warrant, as the Information to Obtain and execution window clearly implied the intended search date.

No bad faith or negligence by police was found.

Even if a Charter breach had occurred, the court held the evidence would not have been excluded under the Grant framework.

The applicant sought standing to challenge the constitutional validity of a vehicle stop and the subsequent search of cell phones belonging to three other individuals.

The applicant argued he had a reasonable expectation of privacy in text messages he had exchanged with one of the individuals, relying on previous jurisprudence.

The court rejected this argument, applying the Edwards factors to find that the applicant had no indicia of ownership or control over the phones or the text messages once sent.

The court concluded the applicant had no reasonable expectation of privacy in the text messages on the third parties' phones and therefore lacked standing to challenge the search.

The accused was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit contrary to section 253(1)(b) of the Criminal Code, and with two related offences under the Highway Traffic Act.

The trial proceeded by way of a blended hearing incorporating a Charter motion to exclude breath test evidence.

The accused claimed his right to counsel was violated because police refused to allow him to speak to his father.

The court found that the accused did not express a desire to contact his father to facilitate contact with counsel, but rather sought his father's general advice about the situation.

The court rejected the Charter challenge, finding the police properly discharged their duties and the accused was not diligent in exercising his right to counsel.

The accused was found guilty of all three charges.

The applicant sought enhanced state funding for counsel of choice in advance of a new criminal trial after the Court of Appeal set aside his prior conviction due to a miscarriage of justice arising from ineffective assistance of counsel and procedural irregularities.

Legal Aid had refused coverage for the retrial, although the Attorney General conceded that Rowbotham funding was required.

The court considered the exceptional circumstances doctrine articulated in R. v. Peterman, under which enhanced funding for counsel of choice may be ordered where necessary to ensure trial fairness.

Given the applicant’s prior wrongful conviction process, hearing impairment during earlier proceedings, loss of faith in defence counsel, impecuniosity, and the extraordinary procedural history of the case, the court found that a fair trial required representation by the proposed counsel.

The Attorney General was therefore ordered to fund counsel at enhanced rates.

The accused, a deaf father, pled guilty to failing to provide the necessaries of life to his seven-week-old son.

The infant suffered multiple severe injuries, including a fractured skull and broken bones, caused by the accused's negligence.

The accused failed to seek timely medical attention for the infant.

The Crown sought 18 to 24 months' imprisonment, while the defence requested a conditional sentence.

The court weighed the mitigating factors, including the accused's guilty plea and lack of prior record, against the significant aggravating factors, such as the infant's vulnerability and the severity of the injuries.

The court concluded that a conditional sentence would not satisfy the principles of denunciation and deterrence, sentencing the accused to nine months' imprisonment followed by three years of probation.

The appellant appealed his convictions and total sentence of six years' imprisonment for the physical and sexual abuse of his children.

He argued the trial judge misapprehended evidence regarding the sexual abuse allegations, improperly assessed videotaped statements, and rendered an unreasonable verdict on the assault charge.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's conclusions were supported by the evidence and her assessment of the videotaped statements was appropriate.

The sentence appeal was also dismissed, as the trial judge did not err in refusing credit for time spent on strict bail conditions, though a technical correction was made to the counts on which the sentence was imposed.