Timothy R. Lipson

The accused, Ali Alavi, pleaded not guilty to a charge of sexual assault.

The Crown alleged he sexually assaulted the complainant, S.A., at his residence after drugging her, rendering her incapacitated for consent in the master bedroom, and then forcing non-consensual vaginal intercourse in a second bedroom.

The defence contended the allegations were fabricated or based on false memories.

The court found the complainant was drugged and incapable of consenting in the master bedroom, and that she did not consent to sexual activity in the second bedroom.

The accused was convicted of sexual assault.

The accused, Abel Hailu, faced multiple Criminal Code charges including sexual assault with a weapon, uttering threats, forcible confinement, criminal harassment (two counts), intimidation, possession of a weapon for a dangerous purpose, and kidnapping, arising from an incident on October 14, 2022.

The central issue was consent, with the complainant alleging non-consensual sexual activity and forced movement under threat of a knife, and the accused claiming all interactions were consensual.

The court found the complainant's testimony credible and corroborated by other evidence, including the accused's internet search history and post-incident communications, which indicated planning and an intent to control.

The accused's explanations were rejected as not credible.

The court convicted the accused on all counts.

The accused, Abel Hailu, brought a Charter application to exclude evidence obtained through alleged breaches of his ss. 8 and 9 Charter rights, specifically concerning police takeover of the complainant's phone for text messaging, his arrest, strip search, and search of his residence and electronic devices.

The court found that the accused did not have a reasonable expectation of privacy in the text messages with the complainant, who was a stranger and alleged victim of a sexual assault and kidnapping.

Therefore, no s. 8 breach occurred regarding the text messages, and the subsequent arrest was lawful.

The court also found no s. 8 breaches regarding the strip search or the search of his residence and electronic devices, as these were conducted reasonably and based on valid warrants.

The application to exclude evidence was dismissed.

The accused, Akram Elmuradi, was charged with sexual assault.

The defence conceded sexual activity but argued consent, explicitly not relying on mistaken belief in consent.

The case hinged on the credibility of the complainant and the accused.

The court found the accused engaged in deceitful conduct to create an opportunity for sexual activity, exploiting the complainant's trust and vulnerability as a client seeking therapeutic massage.

The complainant's testimony regarding lack of consent was accepted, and the accused's account was deemed implausible and incredible.

The court found the Crown proved beyond a reasonable doubt that the complainant did not consent and that the accused knew the sexual contact was unwanted.

The accused was found guilty of sexual assault.

Mr. Paucsek was charged with assault with a weapon and aggravated assault after stabbing his wife with a samurai sword.

He claimed self-defence, arguing his wife violently attacked him.

The Crown conceded the wife used force but argued Mr. Paucsek's response was unreasonable.

The court applied the objective reasonableness test under s. 34 of the Criminal Code, considering factors like the parties' physical capabilities, history of violence, and the accused's retreat.

The court found the wife's testimony unreliable and accepted Mr. Paucsek's account of being attacked.

Given the prior severe beating and the current assault, the court found Mr. Paucsek's use of the sword, though unusual, was a reasonable and proportional response in the circumstances.

Mr. Paucsek was found not guilty.

This criminal trial addressed charges of impaired operation, over 80 mg, flight from police, and dangerous operation.

The impaired operation charge was dismissed by the Crown due to insufficient evidence.

The court excluded breath test results for the over 80 mg charge under s. 24(2) of the Charter, finding a serious and systemic s. 10(b) breach by the Ottawa Police Service regarding the immediacy of the right to counsel, despite a weak impact on the accused's rights.

The accused was found guilty of flight from a peace officer and dangerous operation, based on his actions in a parking garage, including ignoring police commands and driving dangerously.

Mark Godwin pleaded not guilty to impaired operation and over 80 mg.

The defence sought to exclude breath test results, alleging violations of Charter sections 8, 9, and 10(b).

The court found that the police fulfilled their s. 10(b) obligations to facilitate access to counsel, the breath samples were taken as soon as practicable (no s. 8 breach), and the continued detention was lawful (no s. 9 breach) given the accused's high blood alcohol readings.

The court found the accused guilty of both charges, concluding that the breath test results were admissible and that there was ample evidence of impairment even without the readings.

J.R. pleaded guilty to one count of indecent assault male, an offence committed approximately 40 years prior when the victim was 17 and J.R. was 28.

The incident involved attempted anal penetration and occurred while J.R. was in a position of trust as the victim's uncle and a Boy Scout leader.

The court considered aggravating factors including the severe abuse of trust, the victim's vulnerability, the profound psychological harm caused, and the attempted unprotected anal intercourse.

Mitigating factors included J.R.'s age, his guilty plea (though entered on the first day of trial), and his lack of prior criminal record.

Applying the principles from *R. v. Friesen*, the court emphasized denunciation and deterrence, acknowledging the historical nature of the offence and the limitations on applying modern sentencing ranges.

A sentence of four years imprisonment was imposed, along with ancillary orders for DNA, SOIRA registration, a no-contact order with the victim while in custody, and a weapons prohibition.

The accused, Bevin Kerry Degale, faced charges of aggravated sexual assault and assault.

The assault charge was dismissed on a non-suit motion.

The aggravated sexual assault charge proceeded based on circumstantial evidence, as the complainant did not testify.

The court found the actus reus of aggravated sexual assault (sexual touching, serious bodily harm, and lack of consent) proven beyond a reasonable doubt, relying on res gestae hearsay statements and forensic evidence.

However, the mens rea (knowledge of lack of consent or intent to cause bodily harm) was not proven due to the absence of direct evidence regarding the interaction.

Consequently, the charge of aggravated sexual assault was dismissed.

This ruling addresses the admissibility of five hearsay statements made by the complainant in a criminal trial for aggravated sexual assault and assault.

The court conducted a voir dire to determine if the statements were admissible under the common law res gestae exception or the principled exception to the hearsay rule.

The judge admitted two statements under res gestae, and partially admitted a third under the principled exception (a gesture and statement about location, but not the assertion of assault).

The remaining two statements were deemed inadmissible due to a lack of substantive reliability or because the police notes did not constitute a "statement" of the declarant.

The accused, Neville Brisson, was charged with failing to comply with a demand by a peace officer under the Criminal Code after a single motor vehicle collision.

The court addressed the lawfulness of the Approved Screening Device (ASD) demand and Standard Field Sobriety Tests (SFSTs), and a Charter s. 10(b) breach regarding the right to counsel.

The court found the ASD demand and SFSTs lawful, and while a s. 10(b) breach occurred due to a brief delay in informing the accused of his rights post-arrest, the evidence of his refusal to comply with the DRE demand was admissible under s. 24(2) of the Charter.

Ultimately, the Crown proved beyond a reasonable doubt that the DRE demand was valid and the accused unequivocally refused it, leading to a finding of guilt.

The accused, Zekeim Ogilvie, faced nine firearm-related charges, including possession of a loaded prohibited firearm, following a traffic stop that escalated into a criminal investigation.

The court addressed preliminary issues of the accused's standing to challenge a Liquor Licence Act (LLA) search, the reasonableness of that search under section 8 of the Charter, and the admissibility of evidence under section 24(2) of the Charter.

The court found that the initial LLA search was lawful due to the police officer's reasonable grounds, and even if there was a Charter breach, the evidence would not be excluded.

The court also ruled on the admissibility of video evidence from the accused's phone, finding its probative value outweighed its prejudicial effect.

Ultimately, based on circumstantial evidence including the firearm's location, DNA evidence, and video recordings, the court found the accused guilty of constructive possession beyond a reasonable doubt.

The defendant, Jia Qiong Shen, faced charges of impaired operation and operation over 80.

The court addressed several admissibility issues, including a Charter s. 8 challenge to a key fob found on the defendant, a s. 9 challenge to the lawfulness of her arrest, and ss. 10(a) and (b) challenges to the admissibility of breath test results.

Additionally, the voluntariness of post-breath test utterances was contested.

The court found the arrest lawful and the key fob admissible.

While the Crown conceded ss. 10(a) and (b) breaches due to delays in providing rights in Mandarin, the court admitted the breath test results under a s. 24(2) analysis, deeming the breaches moderate and the evidence reliable and essential.

However, the post-test utterances were excluded as the Crown failed to prove their voluntariness beyond a reasonable doubt.

Ultimately, the court found the defendant guilty of both impaired operation and operation over 80 based on circumstantial evidence and the admitted breath test results.

E.T., a young person, faced charges of robbery, possession of a weapon, disguise with intent, and possession of a stolen vehicle.

The Crown's case was entirely circumstantial, relying on a general resemblance of E.T. to one of the robbers, E.T.'s possession of a similar jacket seven days after the robbery, and his presence in the victim's stolen vehicle.

The court applied the principles of circumstantial evidence from R. v. Villaroman, emphasizing that an inference of guilt must be the only reasonable inference, not merely a probable one.

The court found that while E.T.'s guilt was more likely than not, the identification evidence was insufficient to establish guilt beyond a reasonable doubt for the robbery-related charges.

Similarly, for the possession of stolen vehicle charge, there was no evidence that E.T. had control over the vehicle or knowledge that it was stolen.

All charges were dismissed.

The accused, a police constable, was charged with entering a dwelling house without lawful excuse and with intent to commit an indictable offence (criminal harassment) under s. 349(1) of the Criminal Code.

The court found that the accused did not have a lawful excuse to enter the complainant's residence, given the clear termination of their relationship and his deceptive conduct to gain entry.

However, the Crown failed to prove beyond a reasonable doubt that the accused had the requisite intent to commit an indictable offence *at the point of entry*, as particularized in the information.

The accused's intent to harass was found to have formed *after* entry, when he decided to unlock a door for future access.

Consequently, the charge was dismissed.

Following conviction on charges of Attempt to Commit Mischief to Data and Unauthorized Use of a Computer, the defendant, a former Chief of Staff to the Premier of Ontario, was sentenced to four months imprisonment followed by twelve months probation with 100 hours of community service.

The defendant had directed the wiping of computer hard drives in the Office of the Premier to destroy records responsive to Freedom of Information requests and anticipated legislative committee production orders regarding the gas plant controversy.

The court found the offence struck at the heart of democratic accountability and transparency, warranting incarceration despite the defendant's otherwise exemplary character and community contributions.

David Livingston, Chief of Staff to the Premier of Ontario, and Laura Miller, Deputy Chief of Staff for Communications and Strategy, were charged with Breach of Trust by a Public Official, Commit Mischief to Data, and Unauthorized Use of a Computer.

The Crown abandoned the Breach of Trust charge.

The defendants were accused of directing the wiping of twenty computers in the Office of the Premier during the transition from Premier McGuinty to Premier Wynne in early 2013, allegedly to destroy records responsive to Freedom of Information requests and potential Legislative Standing Committee Production Orders related to the controversial cancellation and relocation of the Oakville and Mississauga gas plants.

The Crown alleged the defendants obtained administrative rights through deception and hired an outside IT consultant to indiscriminately wipe hard drives.

The defendants claimed they sought only to delete personal information and Liberal Party documents from departing staff computers.

Justice Lipson found Livingston guilty on both remaining counts (Attempt to Commit Mischief to Data and Unauthorized Use of a Computer) but acquitted Miller due to insufficient evidence of her knowledge of Livingston's deceptive means in obtaining administrative rights.

The defendants, David Livingston and Laura Miller, pleaded not guilty to charges of breach of trust by a public official, mischief to data, and unauthorized use of a computer.

The Crown withdrew the breach of trust count at the close of its case.

The defendants brought a motion for a directed verdict of acquittal on the remaining two counts.

The court found that while the Crown failed to establish that actual data was destroyed, there was sufficient evidence that the defendants attempted to commit mischief to data without legal justification or colour of right.

The motion was allowed in part on the mischief to data count, which was reduced to attempt to commit mischief to data.

The motion was dismissed on the unauthorized use of a computer count.

The accused sought to withdraw his guilty plea to possession of cocaine for the purpose of trafficking, which he had entered on May 9, 2017.

The accused argued that his plea was not informed because he was unaware that the Crown would stay charges against his co-accused.

The court found that the plea was voluntary, unequivocal, and informed, and that the Crown was not obliged to disclose its prosecutorial strategy regarding co-accused individuals.

The application to withdraw the guilty plea was dismissed.

The Crown sought to qualify Robert Gagnon, a retired OPP officer, as an expert in computer systems operation and forensic recovery of computer data.

The defence opposed qualification, arguing that Gagnon's extensive involvement in the police investigation and his expressed bias regarding the defendants' guilt disqualified him from providing independent and impartial expert evidence.

The court excluded Gagnon's evidence, finding that he had conflated the roles of expert and investigator, participated extensively in investigative strategy and team meetings, and demonstrated lack of independence and impartiality through his communications recommending charges and providing strategic legal advice to investigators.