Warren Scott Milko

The accused, F.(D.), was convicted of sexually assaulting his wife.

The court sentenced him to three years' imprisonment, rejecting the defence's request for a conditional sentence order.

The decision emphasizes the breach of trust inherent in intimate partner sexual assault, particularly involving an intoxicated and vulnerable victim.

The court relied on the Ontario Court of Appeal's established sentencing range of three to five years for such offences and considered the significant harm to the victim, the accused's substance abuse issues, and his moral blameworthiness.

Ancillary orders included DNA sampling, a victim fine surcharge, weapons prohibition, and sex offender registry registration.

This decision addresses the issue of consent in a sexual assault trial where the complainant had no memory of the sexual activity due to intoxication.

The court carefully analyzes the circumstantial evidence, including the complainant’s testimony, prior consistent statements, and an online conversation between the parties.

The judge applies established legal principles on consent, capacity, and the evidentiary value of prior consistent statements, ultimately finding the accused guilty based on the totality of the circumstantial evidence proving non-consent beyond a reasonable doubt.

The defendant, Jason Mercuri, was charged with possession of a loaded restricted firearm and being an occupant of a motor vehicle knowing there was a firearm in it.

The Crown relied on circumstantial evidence, including the defendant being the driver and alleged owner of the vehicle where the gun was found in the trunk, and evasive driving.

The court found the evidence of vehicle ownership unreliable and determined that the circumstantial evidence, including the location of the gun in a satchel in the trunk and the presence of a passenger with other contraband, did not prove knowledge and control beyond a reasonable doubt.

The defendant was acquitted of both charges.

The defendants, Jason Mercuri and Justin Silva, brought a Charter application to exclude evidence (drugs and a loaded handgun) found in a vehicle following a traffic stop and subsequent searches.

They alleged violations of sections 8 (unreasonable search), 9 (arbitrary detention), and 10 (right to counsel) of the Charter.

The court found the initial traffic stop was lawful, being for a legitimate dual purpose (regulatory and criminal suspicion), and the subsequent searches were justified under the Liquor Licence Act due to the observation of open alcohol.

While an admitted breach of section 10 (delayed right to counsel) occurred, the court determined it was not causally linked to the discovery of the evidence and, applying the Grant analysis under section 24(2), found that the seriousness of the breach and its impact on the defendants' rights did not outweigh society's interest in the adjudication of serious offences on their merits.

The application to exclude the evidence was denied.

The applicant sought a review of his continued detention under s. 525 of the Criminal Code, arguing the original bail hearing was flawed and that delays due to the COVID-19 pandemic warranted release.

The court found no new evidence and upheld the Justice of the Peace's decision to detain on secondary grounds, citing the applicant's extensive criminal record, the violent nature of the alleged home invasion, and the unsuitability of the proposed sureties.

The application was dismissed, but a renewed application was permitted by October 30, 2020, to reassess the impact of pandemic-related delays.

The applicant, A.F., sought a bail review under s. 520 of the Criminal Code after being detained on secondary and tertiary grounds for serious firearm and drug-related offences.

The court found a material change in circumstances due to the COVID-19 pandemic, the extensive delay in the preliminary inquiry, the withdrawal of a more serious charge, and an enhanced release plan including electronic monitoring.

The court acknowledged the heightened risk to inmates from COVID-19 and the applicant's health concerns and period of unexplained segregation.

Balancing these factors against the seriousness of the charges and the applicant's history of non-compliance, the court was persuaded that the stringent release plan, coupled with electronic monitoring, would sufficiently address public safety and confidence in the administration of justice.

The bail review application was granted.

The applicant, P.K., sought a bail review under s. 520 of the Criminal Code after being detained on the tertiary ground for serious charges including robbery and firearm offences.

The application argued a material change in circumstances due to the COVID-19 pandemic, the time spent in custody, and a proposed release plan with sureties and electronic monitoring.

The court acknowledged COVID-19 as a material change but found the proposed plan insufficient to address the substantial risk to public safety (secondary ground) and maintain confidence in the administration of justice (tertiary ground), given the applicant's violent history and non-compliance with previous orders.

The bail review was dismissed, and detention continued.

The defendant was convicted of sexual touching (s. 152 Criminal Code) after a non-jury trial.

This decision concerns sentencing.

The complainant was four years old at the time of the single, brief incident.

Aggravating factors included the victim's young age, vulnerability, and the defendant's position of trust, as well as the significant emotional impact on the complainant.

Mitigating factors included the historical nature of the offence (17 years prior), the defendant's lack of recent criminal convictions, the brief and isolated nature of the act, and his current role as a caregiver for his ailing father and grandmother, along with significant health issues.

The Crown sought a custodial sentence of two years less a day or two years in a penitentiary, followed by probation.

The defence sought a conditional sentence.

The court imposed a conditional sentence of two years less one day, to be served in the community with house arrest for the entire period, followed by three years of probation, and various other orders including a 10-year and lifetime weapon prohibition, and a 20-year Sex Offender Information Act order.