Alfred J. O'Marra

The applicant sought to exclude evidence of drugs seized at the time of his arrest, alleging breaches of his s. 10(b) Charter right to retain and instruct counsel without delay.

The court found three s. 10(b) breaches: two instances of police failing to hold off questioning and an unreasonable 40-minute delay in providing access to counsel at the police division.

Applying the Grant factors for s. 24(2) Charter analysis, the court found the breaches serious but not systemic, the impact on the accused's Charter interests relatively minor due to no causal connection to the evidence, and society's interest in adjudication on the merits favored inclusion as the evidence was reliable.

The application to exclude evidence was dismissed.

In an extradition proceeding, the respondent, Zong Tao Chen, sought by the U.S. for sex trafficking, filed a constitutional challenge to s. 286.2 of the Criminal Code, alleging infringements of ss. 2(d) and 7 of the Charter.

The Attorney General of Canada moved to summarily dismiss this challenge.

The court granted the dismissal, finding that s. 286.2 was not the provision before the court in the current Authority to Proceed (ATP), which cited s. 279.02.

The court also ruled that a constitutional invalidation of one provision cannot be analogized to another with different elements, and noted that s. 279.02 had already been declared constitutional in a prior case (R. v. D’Souza).

Additionally, the respondent failed to provide sufficient notice as required by the Criminal Proceeding Rules.

The accused, Adib Ibrahim, was found guilty of manslaughter after intentionally driving his taxi into a skateboarder, Ralph Bissonnette, causing his death.

This decision addresses the sentencing.

The Crown sought a four-year penitentiary term, DNA order, weapons prohibition, and driving prohibition.

The defence requested a conditional sentence, citing the accused's lack of criminal record, family support, health issues, and the COVID-19 pandemic.

The court emphasized general deterrence and denunciation, finding a high degree of moral blameworthiness due to the intentional aggressive act.

The accused was sentenced to 3 years and 11 months incarceration, a DNA order, and a 10-year weapons prohibition.

A further driving prohibition was declined given existing bail conditions and the term of incarceration.

The accused, charged with sexual offences against a minor, brought an application for a stay of proceedings alleging a breach of the right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay from the swearing of the Information to the anticipated end of the trial was 43.5 months.

The court deducted significant periods of defence delay and explicit waivers, resulting in a net delay of 20.75 months, well below the 30-month presumptive ceiling established in Jordan.

The court found the defence failed to demonstrate that this was a clear case of unreasonable delay and dismissed the application.

The accused was charged with first-degree murder after his spouse, who suffered from COPD, died when her home oxygen was turned off.

During the medical emergency response, the accused made several statements to police officers and a paramedic.

The defence brought an application to exclude the statements, arguing they were involuntary and obtained in violation of ss. 7, 9, and 10 of the Charter.

The court found that statements made to the first responding officers and the paramedic were voluntary and admissible, as the accused was not detained and the paramedic was not a person in authority.

However, the court found a s. 10(b) Charter breach occurred when officers told the accused he would be arrested but delayed advising him of his right to counsel.

Statements made after this breach were excluded under s. 24(2).

The accused was charged with robbery and second-degree murder after forcefully kicking the victim during a robbery, causing the victim to fall and strike his head on the pavement, resulting in fatal brain injuries.

The trial proceeded by judge alone on an agreed statement of facts.

The sole issue was whether the accused had the requisite specific intent for second-degree murder under s. 229(a)(ii) of the Criminal Code.

The court found that while the accused had the subjective intent to cause bodily harm, the evidence did not establish beyond a reasonable doubt that he had subjective knowledge that the harm was likely to result in death.

The accused was found not guilty of second-degree murder, but guilty of manslaughter and robbery.

The accused, a taxi driver, was charged with manslaughter following a fatal collision with a longboarder.

The Crown alleged the accused intentionally veered into the victim in a fit of road rage, while the accused claimed he was unaware of the victim's presence and the collision resulted from a momentary lapse of attention or a mechanical 'bump steer'.

The court rejected the accused's evidence, finding that he intentionally steered his taxi into the curb lane knowing the victim was beside him.

The court concluded this conduct constituted a marked departure from the standard of care of a reasonable person, finding the accused guilty of manslaughter based on the unlawful acts of assault and dangerous driving.

The appellant, Rory Coutts, appealed his conviction for refusing to provide a breath sample under s. 254(5) of the Criminal Code.

The trial judge found Charter breaches regarding the roadside Approved Screening Device (ASD) demand not being made forthwith and a delay in providing reasons for detention, but declined to exclude the evidence under s. 24(2).

On appeal, the court considered whether the breathalyzer demand under s. 254(3) was lawful, given the unlawful ASD demand.

The court found that the unlawful ASD demand rendered the "fail" result inadmissible to establish reasonable grounds for the s. 254(3) breathalyzer demand, thus making the latter demand unlawful.

Consequently, the appellant was under no legal obligation to comply, and his refusal was not a criminal offence.

The conviction was quashed, and an acquittal entered.

The applicant, Charles Mustard, charged with first-degree murder from a 1993 cold case, sought judicial interim release (bail) under s. 522(2) of the Criminal Code.

The Crown opposed his release.

The court assessed the three grounds for detention under s. 515(10): primary (attendance in court), secondary (public protection), and tertiary (maintaining confidence in the administration of justice).

While the applicant satisfied the primary and secondary grounds, the tertiary ground was a significant consideration due to the gravity of the offence and the apparent strength of the Crown's DNA evidence.

However, the court also considered the applicant's age (65), health conditions (borderline diabetes, arthritis, hearing/eyesight loss), and the heightened risk of COVID-19 transmission in detention facilities.

Despite a "porous" release plan involving the Toronto Bail Program and a shelter, the court found that the public, properly informed of Charter values and the pandemic crisis, would not lose confidence in the administration of justice by granting bail.

The application for bail was granted with specific conditions.

The Crown applied for an indeterminate sentence after the offender, previously designated a dangerous offender, was convicted of assault with a weapon and assault causing bodily harm.

The offender had attacked a security guard at the U.S. Consulate with a box cutter while on a long-term supervision order.

Relying on extensive psychiatric evidence demonstrating severe personality disorders, high psychopathy, and a high risk of violent reoffending, the court found no reasonable expectation that the offender's risk could be managed in the community.

An indeterminate sentence was imposed.

Sentencing of three offenders for criminal organization and firearms offences, with one offender also sentenced for human trafficking and assault causing bodily harm.

The court imposed a 12-year sentence for the principal offender involved in human trafficking and firearms acquisition for the criminal organization, a 7-year sentence for the second offender recruited to obtain firearms, and a 2.5-year sentence for the third offender who acted as a go-between.

The court applied enhanced pre-sentence custody credits for harsh detention conditions and strict house arrest.

The applicant's application for injunctive relief and reinstatement as a priest was dismissed.

The respondents sought substantial indemnity costs of $104,706.19, alleging the applicant engaged in sanctionable conduct and pursued fruitless litigation against improper parties.

The court rejected the claim for substantial indemnity costs, finding the conduct did not warrant sanction.

Applying the factors under Rule 57.01(1) and the principle of fixing a fair and reasonable amount, the court awarded the respondents costs fixed at $50,000 inclusive of fees, HST, and disbursements.

Following a summary judgment in favour of the plaintiffs regarding a residential condominium property dispute, the court determined the appropriate costs award.

The plaintiffs sought full indemnity costs of $200,000, while the defendant argued for no costs or a nominal amount due to credibility findings.

The court found the matter complex but not vexatious, rejecting full indemnity.

Costs were awarded to the plaintiffs on a partial indemnity scale in the amount of $110,908.00.

The appellant appealed a trial judge's dismissal of her claim for $50,000 against the respondent.

The trial judge had found that a $50,000 payment made by the deceased to the respondent was repayment of a 1995 loan used to purchase a home, rather than a new loan to the respondent.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact, which were reasonably drawn from conflicting evidence.

The plaintiffs, parents of the defendant, sought summary judgment to remove the defendant's name from the title of a condominium property they held as joint tenants.

The defendant claimed the property was purchased as an investment through a loan agreement that constituted a disguised mortgage, and that the plaintiffs' action was statute-barred.

The court found the loan agreement was not a disguised mortgage and that the defendant had agreed in writing in 2004 to relinquish her interest in exchange for $91,000 USD, which she received.

The court held the defendant breached the contract by refusing to transfer title, and granted summary judgment ordering the removal of her name from the title.

Shiva Ashkani, who falsely presented herself as a registered nurse and medical cosmetician, was found guilty after trial of multiple assaultive offences, including aggravated assault, assault with a weapon, assault causing bodily harm, assault, threatening bodily harm, and fraud under $5,000.

The offences involved injecting Botox and fillers and applying chemical peels, resulting in significant physical and psychological injuries to victims.

Ashkani had a prior criminal record for aggravated assault and assault with a weapon and exhibited no remorse, believing herself to be the victim.

The court considered sentencing objectives of denunciation, deterrence, and rehabilitation, as well as Ashkani's mental health issues.

A total sentence of two years less a day incarceration, with credit for pre-trial custody, and three years of probation was imposed, along with ancillary orders for DNA sample and a lifetime weapons prohibition.

This endorsement addresses the costs of an application brought by Vladimir Levine, which was dismissed.

Levine had sought a declaration that he was the sole client for an accounts assessment of Michael S. Deverett, Deverett Law Offices.

The court dismissed Levine's application and granted Deverett's request that Mikhail Titkine, a co-signatory, also be considered a client.

Deverett sought substantial indemnity costs, arguing Levine continued to make unfounded allegations of criminal conduct.

The court awarded Deverett $45,000 in all-inclusive costs, reducing the requested amount due to Levine's partial success on an earlier motion to strike.

This costs endorsement followed the dismissal of the plaintiff's action against the defendant insurer for long-term disability benefits, where the court found the matter fell within arbitral jurisdiction.

The defendant sought substantial indemnity costs of $17,233.80.

The plaintiff requested no costs or nominal costs, citing confusion from prior settlement minutes and ambiguity in the collective agreement and insurance policy.

The court, exercising its discretion under section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, considered the moderate complexity of the jurisdictional issue, the importance of the matter to the defendant, and the plaintiff's circumstances.

The court awarded nominal costs of $2,500.00 to the defendant, excluding costs related to a motor vehicle accident or a companion action.

The plaintiff sought to discharge a $220,000 mortgage registered against his property, claiming the funds were never advanced by the defendant.

The defendant counterclaimed for possession, alleging the funds were advanced in cash to the plaintiff's relative in Iran and by paying off credit card debt.

The court found significant credibility issues with all witnesses but relied on documentary evidence showing the defendant received over $220,000 in transfers from Iran, which he acknowledged was sufficient to discharge the mortgage.

The court ordered the mortgage discharged, finding it was effectively redeemed when the defendant received those funds.

The defendant, Manulife Financial, brought a motion to dismiss the plaintiff's action for long-term disability benefits, arguing that the Superior Court lacked jurisdiction as the claim arose from a collective agreement and was exclusively within arbitral jurisdiction.

The plaintiff contended the claim was inarbitrable due to the employer's lack of direct liability and discrepancies between the collective agreement's referenced plan (HOODIP) and the Manulife policy's definition of total disability.

The court applied the Weber test and the Brown and Beatty categories for arbitrability, finding that the collective agreement obligated the employer to provide LTD benefits, placing the dispute within category 2, making it arbitrable.

The motion to dismiss was granted.