Alice Pan

This decision addresses a section 11(b) application concerning an alleged breach of the right to a trial within a reasonable time.

The court found that the Crown's adjournment application caused significant delay beyond the Jordan limit, primarily due to prioritizing another case and not giving this matter priority when rescheduled.

The defence was not responsible for delay, having taken all reasonable steps to expedite the proceedings.

The court held that the accused's Charter right was breached and ordered a stay of proceedings.

The accused, Tsung Ong, was charged with two counts of sexual assault.

The first count was dismissed by Crown concession.

The second count, arising from an incident at the accused's birthday party, involved the complainant alleging the accused sexually assaulted her by pressing his face into her crotch area.

The central issue was witness credibility and the Crown's burden of proof.

The court found the complainant's testimony emotionally difficult but credible, yet noted inconsistencies and lack of detail regarding the alleged incident's mechanics and surrounding events.

The defence witnesses' evidence, while not ruling out the incident, supported the accused's general practice.

Ultimately, the court found that while the accused's testimony could not be accepted as true to the exclusion of other evidence, a reasonable doubt remained regarding the reliability of the complainant's account.

Consequently, the second count was also dismissed.

The defendant, Manuel Gomes, brought an application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time as guaranteed by s. 11(b).

The total delay from the swearing of the Information to the anticipated end of trial was 817 days (26.8 months).

The court deducted 112 days for an exceptional circumstance (time between Information sworn and arrest while Gomes was abroad), 28 days for defence delay, and 90 days for the continuing impact of the COVID-19 pandemic.

After these deductions, the net delay was 19.3 months, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The application for a stay of proceedings was granted, and the charge was stayed.

The accused brought an application for a stay of proceedings, arguing his s. 11(b) Charter right to be tried within a reasonable time was infringed.

The total delay from the laying of charges to the anticipated end of trial was 50.5 months.

The court deducted 11 months of defence delay and 17.25 months of delay caused by the COVID-19 pandemic as discrete exceptional events.

The resulting net delay was 22.25 months, which fell below the 30-month Jordan ceiling for cases in the Superior Court.

The application was dismissed.

The accused was charged with impaired operation (care or control) after being found in the driver's seat of her vehicle with the engine running and elevated blood alcohol readings.

The defence rebutted the presumption of operation by establishing that the accused had a concrete plan not to drive, supported by the credible testimony of a sober passenger who had arranged for a ride.

The court found that the Crown failed to prove a realistic risk of danger beyond a reasonable doubt, leading to an acquittal.

The accused was charged with operating a conveyance in excess of the legal limit.

The court found a serious breach of the accused's section 10(b) Charter right to counsel due to the police officer's failure to adequately explain the distinction between a paralegal and a lawyer in the context of impaired driving charges.

While other alleged Charter breaches (delay in right to counsel, roadside call, strip search, and overhold) were dismissed, the s. 10(b) breach was deemed serious enough to warrant the exclusion of breath testing evidence under s. 24(2) of the Charter.

Consequently, the accused was found not guilty.

The accused was charged with impaired driving and having a blood alcohol concentration over 80 mg%.

The court addressed three issues: reasonable grounds for arrest and breath demand, violation of the right to counsel, and proof of impaired operation.

The court found ample reasonable grounds for the arrest and demand, and that no Charter breach under sections 8 or 9 occurred.

Regarding the right to counsel, the court found the accused failed to prove a section 10(b) Charter breach due to insufficient evidence from a poor video recording.

Ultimately, the Crown proved impaired operation beyond a reasonable doubt based on erratic driving, physical signs of intoxication, and the officer's credible observations.

The accused was found guilty on both counts, with a Kienapple stay to be determined.