Amit A. Ghosh

Hesham Mahbub pleaded guilty to multiple offences including child luring, sexual assault, invitation to sexual touching, uttering a death threat, and breaching a release order.

The offences involved three girls under 16 years old, with aggravating factors such as arranged meetings, persistence despite refusal, and violation of bail conditions.

The court imposed a global sentence of 5 years and 3 months, balancing the principles of deterrence, denunciation, and rehabilitation.

The decision includes detailed sentencing analysis referencing recent appellate and Supreme Court jurisprudence on child luring and sexual offences against children, and imposes ancillary orders including a 20-year SOIRA reporting order and a 10-year s.161 order restricting access to children.

This decision concerns Kay Louise Belk, who stabbed her husband while he slept without any preceding conflict.

She was found to be in a dreamlike state, hearing voices compelling her to act.

The court accepted a joint submission that she was not criminally responsible (NCR) due to a confirmed Major Neurocognitive Disorder of moderate severity, caused by multiple etiologies including Alzheimer’s disease, traumatic brain injury, and vascular disease.

The forensic psychiatric assessment concluded that Ms. Belk was unable to appreciate the moral wrongfulness of her act at the time.

The court accordingly rendered an NCR verdict and deferred disposition to the Ontario Review Board.

Denrick Rose pleaded guilty to dangerous driving causing death and bodily harm, and breaching a release order curfew.

The offence involved driving at speeds exceeding 200 km/h on Highway 400 and King Road, with five passengers, two of whom urged him to slow down.

The vehicle crashed into a light standard, killing passenger Amelia Bal and seriously injuring others.

The Crown sought a 5-year sentence plus a 7-year driving prohibition; the defence sought 2 years plus 5 years prohibition.

The court imposed a global sentence of 4.5 years with a 10-year driving prohibition, considering aggravating factors including deliberate prolonged dangerous driving, breach of bail, and victim impact, balanced against mitigating factors such as the offender’s youth, remorse, strong rehabilitative prospects, and harsh presentence custody conditions.

The decision also addresses the impact of systemic anti-Black racism on sentencing.

This sentencing decision by Justice A. A. Ghosh in the Ontario Court of Justice addresses the appropriate sentence for David Pusey, convicted of possessing a loaded firearm contrary to the Criminal Code, including possession contrary to a prohibition order.

The decision carefully analyzes the applicability of presentence custody credit, particularly rejecting the use of custody for an unrelated murder charge in sentencing.

It discusses sentencing principles, aggravating and mitigating factors, and relevant case law, including the impact of systemic racism and immigration consequences.

The ruling provides detailed guidance on sentencing ranges for firearm offences and the interplay with immigration law, making it a valuable precedent for sentencing in firearm possession cases involving complex collateral consequences.

The defendant, Li Kai Li, was arraigned on charges of attempted murder (x2) and assault.

The defence admitted the acts but sought a finding of not criminally responsible (NCR) due to mental disorder under section 16 of the Criminal Code.

A forensic psychiatrist diagnosed Mr. Li with schizophrenia, exacerbated by cannabis use, which rendered him incapable of appreciating the nature and quality of his acts or knowing they were morally or legally wrong.

The court accepted the expert's findings, declared Mr. Li not criminally responsible for the offences, and deferred his initial disposition to the Ontario Review Board, ordering him to remain in custody during that process.

D.L. pleaded guilty to sexual interference and manufacturing child pornography involving his stepdaughter, A.W., who was 13-15 years old during the prolonged abuse.

The court considered aggravating factors including a profound breach of trust, sexual grooming, the graphic nature of the manufactured child sexual exploitation videos, the variety and prolonged period of sexual activity, and the use of bondage.

Mitigating factors included an early guilty plea and a forensic risk assessment indicating a "below average risk to reoffend sexually," though the offender showed diminished insight.

The court applied the principles from R. v. Friesen regarding upward departure from dated sentencing ranges for child sexual abuse and the non-mitigating nature of victim participation.

Despite the Crown's initial proposed range of 8-10 years, the court imposed a global custodial term of 8 years, comprising 6.5 years for sexual interference and 18 months consecutive for manufacturing child pornography, balancing totality and restraint given the pre-plea Crown position and recent appellate guidance.

Reyan Chaudhry pleaded guilty to 17 charges across four GTA jurisdictions, including residential break and enters, multiple motor vehicle thefts, flight from police, and impaired driving, all driven by a severe opioid addiction.

The Crown and defence presented a joint submission for a global sentence of 5.5 years.

The primary contested issue was the quantification of mitigation for harsh presentence custody conditions (Marshall or Duncan mitigation).

The court accepted the joint submission for the global sentence and, after considering the severe lockdown and triple-bunking conditions, awarded an additional six months of mitigation for presentence custody.

The court also imposed a seven-year driving prohibition.

The defendant, Robert Sharp, was tried for sexual assault and three breaches of release orders.

The court found him guilty of sexual assault and two breaches.

The case involved assessing the reliability of identification evidence, particularly given the complainant's impaired vision and intoxication, and the absence of consent where the complainant was asleep.

The court also addressed the admissibility of the accused's post-act utterances and the defence of honest but mistaken belief in consent.

Cengiz Ay applied for a stay of proceedings, alleging a violation of his s.11(b) Charter right to be tried within a reasonable time.

The total delay was 33 months and two weeks (1019 days).

The court applied the R. v. Jordan framework, deducting periods of defence-caused delay (waivers, counsel removal, requests for time to retain new counsel) and discrete events (COVID-19 impact on scheduling, Crown witness illness).

After deductions, the net delay was calculated to be 17 months, which is below the 18-month presumptive ceiling for the Ontario Court of Justice.

The court found that the applicant did not take meaningful and sustained steps to expedite the proceedings, nor did the case take markedly longer than it reasonably should have.

The application for a stay of proceedings was denied.

The defendant, Ehsan Rahmanian, was tried for driving with a blood-alcohol concentration above the legal limit.

He brought a Charter application to exclude breath readings, arguing violations of sections 8 (unreasonable search and seizure) and 9 (arbitrary detention) due to the officer's failure to expressly invoke mandatory alcohol screening (MAS) authority.

The court found that the officer had reasonable suspicion to demand a screening sample based on problematic driving, odour of alcohol, and bloodshot eyes.

It further held that police are not required to declaratively invoke the MAS authority during testimony.

The Charter application was denied, and a finding of guilt was entered.

H.A.Q., a young person with a substantial youth record, pleaded guilty to multiple serious offences including discharge firearm and possession of cocaine for trafficking.

The Crown applied to have H.A.Q. sentenced as an adult, seeking a custodial term in the 6-7-year range.

The defence resisted, arguing for a significant youth sentence.

The court applied the two-pronged test under the Youth Criminal Justice Act (YCJA) to determine if an adult sentence was warranted, assessing diminished moral blameworthiness and sufficient accountability.

The court found the presumption of diminished moral blameworthiness was rebutted due to the young person's maturity, planning, and profit-driven criminality.

However, the court ultimately denied the Crown's application, concluding that a maximum youth sentence of 36 months custody and supervision, considering 20 months of presentence custody, would be of sufficient length to hold the young person accountable, aligning with the lower end of the adult sentencing range for similar offences.

Brandon MacKinnon pleaded guilty to multiple sexual offences against four victims, including sexual interference, extortion, sexual assault (x2), possession of child pornography, and voyeurism.

The offences involved a prolonged illegal sexual relationship with a 15-year-old, forced anal intercourse, criminal harassment, extortion using secretly recorded intimate images, sexual assault of an unconscious woman (videorecorded), voyeurism against twin sisters, and possession of 500 child pornography images.

The court considered aggravating factors such as the sexual violence against a child, the surreptitious creation and distribution of child pornography, and the videorecording of a sexual assault against an incapacitated victim.

Mitigating factors included an early guilty plea, a forensic risk assessment indicating positive rehabilitative prospects, and community support.

The court imposed a global sentence of 7.5 years, reduced by 9 months for time spent on strict house arrest bail, resulting in a total of 6 years and 9 months to be served.

Sentences for child sexual offences and sexual assault were concurrent, while the child pornography offence was consecutive.

The appellant, Trisan Construction, appealed its conviction and $20,000 fine for damaging a natural gas pipeline during an excavation project.

The appellant argued that the trial court erred in dismissing its Charter applications for pre-charge delay (abuse of process) and unreasonable delay to trial (s. 11(b)).

It also argued that the trial court erred in finding it failed to establish the defence of due diligence, and that the fine was unfit.

The Ontario Court of Justice dismissed the appeal, finding no errors in the trial justice's Charter rulings, concluding that the appellant failed to prove it took reasonable care to avoid the damage, and holding that the $20,000 fine was fit.

Jovane Jolly pleaded guilty to two counts of fentanyl trafficking.

The Crown sought an 11-year sentence, while the defence proposed 6 years.

The court considered aggravating factors, including the large quantity of fentanyl trafficked (over 6 ounces), the offender's related criminal record, his disregard for human life by continuing to traffic after an overdose death, and committing offences while on bail.

Mitigating factors included his guilty plea, social context evidence regarding systemic discrimination as a Black man, presentence custody, time on restrictive bail, and rehabilitative prospects.

The court imposed a global penitentiary term of 9 years, emphasizing deterrence and denunciation while acknowledging the social context evidence's impact on moral responsibility.

The accused was tried for breaching a probation order prohibiting him from being near his former mother-in-law.

The complainant alleged she recognized the accused, who was wearing a mask and hat, when he briefly entered the store where she worked.

The court found the Crown failed to prove the accused's identity beyond a reasonable doubt due to the frailties of the recognition evidence.

Furthermore, even if identity was proven, the Crown failed to establish the accused had subjective knowledge he was violating the condition, as it was a chance encounter and he left immediately.

The accused was acquitted.

The applicants, charged with drug trafficking, brought an application alleging a violation of their right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was over 26 months.

The court found that late disclosure of police radio communications caused significant delay that was not attributable to the defence.

After deducting delay caused by the COVID-19 pandemic, the net delay remained above the 18-month presumptive ceiling.

The court granted the application and ordered a stay of proceedings.

Subsequently, the court summarily dismissed the Crown's application for forfeiture of seized funds, finding no reasonable prospect of success and that it would be unjust to permit forfeiture following a judicial stay.

The applicant, Zosia Ruchlewicz, charged with impaired driving and "80 plus" sought a stay of proceedings under s.11(b) of the Charter, alleging a violation of her right to a trial within a reasonable time.

The total delay was approximately 26 months.

The court analyzed the delay using the R. v. Jordan framework, deducting defence delay and delay attributable to the COVID-19 public health crisis as a discrete event.

The net delay, after deductions, was found to be below the 18-month presumptive ceiling.

The court also found that the case did not take "markedly longer" than it reasonably should have, despite some defence inaction regarding disclosure.

The application for a stay of proceedings was denied.

Mr. Yi Shuai Yang applied for a stay of proceedings under s.11(b) of the Charter, alleging unreasonable delay of almost 27 months for an "80 plus" charge.

The court applied the Jordan framework, calculating a net delay of 793 days (26 months).

It found the COVID-19 public health crisis to be a discrete exceptional circumstance, deducting 295 days of delay attributable to it.

This reduced the remaining delay to 498 days (16.5 months), which is below the 18-month presumptive ceiling for provincial court cases.

Although the applicant took meaningful steps to expedite, the court found the case did not take "markedly longer" than it reasonably should have given the circumstances.

The application for a stay of proceedings was denied, and the trial dates were confirmed.

The accused was tried for possession of methamphetamine for the purpose of trafficking.

The police obtained judicial authorizations based on information from a confidential informant and an 'address of interest' identified through invalid production orders for Health Canada records.

The court found that the production orders were unconstitutional as they did not disclose an offence, and the information derived from them had to be excised.

The remaining information from the confidential informant lacked credibility and corroboration, failing to provide reasonable grounds for the authorizations.

The court found a serious violation of the accused's s. 8 Charter rights and excluded the seized drugs under s. 24(2), resulting in an acquittal.

The applicant, charged with possession of methamphetamine for the purpose of trafficking, brought an application alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was 24 months, but after deducting defence delay and delay caused by the exceptional circumstance of the COVID-19 pandemic, the net delay fell below the 18-month presumptive ceiling.

The court found that the remaining delay was reasonable and that the justice system took appropriate mitigating steps during the pandemic.

The application for a stay of proceedings was dismissed.