Andrea Harris

The Ontario Court of Justice considered the evidence in a sexual assault case involving two alleged incidents between the accused, Juan Borja, and the complainant, M.B., a minor at the time.

The court applied the three-step test from R. v. W.D. to assess the defendant’s exculpatory evidence and the Crown’s burden of proof beyond a reasonable doubt.

Despite finding the defendant’s testimony not credible and inconsistent, the judge concluded that the Crown had not met the high standard of proof required for conviction.

The complainant’s evidence, while suspicious and containing inconsistencies, did not satisfy the court beyond a reasonable doubt.

The accused was therefore acquitted.

The Ontario Court of Justice sentenced Sevan Halabi to 10 months imprisonment followed by two years probation for sexual assault committed while working as an Uber driver.

The offender forcibly kissed and touched the victim in a deserted parking lot, breaching the trust inherent in the private transportation industry.

The court considered the offender’s immigration status, family circumstances, and lack of prior record but emphasized that the sentence must denounce and deter such conduct.

The decision carefully balances sentencing principles with the offender’s potential immigration consequences, rejecting a reduced sentence solely to avoid deportation.

The defendant, an Uber driver, was charged with sexual assault.

The Crown alleged non-consensual sexual contact, while the defendant claimed consensual interaction or an honest but mistaken belief in communicated consent.

The court assessed the credibility and reliability of both the complainant and the defendant.

The defendant's testimony was found to be inconsistent, illogical, and not credible.

The complainant's testimony was found to be clear, candid, and credible.

The court concluded that the complainant did not consent and that the defendant failed to take reasonable steps to ascertain consent, thereby negating the defence of honest but mistaken belief.

The defendant was found guilty.

The defendant, K.H., was charged with one count of sexual assault, alleged to have occurred while the complainant was unconscious.

The Crown presented evidence including the complainant waking up with her pants down and the defendant's DNA on an external genitalia swab.

The defence argued that the Crown failed to prove sexual assault beyond a reasonable doubt, highlighting the lack of evidence regarding the form of the DNA or how the pants were removed, and suggesting other reasonable inferences for the DNA's presence.

The court, while acknowledging general principles of DNA transfer, found the evidence insufficient to establish sexual contact of a sexual nature beyond a reasonable doubt, noting concerns about the complainant's reliability due to intoxication and the absence of physical injury.

The defendant was found not guilty.

This is a preliminary hearing ruling on the committal of Hai Qin Liang, who is charged with failing to stop after a collision resulting in bodily harm, contrary to section 320.16(2) of the Criminal Code.

The Crown conceded the accused did not know she hit a person but argued for wilful blindness.

The court reviewed the evidence, including video and witness statements, focusing on the accused's actions post-collision, such as making U-turns to observe the scene, and her subsequent surrender to police.

The judge found insufficient evidence to establish that the accused either knew she struck a person or was wilfully blind to that fact, concluding that her actions were antithetical to a deliberate failure to inquire.

Consequently, the accused was discharged.

The applicant, Ernest Gyamfy, brought a Section 11(b) Charter application seeking a stay of proceedings due to unreasonable delay.

The total delay from charge to anticipated end of trial was 701 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court deducted 59 days for defence delay related to retaining counsel but found no other defence delay.

The Crown argued for deductions based on Covid-19 and case complexity as exceptional circumstances.

The court found that Covid-19 did not cause any actual delay in this specific case, nor was the case particularly complex.

The court also noted that the Crown could have remedied the delay caused by the co-accused's inaction by severing the accused.

As the Crown failed to rebut the presumption of unreasonable delay, the court found a breach of the applicant's Section 11(b) rights and stayed the charges.

The defence sought to quash search warrants for a vehicle and two residences, alleging police subversion of the pre-authorization process and insufficient evidence in the Information to Obtain (ITO) after excising inaccuracies.

The court found that the affiant's statements regarding tracking data and landlord information were misleading and inaccurate, leading to a Section 8 Charter breach concerning the search of one residence (350 Church Street).

However, the court did not find deliberate intent to mislead sufficient to quash all warrants for subversion of the process.

The warrants for the Sandison Street address and the vehicle remained valid.

Dr. Rajkumar was charged with impaired driving.

The defence alleged multiple Charter breaches (s. 8, 9, 10(b)) related to the breath demand immediacy, the right to counsel, and unreasonable detention ("overholding").

The court found that the breath screening demand was not immediate, breaching s. 8 and s. 10(b), and that the right to counsel was not properly facilitated, breaching s. 10(b).

The Crown conceded a s. 9 breach for overholding.

Applying the R. v. Grant test, the court found the cumulative breaches serious and their impact significant, outweighing society's interest in adjudication on the merits.

The breath testing results were excluded from evidence, leading to an acquittal.

The defence brought an application challenging the facial validity of a tracking warrant and multiple search warrants, alleging a breach of the Applicant's Section 8 Charter rights and seeking exclusion of seized evidence under Section 24(2).

In the alternative, the Applicant sought leave to cross-examine the affiant.

The court dismissed the application challenging the warrants' facial validity, finding that the Information to Obtain (ITO) provided sufficient credible and reliable evidence for the issuing justice to find reasonable and probable grounds.

The court applied the R. v. Debot factors for assessing confidential informant information, concluding the information was credible, compelling, and sufficiently corroborated.

While the warrants were upheld, the court granted leave to cross-examine the affiant on several specific areas, applying the R. v. Garofoli test, to ensure the Applicant could make full answer and defence.

The applicant sought a stay of proceedings under section 11(b) of the Charter, arguing unreasonable delay in his retrial.

The total delay from the appeal being granted to the anticipated end of trial was 18 months and 5 days.

The Crown argued that 1 month and 3 days of this delay was attributable to the defence for a late disclosure request, bringing the net delay below the 18-month presumptive ceiling set by R. v. Jordan.

The court agreed with the Crown regarding defence delay.

Considering the impact of the COVID-19 pandemic as a discrete event, the court found that the remaining delay of just over 17 months was not unreasonable, despite the Ontario Court of Appeal's comments in R. v. MacIsaac about retrials needing priority.

The applicant failed to demonstrate that the case took markedly longer than it reasonably should have given the pandemic circumstances.

The application for a stay was dismissed.

The appellant, Sarah Sefton, appealed her conviction for driving over 80, arguing the trial judge erred in dismissing her Charter application to exclude breath test results.

The trial judge had found multiple s. 10(b) Charter breaches (delay in facilitating counsel, failure to advise right to wait for counsel of choice) but dismissed the s. 24(2) Charter application, deeming the breath test minimally intrusive.

The appeal court found the trial judge erred in her s. 24(2) analysis by focusing solely on the physical intrusiveness of the breath test rather than the broader impact of the denial of the right to counsel without delay on the accused's protected interests.

Re-evaluating the Grant factors, the appeal court concluded that the serious and multiple breaches of the right to counsel, including prolonged detention without access to a "lifeline" of advice, warranted the exclusion of the breath test samples.