André L. Guay

The accused was charged with possessing and accessing child pornography.

He brought a Charter application alleging violations of section 8 (unreasonable search and seizure) and sought exclusion of computer-related evidence.

The court found that the police conducted a warrantless search of the accused's home computer relying solely on the consent of his common-law spouse, which was insufficient as a third party cannot waive another's Charter rights.

The police also failed to comply with sections 489.1 and 490 of the Criminal Code regarding the detention and reporting of seized property.

Additionally, the information to obtain the search warrant was misleading and incomplete.

The court excluded all computer-generated evidence and any derivative evidence.

The accused was charged with care and control of a motor vehicle with blood alcohol exceeding 80 mg per 100 mL of blood.

The accused challenged the admissibility of breath test evidence, arguing that the required breath tests were not administered "as soon as practicable" as required by the Criminal Code.

The accused identified three periods of alleged delay: from initial stop to departure for headquarters, during booking-in procedures, and during preparation and administration of breath tests.

The court examined the reasonableness of police conduct throughout the entire chain of events and found that the police acted reasonably under the circumstances.

The application to exclude the breath test evidence was dismissed.

Motion to vary a custody and access order made on January 11, 2013, whereby custody of two minor daughters was awarded to the mother with biweekly and summer access to the father.

The father brought a motion to vary seeking to reverse the order and obtain custody, alleging material change in circumstances based on the mother's alleged non-compliance with 21 conditions of the original order.

The mother opposed the motion and denied the allegations.

The court found that while there were some instances of non-compliance, they did not constitute a material change in circumstances sufficient to warrant variation of the order.

The court dismissed the motion and imposed restrictions on future proceedings to prevent abuse of the judicial system.

The Children's Aid Society brought a motion for summary judgment seeking Crown wardship without access for a child (B.C.) who had been in care for nearly two years.

The child was apprehended shortly after birth due to parental inadequacy.

The respondent father had substance abuse issues, anger management problems, spousal violence history, and criminal involvement, and had lost contact with the child over a year prior.

The respondent mother failed to address her parenting deficiencies and repeatedly engaged in relationships with abusive men despite counseling opportunities.

The court found no genuine issue for trial and granted the Society's motion for Crown wardship without access, with a view to adoption.

The accused was charged with having care and control of a motor vehicle while exceeding the legal blood alcohol content under section 253(1)(b) of the Criminal Code.

The accused challenged the admissibility of breath analysis evidence, alleging violations of her Charter rights under sections 7, 8, and 9.

The court found that the investigating officers had reasonable suspicion and reasonable and probable grounds to demand breath samples, that the detention was not arbitrary, and that no Charter violations occurred.

The court convicted the accused based on toxicological evidence and the totality of circumstances demonstrating impairment.

A custody dispute between two parents following their separation in April 2013.

The applicant sought custody of two biological children, while the respondent sought custody of all four children (including two older children from her previous relationship).

The court found that the applicant had engaged in a pattern of controlling, abusive, and physically violent behavior toward the respondent and the children, including grabbing them by the throat and neck.

The respondent was awarded sole custody of both children, with the applicant granted bi-weekly access.

The court rejected the clinical investigator's recommendation for shared care, finding that such an arrangement would perpetuate the struggle for control and be contrary to the children's best interests.

The accused was charged with sexually assaulting and touching a child for a sexual purpose contrary to sections 271 and 151 of the Criminal Code.

The central issue was credibility.

The complainant, an 11-year-old girl with Global Development Delay, testified that the accused sexually interfered with her in his apartment.

The accused denied the allegations and argued that opportunities for such conduct were limited.

The court found the complainant credible and convicted the accused of touching the child for a sexual purpose under section 151, staying the conviction for sexual assault under section 271 pursuant to the Kienapple principle.

The accused was charged with sexually assaulting his daughter on April 29, 2012.

The complainant testified that the accused came to her basement bedroom early in the morning after picking her up from an all-night party, and sexually touched her without consent.

The accused denied the allegations, claiming he lacked the physical ability to commit the offence due to arthritis, rheumatism, and previous injuries.

The court found the complainant's evidence credible and rejected the accused's testimony as evasive.

The court noted that while the complainant had made threats to falsely accuse the accused of rape to obtain money for drugs, these threats were characterized as impudent adolescent remarks lacking serious intent.

The court found that the Crown proved beyond a reasonable doubt that the accused sexually assaulted his daughter.

The accused pleaded guilty to child luring after communicating with an undercover police officer posing as a 13-year-old girl on Craigslist.

The accused sought a stay of proceedings, arguing he was entrapped by the police.

The court dismissed the entrapment claim, finding the officer was engaged in a bona fide investigation and merely provided an opportunity to commit the offence without inducing it.

A finding of guilt was registered.

The accused was charged with luring contrary to section 172.1 of the Criminal Code.

The accused pleaded guilty to the offense and subsequently raised the defense of entrapment.

The court found that the police officer conducting the investigation was engaged in a bona fide, proactive investigation with reasonable suspicion that the accused was engaged in prohibited activity.

The court determined that the police did not induce the commission of the offense but merely provided an opportunity, which the accused freely pursued on multiple occasions without coercion.

The entrapment defense was rejected and a conviction was registered.

The accused was charged with driving with more than 80 mg of alcohol in 100 mL of blood contrary to section 253(1)(b) of the Criminal Code.

He brought a Charter application alleging violations of section 10(b) rights (right to retain and instruct counsel without delay) on three occasions: during the roadside detention before the screening device arrived, during detention at the police station, and during the breathalyzer procedure.

The court found no realistic opportunity to consult counsel during the roadside detention period and that the police made reasonable efforts to contact the accused's chosen counsel at the station.

The accused was offered legal aid assistance but refused.

The application was dismissed.

The Crown brought a dangerous offender application against the accused following his conviction for assault causing bodily harm and three counts of breaches of a section 810.2 recognizance.

The court heard psychiatric evidence from both the Crown's expert (Dr. Mark Pearce) and the defence expert (Dr. Jeffrey McMaster).

Both experts agreed the accused met the statutory criteria for dangerous offender designation, but disagreed on the appropriate sentencing option.

The court declared the accused a dangerous offender but imposed a determinate sentence of ten years custody with a ten-year long-term supervision order rather than an indeterminate sentence, based on evidence of significant behavioral improvement during pre-sentence custody and the reasonable possibility of eventual control of risk in the community.

The Children's Aid Society brought a motion for summary judgment seeking an order for Crown wardship without access to a child in need of protection.

The respondent parents opposed the motion and requested that the matter proceed to trial.

The court found that the parents had unresolved issues including substance abuse, domestic violence, and parenting inadequacy.

The child had been in care for over 400 days and was thriving with foster parents.

The court granted the motion for Crown wardship without access, finding that no genuine or material issues remained to be resolved at trial and that the child's best interests required immediate placement for adoption with the foster parents.

The Children's Aid Society sought a "with prejudice" section 51 order placing a child in interim care.

The child had been in care for over 554 days, exceeding statutory limits.

The respondent mother sought return of the child or placement with her mother; the respondent father sought placement with his mother.

The court found that while the parents had made some progress in addressing personal and parenting issues, the risk of harm remained.

The court ordered interim placement of the child with the maternal grandmother under Society supervision, finding the risk manageable under reasonable conditions.

The court also ordered separate supervised access for the respondent father and paternal grandmother, and directed the Society to conduct a home assessment of the maternal grandmother's residence.

The Crown prosecuted two accused for robbery, aggravated assault, possession of a weapon, and related offences arising from a failed drug transaction on December 4, 2012, outside the Nickel City Hotel in Greater Sudbury.

The accused claimed the complainant initiated an unprovoked knife attack on the female accused, which the male accused defended against.

The court rejected this defence of necessity, finding instead that the accused had planned to rob the complainant of money during a drug deal.

The court convicted both accused of robbery and related offences while staying certain charges as duplicitous under the Kienapple and Prince principles.

A youth accused was charged with sexual assault, sexual touching, and inviting a child to sexual touching arising from an incident during a family visit where the complainant and accused were alone in a bedroom.

The court found the complainant's evidence credible and consistent with surrounding circumstances, rejecting the accused’s denial as unconvincing.

The evidence established that the accused touched the complainant’s vagina inside her clothing and forced her hand to touch his penis.

The court found the actus reus and mens rea of sexual assault proven beyond a reasonable doubt.

Applying the Kienapple principle, the court stayed the additional counts of sexual touching and invitation to sexual touching as they arose from the same factual transaction.

A 13-year-old accused was charged with sexual assault, sexual touching for a sexual purpose, and invitation to sexual touching of a seven-year-old girl during a family visit in November 2011.

The Crown alleged the accused took advantage of an unsupervised moment to sexually assault the complainant.

The accused denied the allegations, suggesting they may have been imagined.

The court found the accused guilty of sexual assault based on credible evidence from the complainant and her mother.

The court stayed the remaining counts as they were subsumed within the sexual assault conviction under the Kienapple principle, which prohibits multiple convictions for the same delict absent clear parliamentary intention.

The accused was charged with sexually assaulting a 16-year-old complainant on March 2-3, 2012.

The trial examined whether the accused engaged in non-consensual sexual contact with the complainant who was severely intoxicated.

The Crown presented evidence from the complainant, her friend, and a witness who observed the accused touching the complainant inappropriately while she was unconscious on the kitchen floor.

The court found that the accused engaged in sexual contact with the complainant both in the kitchen and later in his bedroom, when she was incapable of consenting due to extreme intoxication.

The accused was convicted of sexual assault.

A young person charged with six counts of sexual abuse against two male cousins applied for severance of the counts.

The accused sought to have three counts tried separately from the remaining three counts.

The court considered the criteria established in R v. Last, including general prejudice, legal and factual nexus, complexity, and other factors.

The court found that a legal and factual nexus existed between the counts based on the age of the victims, their relationship to the accused, location, timeframe, and similarity of alleged acts.

The court rejected the severance application, finding that trying all counts together would be in the interests of justice and would not expose the accused to undue prejudice.