Barry Fox

The Ontario Court of Justice considered the lawfulness of a second Approved Screening Device (ASD) test conducted on Paul J. Foran after his initial roadside test failed.

The court examined whether the second test was lawful under sections 8 and 10(b) of the Charter, focusing on whether a new demand was required and whether the second test breached the accused's right to counsel.

The court found the second test was lawful, conducted for the accused's benefit to ensure accuracy, and that no breach of the right to counsel or lawful demand occurred.

The court also rejected the claim that police improperly steered the accused to duty counsel, finding the accused chose duty counsel voluntarily.

The charge of impaired driving with a blood alcohol concentration over the legal limit was proven beyond a reasonable doubt.

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 offender was convicted by a jury of two counts of importing opium and one count of possession for the purpose of trafficking, involving 3.6 kilograms of opium.

The Crown sought a six-year sentence, while the defence sought four years.

The court weighed the aggravating factors of the large quantity and the offender's role as a principal against mitigating factors including his lack of a prior criminal record and steady employment history.

The court imposed a global sentence of five years imprisonment, less credit for pre-sentence custody, along with ancillary orders.

The defendant was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration exceeding the legal limit.

The court addressed several Charter claims, including detention, right to counsel (s.10(b)), and right to be informed of the reason for detention (s.10(a)), as well as the admissibility of breath samples and the element of care or control.

The court found the defendant was detained prior to the ASD demand.

While the s.10(b) right to counsel was justifiably delayed due to medical concerns and investigative duties, a brief breach of the s.10(a) right to be informed of the reason for detention occurred.

However, applying the Grant factors, the court declined to exclude the evidence, finding the breach inadvertent, its impact minimal, and the public interest in a trial on the merits high.

The court also found that the breath samples were taken as soon as practicable and that the Crown proved impairment by alcohol and the element of care or control, leading to a finding of guilt on both counts.

Luan Ngo was found guilty of producing methamphetamine, possession of methamphetamine for the purpose of trafficking, and possession of proceeds of crime over $5000.

The Crown sought an eight-year penitentiary sentence, while the defence sought four to five years.

The court imposed a global sentence of seven years in the penitentiary, with concurrent sentences for the other offences, finding it fit and appropriate given the large-scale operation, the accused's significant role, and the dangerous nature of the drug.

The court also considered the accused's status as a first offender and the efficient conduct of the trial as mitigating factors, alongside potential immigration consequences.

The offender was convicted of second-degree murder for stabbing his brother to death following a dispute over a loan.

The court considered the mandatory life sentence and determined the appropriate period of parole ineligibility.

Weighing numerous aggravating factors, including the unprovoked nature of the attack outside the home and the presence of the victim's wife, against mitigating factors such as the offender's lack of a prior record and refugee background, the court fixed the period of parole ineligibility at 13 years.

The offenders, two youthful first-time offenders, were convicted of firearm offences after acquiring a handgun while collecting drug debts.

One offender also pleaded guilty to dangerous driving after a brief police chase.

The Crown sought penitentiary sentences of 2.5 to 3 years.

The court found that the mandatory minimum sentence under s. 96(2) of the Criminal Code violated s. 12 of the Charter and struck it down.

Applying the restraint principle and noting the offenders' strong rehabilitative prospects and community support, the court imposed conditional sentences of two years less a day for both offenders.

Mohammed Younus was tried for the murder of his brother, Shamsul Alamshah.

The initial charge of first-degree murder was reduced to second-degree murder.

The court assessed the accused's defenses of accident, self-defence, and provocation.

The judge found Younus's testimony incredible and unreliable, concluding that he was the aggressor in the fatal stabbing.

The court rejected all defenses, finding that the Crown had proven beyond a reasonable doubt that Younus intended to cause death or bodily harm likely to cause death.

Younus was found guilty of second-degree murder.

The accused, Navindra Balgobin, was charged with impaired operation of a conveyance, operating a conveyance with an excess blood alcohol level, and failing to remain at the scene of an accident following a motor vehicle collision.

The court found beyond a reasonable doubt that the accused was the driver and failed to remain at the scene.

The court also found that the arresting officer had reasonable grounds for arrest and that the breath samples were taken pursuant to a lawful demand, curing an initial defect.

The accused's Charter rights under s. 10(b) regarding re-advisement and counsel of choice were found not to have been violated.

Ultimately, the court found the accused guilty on all three counts.

The offender was convicted of accessing, possessing, and making child pornography available.

The Crown sought a 3.5-year penitentiary sentence, while the defence sought a conditional sentence, citing the severe medical and psychological afflictions of the offender's wife and the collateral consequences of his incarceration.

The court balanced the paramount principles of denunciation and deterrence for child pornography offences against the offender's low risk of reoffending, rehabilitative efforts, and family circumstances.

The court imposed a blended global sentence of two years less a day, consisting of 18 months in custody for accessing and possessing, followed by a 6-month conditional sentence for making available, plus three years of probation.

The applicants, charged with firearms offences, brought a pre-trial motion to exclude evidence obtained from a forensic search of their cellphones.

They argued the Information to Obtain lacked reasonable grounds and the police failed to file a report to justice regarding the data analysis.

The court denied leave to cross-examine the affiant and upheld the validity of the warrant despite minor misstatements.

Although the court found a section 8 Charter breach due to the failure to file a report to justice for the data analysis, the evidence was admitted under section 24(2) as the breach was minor and technical.

The accused was charged with possessing, accessing, and making child pornography available after police executed a search warrant at his residence and found illicit files on his computer.

During a blended voir dire and trial, the court found that police breached the accused's s. 10(b) Charter rights by failing to promptly caution him upon detention and delaying his access to counsel for over three hours.

Consequently, the accused's initial utterances were excluded under s. 24(2).

However, portions of a subsequent videotaped interview were admitted, as they were voluntary and survived s. 24(2) scrutiny despite being tainted by the earlier breaches.

Relying on the admitted statements and circumstantial evidence of the accused's sophisticated computer usage, the court found the accused guilty on all counts.

The accused, charged with first degree murder, sought to exclude a statement made to police, arguing it was involuntary and obtained in breach of his s. 10(b) Charter right to counsel due to language barriers.

The court found that the accused understood the police cautions and his right to remain silent, despite some initial confusion.

The court also held that the accused's right to counsel was not breached, as he was provided with a Bengali interpreter when consulting duty counsel and during his police interview.

The statement was ruled voluntary and admissible.

The accused was charged with impaired driving and refusing to provide a breath sample following a traffic stop in Toronto.

The Crown alleged the accused was driving erratically and showed signs of impairment.

The accused was arrested at gunpoint after the officer believed he was attempting to flee.

The accused requested counsel but was not afforded the opportunity to consult before being charged with refusing the breath demand.

The court found the accused not guilty on the refusal charge because his refusal was provisional pending consultation with counsel, which was never provided.

The court also found the accused not guilty of impairment as the evidence did not establish impairment beyond a reasonable doubt based on video evidence.

The court additionally found the police violated the accused's Charter rights through arbitrary detention.

The defendant was charged with driving with excess blood alcohol (over 80 mg/100 mL).

Following a traffic stop for speeding, the defendant failed an approved screening device test and was arrested.

At the police station, the defendant requested to speak with his lawyer of choice.

After multiple unsuccessful attempts by the officer to contact the lawyer, the officer proceeded with Intoxilyzer testing without offering the defendant the option to contact duty counsel or another lawyer.

The defendant did not speak with counsel before providing breath samples.

The court found that the defendant's Charter right to counsel under section 10(b) was violated and excluded the breath test evidence under section 24(2), resulting in an acquittal.

The accused sisters were charged with importing opium, conspiracy to import opium, and possession for the purpose of trafficking following a controlled delivery of a package containing opium to one of their apartments.

The Crown's case relied heavily on circumstantial evidence, including intercepted text messages and a pattern of receiving packages from foreign locations.

The court found that while it was highly probable the accused were involved in illicit activities, the circumstantial evidence left reasonable doubt regarding their agreement to import the specific packages and their knowledge of the contents.

Both accused were found not guilty on all charges.

The accused was charged with driving with excess blood alcohol on February 12, 2016, with the charge laid on February 24, 2016.

The trial was completed on September 19, 2017, approximately 19 months later.

The accused brought a section 11(b) Charter application seeking a judicial stay of proceedings, alleging a breach of the right to be tried within a reasonable time.

The court applied the framework established in R. v. Jordan and R. v. Williamson, calculating net delay after deducting defence delay and waivers.

The net delay of 419 days (14 months) fell below the 18-month presumptive ceiling for provincial court cases.

The court found that the defence did not engage in a sustained effort to expedite proceedings and that the case did not take markedly longer than it reasonably should have under the pre-Jordan legal framework applicable to transitional cases.

The application was dismissed, and a finding of guilt was registered on the charge.

The defendant was charged with impaired driving following a roadside stop.

He challenged his detention on Charter grounds, alleging violations of his section 9 rights (freedom from arbitrary detention) and section 12 rights (freedom from cruel and unusual treatment).

The defendant was held in a cold basement cell for three hours while inadequately clothed, with a blanket provided only in the final 45 minutes.

The court found no breach of either Charter right, holding that the police followed appropriate prisoner care policies and released the defendant as soon as practicable.

The court rejected the defendant's application for a stay of proceedings.

The defendant was charged with importing opium, possession for the purpose of trafficking in opium, and conspiracy to commit both offences.

The defendant brought a section 11(b) Charter application alleging unreasonable delay in trial.

The total delay from arrest to scheduled trial was 20.5 months, exceeding the presumptive ceiling established in R v Jordan.

The court found no defence delay attributable to the defendant and rejected the Crown's arguments regarding exceptional circumstances and transitional exceptions.

The court concluded that the delay, particularly the Crown's failure to prioritize the case and complete disclosure in a timely manner, constituted a breach of the defendant's right to trial within a reasonable time.

The proceedings were stayed.

The applicant, Irina Gordon, brought a s. 11(b) Charter application alleging a violation of her right to be tried within a reasonable time.

The total delay from arrest to the anticipated end of trial was 33 months and 3 days, exceeding the 30-month presumptive ceiling set by R. v. Jordan.

However, the court deducted 6 months and 2 days attributable to defence waiver, bringing the net delay to 27 months and 1 day, which is below the Jordan ceiling.

The court found that the defence failed to demonstrate meaningful steps to expedite proceedings.

Furthermore, as a transitional case, the Crown satisfied the court that the delay was justified based on reasonable reliance on the pre-Jordan law (R. v. Morin guidelines), under which the actionable delay was less than the 18-month guideline.

The application was dismissed.