Brian Brody

The Ontario Court of Justice convicted Jashandeep Bhandal on charges of impaired driving and failing to provide a breath sample.

The court carefully analyzed circumstantial evidence to conclude beyond a reasonable doubt that Bhandal was the driver of a single-vehicle crash.

The decision also confirmed that police had reasonable and probable grounds to demand a breath sample, even if there was some hypothetical doubt about the driver’s identity.

The judgment applies key principles on circumstantial evidence, reasonable grounds for police demands, and the assessment of alternative theories.

The applicant, charged with sexual offences against a minor, brought an application to stay the proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay was 1944 days.

The court deducted delay caused by the COVID-19 pandemic and apportioned delay caused by defence counsel's unavailability and the systemic shortage of judges.

After deductions, the net delay was 941 days, which exceeded the 30-month (913 days) presumptive ceiling.

The application was allowed and the proceedings were stayed.

I.C. was found guilty by a jury of sexual interference against his stepdaughter, A.W., relating to a "Horsey Incident" that occurred between 2008 and 2010.

The sexual assault charge was conditionally stayed.

The court, in this Part 2 sentencing decision, determined a fit sentence after re-evaluating facts based on the "Horsey Incident" only.

Aggravating factors included the breach of trust, the complainant's young age (8-10), the incident occurring in the family home, physical restraint, and the significant impact on the complainant and her mother.

Mitigating factors included I.C. being a first offender, having no criminal record, a low risk of re-offence, and being gainfully employed.

The Crown sought 18 months to 2 years imprisonment, while the defence sought a conditional sentence or intermittent incarceration.

The court, guided by the Supreme Court of Canada's decision in *Friesen* and the Ontario Court of Appeal's guidance on conditional sentences for child sexual offences, imposed a 10-month custodial sentence, along with various ancillary orders, including a DNA order, weapons prohibition, SOIRA registration, and a s. 161 prohibition order with an exception for biological daughters subject to family court approval.

Following a jury trial, the accused was found guilty of sexual interference and sexual assault against his stepdaughter.

Because the jury's verdict was ambiguous regarding which of the two alleged incidents they found proven, the sentencing judge was required to make independent findings of fact for the purpose of sentencing.

Applying the Ferguson framework, the court assessed the credibility of the witnesses and found the first incident proven beyond a reasonable doubt, but harboured a reasonable doubt regarding the second incident.

The court directed counsel to provide further submissions on sentence based on these factual findings.

The applicant sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay.

The court analyzed the total delay, deducting defence delay, and assessed whether the remaining delay exceeded the presumptive ceiling.

Key issues included the impact of court staff shortages causing trial rescheduling and the Crown's claim for an exceptional circumstance deduction due to the COVID-19 pandemic backlog.

The court found the delay caused by staff shortages was attributable to the Crown and not an exceptional circumstance, and that the COVID-19 backlog did not appreciably affect the original trial date.

The court also found the defence was reasonably available for continuation dates.

The total net delay exceeded the Jordan presumptive threshold for a straightforward case, leading to a breach of the applicant's Charter rights.

The appellant, Steve D’Silva, appealed his convictions for sexual interference, invitation to sexual touching, and sexual assault involving a 12-year-old victim.

The appeal challenged the trial judge's credibility findings, particularly regarding the victim's testimony that she informed the appellant of her age, and the application of the principles in R. v. W.(D.).

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant had actual knowledge the victim was underage.

The court emphasized the high level of appellate deference owed to trial judges' credibility assessments and found no error in the trial judge's reasoning or application of legal principles.

The accused was charged with driving with a blood alcohol concentration over 80 mg following a motor vehicle collision.

At trial, the accused argued that his section 8 Charter rights were violated because the police lacked reasonable suspicion for the roadside screening demand, and that his section 10(b) rights were violated due to a 27-minute delay in facilitating access to counsel.

The court found the officer had a reasonable suspicion based on the collision, the accused's slurred speech, and glassy eyes, dismissing the section 8 claim.

While the Crown conceded the section 10(b) breach, the court applied the Grant framework and declined to exclude the breath evidence under section 24(2).

The accused was convicted.

The defendant pleaded guilty to common assault after initially facing a sexual assault charge.

The assault occurred at the defendant's residence during a party where the defendant, then 20 years old, engaged in non-consensual sexual contact with the complainant, a 15-year-old friend of his younger sister.

The defendant partially inserted his penis into the complainant's vagina without consent on two separate occasions despite her explicit objections.

The court imposed a 90-day intermittent jail sentence (served on weekends) followed by two years of probation with strict conditions including no contact with the complainant or her family, a 200-metre exclusion zone, and mandatory counselling on relationships and consent.

A five-year weapons prohibition was also imposed.

The defendant was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg/100 mL.

At trial, the defendant brought a Charter application alleging violations of sections 8 and 9 of the Canadian Charter of Rights and Freedoms, seeking to exclude breath testing results.

The sole issue was whether the arresting officer had reasonable grounds to rely on the approved screening device (ASD) result.

The officer administered the ASD approximately 14 minutes after the defendant's last known alcohol consumption, rather than the required 15 minutes, due to a mathematical error.

The court found that the officer lacked objectively reasonable grounds for the arrest and that both section 8 and section 9 Charter violations occurred.

However, applying the Grant test under section 24(2) of the Charter, the court admitted the breath sampling evidence, finding the violations minor and the evidence reliable.

The defendant was charged with driving with an excess blood alcohol concentration ("over 80").

The defendant challenged the admissibility of breath sampling results under the Charter, claiming violations of sections 8 and 9.

The court found technical breaches but admitted the evidence.

The central issue was whether the prosecution could rely on the presumption of identity under section 258(1)(c) of the Criminal Code after its repeal by An Act to amend the Criminal Code (offences relating to conveyances), which came into force on December 18, 2018.

The court followed R. v. Shaikh and held that the presumption of identity no longer applied to transitional cases.

Without the presumption, the Crown could not prove the defendant's blood alcohol concentration at the time of driving beyond a reasonable doubt, as the defendant had consumed alcohol approximately five minutes before driving.

The defendant was acquitted.

The defendant was charged with driving with excess alcohol after failing an Approved Screening Device test and subsequently providing a breath sample of 160 milligrams per 100 millilitres of blood.

The defendant brought multiple Charter challenges, including challenges to the lawfulness of the traffic stop, the timing of the ASD demand, compliance with section 254(2)(b) of the Criminal Code, and alleged violations of rights to counsel.

The court rejected all Charter applications and found the defendant guilty of the offence.

Mario Sejko was convicted by a jury of dangerous driving.

This decision concerns his sentencing.

The court considered aggravating factors, including his excessive speed (nearly double the limit on a rainy night), his criminal record (youth convictions and a subsequent robbery conviction), and his limited acceptance of responsibility.

Mitigating factors included his youth at the time of the offence (19), his positive pre-sentence report, efforts to improve education and employment prospects, family support, and remaining at the scene to assist.

The Crown sought a $2,000 fine, two years' probation, and an 18-month driving prohibition, while the defence sought a conditional discharge.

The court rejected a conditional discharge due to the need for denunciation and general deterrence, and the offender's criminal record and limited remorse.

A sentence of a $2,000 fine, 18 months' probation, and a one-year driving prohibition was imposed.

The defendant was found asleep in his vehicle parked in the middle of a residential street with the engine running.

Police arrested him for impaired care or control and "over 80" (excessive blood alcohol concentration).

The Crown charged him with both offences.

The defendant challenged the admissibility of his breath test results on Charter grounds, alleging police violated his right to counsel by failing to facilitate contact with his counsel of choice.

The court found the police breached the defendant's section 10(b) Charter rights and excluded the breath test evidence, resulting in acquittal on the "over 80" charge.

However, the court convicted on the impaired care or control charge based on the defendant's condition at the scene.

The accused was convicted of impaired driving after driving erratically and colliding with a parked vehicle at a red light, pushing it 15 feet into an intersection.

Four occupants were in the vehicle, including a 3-year-old child.

Two occupants suffered back pain requiring physical therapy.

Breath tests showed readings of 202 and 206 mgs/100ml.

The Crown sought a 45-day custodial sentence with probation and an extended driving prohibition.

The defence sought a fine with probation, or alternatively a conditional sentence.

The court imposed a conditional sentence of 3 months followed by 2 years probation and a 2-year driving prohibition, considering the accused's genuine remorse, significant rehabilitation efforts through alcohol and psychological counselling, and the need for general deterrence in the context of impaired driving incidents in the region.

The accused was charged with operating a motor vehicle while impaired by alcohol and with having a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The accused sought to exclude breath test results pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, arguing violations of sections 8, 9, and 10(b).

The court found that reasonable and probable grounds existed for the breath demand and that section 10(b) rights were infringed due to incomplete disclosure regarding the counsel of choice.

However, applying the Grant test, the court admitted the evidence as the long-term interests of justice favoured inclusion.

The accused was convicted on both charges.

The accused was charged with impaired operation of a motor vehicle and operating a vehicle with a blood alcohol level in excess of 80 mgs/100ml following a collision where she drove into a stopped vehicle at full speed.

The Crown proved reasonable grounds for arrest based on the dangerous driving, physical observations, and odour of alcohol.

The court found breaches of the accused's Charter rights under sections 10(a) and 10(b) due to delayed notification of the change in investigation purpose and failure to advise of right to counsel.

However, the breaches were found to be minor with no real impact on the accused's interests, and the breath test evidence was admitted under section 24(2).

The court found the accused guilty of impaired operation based on both the breath test readings and the pattern of dangerous driving, mental confusion, and impaired faculties demonstrated before and after the collision.

The defendant was found guilty of eight offences including sexual assault, assault, assault with a weapon, threatening death, and criminal harassment, all relating to the same complainant in a domestic context.

The defendant absconded from the jurisdiction after trial but before sentencing.

The court proceeded to sentence in absentia under section 475(1)(b)(i) of the Criminal Code, finding sufficient information about the defendant's personal circumstances from trial testimony to impose a fit sentence.

The court imposed a global sentence of 39 months (three years and three months) with emphasis on denunciation and deterrence, finding that rehabilitation could not play a role given the defendant's flight from justice.

The defendant was charged with care and control of a motor vehicle while impaired, blood alcohol level exceeding the legal limit, and dangerous operation of a motor vehicle.

The Crown alleged the defendant operated a vehicle in an erratic manner, struck a mailbox, and fled the scene.

The defendant challenged the admissibility of statements and evidence on Charter grounds, arguing improper detention and lack of grounds for arrest.

The court rejected all Charter claims, finding no detention prior to arrest, proper grounds for the breath demand, and voluntary statements.

The court found the defendant guilty of all charges based on eyewitness testimony of erratic driving, observations of impairment indicators, breath test results showing blood alcohol level more than twice the legal limit, and admissions by the defendant.

The accused was charged with dangerous driving, failing to stop for police, and possession of marijuana following a police pursuit initiated at a RIDE program.

The accused also brought a Charter application alleging excessive force and racial abuse by police officers.

The court found the accused guilty of failing to stop for police but acquitted him of dangerous driving and possession of marijuana.

The court rejected the accused's Charter application, finding he failed to prove on a balance of probabilities that he was subjected to excessive force or abuse.

The accused was charged with Over 80 following a minor motor vehicle collision.

The defence challenged the lawfulness of the Approved Screening Device (ASD) demand and subsequent breath tests on Charter grounds, arguing the officer lacked reasonable suspicion, the demand was not made promptly, and the test was not administered forthwith.

The court found the officer had reasonable suspicion based on the odour of alcohol on the accused's breath, the admission of past drinking, glossy eyes, and the motor vehicle collision.

The court found the delay between the informal demand and formal demand was reasonable given safety concerns and the need to locate an available ASD.

The court found no Charter breaches and convicted the accused of Over 80.