Brian P. O'Marra

The Crown appealed a decision of the Ontario Court of Justice finding that the court lacked jurisdiction to proceed on an “Over 80” charge under s. 253(1)(b) of the Criminal Code because the accused had not been served with process for that Information.

The appeal court reviewed transcripts of earlier appearances showing that counsel or agents appeared pursuant to a designation while the replacement Information was before the court.

The court held that appearances by designated counsel or agents were legally equivalent to the accused being present and constituted attornment to the court’s jurisdiction, even if formal process requiring attendance had not been issued.

Any defect in process affects jurisdiction over the person only and does not invalidate a facially valid Information charging an offence.

The trial judge erred in concluding that jurisdiction was lost.

The appellant appealed a conviction for dangerous operation of a motor vehicle arising from an incident in which a vehicle accelerated toward pedestrians and police officers in a parking lot after a confrontation outside a bar.

The appellant argued the trial judge materially misapprehended the evidence and erred in assessing his testimony, particularly regarding whether pedestrians posed a threat and whether he stopped when police ordered him to do so.

The court reviewed the strict standard for establishing a material misapprehension of evidence and emphasized the deference owed to a trial judge’s credibility findings.

The court held the factual findings were reasonably open on the evidence and that the trial judge properly applied the principles governing credibility and reasonable doubt.

The Crown brought an application under s. 486.5(1) of the Criminal Code seeking a publication ban prohibiting disclosure of the complainant’s identity in a prosecution involving allegations of criminal harassment and extortion arising from a personal relationship.

The court considered the statutory factors under s. 486.5(7) and the open court principle, applying the test articulated in R. v. Mentuck.

The evidence indicated that publication of the complainant’s identity could expose her to significant harm, including employment consequences, because the alleged extortion involved threats to publicize the relationship.

The court concluded that a limited ban referring to the complainant only by initials was necessary for the proper administration of justice and that the salutary effects outweighed any deleterious impact on openness.

The Crown appealed an acquittal on a charge of impaired operation under s. 253 of the Criminal Code.

The trial judge accepted the possibility that the accused’s intoxication may have resulted from involuntary consumption after an intervening act, such as someone placing a substance into his unattended drink.

The Crown argued the trial judge engaged in speculation, misapprehended evidence, and improperly shifted the burden of proof.

The court held that the trial judge correctly applied the principles from R. v. King and R. v. W.D., and that the accused only needed to raise a reasonable doubt about voluntary consumption.

The acquittal was therefore entitled to deference and the appeal was dismissed.

The accused, charged with historical sexual offences including gross indecency, brought pre-trial applications seeking to declare former s. 157 of the Criminal Code invalid under s. 15 of the Charter and s. 1(b) of the Bill of Rights.

He also sought a stay of proceedings under ss. 7 and 11(a) of the Charter due to delay in being informed of the specific offences.

The court dismissed the applications, finding that the Charter did not apply retrospectively to the historical offences, the former Code provisions did not violate the Bill of Rights, and the delay was largely attributable to the defence's tactical decisions without establishing prejudice to fair trial interests.

The Crown appealed a provincial court ruling granting a judicial stay of impaired driving charges under s. 11(b) of the Charter for unreasonable delay.

The trial judge had attributed portions of delay to the Crown and institutional causes and concluded the appropriate time to trial was eight months, resulting in a stay after approximately 372 days from charge to trial.

On appeal, the Superior Court held that the trial judge erred in assessing inherent intake time, improperly characterized certain periods as Crown delay, and overstated prejudice to the accused arising from disclosure-related attendances.

The court also found insufficient consideration of the strong societal interest in prosecuting impaired driving offences.

Rebalancing the Morin factors, the court concluded that systemic delay was within acceptable administrative guidelines and that the stay was unwarranted.

The appellant appealed convictions for impaired care and control and having a blood alcohol level over 80 mg, arguing the trial judge erred in dismissing a s. 11(b) Charter motion and misapplied the law on care and control following the Supreme Court’s decision in R. v. Boudreault.

The Superior Court held that although the trial judge mischaracterized part of the delay as entirely neutral, the total Crown and institutional delay remained within the permissible range and did not violate the right to be tried within a reasonable time.

On the merits, the court found no error in the trial judge’s conclusion that the accused failed to rebut the statutory presumption of care and control and that the circumstances established a realistic risk of danger.

The accused was extremely intoxicated, seated in the driver’s seat of a running vehicle parked at a busy downtown intersection, and his evidence regarding an alternate plan not to drive was rejected as not credible.

The findings were consistent with the principles in Boudreault concerning realistic risk of danger.

The appellant appealed a conviction for failing or refusing to provide a suitable breath sample contrary to s. 254(3) of the Criminal Code.

He argued the trial judge erred in assessing contradictions in the evidence regarding alcohol consumption, improperly accepted the officer’s testimony that he refused to provide a breath sample, failed to consider the mens rea element, and imposed a harsh sentence.

The appeal court held that the trial judge was entitled to prefer the officer’s evidence and that credibility findings are owed deference on appeal unless unsupported by the evidence.

The court found the trial judge had an evidential basis to conclude the appellant intentionally failed or refused to provide a proper sample despite multiple opportunities.

The $1,500 fine was slightly above the statutory minimum and not demonstrably unfit.

The appellant appealed a conviction for impaired operation of a motor vehicle, arguing the trial judge misapprehended the evidence and relied on impermissible inferences regarding impairment.

The appeal court held that the trial judge properly assessed the totality of the circumstances, including driving conduct, admissions about alcohol consumption, and physical signs of impairment.

The court rejected the argument that booking video evidence showing fewer visible signs of impairment required a different conclusion, holding that such evidence must be considered alongside all other evidence.

The inference that alcohol impaired the appellant’s ability to operate a motor vehicle was reasonable and supported by the evidence.

The appeal was dismissed.

The appellant appealed a conviction for assault arising from an incident involving his spouse, arguing the trial judge misapplied the principles from R. v. W.D. and improperly relied on the complainant’s demeanour to assess credibility.

The case turned on conflicting testimony between the complainant and the accused, supported by photographic evidence of injury.

The court reviewed the trial judge’s reasons and concluded that the proper burden of proof analysis was expressly articulated and applied.

The trial judge’s brief observation about demeanour was expressly minimized as having little or no value.

The court found no error of law or misapplication of the W.D. framework and upheld the conviction.

The accused were convicted after trial of trafficking in cocaine contrary to s.5(1) of the Controlled Drugs and Substances Act following police surveillance and the seizure of approximately one kilogram of cocaine.

The court dismissed a Charter application seeking to exclude the drug evidence and registered convictions after the defence conceded the Crown had proven the charges while preserving not‑guilty pleas for appeal purposes.

In determining sentence, the court emphasized the serious nature of cocaine trafficking, the commercial motivation for the offence, and the significant quantity involved.

Aggravating factors included participation as part of a trafficking team and the kilogram quantity of cocaine, while limited mitigation arose from the focused litigation of legitimate Charter issues and admissions that streamlined the trial.

Sentences of six and a half years’ imprisonment for one accused and six years for the co‑accused were imposed, together with ancillary DNA and firearms prohibition orders.

The accused applied for a directed verdict on a charge of robbery with a firearm at the close of the Crown’s case.

The firearm was never recovered and had not been discharged during the robbery.

The court considered whether there was any evidence capable of supporting a jury finding that the object used during the robbery met the definition of a firearm under s. 2 of the Criminal Code.

Witness testimony describing the object, its apparent metal construction, its use to strike the victim, and threats to shoot provided circumstantial evidence capable of supporting that inference.

The court held that this evidence, if believed, could permit a jury to conclude beyond a reasonable doubt that the item was a firearm.

The applicant, charged with multiple counts of robbery and related offences, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total time from arrest to the scheduled trial date was approximately 47.75 months.

The court analyzed the delay, finding that the significant time taken during the preliminary inquiry was largely due to the inherent time requirements of a complex voluntariness voir dire where the applicant testified, rather than unreasonable institutional or Crown delay.

Balancing the factors, including the serious nature of the charges and the societal interest in a trial on the merits, the court dismissed the application.

In an estates dispute between brothers following their mother’s death, the applicant obtained an order without notice requiring the respondent to accept or refuse appointment as estate trustee under an earlier will.

The court found that the order had been obtained without notice and with material non-disclosure, including the existence of a contested passing of accounts application and a later will.

Because the judge who granted the initial order had not been informed of these material facts, the court held that the order could not stand.

The without-notice order was therefore set aside and costs were awarded against the applicant.

Costs decision following a successful application for a passing of accounts in an estate matter.

The court reaffirmed that the modern approach to estate litigation costs applies the general civil litigation principle that the loser pays, subject to Rule 57 and limited exceptions.

The respondent rejected a reasonable Offer to Settle and conducted the litigation in a manner that unnecessarily complicated a relatively straightforward estate dispute.

As a result, the court ordered partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Additional reimbursement was also ordered for an unnecessary banking expense debited from the estate account.

The defendant was charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death.

The Crown sought to introduce evidence that the defendant removed pizza delivery items from his vehicle after the collision, arguing it showed a consciousness of guilt related to speeding to meet a delivery deadline.

The court ruled the post-offence conduct evidence was admissible, as it was relevant to whether the defendant was speeding or had a motive to speed, subject to a limiting instruction to the jury that it could not be used to elevate the level of culpability to criminal negligence or dangerous driving.

On a voir dire, the Crown sought admission of several post‑arrest utterances made by the accused following arrest for alleged sexual offences against his stepdaughter.

Some statements were audio recorded during transport, booking, and an initial interview, while additional statements were allegedly made after the interviewing officer turned off the recording device.

Applying the common law voluntariness rule from R. v. Oickle, the court held that the recorded statements were voluntary and admissible.

However, the unrecorded conversation occurred after the accused requested to contact duty counsel and followed a question likely to elicit incriminating responses, despite recording equipment being readily available.

Due to the inadequate record and unsatisfactory explanation for failing to record the exchange, the Crown failed to prove voluntariness of the unrecorded utterances.

The applicant, Mohamed Abdul-Hamid, brought a Charter application under ss. 8, 9, and 24(2) to exclude a kilogram of cocaine found in his vehicle following a gunpoint arrest.

The police had conducted surveillance based on confidential informant tips regarding a co-accused, Michele Santonato, and observed a suspected drug transaction involving a shoebox handed off by another co-accused, Christopher Italiano, to the applicant.

The court found that the police had reasonable and probable grounds to arrest the applicant based on the totality of the circumstances, including the informant tips and police surveillance.

The court also held that the subsequent search of the applicant's vehicle was a valid search incident to arrest.

The Charter applications were dismissed.

The accused brought an evidentiary motion in a criminal trial concerning whether statements allegedly acknowledging a nickname could be admitted as evidence of adoption.

A police officer testified that on several occasions the accused acknowledged being known by the nickname “Governor,” though the evidence was imprecise and unsupported by contemporaneous notes.

The court held that the alleged acknowledgements provided an evidential basis upon which a jury could determine whether the accused adopted the nickname, and the lack of specificity affected weight rather than admissibility.

The court also ruled that if the Crown elicited evidence of the alleged adoption, the defence would be permitted to cross‑examine on a prior denial of the nickname to avoid presenting an incomplete picture to the jury.

The accused brought a motion to exclude evidence of an out-of-court identification arising from a 1996 police photo lineup.

The original photo array had been lost and could not be reconstructed, and the identification procedure had been conducted in a manner inconsistent with later Sophonow inquiry recommendations, including the absence of audio or video recording, use of an investigating officer who knew the suspect, and simultaneous presentation of photographs.

The court held that the procedure was fundamentally flawed and that the loss of the photo array created significant prejudice to the defence’s ability to challenge the identification.

Given the inability to assess the fairness of the lineup and the resulting prejudice, the court excluded the evidence of the photo identification.

The ruling noted that the issue could be revisited depending on developments at trial.