Bruce W. Duncan

The Ontario Court of Justice considered whether a defendant who initially failed or refused to provide a breath sample for Intoxilizer testing but subsequently offered to try again was within the "same transaction" window permitting a change of mind under R v Domik and R v Khandakar.

The court found the defendant's offer to try again was timely and part of the same transaction, entitling him to dismissal of the charge.

The decision also addressed the mens rea requirement, emphasizing that bona fide attempts to provide a sample may negate intent to refuse.

The ruling clarifies the application of the "same transaction" doctrine and the importance of assessing sincerity in breath sample refusals.

This application sought to vary or rescind a 2019 consent order that granted the Law Society of Ontario (LSO) access to the applicant's youth court records.

The applicant, a law school graduate, had disclosed a youth conviction for murder in her 2016 LSO admission application, leading to a "good character" investigation.

The court determined that under section 82 of the Youth Criminal Justice Act (YCJA), once a youth disposition has ceased to have effect, the young person is conclusively deemed not to have been found guilty or convicted of the offence.

This statutory "pardon" means the conviction effectively never existed and cannot be used by the LSO Tribunal for good character assessment.

The court also found that the LSO's application form question, which compelled the applicant to disclose her youth record, was legally incorrect and misleading.

Consequently, the original access order was rescinded, as its intended purpose of using the conviction was legally impermissible.

The defendant, Adrian Thomas, was charged with multiple offences, including assault with intent to resist arrest and various firearm-related charges, following a traffic stop and struggle with police.

The court found the initial traffic stop lawful and the prolonged detention not arbitrary.

However, it found that the police used excessive force during the arrest, constituting a breach of the defendant's section 7 Charter rights, and that there were unjustified delays in providing and facilitating access to counsel, breaching section 10(b) Charter rights.

While the search of the vehicle was deemed a lawful inventory search, the court applied the Grant analysis and determined that the serious section 7 violation necessitated the exclusion of the handgun evidence under section 24(2) of the Charter.

Consequently, the defendant was found not guilty of all gun-related charges but guilty of resisting arrest.

The defendants, jointly charged with serious drug and gun offences, brought an application under section 11(b) of the Charter for a stay of proceedings due to unreasonable delay.

The total delay from charge to scheduled trial date was 29.25 months, exceeding the presumptive ceiling.

The Crown offered priority trial dates, which the defence rejected due to insufficient preparation time, despite the Crown's argument that disclosure issues could be addressed later.

The court found that the offered preparation time (3-4 weeks) was inadequate for a five-day trial involving serious indictable offences, and therefore, the defence was not responsible for the ensuing delay.

After deducting for defence-caused delay and complexity, the net delay remained 27.5 months, infringing the defendants' right to a trial within a reasonable time.

The proceedings were stayed.

The defendant, Waqas Qureshi, brought an application under section 11(b) of the Charter to stay gun charges due to unreasonable delay.

The court had previously dismissed this application.

Following the Supreme Court of Canada's decision in R. v. Hanan, 2023 SCC 12, the court revisited its earlier ruling regarding the attribution of delay caused by defence unavailability for trial dates.

The court affirmed its original dismissal, concluding that Hanan did not alter its finding that the defence's unavailability was the sole and direct cause of the delay in this specific period.

The defendant, Waqas Qureshi, brought an application for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

The total delay from charge to anticipated end of trial was 680 days, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice.

The Crown sought to deduct two periods of defence delay: 100 days for a delay in setting a Judicial Pre-Trial (JPT) and 144 days for defence counsel's unavailability for a rescheduled trial date.

The court found the JPT delay was not attributable to the defence due to Crown disclosure issues.

However, the court determined that the 144-day period of defence unavailability was deductible, as the offered trial dates were not "too soon" to allow for preparation.

With this deduction, the net delay was 536 days, falling below the presumptive ceiling of 549 days.

Consequently, the application for a stay of proceedings was dismissed.

The defendant was charged with driving while disqualified.

The court addressed two main issues: the defendant's knowledge of the disqualification and whether the police stop and subsequent vehicle search violated sections 8 and 9 of the Canadian Charter of Rights and Freedoms due to racial profiling.

The court found the Crown proved the defendant's knowledge of the disqualification.

However, the warrantless search of the vehicle was deemed an unreasonable search (s. 8 violation) and tainted by racial profiling.

This racial profiling was also found to have tainted the initial traffic stop (s. 9 violation).

Consequently, the evidence obtained (defendant's self-identification) was excluded under s. 24(2) of the Charter, leading to the dismissal of the charge.

This is an application under section 276 of the Criminal Code to determine the admissibility of evidence regarding a complainant's prior sexual activity in a preliminary inquiry for human trafficking and related sexual services offences.

The court considered whether section 276 applied, given the charges were not explicitly listed sexual offences, and whether the common law Seaboyer regime should apply.

The court adopted the reasoning that section 276 only applies if a listed offence is directly implicated or connected, rejecting the "sexual milieu" test.

It also declined to extend the Seaboyer common law regime to sexual services offences, emphasizing judicial restraint and parliamentary intent.

Consequently, neither section 276 nor Seaboyer applied, and admissibility would be governed by general rules of evidence.

This ruling addresses a request for costs following the dismissal of an application by the Office of the Children's Lawyer (OCL) for access to youth records under the Youth Criminal Justice Act.

The court determined that a records access application is a civil proceeding, allowing for costs to be awarded to the successful party.

While acknowledging the OCL's unique role and the general high threshold for costs against it, the court found that the OCL's application for records was ill-considered.

Consequently, the court awarded the respondent full costs of $7689.85.

The defendant was charged with impaired driving and "exceed 79".

The trial focused on whether a qualified technician's certificate, stating that an alcohol standard was certified by an analyst, was sufficient proof for the presumption of accuracy under section 320.31 of the Criminal Code, or if direct analyst evidence was required.

The court also addressed the principle of stare decisis, specifically whether a lower court could revisit a settled legal issue based on a new interpretation or analysis from a non-binding higher court decision.

The court found that it was bound by existing Ontario Superior Court precedents and that a new interpretation alone does not permit departure from binding authority.

The defendant was found guilty.

The Office of the Children's Lawyer (OCL) brought an application under sections 119 or 123 of the Youth Criminal Justice Act (YCJA) for access to youth records of an adult respondent.

The records were sought for use in a Superior Court family law divorce proceeding concerning parenting and decision-making.

The court determined that section 123 of the YCJA applied, as the access period for the records had expired.

After conducting a private review of the records, the court dismissed the application, finding that none of the records met the stringent test for access, emphasizing the high expectation of privacy in mental health records, the lack of probative value, and the potential prejudice to the respondent.

The court also issued additional orders prohibiting future unlawful references to youth records in the family proceedings and mandating the immediate redaction of existing references in pleadings and documents.

The defendant, Fortunato Zappone, brought a second application to stay proceedings for delay under s. 11(b) of the Charter, facing assault-related charges.

The court analyzed the total delay, deducting periods attributable to defence delay (14 days) and COVID-19 as a discrete exceptional circumstance (4 months 3 days for the first period, and 3 months 18 days for the second period due to the complainant's grandmother's death and the Crown's failure to mitigate).

The court found the net delay was below the presumptive ceiling, concluding that the defendant's right to trial within a reasonable time was not infringed.

The application was dismissed.

The defendant was charged with impaired driving and driving with excess alcohol.

The trial addressed several Charter issues, including the validity of a breath demand (s. 8), delay in reading rights to counsel (s. 10(b)), and a "Mok" issue concerning the monitoring and recording of the defendant's use of the toilet in a police cell (s. 8).

The court dismissed the challenges to the breath demand and the delay in reading rights, finding police actions reasonable.

However, the court found a Section 8 Charter violation regarding the toilet privacy, as the measures taken (fogging video, blanket provision without instruction) were inadequate to ensure a reasonable degree of privacy.

Despite the violation, the court denied a stay of proceedings or exclusion of evidence, concluding there was no sufficient causal or temporal connection between the Charter breach and the obtaining of the breath samples or other evidence.

The defendant was found guilty of impaired operation, and the excess alcohol count was stayed on the Kienapple principle.

The defendant, Zeeshan Naseer, brought an application to stay proceedings under section 11(b) of the Charter due to unreasonable delay.

The trial dates were set almost 30 months after the charge, exceeding the presumptive ceiling established by R. v. Jordan.

The Crown argued for significant defence delay and exceptional circumstances, including the defence's failure to raise delay concerns and the impact of the COVID-19 pandemic.

The court found that the Crown's arguments did not meet the Jordan test for exceptional circumstances, as the delay was foreseeable and avoidable by the Crown.

The application was granted, and the proceedings were stayed.

The defendant, charged with impaired driving and exceeding 80 mg, brought a pre-trial application to stay proceedings for unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The total delay from information sworn to trial date was 750 days (25 months).

The court considered a significant portion of this delay, specifically 224 days spent in resolution discussions, as implicitly waived by the defence, following the reasoning in R. v. Lim.

After deducting implicitly and explicitly waived periods, the net delay was calculated to be 505 days (16.8 months), which falls below the presumptive ceiling for provincial court cases.

Consequently, the application to stay proceedings was dismissed.

The defendant applied under section 11(b) of the Charter to stay charges of impaired driving and exceed 80, alleging unreasonable delay.

The court assumed the total delay was 21 months and 2 days, exceeding the presumptive ceiling.

The central issue was whether the COVID-19 pandemic constituted an exceptional circumstance.

The court found that the pandemic directly impacted the case by preventing the Crown's proactive efforts to secure earlier trial dates and by burdening the court system with a massive backlog, thereby preventing rescheduling.

The period of delay attributable to the pandemic was sufficient to bring the case below the presumptive ceiling.

The defendant was charged with impaired operation and exceeding 80 milligrams of alcohol per 100 milliliters of blood following a single-vehicle accident on January 31, 2017.

The Crown established that the defendant was found in the driver's seat of a severely damaged vehicle that had travelled over 150 meters off the road.

The defendant's blood alcohol content was measured at 220 milligrams at 2:10 and 3:01 a.m., which toxicological evidence interpolated back to 220-260 milligrams at the time of the accident.

The court rejected Charter arguments regarding the right to counsel and found the defendant guilty on both counts.

The defendant was charged with exceeding 80 mg of alcohol in blood following a motor vehicle stop at 2:40 a.m. outside a drinking establishment.

The Crown proved the charge through roadside screening device and qualified technician breath samples.

The defendant challenged the lawfulness of the initial demand and alleged violations of his right to counsel under the Canadian Charter of Rights and Freedoms.

The court rejected both challenges, finding reasonable grounds for the initial demand and that police made reasonable efforts to facilitate contact with counsel of choice before offering duty counsel.

The defendant was charged with breach of recognizance for violating a condition prohibiting him from being within Peel Region except to attend court.

He was found guilty following a trial on May 2, 2018.

The defendant raised Charter defences challenging the lawfulness of his detention and pat-down search under sections 8 and 9, and the failure to inform him of his right to counsel under section 10(b).

The court found that the detention and pat-down search were justified under the Waterfield test and common law powers to preserve the peace.

While there was a technical breach of section 10(b) regarding the failure to inform the defendant of his right to counsel during the detention period, the court found no breach of the implementational component and ruled the evidence admissible under section 24(2) of the Charter.

The defendant was charged with impaired driving and driving with a blood alcohol content over 80 mg%.

The case was defended solely on Charter grounds, specifically alleging breaches of the right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms.

The Crown alleged the defendant was found driving in a CN railroad yard at approximately 2:50 am and displayed signs of impairment.

The defendant requested counsel of choice but police were unable to reach the lawyer after leaving messages.

The court found no Charter breach and admitted the breath test results, finding the defendant guilty on both charges.