David A. Harris

The appellant, Travel Industry Council of Ontario (TICO), appealed sentences imposed on the respondents for trust account violations under the Travel Industry Act, 2002.

The respondents had pleaded guilty to failing to deposit customer funds in a designated trust account within two banking days and failing to hold customer funds in trust until payment was made to suppliers or refunds provided to customers.

The trial judge imposed suspended sentences with probation and restitution orders of $25,000 each for the individual respondents, and probation for the corporate respondent.

TICO sought imprisonment or substantial fines.

The appellate court upheld the sentences for the individuals but found the corporate sentence manifestly unfit and imposed a $25,000 fine with two years to pay.

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

The Crown obtained breath samples showing readings of 137 and 131 milligrams respectively.

The defence challenged the validity of the breath demands and the qualification of the breath technician.

The court found that the initial approved screening device demand lacked any stated legal basis and that the subsequent approved instrument demand was also improper, as the officer failed to establish the requisite reasonable grounds to believe.

The court excluded the breath test results pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, finding that the long-term interests of the administration of justice favoured exclusion despite the reliability of the evidence and the seriousness of the offence.

The charge was dismissed.

The Crown appealed a decision by a Justice of the Peace who stayed charges of speeding and drive suspended against the respondent on the basis that the respondent's right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms had been infringed.

The total delay from charge to stay was just over 34 months.

The Crown argued that the Justice of the Peace erred in attributing responsibility for 17 months and 10 days of delay to the Crown, in finding that the respondent had not waived any delay through non-attendance, and in inferring prejudice from the delay.

The appellate court dismissed the Crown's appeal, finding no error in the lower court's application of the law to the facts.

The Crown appealed an acquittal on a charge of driving while suspended contrary to the Highway Traffic Act.

The trial judge had found a reasonable doubt as to whether the accused knew his licence was suspended, applying a test requiring the Crown to prove knowledge beyond a reasonable doubt.

The appellate court allowed the appeal, finding that driving while suspended is a strict liability offence requiring only proof of the actus reus (that the accused was driving and that his licence was suspended).

The burden then shifts to the accused to prove on a balance of probabilities that he took all reasonable care, including that he reasonably believed his licence was not suspended.

The court found the accused's own admission that his licence was suspended, combined with the objective fact of suspension, precluded any reasonable belief to the contrary.

A conviction was entered with a $1,000 fine and six-month licence suspension.

The accused was charged with assaulting Gary McHale with a plastic pipe and possessing a weapon for a purpose dangerous to the public peace.

The assault occurred during a protest at Douglas Creek Estates (Kanonhstaton) on February 18, 2012, in the context of ongoing disputes over aboriginal land claims by the Haudenosaunee (Six Nations).

The Crown proceeded summarily.

The accused represented herself and pleaded not guilty.

Evidence from two Ontario Provincial Police officers and the victim, along with video evidence, established that the accused picked up a plastic pipe and attempted to strike the victim.

The accused raised arguments regarding the court's jurisdiction based on aboriginal sovereignty and attempted to invoke the defence of real property.

The court rejected both arguments and found the accused guilty of both charges.

The accused sought to appear by agent (a non-lawyer, non-licensed paralegal) in a summary conviction proceeding for obstructing a peace officer.

The Crown opposed the application on the basis that the agent was neither a lawyer nor a licensed paralegal.

The court considered whether the agent could appear and whether permission should be granted.

The court found that sections 800 and 802 of the Criminal Code permit agents who are not lawyers to represent accused in summary criminal proceedings, subject to the limitations in section 802.1.

Since the maximum sentence was six months imprisonment, the agent was permitted to appear.

The court confirmed that the accused's choice of representation was informed and that no conflict of interest existed that would warrant disqualification of the agent.

The accused pleaded guilty to defrauding her employer, TD Canada Trust, of $237,156.44 over a 42-month period while employed as a loans officer.

The Crown sought 18 months imprisonment; the defence sought 6 months.

The court imposed 6 months imprisonment followed by 3 years probation with conditions including 150 hours of community service.

A restitution order was made for the full amount defrauded.

No DNA order was imposed.

The offender pleaded guilty to possessing child pornography, printing child pornography, and breaching probation.

The offender had previously been convicted of the same offences and sentenced to approximately two years imprisonment.

Despite this prior sentence, the offender reoffended while still on probation, printing 56 child pornography images at a photo store and possessing 908 additional images and two video clips on a computer.

The court imposed a sentence of four years imprisonment, with 334 days of pre-sentence custody credited at a 1:1 ratio, resulting in an additional 37 months of imprisonment.

The court emphasized denunciation and general deterrence as the primary sentencing objectives, noting the serious nature of child pornography offences and the need to protect society from the offender's demonstrated risk to children.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood and possessing cocaine.

The Crown proceeded by summary conviction.

At trial, defence counsel conceded sufficient evidence of guilt but argued the evidence should be excluded under the Canadian Charter of Rights and Freedoms on the basis that sections 8, 9, and 10(b) had been infringed.

The defence argued the approved screening device demand was not made "forthwith" and the test was not conducted "forthwith" as required by the Criminal Code.

The court found no Charter infringement occurred and, in any event, would not have excluded the evidence under section 24(2) of the Charter.

The accused was found guilty of both charges.

The respondent was charged with driving a commercial vehicle not equipped with a working speed limiting system contrary to section 68.1(1) of the Highway Traffic Act of Ontario.

At trial, the respondent challenged the constitutionality of the provision, arguing it infringed his right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms by preventing him from accelerating beyond 105 km/h to avoid dangerous driving situations.

The trial judge found in favour of the respondent and struck down the provision.

The Crown appealed and brought an application to admit fresh evidence in the form of a supplementary affidavit from an expert assessing a new study on speed limiter safety released after trial.

The appeal judge granted the application, finding the fresh evidence satisfied all four Palmer criteria and was in the interests of justice.

The respondent was convicted of sexual assault, sexual interference, and invitation to sexual touching.

At sentencing on March 27, 2013, the court imposed a joint submission requiring compliance with the Sexual Offender Information Registration Act for 10 years.

On April 17, 2013, the Crown brought an application to correct this ancillary order.

The court found that the original order was erroneous, as the Criminal Code provisions require lifetime compliance with the Sexual Offender Information Registration Act when an individual has been convicted of more than one enumerated offence.

The court retained jurisdiction to correct the error within 90 days and amended the order to require lifetime compliance.

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

Following a trial, the accused conceded sufficient evidence existed for conviction but argued the charges should be stayed pursuant to section 9 of the Canadian Charter of Rights and Freedoms on the basis that his right to be free from arbitrary detention had been infringed.

The court found no arbitrary detention occurred and convicted the accused on both charges.

The accused was charged with failing to comply with a demand to provide a sample of breath into an approved screening device.

The Crown proceeded summarily and the accused pleaded not guilty.

The court found two fatal defects in the Crown's case: first, the demand made by the constable was not a valid demand under section 254(2) of the Criminal Code because the officer already had reasonable grounds to believe the accused had committed an impaired driving offence under section 253, making the screening device test an unnecessary intermediate step; and second, the Crown failed to prove beyond a reasonable doubt that the accused possessed the necessary mens rea, as the officer could not articulate why the breath samples were unsuitable.

The charge was dismissed.

The accused was charged with operating a motor vehicle while disqualified from doing so.

The accused brought a motion to stay the charge pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been infringed.

The court dismissed the application, finding that while the total delay was approximately 22 months, the delay was primarily attributable to the accused's own actions, including multiple requests for adjournments, his attempts to obtain legal counsel, and his frivolous Charter challenge based on "Freeman on the Land" ideology.

The court found that the accused had not established on a balance of probabilities that his Charter rights had been violated.

The accused pleaded guilty to possessing a genuine Nigerian passport that could be used to establish identity contrary to section 122(1)(a) of the Immigration and Refugee Protection Act, and to misrepresenting or withholding material facts relating to the true identity of a passenger that could induce an error in the administration of the Act contrary to section 127(a).

The Crown sought a custodial sentence of approximately nine months, while defence counsel sought a conditional sentence.

The court imposed a conditional sentence of one year to be served in the community with strict conditions, including house arrest for the first six months, community service, and ongoing supervision.

The accused was charged with failing or refusing to comply with a demand to provide a breath sample into an approved screening device contrary to s. 254(5) of the Criminal Code.

The Crown proved all elements of the offence beyond a reasonable doubt.

The accused argued that he should be acquitted based on the defence of officially induced error, claiming that a police officer misinformed him about the consequences of refusing the breath demand.

The court rejected this defence, finding that the accused failed to establish the prerequisites for the excuse and that his evidence was unreliable and internally inconsistent.

The court convicted the accused.

The accused was charged with assault causing bodily harm following an altercation in a high school bathroom.

The accused claimed she acted in self-defence, asserting that the victim was about to assault her and she struck preemptively.

The Crown presented evidence from three witnesses indicating the accused attacked the victim from behind without provocation, causing a broken nose requiring two surgeries, blackened eyes, and swollen cheeks.

The court found the accused's testimony not credible and determined that the Crown proved beyond a reasonable doubt that the accused assaulted the victim without lawful justification under sections 34 or 37 of the Criminal Code.

The accused was found guilty.

Appellant appealed his conviction for driving while suspended contrary to the Highway Traffic Act.

The trial Justice of the Peace found that the appellant failed to establish due diligence on a balance of probabilities.

The appellant argued that the trial judge erred in finding that he had not proven a postal strike occurred and that he had failed to establish due diligence.

The appeal court upheld the conviction, finding that driving while suspended is a strict liability offence, and once the Crown proves the actus reus, the burden shifts to the defendant to prove due diligence.

The court found the appellant's evidence regarding the postal strike was vague and insufficient, and his failure to follow up on an unpaid ticket demonstrated a lack of due diligence.

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

The Crown proceeded summarily and the parties agreed to a statement of facts establishing that the accused operated a vehicle with a blood alcohol concentration between 150 and 195 milligrams per 100 millilitres.

The sole issue was whether the accused possessed the necessary mens rea.

The accused testified that she believed her drink had been spiked with a date-rape drug, claiming she had no memory of consuming most of the alcohol and that her symptoms were inconsistent with voluntary alcohol consumption.

The court found the accused guilty, distinguishing the case from R. v. Sitarz on the basis that while the accused's belief was genuine, it did not raise a reasonable doubt as to her guilt.

The accused was charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

Police officers arrested the accused as a passenger in a vehicle bearing stolen licence plates and conducted a search incidental to arrest, discovering cocaine and cash.

The court found that the arrest was unlawful because the officers lacked objectively reasonable grounds to believe the accused possessed the stolen licence plates.

The court excluded the evidence under section 24(2) of the Canadian Charter of Rights and Freedoms, finding that the long-term interests of the administration of justice favoured exclusion despite the seriousness of the charges.

Both charges were dismissed.