Deborah Kinsella

The defendant was charged with two sexual offences against his seven-year-old niece in November 2008.

After a trial spanning eight days over fourteen months, he was convicted in May 2011 and sentenced in August 2012.

He appealed his convictions, and the appeal was allowed in December 2014, remitting the matter for retrial.

The defendant brought Charter applications under sections 11(b) and 7 of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings.

The court found that the defendant's section 11(b) right to be tried within a reasonable time was breached due to Crown actions in bringing a similar fact application at the eleventh hour and systemic delays in institutional resources.

The court granted a judicial stay of all charges.

The section 7 application was dismissed.

The accused was tried on charges of criminal negligence causing bodily harm and unlawfully causing bodily harm after his off-leash dog bit an 11-year-old child in a park rink.

The court held the Crown failed to prove that taking the dog off leash in the enclosed rink, in the surrounding circumstances, constituted a marked and substantial departure from the conduct of a reasonably prudent person.

The evidence did not establish prior aggressive behaviour or facts supporting objective foreseeability of bodily harm.

The court also found the alleged breach of the Dog Owner's Liability Act was not shown to be objectively dangerous on these facts.

Acquittals were entered on both counts.

The accused applied to challenge the representativeness of the 2014 Thunder Bay jury roll, arguing that Ontario failed to make reasonable efforts to include Indigenous on‑reserve residents, thereby breaching the right to a representative jury under ss. 11(d) and 11(f) of the Charter.

The court applied the test articulated in R. v. Kokopenace, assessing whether the state made reasonable efforts in compiling source lists, delivering jury questionnaires, and encouraging responses.

Evidence showed continued reliance on inaccurate band electoral lists containing off‑reserve members, inadequate review of those lists, high undeliverable rates for jury questionnaires, and extremely low return rates from on‑reserve residents without meaningful remedial action.

The court concluded that the province failed to exercise reasonable diligence in addressing known systemic problems affecting Indigenous representation on jury rolls.

A Charter breach was established.

The appellant appealed a summary conviction for impaired driving, arguing that the trial judge erred in law in applying the mens rea principles governing impairment caused by prescription medication.

The appellant argued the trial judge misapprehended evidence regarding warning labels on medications and her awareness of the medications’ effects.

Applying the principles from R. v. King, the court held that the presumption that impairment is voluntarily induced is assessed using an objective test.

The court found the trial judge properly considered the warning labels and the appellant’s acknowledgment that she felt unusually tired before driving.

The findings of fact were reasonably supported by the evidence and disclosed no legal error.

The accused pleaded guilty to manslaughter and to breaking and entering a dwelling house and committing robbery.

The offences arose from a violent home invasion in which several men forced entry into a residence seeking drugs and money, restrained the occupant, and confronted a man who arrived to investigate.

During the ensuing struggle another participant stabbed the victim multiple times, causing his death.

The court considered aggravating factors including the brutality of the home invasion, the death of the victim, the terror inflicted on the occupant, and the accused’s prior youth record involving violence and robbery.

Mitigating factors included the accused’s youth, guilty plea, remorse, difficult upbringing, and evidence of rehabilitation efforts while in custody.

A global penitentiary sentence emphasizing denunciation and deterrence was imposed.

The Aboriginal offender pleaded guilty to break and enter and commit robbery following a home invasion where a co-accused stabbed and killed an individual.

The Crown sought a penitentiary term of 5 to 7 years, while the defence sought a reformatory sentence with 1.5:1 enhanced credit for pre-sentence custody.

The court analyzed the Truth in Sentencing Act amendments to s. 719(3.1) of the Criminal Code, concluding that enhanced credit requires exceptional circumstances beyond standard remand conditions.

The court denied the enhanced credit, applying a 1:1 ratio for 525 days of pre-sentence custody.

Applying Gladue principles and noting the offender's youth, remorse, and rehabilitative prospects, the court imposed a sentence of two years less a day, followed by three years of probation.