Donald R. Orazietti

This decision concerns the sentencing of Mr. Brad Southwind for second-degree murder.

The court determined the period of parole ineligibility, which is set at 15 years.

The judge considered aggravating factors such as the brutal nature of the crime (17 stab wounds), elements of planning, and the offender's lengthy criminal record with violent entries.

Mitigating factors included the offender's indigenous background (Gladue factors), severe mental health issues (drug-induced psychosis), and substance abuse, which impacted his ability to participate in reports.

Despite the need for judicial restraint for Indigenous offenders, the court emphasized denunciation and deterrence due to the heinous nature of the crime and the offender's violent history.

The appellant, Joshua Gauthier, appealed his conviction for aggravated assault and his conditional sentence arising from an incident during a recreational soccer game where he struck another player, causing a fractured orbital bone and laceration.

The appeal challenged the trial judge's findings regarding mens rea, the rejection of reflex action and self-defence, and the characterization of the injury as "wounding." The Court of Appeal dismissed the appeal, affirming the trial judge's conclusions that the appellant's actions were intentional retaliation, not a reflex, and that self-defence had no air of reality.

The court also confirmed that the injuries met the definition of "wounding" under the Criminal Code.

The sentence appeal was also dismissed, as the conditional sentence was deemed fair given the goal of general deterrence.

The defendant, Brad Southwind, was accused of first-degree murder.

The case involved a judge-alone retrial following a mistrial.

The central issue was the mens rea component, specifically whether the defendant's severe intoxication and psychotic delusions, amplified by substance abuse, negated the intent required for murder or planning and deliberation for first-degree murder.

The court found that despite the defendant's impaired state, he possessed the necessary intent for murder, relying on the brutal nature of the stabbing and expert psychiatric testimony.

However, the court found reasonable doubt regarding planning and deliberation due to the unreliability of the defendant's recollections and the impulsive nature suggested by his statements and expert opinion.

Consequently, the defendant was found guilty of second-degree murder.

The Crown appealed an acquittal for impaired driving and driving with excessive blood alcohol after police conducted a random sobriety stop on private property.

The officers had formed the intention to stop the respondent while he was on the highway under s. 48(1) of the Highway Traffic Act, but only effected the stop after he had pulled onto a private driveway.

The Supreme Court held that s. 48(1) did not authorize random sobriety stops on private property, as the respondent was no longer a 'driver' within the HTA's definition when stopped, and the police breached his s. 9 Charter rights.

However, applying the Grant framework, the Court declined to exclude the evidence under s. 24(2), finding that the legal uncertainty at the time rendered the breach not egregious, and the reliable and crucial nature of the evidence combined with the serious public interest in combatting impaired driving outweighed the first two lines of inquiry.

The appellant appealed a sentence of two years less a day for firearm offences, which arose from an incident where he intended to commit suicide with a sawed-off shotgun.

The Court of Appeal found that the sentencing judge erred in principle by placing undue emphasis on denunciation and deterrence without adequately considering the appellant's suicidal intent and the attenuated danger to the public.

The court also found an error in failing to consider the causal link between the appellant's mental health issues and addiction and his criminal conduct.

Given the appellant's significant rehabilitation efforts, the court substituted the custodial sentence with a conditional sentence.

The police followed the respondent off a public highway and onto his private driveway to conduct a random sobriety check, where they observed signs of impairment and arrested him for impaired driving.

The trial judge convicted the respondent, but the summary conviction appeal judge overturned the conviction, finding the stop violated s. 9 of the Charter and excluding the evidence under s. 24(2).

The Court of Appeal dismissed the Crown's appeal, holding that neither s. 48(1) of the Highway Traffic Act nor the common law ancillary powers doctrine authorized police to conduct a random, groundless sobriety stop on private property.

The Court upheld the exclusion of evidence, concluding that the serious Charter breach outweighed the public interest in adjudicating the case on its merits.

The plaintiffs brought a motion to strike the statement of defence and for judgment, which they subsequently abandoned.

The defendants sought costs of $14,515.08 on a partial indemnity basis for the abandoned motion.

The court fixed the defendants' costs at $7,500 inclusive of HST and disbursements, noting that while the motion was not argued, the defendants' counsel had prepared materials and travelled for the hearing.

The court ordered that the costs not be payable until the conclusion of the action, as they may be deducted from any amounts found owing to the plaintiffs.

The appellant was convicted of impaired driving after a police officer followed his ATV from a public road onto a private driveway to conduct a random sobriety check under the Highway Traffic Act.

The officer had no prior suspicion of impairment.

On appeal, the Superior Court of Justice held that police lack statutory or common law authority to conduct random sobriety stops on private property without articulable cause.

The court found the stop violated the appellant's right against arbitrary detention under section 9 of the Charter, excluded the evidence under section 24(2), and entered an acquittal.

This decision addresses the issue of costs following the dismissal of the plaintiff's claim for lack of jurisdiction.

The defendant, who successfully brought the motion to dismiss, sought partial indemnity costs.

The court found that partial indemnity costs were appropriate, as there was no reprehensible conduct by the plaintiff to warrant substantial indemnity costs.

After considering the complexity, importance, time spent, hourly rates, and proportionality, the court fixed the costs payable by the plaintiff to the defendant at $7,500.00, inclusive of HST and disbursements.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued the trial judge erred in admitting breath test evidence under section 24(2) of the Charter despite finding a section 8 breach, and erred by failing to consider a section 9 arbitrary detention breach.

The Superior Court of Justice dismissed the appeal, finding the trial judge's section 24(2) analysis was entitled to deference and that the random traffic stop was authorized under the Highway Traffic Act, raising no section 9 issue.

The plaintiff, a former elected Vice President of the union, brought an action against the union alleging unlawful dismissal from his position and seeking reinstatement and damages.

The defendant union brought a motion to dismiss the action under Rule 21.01(3)(a), arguing the court lacked jurisdiction.

The court agreed, finding that the essential character of the dispute was an internal union disciplinary matter governed by the Canada Labour Code, which provides an exclusive adjudication process through the Canada Industrial Relations Board.

The action was dismissed for lack of jurisdiction.

The applicant, Daniel Leo Michael Dupuis, sought to exclude evidence seized from his residence following a warrantless police search.

Police responded to a 911 call reporting a home invasion, assault, and robbery.

Approximately 90 minutes after arrival, officers conducted a "clearing search" of the second floor, where they observed a large quantity of marihuana in plain view.

The court found that this warrantless search violated Dupuis's section 8 Charter rights, as there was no objective basis to believe an imminent threat to life or safety existed at the time of the search.

The officers' conduct was deemed negligent in failing to adhere to well-established principles governing searches of private dwellings.

Consequently, the evidence obtained from this initial search, and from a subsequent search warrant that relied on the unlawfully obtained information, was excluded under section 24(2) of the Charter.

The offender, an indigenous man with no prior criminal record, was convicted of sexual assault and unlawful confinement after attempting to force sexual contact with the victim in a change room.

The Crown sought a two-year less a day jail sentence, while the offender sought a six-month conditional sentence.

The court weighed the aggravating factors of the violent nature of the assault and its emotional impact on the victim against the mitigating factors, including the offender's Gladue factors, lack of criminal record, and community support.

The court concluded that a conditional sentence would not adequately address the need for denunciation and general deterrence, sentencing the offender to six months in jail followed by three years of probation.

The appellants, two brothers, were involved in an altercation at a cottage party.

Jordan punched the victim in the eye, causing permanent blindness, and Ryan subsequently kicked and punched the victim while he was on the ground.

Jordan was convicted of aggravated assault and sentenced to 21 months' imprisonment, while Ryan was convicted of the included offence of common assault and received a suspended sentence.

On appeal, the Court of Appeal dismissed both conviction appeals, finding that the trial judge reasonably rejected Jordan's self-defence claim and correctly treated Ryan's assault as part of the same transaction.

However, the Court allowed Jordan's sentence appeal, reducing his sentence to nine months' incarceration because the trial judge failed to apply the restraint principle for young first offenders.

The accused was tried on multiple historical sexual offence counts involving two complainants.

On the counts involving one complainant, the court applied the W.(D.) framework and held that the accused's evidence, though problematic, raised a reasonable doubt on both non-consent and whether he occupied a position of trust or authority under s. 153 of the Criminal Code.

On the counts involving the second complainant, the court accepted the complainant's evidence, rejected the accused's account as implausible, and found the Crown had proved sexual assault and forcible confinement beyond a reasonable doubt.

The accused was acquitted on counts #1, #2 and #3 and convicted on counts #4 and #5.

The accused was charged with impaired operation of a vessel causing death and operating a vessel with a blood alcohol concentration over 80mg causing death, following a tragic boating accident where a water skier was struck and killed by the boat's propeller.

The central issue at trial was the identity of the driver of the boat at the time of the collision.

While the accused made statements shortly after the accident suggesting she was the driver, the court found these statements unreliable due to her hysterical state.

The only eyewitness who testified the accused was driving had significant inconsistencies in his evidence.

Applying the W.(D.) test, the court concluded the Crown failed to prove beyond a reasonable doubt that the accused was operating the vessel, resulting in an acquittal on all charges.

During a trial for aggravated assault and assault arising from an altercation at a stag and doe party, the accused brought a Charter s. 7 application seeking a stay of proceedings.

They argued that the Crown's continued prosecution amounted to an abuse of process because the Crown's main witness was contradicted by other Crown witnesses.

The court dismissed the application, holding that the Crown's decision to proceed did not amount to flagrant impropriety and that it is the role of the trier of fact to assess conflicting evidence.

The accused was arrested for impaired driving and provided two breath samples.

The trial judge found a breach of the accused's right to counsel before the first sample and excluded both samples under s. 24(2) of the Charter, resulting in an acquittal.

The summary conviction appeal court affirmed the decision, holding that all evidence obtained after the initial breach was tainted.

The Court of Appeal allowed the Crown's appeal, finding that the lower courts erred by failing to consider whether the accused's consultation with counsel before the second sample constituted a 'fresh start' that severed the nexus between the breach and the second sample, and by failing to conduct a discrete s. 24(2) analysis for the second sample.

The appellant appealed his conviction for driving with over 80 milligrams of alcohol, arguing that his Charter rights under ss. 8, 9, and 10(b) were breached during a traffic stop.

The trial judge had found the evidence of the appellant and the arresting officer equally credible, concluding the appellant failed to meet his burden of proving a Charter breach on a balance of probabilities.

The Superior Court of Justice dismissed the appeal, finding that the trial judge was entitled to find both witnesses equally credible, provided sufficient reasons for her decision, and made findings of fact supported by the evidence.

The Crown appealed an acquittal following the exclusion of breathalyzer evidence in an impaired driving prosecution.

The trial judge found that the accused’s right to counsel under s.10(b) of the Canadian Charter of Rights and Freedoms was breached when police failed to provide a reasonable opportunity to contact counsel before administering breath tests.

Applying the principles from R. v. Prosper, the court held that a brief 20‑second opportunity to use a telephone without assistance or access to counsel resources did not constitute a reasonable opportunity to exercise the right to counsel.

The accused’s statement “Let’s get this over with” was found not to be a clear and unequivocal waiver of the right.

The court further held that once the Charter breach occurred, both breath samples were properly excluded under s.24(2).