Eric N. Libman

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration over 80 mgs following a motor vehicle collision.

The court found multiple Charter breaches, including an unlawful delay in making a roadside screening demand and a deliberate subversion by police of the accused's right to consult her counsel of choice.

Applying the Grant framework, the court excluded the breath test results under s. 24(2) of the Charter, resulting in the dismissal of the over 80 charge.

The court also found the remaining evidence insufficient to prove even a slight degree of impairment under the Stellato test, and acquitted the accused of impaired driving.

This decision involves the sentencing and long-term supervision order (LTSO) application for Gregory Lock, a repeat offender with a decades-long history of sexual offences against children, including possession and accessing of child pornography.

Despite a prior 10-year LTSO imposed in 2012, Mr. Lock repeatedly breached the order by possessing prohibited materials and devices, culminating in new convictions.

The Court imposed a new 10-year LTSO and a total effective sentence of 12 years imprisonment, with credit for pre-trial custody reducing the penitentiary term to 5.5 years.

The ruling emphasizes the serious nature of child pornography offences, the offender’s high risk of recidivism, and the necessity of denunciatory and deterrent sentences to protect the public, especially children.

Ancillary orders including DNA, weapons prohibition, SOIRA registration, and section 161 prohibitions were also imposed.

The Ontario Court of Justice sentenced Christopher Green to 2 years' imprisonment followed by a 10-year long-term supervision order after he pleaded guilty to multiple child pornography offences and breaches of court orders.

The Crown sought an 8-year sentence plus ancillary orders including lifetime prohibitions under ss. 109, 161, DNA, and SOIRA.

The defence argued for time served with enhanced pre-trial credit and opposed the long-term supervision order.

The court found that Green's repeated offending, despite prior sentences and supervision, demonstrated a substantial risk of reoffending, driven by an underlying sexual preference for adolescent males and substance abuse issues.

The court applied the principles from R v Friesen and R v Pike to impose a denunciatory sentence reflecting the gravity of the offences and the harm to victims.

Enhanced pre-trial custody credit was granted due to harsh detention conditions.

The long-term supervision order was imposed for the maximum 10 years to ensure structured supervision and risk management in the community.

The accused was arrested for impaired driving and lodged in an OPP holding cell.

She was provided a privacy gown but given no instructions on its use.

When she used the toilet in her cell, she was video recorded with her genitals exposed.

The court found a serious violation of her section 8 Charter rights, noting the police's failure to follow their own policies regarding detainee privacy established after the Mok decision.

Given the egregious nature of the breach and the humiliation suffered by the accused, the court ordered a stay of proceedings.

The applicant brought a Garofoli application challenging the validity of a search warrant for his residence, arguing the Information to Obtain (ITO) lacked sufficient grounds and contained misleading information about him 'sheltering' his address.

The police relied on a confidential informant's tip and surveillance showing the applicant engaging in drug transactions after leaving his residence.

The court found that the affiant's assertion that the applicant was sheltering his address was not misleading, even though the applicant was on bail with a surety at a different address.

The court concluded that the issuing justice could reasonably have granted the warrant based on the amplified record and dismissed the Charter section 8 application.

The Crown applied for an assessment under s.752.1 of the Criminal Code to determine if the accused, who pleaded guilty to possessing and accessing child pornography, should be declared a dangerous or long-term offender.

The central issue was whether these offences qualified as "serious personal injury offences" under s.752, a prerequisite for such an assessment.

The court, distinguishing from previous cases like Patterson based on the quantity and nature of the child pornography, the accused's repeat offender status, and compelling victim impact evidence, found that the offences did meet the definition of serious personal injury offences.

Consequently, the court ordered the assessment.

The defendant brought a Charter motion to stay proceedings or exclude evidence, alleging excessive force by police (ss. 7, 12) and violations of his rights to be informed of charges and to counsel (ss. 10(a), 10(b)).

The court found that the police use of force, including pepper spray, was reasonable and proportionate given the defendant's non-compliance and aggressive resistance.

The court also found that the defendant was informed of the reasons for his arrest in a timely manner and that any delay in advising him of his right to counsel was justified by the dynamic and volatile situation, and that he ultimately exercised his right to counsel.

The motion for Charter relief was dismissed.

The self-represented accused, charged with impaired driving and refusing to provide a breath sample, brought a Charter motion seeking a stay of proceedings.

He argued his section 7 rights were violated because the police failed to record the entirety of his booking hall procedure, which he claimed would have shown him to be sober and coordinated.

The court dismissed the motion, finding that the failure to record was an accidental oversight by the officers, not unacceptable negligence.

The court held that the police cannot disclose evidence that was never created, and the accused suffered no significant prejudice to his right to make full answer and defence given the extensive video evidence otherwise available.

The accused was convicted of two counts of sexual interference against a 14-year-old victim on January 27, 2014.

The offender, then 36 years old, gave the victim hallucinogenic drugs (ketamine and ecstasy) at his residence and engaged in multiple acts of sexual contact, including digital penetration, attempted intercourse, and fellatio.

He also photographed the victim during the sexual assault.

The sentencing hearing addressed the Crown's request for a 4.5-year penitentiary sentence and the defence's request for a blended sentence of one year imprisonment followed by one year conditional.

The court imposed a total sentence of 4.5 years (54 months) imprisonment, with 2 years on the first count and 2.5 years consecutive on the second count, along with a lifetime Sex Offender Information Registration Act order and a DNA order.

The accused was discharged on all counts following reconsideration of a committal for trial order.

The original committal was based on evidence that the accused was found alone in an apartment where drugs and a firearm were discovered.

The Court of Appeal quashed the original committal order because the judge had misapprehended key evidence—specifically, a baseball hat that was thought to link the accused to the firearm was not, in fact, the same hat the accused had been seen wearing previously.

On reconsideration, the judge found that without this evidence, the Crown's case rested on impermissible speculation and inferential leaps.

The evidence was insufficient to establish the accused's knowledge and control of the contraband, as multiple other individuals had access to the apartment and forensic evidence linked others to the drugs.

The court ruled on the admissibility of a statement made by the accused following a search warrant execution at his condominium.

The accused was violently abducted and subsequently rescued.

Police executed a search warrant at his residence and found controlled substances.

When the accused later contacted police to retrieve his key, an officer met him at a Tim Hortons and obtained identification information linking him to the premises.

The Crown sought to admit this identification and the accused's statements as evidence of ownership and control.

The court found the statements inadmissible as involuntary, holding that the accused was denied a meaningful choice to remain silent and did not appreciate the jeopardy he faced.

The applicant sought directions on whether certain materials in his possession relating to the complainant trigger the third party disclosure regime under section 278.92 of the Criminal Code.

The materials at issue were a photograph of the applicant and complainant taken together at a bar and a cell phone video recording of the complainant leaving the applicant's premises following an alleged sexual assault.

The court found that neither item constitutes a "record" within the meaning of section 278.1 of the Criminal Code, as neither contains the requisite personal information for which there is a reasonable expectation of privacy.

Both items were permitted to be tendered as evidence at trial.

The applicant brought a pre-trial motion to exclude evidence seized during the execution of search warrants at his residence and motor vehicle, arguing a violation of his s. 8 Charter rights.

The warrants were based on information from a confidential informant and subsequent police surveillance.

Applying the Debot test, the court found the informant's tip was compelling, the source was reliable, and the information was sufficiently corroborated by police observations of suspected hand-to-hand drug transactions.

The court concluded there were reasonable and probable grounds to issue the warrants and dismissed the application.

The accused was arrested for impaired driving following a motor vehicle accident on Highway 401.

At the police station, during the booking process, a police officer directed the accused to remove the drawstring from his pants as a safety concern.

When the drawstring could not be removed without damaging the pants, the accused's pants were removed, leaving him in his undergarments.

The accused remained in this state of undress throughout his time at the police station, including during the breath testing procedure, where he subsequently refused to provide a breath sample.

The court found that the removal of the accused's pants constituted an illegal strip search conducted without reasonable and probable grounds, in a public area, in the presence of multiple officers, and while being videotaped.

The court granted a stay of proceedings as the appropriate remedy, finding that proceeding with the trial would be harmful to the integrity of the justice system.

The defendant was charged with three counts of dangerous driving and three counts of failing to remain at the scene of an accident arising from a motor vehicle collision between a tractor trailer and a group of motorcyclists on Highway 401.

The court ruled on the admissibility of the defendant's statements given at the accident scene as a pre-trial motion.

The defendant argued that his statements were statutorily compelled under section 199 of the Highway Traffic Act and therefore inadmissible in criminal proceedings.

The Crown argued that the defendant was merely a witness to the accident, not involved in it, and that his statements were motivated by self-interest rather than statutory compulsion.

The court found that the defendant was "directly or indirectly involved" in the accident, honestly and reasonably believed he was required to report it, was not motivated by self-interest, and reported the accident within the "forthwith" requirement.

Accordingly, the defendant's statements were excluded from evidence as statutorily compelled statements protected by the Charter.

The applicant challenged a police search of the Ministry of Transportation (MTO) driver licence database under section 8 of the Canadian Charter of Rights and Freedoms.

The police used facial recognition technology to search the database and identify the applicant as the holder of multiple fraudulently obtained driver's licences.

The applicant argued that the search violated his reasonable expectation of privacy in his photograph and personal information submitted for driver's licence purposes.

The Crown argued that no reasonable expectation of privacy exists in information voluntarily submitted to obtain a driver's licence, which is a regulated privilege.

The court dismissed the applicant's challenge, finding that driver's licence applicants have neither a subjective nor an objectively reasonable expectation of privacy in the information contained in the MTO database.

The accused was charged with 26 offences related to fraudulently obtaining and possessing multiple driver's licences under various aliases.

The Crown's case relied primarily on photo-comparison technology and visual identification from driver's licence photographs and booking hall videotapes to establish that the accused was the same person responsible for obtaining licences under seven different names.

The court found that the identification evidence was insufficient to prove guilt beyond a reasonable doubt, as no police officer who had investigated or dealt with the accused in connection with prior incidents was able to identify him as the person they had encountered.

The court acquitted the accused of all charges, finding that relying solely on the judge's own visual comparison of photographs and videotapes, without corroborating eyewitness identification, would be manifestly unsafe given the inherent frailties of identification evidence.

The accused was charged with sexually assaulting a 13-year-old boy at the YMCA.

The defence sought production of third-party incident reports held by the YMCA documenting other alleged misconduct by the complainant with other men at the facility.

The court dismissed the application, finding that the defence failed to meet the "likely relevance" threshold under section 278.3 of the Criminal Code.

The court determined that the records were sought as part of a speculative fishing expedition to portray the complainant as the initiator of sexual activity, relying on impermissible stereotypes and myths about sexual assault victims.

The accused brought an application to stay proceedings for unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The Crown charged the accused with possession of cocaine, possession for the purpose of trafficking cocaine, and possession of proceeds of crime following a search warrant execution on October 3, 2016.

The case proceeded through multiple adjournments and judicial pre-trials, with significant delays in Crown disclosure.

The accused initially faced a discovery preliminary hearing scheduled for November 2017 but later elected trial in the Ontario Court of Justice in September 2017.

The court found that the applicable Jordan presumptive ceiling was 18 months (not 30 months as the Crown argued), and that the total delay of 18 months and 24 days, minus 44 days of defence delay, resulted in net delay of approximately 17.5 months, narrowly avoiding the presumptive ceiling.

The application to stay was dismissed, though the court criticized the Crown's disclosure practices as unacceptable and cavalier.

A provincial offences appeal concerning the destruction of a boundary tree without the consent of the co-owner.

The appellant, a homeowner, obtained a municipal permit to remove a Norway maple tree on the property line between his residence and his neighbors' property, claiming it was hazardous.

He removed the tree without obtaining the neighbors' consent.

The trial justice found him guilty of violating section 10(3) of the Forestry Act.

On appeal, the appellant argued that the Forestry Act did not apply to joint owners of boundary trees and that he had a self-help remedy to abate a nuisance.

The appellate court upheld the conviction, finding that the appellant's conduct was manifestly unreasonable, particularly given the three-and-a-half-year delay between obtaining the permit and removing the tree, and his failure to seek consent or court authorization.