Evan A. Weber

The Ontario Court of Justice considered the evidence in a sexual assault case involving two alleged incidents between the accused, Juan Borja, and the complainant, M.B., a minor at the time.

The court applied the three-step test from R. v. W.D. to assess the defendant’s exculpatory evidence and the Crown’s burden of proof beyond a reasonable doubt.

Despite finding the defendant’s testimony not credible and inconsistent, the judge concluded that the Crown had not met the high standard of proof required for conviction.

The complainant’s evidence, while suspicious and containing inconsistencies, did not satisfy the court beyond a reasonable doubt.

The accused was therefore acquitted.

The defendant, K.H., was charged with one count of sexual assault, alleged to have occurred while the complainant was unconscious.

The Crown presented evidence including the complainant waking up with her pants down and the defendant's DNA on an external genitalia swab.

The defence argued that the Crown failed to prove sexual assault beyond a reasonable doubt, highlighting the lack of evidence regarding the form of the DNA or how the pants were removed, and suggesting other reasonable inferences for the DNA's presence.

The court, while acknowledging general principles of DNA transfer, found the evidence insufficient to establish sexual contact of a sexual nature beyond a reasonable doubt, noting concerns about the complainant's reliability due to intoxication and the absence of physical injury.

The defendant was found not guilty.

This is a sentencing decision for Darrin Obermok, who pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm.

The charges arose from a collision where Obermok ran a stop sign at high speed (105 km/h in a 60 km/h zone) with alcohol in his system, resulting in the death of a two-year-old child and severe injuries to the child's mother.

The Crown sought a 4-6 year jail sentence, while the defence requested an 18-24 month conditional sentence.

The court rejected the conditional sentence, emphasizing that a penitentiary term was necessary given the gravity of the offences and the offender's responsibility, particularly in light of the 2018 legislative amendments increasing maximum sentences for such crimes.

The presence of alcohol was deemed a significant aggravating factor.

Obermok was sentenced to five years imprisonment and a 15-year driving prohibition.

Kevin Murphy pleaded guilty to one count of aggravated assault.

The incident stemmed from a road rage encounter where Murphy pursued a vehicle that had rear-ended him, leading to a physical altercation in which a passenger, Mr. Susko, was stabbed while intervening.

Mr. Susko sustained severe injuries requiring surgery.

The Crown sought an 18-month custodial sentence, while the defence argued for a conditional sentence.

The court considered aggravating factors, including the pursuit, use of a weapon, and significant victim impact, alongside mitigating factors such as Murphy's lack of criminal record, genuine remorse, and rehabilitative efforts.

Applying sentencing principles, the court imposed an 18-month conditional sentence with electronic monitoring, followed by two years of probation, a weapons prohibition, DNA order, and restitution for the victim's lost earnings.

The defendant was charged with operating a conveyance with an excess blood alcohol concentration following a collision.

The central issue was the admissibility of the defendant's admission to police that he was driving, which he argued was compelled by the Highway Traffic Act.

The court found that the defendant's statement identifying himself as the driver was a compelled utterance under the Highway Traffic Act, given his honest and reasonable belief in the statutory duty to report the accident.

Applying the principles of the Charter, specifically section 7 (right against self-incrimination) and section 24(1) (exclusion of evidence rendering trial unfair), the court ruled that the compelled statement was inadmissible to prove the identity of the driver.

As there was no other evidence to establish identity, the defendant was found not guilty.

The court also addressed, but did not rely on, concerns regarding the ASD testing procedure, reaffirming that the lawfulness of a demand does not affect the admissibility of a breathalyzer certificate if the demand was acceded to.

The accused was convicted of possession for purposes of trafficking in marijuana following a guilty plea.

Police executed a CDSA search warrant and recovered 523.6 grams of marijuana stored in multiple containers and Ziploc bags, $2,275 in cash, three cell phones, packaging materials, and a digital scale from the accused's residence near the University of Windsor.

The accused, a 22-year-old first-time offender and university student, sold marijuana primarily to university students.

The defence sought a conditional discharge under s. 730 of the Criminal Code, arguing the accused was a young first-time offender with good character prospects.

The Crown sought a fine and probation, arguing that deterrence and denunciation were paramount and that granting a discharge would be contrary to the public interest.

The court rejected the conditional discharge and imposed a $1,000 fine payable within six months, a 12-month probation order, forfeiture of the marijuana, and a mandatory 10-year prohibition order under s. 109 of the Criminal Code.

Crown appeal from an acquittal on a charge of possession of narcotics for the purpose of trafficking.

The trial judge erred in law by confining his analysis to exclusive possession and failing to consider joint possession as an alternative issue raised by the facts and submissions of trial counsel.

The Court of Appeal allowed the appeal, set aside the acquittal, and ordered a new trial.

The applicant sought an order for the return of a 2015 Ford pick-up truck seized as offence-related property following his arrest on charges of trafficking a controlled substance, possession of a controlled substance for the purpose of trafficking, and possession of a controlled substance contrary to the Controlled Drugs and Substances Act.

The applicant argued the vehicle was not required for any proceeding.

The court found that the vehicle constituted offence-related property and that a forfeiture hearing following conviction would be a "proceeding" within the meaning of section 490 of the Criminal Code.

The court held it had no jurisdiction to order release of the seized property where the detention period had not expired and continued detention was required for the forfeiture proceeding.

The application was dismissed.

The Crown sought to introduce an out-of-court audio-recorded statement made by the deceased victim to police approximately two days after an alleged assault.

The victim died of unrelated causes approximately three months after making the statement.

The Crown relied on the principled exception to the hearsay rule to admit the statement as evidence.

The court conducted a voir dire to determine whether the statement met the threshold reliability requirement.

The court found that the victim's capacity to recall events accurately was compromised due to his poor health, medical condition, alcohol consumption, and marijuana use.

The victim's account was disjointed and inconsistent regarding when and where he was struck.

The court also noted significant discrepancies between the victim's account and his mother's corroborating statement.

The court concluded that the circumstances surrounding the taking of the statement did not provide sufficient guarantees of trustworthiness and that the absence of cross-examination could not be adequately substituted.

The motion was dismissed and the statement was ruled inadmissible.

The accused was charged with assault using a liquid or powder spray on the complainant on May 29, 2013.

The Crown's case rested entirely on the identification evidence of the complainant, who identified the accused as one of his attackers in poorly lit conditions at 2:00 a.m.

The defence called two alibi witnesses who testified the accused was at their residence at the time of the alleged assault.

The court found significant frailties in the identification evidence, including inconsistencies regarding the light source, the momentary nature of the observation, and the complainant's failure to mention seeing the accused holding a canister in his initial police statement despite later testifying to this fact.

The court also noted the animosity between the complainant and accused, which compromised the complainant's credibility.

Despite concerns with the alibi evidence, the court found reasonable doubt and acquitted the accused.