Faith M. Finnestad

This decision concerns the sentencing of Kelvin Atta for two acts of forced sexual intercourse committed in an adult high school.

The court considered aggravating factors including the victim’s age and the serious violation of her physical and sexual integrity, as well as mitigating factors such as the offender’s youth, newcomer status, lack of prior record, and cognitive impairments.

The Crown sought the maximum 18-month sentence available on summary conviction, while the defence sought a conditional sentence.

The judge imposed a 16-month custodial sentence followed by probation, rejecting a conditional sentence due to the gravity of the offence and the need for denunciation and deterrence.

The decision carefully analyzes recent case law developments on conditional sentences for sexual assault and emphasizes proportionality and the evolving understanding of sexual assault as a serious act of violence.

Ralph King was sentenced after being found guilty of sexual assault against three women during private healing ceremonies where he acted as a spiritual healer.

The offences involved inappropriate physical contact under the guise of healing.

The court considered aggravating factors, including abuse of a position of trust, significant impact on victims (two of whom were Indigenous and had prior trauma), multiple victims, and fraud.

Mitigating factors included his compliance with release conditions, prosocial lifestyle, and health issues.

The court emphasized the interplay between s. 718.04 (vulnerable victims, particularly Indigenous women, mandating primary consideration of denunciation and deterrence) and s. 718.2(e) (Gladue principles for Indigenous offenders).

The court found that the harm done to the victims and the Indigenous community, coupled with the lack of remorse, necessitated a significant custodial sentence.

The defendant, Minh Vu Nguyen Dao, was charged with impaired operation of a conveyance and operating with a blood alcohol concentration over .08.

He challenged the admissibility of the Certificate of a Qualified Technician, alleging breaches of his s. 10(b) Charter rights.

The court found a one-minute delay in providing the informational component of the right to counsel, but deemed it not serious and without impact on the defendant's rights, thus not warranting exclusion of evidence under s. 24(2).

Regarding the implementational component, the court found that police provided a reasonable opportunity to consult counsel of choice, and the defendant's subsequent decision to speak with Duty Counsel was a valid choice.

Consequently, the Certificate was admitted, and the defendant was found guilty on both charges.

The defendant was charged with unauthorized possession of firearms.

He brought a Charter application seeking to exclude the firearms from evidence, alleging a violation of his s. 8 right against unreasonable search or seizure.

The firearms were seized by an OPP officer from the defendant's vehicle after a motor vehicle accident, based on information from fire personnel and public safety concerns regarding the security of the firearms at a tow yard.

The court applied the two-step Waterfield test, finding that the officer acted within his common law and statutory duties to protect life and property and prevent crime, and that the seizure was reasonably necessary in the circumstances.

Therefore, no s. 8 violation occurred.

In the alternative, the court conducted a Grant analysis and concluded that even if there were a breach, the evidence would be admissible due to the reduced expectation of privacy in a damaged vehicle, the minimal intrusiveness of the seizure, and the officer's good faith.

The firearms were admitted into evidence, and the defendant was found guilty.

The accused, a spiritual healer, was charged with three counts of sexual assault against women during healing ceremonies.

The complainants testified that the accused touched them inappropriately with his hand in intimate areas, contrary to the stated practice of the ceremony.

The accused denied any hand touching, asserting he only used a deer bone as part of the ritual and that hand touching would be inappropriate.

The court assessed the credibility of the complainants, noting their initial self-blame and later realization of the impropriety after hearing similar complaints from others.

The court found the complainants' evidence credible and reliable, rejecting the accused's denials due to inconsistencies and implausibility.

Applying the principles from R. v. W.(D.), the court concluded that the Crown proved beyond a reasonable doubt that the touching occurred without consent or informed consent, leading to findings of guilt on all charges.

The accused, Navindra Balgobin, was charged with impaired operation of a conveyance, operating a conveyance with an excess blood alcohol level, and failing to remain at the scene of an accident following a motor vehicle collision.

The court found beyond a reasonable doubt that the accused was the driver and failed to remain at the scene.

The court also found that the arresting officer had reasonable grounds for arrest and that the breath samples were taken pursuant to a lawful demand, curing an initial defect.

The accused's Charter rights under s. 10(b) regarding re-advisement and counsel of choice were found not to have been violated.

Ultimately, the court found the accused guilty on all three counts.

The accused was sentenced for possession of cocaine for the purpose of trafficking following a guilty plea.

A general warrant executed at his residence revealed involvement in methamphetamine production and drug trafficking.

The Crown and defence jointly recommended 15 months' incarceration.

The key issue was whether a sentence reduction should be granted for the accused's surrender of significant contraband items, including a machine gun, methamphetamine, ephedrine, and GBL, valued at approximately $165,000.

The court distinguished between cooperation with police that leads to arrests or investigations versus mere surrender of items, ultimately imposing a nine-month sentence with a six-month credit for the surrender.

The Crown brought an application under section 15(4) of the Justices of the Peace Act requesting that a careless driving charge involving a fatality be heard before a judge of the Ontario Court of Justice rather than a justice of the peace.

The defendant did not oppose the application.

The court dismissed the application, holding that the fact of a fatality alone does not mandate trial by a judge.

The court found no complex legal issues, constitutional challenges, significant precedent value, or broader public interest factors beyond the fatality itself that would justify assignment to a judge.