Franklin Bernhardt

The accused was charged with four counts of assault, choking in the commission of an assault, sexual assault, assault with a weapon, and two counts of failing to comply with a release order.

The Crown's sole witness was the complainant, the accused's wife.

The accused denied all allegations.

The court found the complainant was not a credible or reliable witness, with her evidence contradicted by multiple defence witnesses including the accused's cousin, sister, and mother.

The court accepted the accused's evidence and found the Crown had not proven any of the offences beyond a reasonable doubt.

The accused was acquitted on all counts, including the breach of release order charges, as the court found a lawful excuse existed given the accused's compromised medical condition following a motor vehicle accident and the complainant's deliberate breach of the release order by attending at the accused's residence.

This decision addresses a breach of the accused's section 10(b) Charter right to counsel of choice during a DUI investigation.

The court found that the accused was denied proper access to his chosen lawyer due to lost audio and unclear police procedures, resulting in a serious breach.

Although the accused received advice from duty counsel, he was dissatisfied and maintained his right to speak to his own lawyer.

The breath test evidence was excluded under section 24(2) due to this breach.

On the merits, the Crown failed to prove impaired operation beyond a reasonable doubt, leading to dismissal of both charges.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated September 19, 2017.

The appellant, found not criminally responsible on account of mental disorder in 2009, sought transfer from Waypoint Centre for Mental Health Care to a less secure facility.

Although the parties agreed a transfer was appropriate, the Board majority refused the transfer.

The appellant challenged the decision on grounds of procedural unfairness and failure to impose the least onerous and least restrictive disposition.

The Court of Appeal allowed the appeal and remitted the matter to the Board, finding that while procedural fairness was maintained and the Board's decision fell within the range of reasonable outcomes, the Board erred by failing to consider ordering an independent psychiatric assessment given the uncertainty surrounding the appellant's diagnosis.

The defendant, charged with child luring via Facebook Messenger, sought to exclude Facebook communications as evidence, alleging a Section 8 Charter violation.

The court conducted a voir dire to determine if the defendant had a reasonable expectation of privacy in the seized Facebook records, which included public profile information, private messages with the victim, and communications within a child exploitation group.

Applying the Marakah framework, the court found no reasonable expectation of privacy, citing the public nature of Facebook, the defendant's lack of control over the data, the victim's age, and the illegal nature of the communications.

The application to exclude evidence was dismissed.

The appellant appealed his conviction for trafficking cocaine, seeking to set aside his guilty plea on the ground that it was uninformed.

The appellant, a permanent resident, was not advised of the immigration consequences of his conviction, which rendered him inadmissible to Canada and subject to removal with no right of appeal.

The trial judge had accepted the plea after a complete plea comprehension inquiry, and the sentence was imposed pursuant to a joint submission.

The Court of Appeal admitted fresh evidence establishing that the appellant was unaware of the immigration consequences and would not have pleaded guilty had he known.

The court found the plea was uninformed and therefore invalid, set aside the conviction, and ordered a new trial.

The applicant sought a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that his right to be tried without unreasonable delay under section 11(b) had been infringed.

The raw delay from charge to trial date was 18 months and 22 days, exceeding the 18-month presumptive ceiling established in R. v. Jordan for Ontario Court of Justice cases.

The court found that the Crown failed to justify the delay under either the Jordan or Morin frameworks.

Critical issues included the Crown's handling of search warrants, delayed disclosure of surveillance footage, and the unjustified delay in obtaining a second warrant to search the applicant's laptop.

The court granted the stay and vacated the trial dates.

The defendant was charged with operating a motor vehicle with a blood-alcohol level exceeding 80 milligrams per 100 millilitres of blood.

The defendant did not dispute the breath test readings of 110 and 90 mgs. percent but argued that bolus alcohol consumption—the rapid ingestion of a large quantity of alcohol shortly before driving—created a reasonable doubt as to his blood-alcohol level at the time of driving.

The Crown proved the charge beyond a reasonable doubt.

The defendant's evidence regarding the timing and quantity of alcohol consumed was found to be manifestly unreliable and inconsistent.

The court rejected the bolus drinking defence and convicted the defendant.

The accused was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood on January 1, 2013.

The central issue was whether the Crown proved beyond a reasonable doubt that breath samples were taken as soon as practicable and within the two-hour statutory limit.

The court found significant unexplained delays between when the accused was ready to provide samples and when the samples were actually administered, particularly a delay of approximately 51 minutes and 54 seconds before the first test and 1 hour, 14 minutes, and 11 seconds before the second test.

The Crown failed to provide adequate evidence explaining these delays, and the court found the Crown had not discharged its burden of proof.

The accused was acquitted.

The accused pleaded guilty to mischief and breach of probation arising from a disturbance at a Toronto Dominion Bank on April 30, 2012.

The Crown sought an assessment to determine whether the accused was not criminally responsible on account of mental disorder (NCRMD).

Following a psychiatric assessment by Dr. Angus McDonald and testimony, the court found that the accused was suffering from schizoaffective psychosis with paranoid features and was incapable of appreciating the nature and quality of his actions and unable to know that his conduct was wrong at the time of the offences.

The court made a finding of NCRMD and remitted the matter to the Ontario Review Board for disposition.