Franklin Bernhardt

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.

The Ontario Review Board held a hearing to review the disposition of the accused, who was previously found not criminally responsible for armed robbery and other offences.

The accused sought a Conditional Discharge Disposition, while the hospital and Attorney General recommended continuing the existing Detention Disposition.

The Board found that the accused continues to pose a significant threat to public safety due to his fragile schizoaffective disorder, ongoing auditory hallucinations, limited insight, and refusal to optimize his medication.

The Board concluded that a Conditional Discharge was inappropriate as the hospital needed to maintain strict supervision to manage his risk of violence.

The Detention Disposition was continued, with the addition of a clause permitting international travel to Jamaica with an approved person.

The accused was found not criminally responsible in 2018 for uttering death threats and was subject to an Ontario Review Board disposition.

At his annual review, the hospital, the accused, and the Attorney General jointly submitted that he no longer posed a significant threat to the safety of the public.

The Board accepted the joint submission, noting that the accused's schizophrenia had been in remission since 2019, he was compliant with treatment, and he had strong family and community support.

The Board ordered an absolute discharge.

The Ontario Review Board conducted an annual review of the disposition for the accused, who was previously found not criminally responsible for assault causing bodily harm.

The Board found that the accused continues to pose a significant threat to public safety due to his major mental illness, severe substance use history, and poor insight.

The Board ordered a continuation of his detention at the Forensic Service of Ontario Shores Centre for Mental Health Sciences.

The accused was charged with aggravated assault after stabbing the victim with a knife during an altercation at a mutual romantic partner's apartment.

The sole issue at trial was whether the accused acted in self-defence under section 34 of the Criminal Code.

The court rejected the accused's evidence, finding she advanced on the unarmed victim and stabbed her out of anger when she was not in any danger and could have easily left the apartment.

The Crown successfully negatived all three branches of self-defence beyond a reasonable doubt, resulting in a finding of guilt.

Following convictions for possession and access to child pornography, the Crown sought an assessment order as a preliminary step toward a dangerous offender application, arguing the index offences were serious personal injury offences under s. 752 of the Criminal Code.

The court rejected the proposition that possession and access to child pornography are necessarily SPIO offences and further found that, on the particular facts, the respondent's conduct did not meet the SPIO definition.

However, given the respondent's extensive history of sexual offending against children, the court found a sentence of two years or more would be appropriate, that there was a substantial risk of reoffending, and that there was a reasonable possibility of eventual control in the community.

A 60 day assessment was therefore ordered as a preliminary step toward a long-term offender application under s. 753.1.

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.

Following a lengthy criminal trial, the court considered warrant validity, Charter exclusion, and the sufficiency of extensive digital forensic evidence arising from a laptop seizure after concerned bystanders observed troubling images and messages in a restaurant.

The court upheld the search warrant on both facial and subfacial review, finding the authorization reasonably included forensic searches for images and videos as part of a child-luring investigation, and further held the evidence would in any event be admitted under s. 24(2).

On the merits, the court found the digital artefacts, browsing history, saved files, search terms, website visits, and Facebook activity proved possession of child pornography and intentional access to multiple child pornography images and videos beyond a reasonable doubt.

The court nevertheless dismissed the luring count, holding that although the communications with the youth and the fabricated social media personas came very close to proving the offence, a reasonable doubt remained as to specific intent to facilitate a listed secondary sexual offence.

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 Crown appealed the respondent's acquittals on charges of sexual assault and voyeurism, arguing the trial judge misapprehended the evidence, relied on inadmissible video evidence, and misinterpreted the voyeurism provisions of the Criminal Code.

The summary conviction appeal court found no reversible errors, noting the trial judge's findings were supported by the evidence and the video exhibit was admitted without limiting instructions.

The appeal 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 accused was charged with three counts of fraud over $5,000 and one count of possession of property obtained by fraud.

The Crown alleged that between January 2012 and September 2013, the accused orchestrated a sophisticated fraud scheme involving the deposit of worthless cheques into credit card accounts to artificially inflate credit limits, followed by coordinated purchases of high-end merchandise from Home Depot stores across the Greater Toronto Area.

The accused, self-represented with assistance of amicus curiae, claimed he had permission from cardholders to use their cards and that he was merely a middleman facilitating transactions for gamblers and others who needed quick cash.

The trial judge found the Crown had proven all essential elements of the offences beyond a reasonable doubt and rejected the accused's explanations as inherently unconvincing and lacking logic.

The court also dismissed a section 11(b) Charter application regarding delay in trial, finding exceptional circumstances justified the time taken.

The Crown brought an application under s. 24(2) of the Charter seeking admission of a firearm and ammunition previously excluded after a finding that a search warrant was invalid and the search unconstitutional under s. 8.

Applying the three-part test from R. v. Grant, the court assessed the seriousness of the Charter-infringing state conduct, the impact of the breach on the accused’s privacy interests in his home, and society’s interest in adjudicating the case on its merits.

Although the intrusion into a private dwelling was significant, the police acted in good faith pursuant to a judicially authorized warrant and did not deliberately or recklessly disregard Charter rights.

Given the reliability and central importance of the firearm evidence and the seriousness of the firearms offences, the balance favoured admission of the evidence.

The Crown appealed a summary conviction acquittal on a charge of dangerous driving arising from a high-speed police stop on the Don Valley Parkway.

The trial judge had found that audio and video recordings from a police in-car camera contradicted key aspects of the arresting officer’s testimony regarding aggressive driving and road conditions, leading to concerns about the reliability of the officers’ evidence.

The trial judge concluded that the evidence did not establish a marked departure from the standard of care required for dangerous driving and that the Crown had not proven the offence beyond a reasonable doubt.

On appeal, the Crown argued that the trial judge misapprehended the evidence by comparing testimony with recordings that did not capture the entire driving sequence.

The appeal court held that the trial judge understood the limited scope of the recording and committed no palpable and overriding error in assessing credibility and reliability.

Deference to the trial judge’s factual findings required dismissal of the appeal.

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 appellant appealed his sentence, arguing that the trial judge made a mathematical error in calculating pre-sentence custody credit (dead time).

The Crown agreed with the appellant.

The Court of Appeal allowed the appeal, set aside the original sentence, and substituted a sentence of 14 months and 3 days.

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.

The appellant sought leave to appeal the dismissal of his summary conviction appeal, arguing ineffective assistance of counsel at trial regarding the use of videotape evidence.

The Court of Appeal refused leave to appeal due to a largely unexplained three-year delay in moving the appeal forward.

The Court also noted that the ineffective assistance of counsel argument lacked merit, as the decision not to use the videotape did not approach the level of ineffective assistance.