Franklin John Faveri

The defendant, Marcello Fracassi, was convicted of impaired driving causing death and impaired driving causing bodily harm.

The court considered sentencing principles, including denunciation and general deterrence, and reviewed the evolving sentencing ranges for such offences.

Aggravating factors included the defendant's choice to drink and drive, the fatal and injurious consequences, his high blood alcohol concentration, and prior driving infractions.

Mitigating factors included his first-time offender status, genuine remorse, strong community support, and efforts to address an undiagnosed alcohol addiction.

The court imposed a sentence of six years in the penitentiary, with credit for pre-sentence custody and bail conditions, resulting in a net sentence of 5 years and 6 months, along with a seven-year driving prohibition.

The accused was charged with assault following an incident in which he ejected his former intimate partner from his home by tipping her mattress, causing her to fall to the floor.

The Crown proceeded summarily.

The trial turned on conflicting accounts of the severity and nature of the contact.

The court found that while the accused did eject the complainant from her bed, the force used was justified under the common law right of an occupier to eject a trespasser, as the complainant had breached the implied term of her licence to occupy the premises by engaging in egregious property damage and had refused repeated demands to leave.

The court rejected defences under sections 34 and 35 of the Criminal Code but found the common law defence available and applicable.

This ruling addresses the qualification of Dr. Brian Murray, a neurologist, to offer expert opinion evidence on sleep disorders, specifically parasomnia and sleep driving, in a criminal trial where the defendant, Marcello Fracassi, asserts an automatism defence.

The defence challenged Dr. Murray's qualification on grounds including his specialty (neurologist vs. forensic psychiatrist), lack of personal examination of the defendant, limited litigation experience, and perceived bias.

The court applied the Mohan/White Burgess framework, finding Dr. Murray met the threshold requirements for logical relevance, necessity, and absence of exclusionary rules.

The court rejected the argument that only forensic psychiatrists could testify on automatism in sleep disorder cases, noting Dr. Murray's extensive education and experience.

The court also found that the lack of a personal interview and prior courtroom experience went to weight, not admissibility.

While acknowledging some "peculiar" passages in Dr. Murray's report, the court found no clear evidence of bias to warrant exclusion.

Consequently, Dr. Murray was qualified as an expert in neurology and sleep disorders.

The defendant brought a third party records application seeking production of police misconduct records relating to three Ontario Provincial Police officers.

The court initially found the threshold of "likely relevant" had been met and ordered the OPP to produce the complaint and misconduct files for judicial inspection.

Upon review of the files, the court determined they were clearly irrelevant to the trial issues, including credibility and investigation quality.

The application was dismissed and the files were sealed pending any appeal period, after which they would be returned to the OPP.

The defendant brought applications for disclosure of police complaint and misconduct files relating to three Ontario Provincial Police officers who were to testify regarding the admissibility of a statement made by the defendant.

The applications were brought on two bases: first, as a McNeil records application seeking disclosure from the Crown; and second, as a third-party records application seeking production from the OPP.

The Crown advised that McNeil Reports had been reviewed and there was nothing to disclose.

The court found that the Crown had fulfilled its disclosure obligations under McNeil and dismissed the McNeil application.

However, the court found that the defendant had established "likely relevance" for the third-party records application and ordered the OPP to produce all complaint and misconduct files for judicial review.

Sentencing following a jury verdict finding the accused guilty of dangerous driving causing serious bodily harm, failing to stop for police causing bodily harm, resisting arrest, and obstructing a peace officer after a prolonged police pursuit.

The offender fled police, drove at high speeds, evaded a spike belt, struck police vehicles during a rolling block, and caused bodily harm to an officer by running over the officer’s foot.

The court considered aggravating factors including the danger posed to officers and the public, the prolonged pursuit, and the resulting injury.

Mitigating factors included the absence of specific intent to injure, limited criminal record, psychiatric evidence of a delusional disorder possibly exacerbated by cannabis use, and compliance with strict bail conditions for several years.

The court held that the offences constituted a serious personal injury offence making a conditional sentence unavailable and imposed a custodial sentence.