Henry Limheng

The appellant, Loveneet Kaur, appealed her conviction for impaired operation and operation with blood-alcohol concentration over 80, arguing the verdict was unreasonable and unsupported by the evidence.

The court reviewed the trial judge’s findings, including the rejection of the appellant’s evidence and the application of the statutory and common law tests for care and control.

The appeal was dismissed, with the court finding no error in the trial judge’s analysis or application of the law.

This sentencing decision addresses the appropriate sentence for Victoria Bakker, who pleaded guilty to dangerous operation of a conveyance causing death and bodily harm after a tragic collision resulting in the death of Lucas Thomas and serious injury to his mother.

The Court balanced the gravity of the offence with the offender’s low moral blameworthiness, genuine remorse, and strong community support.

The judge imposed a conditional sentence order (CSO) of two years less one day house arrest, 240 hours of community service, and a seven-year driving prohibition, emphasizing denunciation and general deterrence while recognizing the offender’s personal circumstances and the impact of the tragedy on all involved.

This is an appeal of a summary conviction where the appellant was convicted of failing or refusing to comply with a breath demand, having been acquitted of impaired operation.

The appellant challenged the conviction on two main grounds: an alleged violation of his section 10(b) Charter right to counsel and errors in the trial judge's analysis of the refusal offence, specifically regarding the unequivocal nature of the refusal and the onus of proof for reasonable excuse.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's decision to dismiss the Charter application, as the appellant was not reasonably diligent in seeking a second consultation with counsel and no changed circumstances warranted it.

The court also found that the trial judge's finding of a "simple refusal" implicitly included a determination that the refusal was unequivocal, given the context of the Charter application findings.

An alleged error regarding the onus of proof for reasonable excuse was deemed immaterial as it was not a live issue at trial.

The accused, Dennis Frail and Ana Maglicic, were charged with aggravated assault.

The court assessed witness credibility, noting inconsistencies in the victim's and a key witness's testimony.

The Crown's first theory of liability for aggravated assault was dismissed due to reasonable doubt regarding causation of the orbital bone injury and the victim's overall credibility.

Dennis Frail was acquitted of both aggravated assault and the included offense of simple assault, as the Crown failed to prove he applied force.

Ana Maglicic was found guilty of simple assault; her defence of another person under s. 34 of the Criminal Code failed as her actions were found to be motivated by aggression and vengeance, not solely for defensive purposes.

In a criminal trial for aggravated assault, the Crown sought to admit a witness's prior inconsistent statement for the truth of its contents.

The witness had recanted parts of her police statement given shortly after the incident, claiming intoxication at the time.

The court applied the principled approach to hearsay, assessing necessity and threshold reliability.

While necessity was met due to the witness's recantation, the court found insufficient indicia of procedural and substantive reliability.

Factors such as the witness's intoxication, absence of an oath or warning, lack of video/audio recording, and unclear circumstances of the statement's taking undermined its trustworthiness.

Despite the witness's availability for cross-examination, the court concluded that the statement's reliability was not sufficiently established to allow the trier of fact to rationally evaluate it.

The application to admit the statement was dismissed, as its low probative value was outweighed by its prejudicial effect.

The Crown brought a motion to admit RBC and Tangerine banking records for the truth of their contents in a criminal proceeding involving charges of Fraud Over $5,000 and Uttering a Forged Document.

The respondent conceded the admissibility of the Tangerine records.

However, the court dismissed the Crown's motion to admit the RBC records, finding that the Crown failed to provide the necessary evidentiary foundation under section 29 of the Canada Evidence Act, the common law business records exception, or as real evidence.

The court rejected the Crown's request to take judicial notice of the required evidentiary facts for the RBC records, emphasizing that such facts were too close to the dispositive issues and that judicial notice would subvert the statutory requirements.

The appellant, E.B., appealed convictions for sexual assault and sexual interference.

The appeal focused on the trial judge's assessment of the appellant's credibility, specifically regarding her reaction to the allegations during a police interview and the interpretation of her testimony.

The Superior Court found that the trial judge erred in concluding that the appellant failed to provide an unequivocal denial and misapprehended her testimony.

These errors were crucial to the verdict, leading to the convictions being set aside and a new trial ordered.

The appellant appealed convictions for driving with excessive blood alcohol, possession of marijuana, and possession of cocaine, arguing Charter breaches related to arbitrary detention, unreasonable search, and the right to counsel.

The court dismissed the appeal, finding the seizure of marijuana lawful as an incident of arrest for stunt driving, the detention not arbitrary, and no breach of the right to be informed of reasons for detention.

While there was a five-minute delay in informing the appellant of his right to counsel, no evidence was obtained as a result.

The court also found that roadside questioning about alcohol consumption, even after the appellant requested counsel, was permissible under the Orbansky doctrine as part of the impaired driving screening process, thus no breach of the right to counsel occurred in that regard.

The defendant was charged with incest and sexual assault involving his half-sister.

The Crown alleged that on July 30, 2017, the defendant engaged in non-consensual sexual intercourse with the complainant while she was sleeping.

The defendant claimed the complainant was the aggressor and that he masturbated to end her advances.

The court found the defendant guilty of both offences based on the complainant's credible testimony, corroborated by DNA evidence showing the defendant's semen on and inside the complainant's body.

The defendant's explanation for the DNA evidence was rejected as implausible.

The defendant was charged with mischief for allegedly damaging a motor vehicle at an apartment building in Niagara Falls on June 20, 2017.

The Crown called witnesses who testified they observed the defendant throwing objects at vehicles in the parking lot.

The defence presented evidence regarding the lighting conditions at the building, establishing that the parking lot would have been in near-complete darkness at the time of the alleged incident due to non-functioning exterior lights.

The court found a reasonable doubt regarding the defendant's guilt based on the reliability of the Crown's eyewitness evidence in light of the poor lighting conditions established by defence witnesses.

The defendant was charged with three counts of sexual assault and three counts of sexual interference arising from alleged misconduct with three separate young female employees at a fast food restaurant.

The defendant brought a Charter application to stay the charges due to excessive delay under s. 11(b) of the Charter of Rights and Freedoms.

The court dismissed the delay application, finding it fundamentally without merit.

On the merits, the court found the defendant not guilty of all charges, determining that while the complainant E presented compelling evidence, the defence evidence created a reasonable doubt about the defendant's guilt that could not be safely displaced.

The court emphasized the importance of maintaining the presumption of innocence and the standard of proof beyond a reasonable doubt in sexual assault cases, despite public concern about such offences.

Two child protection cases were heard on the same date following the proclamation of the Child, Youth and Family Services Act, 2017 into force on April 30, 2018.

The first case involved an 11-year-old autistic child brought into care due to the mother's inability to manage significant behavioural problems.

The second case involved an infant under two months old brought into care due to the mother's mental health concerns.

Both cases were at the case conference stage with adjournments granted to allow the Children's Aid Societies to develop service plans consistent with the new statutory purposes and to report back to the court.

The defendant was tried on two informations: one containing four counts (care and control while impaired by alcohol or drug, care and control with blood alcohol exceeding legal limit, possession of cocaine, and possession of marijuana), and a second alleging stunt driving.

The defendant challenged the admissibility of evidence on Charter grounds, alleging violations of sections 8, 9, 10(a), and 10(b).

The court found a violation of section 10(b) but declined to exclude the evidence under section 24(2).

The defendant was found guilty of over 80, possession of cocaine, possession of marijuana, and stunt driving, but acquitted on the impaired charge.

The appellant appealed two sentences imposed for convictions under s. 2(1)(a) of the Compulsory Automobile Insurance Act.

The first conviction arose from operating an uninsured motor vehicle in 2012, with a fine of $20,000 imposed in absentia in 2013.

The second conviction arose from operating an uninsured motor vehicle in 2013, with a fine of $25,000 and a six-month driving suspension imposed in absentia in 2014.

The court found errors in principle: the sentencing courts failed to consider the appellant's ability to pay and failed to account for the substantial fifteen-year gap between the appellant's prior convictions in the 1990s and the current offences.

The court reduced the fines and applied s. 59(2) of the Provincial Offences Act to provide mitigation based on exceptional circumstances, including the appellant's struggle with alcoholism and limited financial means.