Isabel Blanchard

This Ontario Court of Justice decision addresses the application of sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms in the context of impaired driving charges.

The accused, Jacques Joseph-Nicolas, challenged the admissibility of breath sample evidence on the basis that the demand for the sample was not made immediately upon formation of reasonable suspicion, and that his right to counsel was violated due to language barriers and inadequate access to his preferred francophone lawyer.

The court found that while the breath demand was timely under section 320.27(1)(b) of the Criminal Code, the police failed to take reasonable steps to ensure the accused understood his right to counsel in light of his limited English proficiency and francophone background.

The failure to provide adequate language assistance and to facilitate meaningful access to the accused’s chosen lawyer constituted a breach of section 10(b).

Applying the section 24(2) exclusion analysis, the court excluded the breath sample evidence and acquitted the accused of the alcohol concentration charge, while acquitting on the impaired driving charge due to insufficient evidence.

Mr. Flaro was convicted of 11 firearms-related offences, including possession of a loaded, restricted handgun.

He was found with multiple firearms in a detached garage, which he claimed were for protection against debt collectors.

The court considered sentencing principles, aggravating factors (illegal possession, loaded firearms, drug use, children nearby, school proximity, dissuading police call) and mitigating factors (pro-social upbringing, work history, family support, acceptance of responsibility, insight).

The judge determined the offences fell into the "true crime" spectrum, warranting a sentence in the 3-5 year range.

Due to an unusual situation regarding presentence custody and a conditional sentence order breach, which unintentionally disadvantaged the offender, the judge applied principles of totality and restraint to temper the sentence.

The accused was found guilty of sexual assault and breach of probation.

The court considered sentencing principles, aggravating factors (intimate partner relationship, abuse of trust, significant victim impact), and mitigating factors (no prior sexual offence record).

Despite the defence seeking a conditional sentence, the court found it would not meet denunciation and deterrence objectives given the seriousness of the offence and the accused's history of non-compliance with court orders.

A custodial sentence was imposed.

The accused was charged with assault, sexual assault, and breach of probation.

The court acquitted the accused of assault, finding her actions were reflexive and lacked the necessary mens rea.

However, the court found the accused guilty of sexual assault and breach of probation, concluding that the Crown proved the actus reus and mens rea for sexual assault beyond a reasonable doubt, rejecting the defense of honest but mistaken belief in consent due to the use of force and lack of reasonable steps to ascertain consent.

The applicant, a transgender person, brought a motion under s. 638(1)(b) of the Criminal Code to challenge prospective jurors for cause at her upcoming sexual assault trial.

The applicant argued that there was a widespread bias against transgender people in the community that could taint juror impartiality.

The court found that the applicant met the onus to establish a realistic possibility that bias or prejudicial attitudes exist in the community with respect to transgender people, and that these attitudes could affect juror impartiality.

The motion was granted, allowing for a specific challenge for cause question to be posed to prospective jurors.

The applicant sought a bail review following his detention on charges including drug trafficking, weapons offences, and assault causing bodily harm.

The reviewing judge found the Justice of the Peace failed to provide sufficient reasons on the tertiary grounds, allowing for a review de novo.

However, the court dismissed the application, finding the applicant failed to meet his onus on both the secondary and tertiary grounds due to his extensive criminal record, history of breaching court orders, and the gravity of the current allegations.

During a trial for first-degree murder, the Crown sought to admit various ante mortem statements made by the deceased victim to friends and family, as well as text messages, under the principled and state of mind exceptions to the hearsay rule.

The statements included allegations of prior discreditable conduct by the accused.

The court admitted several statements and texts that demonstrated the victim's state of mind, fear, and the accused's animus, finding they met the threshold reliability test and were highly probative of motive and planning.

Some statements were excluded as being repetitive, lacking specificity, or more prejudicial than probative.

The accused was charged with the first-degree murder of his former domestic partner.

He admitted to intentionally killing her and sought a conviction for second-degree murder, arguing the killing was impulsive.

The Crown argued the murder was planned and deliberate, and committed during a forcible confinement.

The Superior Court of Justice found that the accused forcibly confined the victim by throwing her into the trunk of his car before strangling and shooting her.

The court also found that the accused's actions, including bringing a sawed-off shotgun, removing his license plate, and driving to a remote location, proved beyond a reasonable doubt that the murder was planned and deliberate.

The accused was found guilty of first-degree murder.

The accused, a 23-year-old first-time offender, was sentenced for impaired driving causing death and bodily harm, and criminal negligence causing death and bodily harm, following an ATV crash.

The accused drove an ATV while impaired, with two passengers, resulting in the death of one passenger and serious injuries to the other.

The court weighed the devastating impact on the victims, the accused's high moral blameworthiness, and the principles of deterrence and denunciation against mitigating factors including her youth, lack of prior record, and remorse.

The court imposed a global sentence of 66 months imprisonment, less 14 months credit for pre-sentence custody, and a 7-year driving prohibition.

The Crown brought an application under s. 524 of the Criminal Code to cancel the accused's release order and order his detention pending trial.

The accused had previously been released on strict conditions, including electronic monitoring, but assaulted his stepfather (a surety) and removed his monitoring device.

The defence conceded the release order should be cancelled but argued against detention.

The court found the accused failed to meet his onus under the secondary grounds of s. 515(10) of the Criminal Code, citing his history of breaches, violence, instability, and the inadequacy of the proposed residential treatment plan to mitigate risk to the public.

The accused's prior release order was cancelled, and he was ordered detained in custody.

The accused was charged with impaired driving causing death and bodily harm, driving over 80 causing death and bodily harm, and criminal negligence causing death and bodily harm following an ATV accident.

The accused drove an ATV not meant for passengers with two passengers, one without a helmet, after consuming alcohol.

The ATV crashed in a ditch, seriously injuring one passenger and causing the death of the other.

The court acquitted the accused of the over 80 charges due to evidence of bolus drinking raising a reasonable doubt.

However, the court found the accused was impaired and that her series of negligent decisions constituted a marked and significant departure from the standard of a reasonable person.

The accused was found guilty of impaired driving causing bodily harm and death, and criminal negligence causing bodily harm and death.

The accused, David Gaudet, sought a detention review under section 525 of the Criminal Code after being detained on the secondary ground for five months.

The court considered the impact of the pandemic, the accused's Indigenous identity and Gladue principles, the strength of the Crown's case, and new information regarding the accused's stability and medical condition (asthma).

Despite the original detention being justified, the court found continued detention disproportionate given the indeterminate trial delay, suspension of Indigenous support services, and the accused's demonstrated ability to comply with strict conditions.

The accused was released into house confinement with a surety.

J.M. was convicted after trial on twenty-four counts of domestic abuse targeting his spouse and children between 1963 and 2015.

The court considered sentencing principles, aggravating and mitigating factors, and comparable jurisprudence.

Despite the Crown seeking 12 years imprisonment, the court imposed a global sentence of 23 months and 27 days, to be served as a conditional sentence in the community, followed by three years of probation, along with ancillary orders including a DNA order, weapons prohibition, SOIRA order, and no-contact orders.

The court emphasized denunciation and deterrence while acknowledging the offender's age, first-time offender status, and low risk of re-offending.

The accused was tried on a twelve-count indictment alleging various acts of domestic violence against his former partner, including assault, assault with a weapon, mischief, and uttering threats.

The trial primarily hinged on credibility, with the complainant detailing multiple incidents of physical abuse and the accused denying all allegations.

Applying the W.D. framework, the court found the accused's testimony lacked credibility and reliability, while the complainant's evidence was supported by extrinsic evidence such as photographs of her injuries and prior consistent statements.

The accused was found guilty on eight counts, acquitted on three counts due to reasonable doubt, and one count was stayed under the Kienapple principle.

The accused, charged with sexually assaulting his former partner, brought an application under section 276 of the Criminal Code to adduce evidence of a subsequent consensual sexual encounter with the complainant.

The accused argued the evidence was relevant to the complainant's credibility and her assertion that she feared him after the alleged assault.

The court granted the application, finding the evidence related to a specific instance of sexual activity, was relevant to the core issues of consent and credibility, and had significant probative value that was not substantially outweighed by the danger of prejudice.

The accused was charged with sexual assault, assault, and theft following a visit by the complainant to his home.

The complainant alleged severe physical and sexual violence, including the accused placing his fist in her vagina and shaving her pubic hair while she slept.

The accused testified and denied the allegations, claiming the complainant attacked him.

The court applied the W.D. framework to assess credibility and found significant inconsistencies and reliability issues in the complainant's evidence, exacerbated by heavy drug and alcohol consumption.

Finding the accused's evidence raised a reasonable doubt, the court acquitted him on all counts.

The accused, J-C.M., was found guilty of indecent assault and gross indecency committed in 1971 against his younger brother, then aged 14-15.

The Crown sought a penitentiary sentence of 3-5 years, while the defence requested a conditional sentence of two years less a day.

The court considered aggravating factors including the victim's age, the breach of trust by the older brother, and the significant, inter-generational impact on the victim and his family.

Mitigating factors included the accused's lack of prior convictions, pro-social life since the offences, low risk of re-offending, and community support.

The court found that a conditional sentence would not adequately address the principles of denunciation and deterrence given the seriousness and repeated nature of the offences.

A sentence of two years less a day in custody was imposed, along with a 10-year s. 109 order, a lifetime SOIRA order, and a DNA sample order.

L'accusé, Jacques Lalonde, a plaidé coupable d'avoir communiqué dans le but d'obtenir et obtenu moyennant rétribution les services sexuels d'une personne de moins de dix-huit ans, en violation du paragraphe 212(4) du Code criminel.

La Cour a d'abord examiné une contestation en vertu de la Charte, déclarant la peine minimale obligatoire de six mois prévue par l'article 212(4) inconstitutionnelle et inopérante, car elle pourrait entraîner des peines cruelles et inusitées dans des scénarios hypothétiques raisonnablement prévisibles.

Pour la détermination de la peine, la Cour a pris en compte des facteurs aggravants, notamment des incidents multiples, l'exploitation d'une victime vulnérable et le ciblage d'une jeune fille de 16 ans, ainsi que des facteurs atténuants tels que l'absence d'antécédents judiciaires et l'expression de remords.

La Cour a imposé une peine de 12 mois d'emprisonnement, suivie d'une période de probation de 12 mois avec des conditions spécifiques, une ordonnance de 10 ans en vertu de l'article 161, un prélèvement d'échantillon d'ADN et une inscription de 10 ans au registre des délinquants sexuels.

The accused was charged with sexual assault causing bodily harm and criminal negligence causing bodily harm arising from the transmission of genital herpes to his intimate partner.

The Crown alleged that the accused failed to disclose his herpes status before engaging in unprotected sexual intercourse, thereby vitiating the complainant's consent through fraud.

The defence argued that the Crown failed to prove beyond a reasonable doubt that the accused transmitted the virus, and alternatively, that consent was not vitiated because the accused did not intend to cause bodily harm.

The court acquitted the accused on both counts, finding that the Crown failed to establish beyond a reasonable doubt that the accused was the source of the infection, and that even if transmission were proven, the accused's non-disclosure did not constitute the requisite "serious deception" necessary to vitiate consent under the fraud doctrine as articulated in R. v. Mabior and R. v. Hutchinson.

The applicant was charged with impaired driving causing bodily harm following a single-vehicle accident.

The investigating officer obtained a production order for the applicant's hospital medical records, including blood alcohol analysis, based on a sworn information.

The applicant brought a Charter motion arguing the search violated his s. 8 rights because the officer lacked reasonable and probable grounds.

The court found the information contained significant omissions and relied on the officer's unsupported assumptions rather than objective facts.

The court concluded the search violated s. 8 and excluded the evidence under s. 24(2) of the Charter, emphasizing the high expectation of privacy in medical records.

Following the ruling, the Crown stayed the proceedings.