John North

The Ontario Court of Justice dismissed the appeals against conviction of Mehendran Kandiah and Rhenu Jewellery Inc. for violating COVID-19 public health orders but allowed the sentence appeals, reducing the fines imposed.

The court found no loss of jurisdiction despite procedural irregularities and emphasized the importance of specific and general deterrence in regulatory offences, especially during a public health crisis.

The decision highlights the court's approach to jurisdictional challenges, the admissibility and impact of fresh financial evidence on sentencing, and the balancing of deterrence with proportionality and restraint in fines for corporate and individual offenders.

Brian O’Donnell pleaded guilty to aggravated assault and discharging a prohibited firearm with intent after shooting the victim, Lacramioara Flanagan, with a sawed-off shotgun from behind at close range.

The offences were premeditated and caused significant physical, emotional, and financial harm to the victim.

The Court considered the offender’s psychiatric and cognitive disorders, his criminal history, and the impact of harsh pre-sentence custody and bail conditions.

The sentence imposed was 2859 days imprisonment before credit, with concurrent sentences and ancillary orders including DNA sampling and a no-contact order.

The applicant, who pleaded guilty in Washington State in 2014 to communication with a minor, sought an exemption from Sex Offender Information Registration Act (SOIRA) obligations in Canada.

The Attorney General of Ontario had deemed his foreign offence equivalent to child luring.

The court, without deciding on the equivalence of the foreign offence, focused on whether the applicant met the criteria for exemption under the amended s. 490.02905(2)(c) or (d) of the Criminal Code.

Based on expert psychological assessment indicating a very low likelihood of re-offending, no prior criminal record, and significant personal hardship caused by SOIRA obligations (travel and employment restrictions), the court found that there was no connection between the obligation and SOIRA's purpose, and the impact on the applicant was grossly disproportionate to the public interest.

The application for an exemption order was allowed.

The applicant, Taylor Javer, facing charges of accessing and possession of child pornography, brought an application under s. 8 of the Charter to exclude evidence obtained from electronic devices seized under a search warrant.

The applicant argued that the search was conducted unreasonably due to a lack of detailed police notes, a sweeping search of all images/videos, and the failure to apply a date filter.

The court dismissed the application, finding that while detailed notes are encouraged, their absence did not render the search unreasonable given the officer's credible testimony and the comprehensive LACE report.

The court also found the broad search of images/videos and the lack of a date filter reasonable, citing the nature of child pornography investigations and the unreliability of timestamps.

The offender, James Treloar, was found guilty after trial of accessing child pornography.

The Crown sought the maximum summary conviction sentence (two years less a day imprisonment) and various ancillary orders.

The defence sought a conditional discharge, conditional sentence, or intermittent sentence.

The court reviewed sentencing principles, aggravating and mitigating factors, and relevant case law on child pornography offences.

The judge rejected a conditional discharge, conditional sentence, and intermittent sentence, emphasizing denunciation and deterrence as primary sentencing objectives for such offences.

The court imposed a sentence of six months' imprisonment, to be followed by three years of probation, a DNA order, forfeiture of electronic devices, and a 10-year order under the Sexual Offender Information Registration Act (SOIRA).

A 5-year order under s. 161 of the Criminal Code with internet restrictions was also imposed, but conditions related to contact with persons under 16 or positions of trust were not imposed, given the offender's low risk of re-offending and the absence of evidence of child contact.

The applicant sought a stay of proceedings based on alleged prosecutorial and police misconduct, arguing that the conduct breached his right to a fair trial under sections 7 and 24(1) of the Charter, or violated his right to make full answer and defence.

The court reviewed the legal principles for a stay of proceedings, including the two categories of abuse of process (trial fairness and residual category) and the three-part test from R. v. Babos.

The court found that while mistakes were made by the Crown and police regarding disclosure and a Zoom meeting incident, there was no deliberate misconduct.

The court concluded that the applicant's right to a fair trial was not infringed, nor was the integrity of the justice system undermined.

The application for a stay was dismissed.

The applicant, charged with accessing child pornography, brought an application under sections 8 and 24(2) of the Charter to exclude evidence seized during the execution of a search warrant at his residence.

The defence argued that the information to obtain (ITO) did not provide reasonable grounds for the warrant, specifically raising concerns about the staleness of the information.

The Crown contended that the ITO disclosed sufficient information.

The court dismissed the application, concluding that the ITO contained reasonable grounds upon which the issuing justice could have issued the search warrant, emphasizing that the nature of child pornography as non-consumable digital evidence affects the staleness analysis.

The accused, Neil Mains, was charged with five Criminal Code offences related to child pornography found on a computer in his apartment.

The trial involved a Charter application and voluntariness voir dire for a post-arrest statement.

The court dismissed the Charter application and found the statement voluntary.

The central issues were the accused's knowledge and control of the child pornography and whether he was wilfully blind to making it available via a peer-to-peer network.

The court found the accused guilty of two counts of possession and two counts of accessing child pornography, but not guilty of making child pornography available, finding reasonable doubt regarding his knowledge or willful blindness of the sharing aspect.

The applicant sought the return of a 2018 Jeep Grand Cherokee seized by the Toronto Police Service, arguing that its continued detention was not required for investigation, trial, or forfeiture proceedings under s. 490(11) of the Criminal Code.

The Crown alleged the vehicle was used in an assault and exploitation, and intended to seek forfeiture if the accused (D.G.) was convicted.

The court found it had jurisdiction to hear the application, confirmed the applicant was the lawful owner and innocent of any complicity, and determined that the vehicle was not required for ongoing investigation or trial.

The court further concluded that any future forfeiture application by the Crown would inevitably be unsuccessful given the applicant's innocent third-party status under s. 490.4(3) of the Criminal Code.

The application for the return of the Jeep was allowed.

The Applicant, charged with sexual assault and other offences, sought a determination on whether electronic communications (text messages and photographs) in his possession constituted "records" under s. 278.1 of the Criminal Code, thereby requiring a s. 278.92 application for their admissibility at trial.

The court found that, with the exception of specific content deemed "sexual activity" under s. 276(4), the electronic communications did not meet the definition of "record" as the Complainant did not have a reasonable expectation of privacy in them, considering the content and the nature of the relationships involved.

The applicant, charged with child pornography offences, sought to exclude evidence seized from his residence, alleging violations of his Charter rights under sections 8 (unreasonable search) and 10(b) (right to counsel).

The court found no s. 8 violation regarding the police's use of automated systems (CPS/Shareaza LE) to identify and download files from his P2P shared folders, nor for arresting him without a Feeney warrant while lawfully executing a search warrant.

However, the court found a s. 10(b) violation because the officer-in-charge asked the applicant questions designed to elicit incriminating evidence before he had a reasonable opportunity to consult with counsel.

Despite this breach, applying the Grant factors, the court determined that admitting the evidence would not bring the administration of justice into disrepute, given the seriousness of the alleged offences and the lack of a causal connection between the breach and the discovery of the evidence.

The application to exclude evidence was dismissed.

The applicant sought a stay of proceedings for unreasonable delay under s. 11(b) of the Charter.

The court analyzed the total delay, defence delay, and exceptional circumstances, including the COVID-19 pandemic and the trial going longer than expected.

The court found that the net delay, after accounting for defence delay and exceptional circumstances, fell below the presumptive ceiling.

The applicant failed to demonstrate sustained efforts to expedite proceedings or that the case took markedly longer than it reasonably should have.

The application was dismissed.

The applicant was charged with impaired driving and refusing to provide a breath sample.

He brought an application for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been infringed.

The court applied the Jordan framework and found that while the net delay exceeded the 18-month presumptive ceiling, the Crown successfully rebutted the presumption by establishing exceptional circumstances related to the COVID-19 pandemic.

The court also found that the applicant failed to demonstrate meaningful and sustained efforts to expedite the proceedings and that the case did not take markedly longer than it reasonably should have.

The application was dismissed.

The offender pleaded guilty to possession of approximately six grams of fentanyl for the purpose of trafficking and possession of property obtained by crime over $5,000.

The Crown sought 30 months' imprisonment while the defence sought 18 months.

The court imposed 25 months' imprisonment before credit for pre-sentence custody, with enhanced credit of 15 months for harsh pre-sentence conditions (including COVID-19 lockdowns), resulting in an additional 10 months to be served.

A mandatory weapons prohibition under section 109 of the Criminal Code and a DNA order were imposed.

The court considered the offender's difficult background, addiction, Aboriginal ancestry, and the impact of COVID-19 detention conditions as mitigating factors, balanced against the serious nature of fentanyl trafficking and the offender's extensive criminal record.

The offender pleaded guilty to one count of fraud over $5,000.

As a senior accountant at Payfare Inc., a financial technology company, the offender exploited a loophole in the company's banking portal to fraudulently transfer approximately $1.27 million to accounts in his name over a ten-month period.

The offender used the funds primarily for gambling, leisure, travel, and personal expenses.

Upon discovery, approximately $143,000 was recovered.

The offender subsequently entered into a civil settlement agreement with Payfare requiring payment of $85,000 over five years.

The court imposed a sentence of three years' imprisonment, a four-year prohibition order under section 380.2 of the Criminal Code, and a restitution order of $100,000 to the insurance company.

The accused was charged with six counts of refusing to comply with a boundary condition of a probation order contrary to s. 733.1(1) of the Criminal Code, and one count of failing to attend court on September 26, 2016, contrary to s. 145(2)(a) of the Criminal Code.

The Crown proceeded summarily on all counts.

The matter proceeded as a blended Charter application and trial.

The accused raised Charter arguments under ss. 7, 8, 9, and 11(d), arguing violations of his rights.

The court found one s. 9 violation but dismissed the Charter application, finding no basis for exclusion of evidence or stay of proceedings.

On the trial proper, the court found the accused guilty on all seven counts after determining that the Crown had proven all essential elements beyond a reasonable doubt, including the requisite mens rea for each offence.

The applicant sought disclosure of a drug recognition expert's (DRE) rolling log, which documents all drug recognition evaluations conducted by the DRE.

The Crown opposed disclosure, arguing that rolling logs are clearly irrelevant and that disclosure is prohibited by section 320.36 of the Criminal Code.

The court dismissed the application, finding that the rolling log was clearly irrelevant because the DRE's opinion was corroborated by toxicological analysis.

The court also held that section 320.36 does not prohibit disclosure of rolling logs, but found disclosure unnecessary in this case due to the corroboration.

The accused challenged the validity of search warrants issued for his apartment and vehicle on Charter grounds, arguing that the Information to Obtain (ITO) lacked sufficient grounds to justify the warrants.

The Crown conceded that the redacted ITO was insufficient and sought to rely on unredacted portions protected by informer privilege.

The court applied the Debot criteria to assess whether information from a confidential informant, combined with police investigation and the accused's criminal record, established reasonable and probable grounds to believe the accused unlawfully possessed a firearm.

The court found the information sufficiently compelling, credible, and corroborated to justify the warrant issuance.

The accused's section 8 Charter rights were not infringed.

The accused brought a Charter application to exclude evidence seized during the execution of search warrants on three apartments and a motor vehicle.

The accused challenged the admissibility of evidence under sections 8, 9, 10(b), and 24(2) of the Canadian Charter of Rights and Freedoms.

The court found that the accused's section 9 rights were not violated as police had reasonable and probable grounds to arrest.

However, the court found violations of section 8 rights because the Information to Obtain, as amplified on review, failed to disclose reasonable and probable grounds to believe evidence would be found at the target apartment.

The court also found a violation of section 10(b) rights due to an unjustified delay in providing access to counsel.

The court excluded the evidence under section 24(2), finding that admission would bring the administration of justice into disrepute.

The accused was charged with impaired driving and operating a motor vehicle with blood alcohol over the legal limit.

The matter proceeded by way of a blended Charter application and trial.

The defence challenged the lawfulness of the arrest and breath demand under sections 8 and 9 of the Charter, and also alleged a violation of the right to counsel of choice under section 10(b).

The court found that while the officer had reasonable and probable grounds to arrest and make the breath demand, the accused's section 10(b) rights were violated when police failed to adequately facilitate contact with counsel of choice and instead funneled the accused toward duty counsel.

The breath samples were excluded under section 24(2) of the Charter as their admission would bring the administration of justice into disrepute.

The accused was acquitted on both counts.