Jonathan A. Shime

The appellant appealed a disciplinary hearing decision that dismissed charges of neglect of duty against two police officers.

The officers had investigated a fatal motor vehicle collision involving a pedestrian and declined to demand an approved screening device (ASD) sample from the driver, despite the driver's admission to consuming one or two beers earlier in the evening.

The Ontario Civilian Police Commission upheld the hearing officer's finding that the officers did not have a reasonable suspicion that the driver had alcohol in his body at the time of the accident, as there were no physical indicia of alcohol consumption or impairment.

The Commission concluded that the officers reasonably exercised their discretion under section 254(2) of the Criminal Code and dismissed the appeal.

The Crown applied under s. 752.1 of the Criminal Code for an order directing an assessment to determine whether the offender should be designated a dangerous offender or long‑term offender following a guilty plea to assault causing bodily harm.

The offender previously pleaded guilty to manslaughter arising from an earlier violent assault and committed the new offence while on parole and under the influence of drugs and alcohol.

The court considered the low threshold applicable to ordering an assessment and whether there were reasonable grounds to believe the offender might meet the criteria under s. 753 or s. 753.1.

Finding evidence of a pattern of unprovoked violent behaviour associated with substance abuse and a failure to restrain conduct, the court concluded the statutory threshold was met.

An assessment order was therefore granted.

The Crown appealed a sentence imposed following a guilty plea to sexual assault arising from the non‑disclosure and transmission of genital herpes (HSV‑2) during unprotected sexual intercourse.

The sentencing judge had imposed a conditional discharge with one year of probation, emphasizing the offender’s lack of criminal record, guilty plea, remorse, and potential immigration consequences.

The Crown argued the sentence was manifestly unfit and that the sentencing judge improperly minimized the importance of denunciation and general deterrence.

The Superior Court held that the sentencing judge made no error in principle and that the disposition was defensible in the context of a novel “test case” with little appellate guidance.

The Crown’s appeal from sentence was dismissed.

The defendant was charged with impaired operation and excess alcohol on December 6, 2012.

He brought a motion under sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms seeking a stay of proceedings on the grounds that his right to a trial within a reasonable period of time had been infringed.

The total delay from charge to expected trial conclusion was approximately 16 months.

The court analyzed the delay by considering the length of delay, periods waived by the defence, reasons for the delay (inherent time requirements, accused's actions, Crown's actions, and institutional resource limitations), prejudice to the accused, and the balance between the accused's interests and society's interests in a trial on the merits.

The court found that the delay attributable to the Crown was 7.5 months, which fell below the Askov/Morin guidelines of 8-10 months.

Although the defendant suffered significant prejudice in terms of stress, anxiety, and physical health impacts, the court concluded that this prejudice was outweighed by society's strong interest in a trial on the merits for serious charges involving impaired driving and personal injury.

The application was dismissed.

The accused was charged with impaired operation and excess alcohol following a motor vehicle collision.

The accused brought a Charter application seeking exclusion of breath sample evidence, alleging violations of sections 8 and 10(b) of the Charter.

The court found that while the officer had reasonable suspicion to demand an Approved Screening Device test, the officer breached the accused's section 10(b) rights by failing to provide a Prosper warning and obtain an unequivocal waiver when the accused changed his mind about contacting counsel.

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

The accused was charged with careless driving contrary to section 130 of the Ontario Highway Traffic Act, failure to yield to a pedestrian contrary to sections 140(1)(a), and turn not in safety contrary to section 142(1).

The Crown proceeded only on the careless driving and turn not in safety charges.

The accused struck a pedestrian with his truck while making a left turn at a signalized intersection.

The court found that the Crown proved beyond a reasonable doubt that the accused drove carelessly and that the accused failed to establish a due diligence defence.

The court found the accused guilty of careless driving and entered a conditional stay of proceedings on the turn not in safety charge pursuant to the Kienapple principle.

The appellant was convicted of two counts of aggravated sexual assault in separate trials for failing to disclose his HIV-positive status to two sexual partners.

While his appeals were pending, the Supreme Court of Canada released its decision in R. v. Mabior, which clarified that a realistic possibility of HIV transmission is negated if the accused's viral load is low and condom protection is used.

Applying the Mabior standard, the Court of Appeal found the trial convictions unsustainable, as one relied solely on a concession without assessing transmission risk, and the other failed to resolve conflicting evidence on condom use.

Given that the appellant had fully served his sentences and the Crown consented, the Court allowed the appeals, set aside the convictions, and granted a stay of proceedings.

The offender pleaded guilty to sexual assault after failing to disclose that he was likely infected with HSV-2 (genital herpes) before engaging in unprotected sexual intercourse with the complainant.

The complainant subsequently contracted the virus and suffered significant physical and emotional harm.

The court imposed a conditional discharge with one year of probation, including 80 hours of community service and a ten-year SOIRA order, rather than a custodial sentence or conviction.

The decision represents a "test case" on sentencing for sexual transmission of herpes through non-disclosure, with the court emphasizing the novel nature of the offence and the disproportionate immigration consequences that would follow a conviction.

The defendant, charged with sexual assault causing bodily harm for allegedly transmitting genital herpes to the complainant, brought a preliminary application under section 276 of the Criminal Code.

The defendant sought to adduce evidence of the complainant's prior sexual activity to challenge causation and whether her consent was vitiated by fraud.

The court granted the application in part, finding that the evidence was relevant to the live issues at trial and its probative value was not substantially outweighed by the danger of prejudice.

The court permitted cross-examination on specific instances of the complainant's sexual history within a defined timeframe to allow the defendant to make full answer and defence.

The defendant was charged with sexual assault causing bodily harm and criminal negligence causing bodily harm arising from the alleged transmission of genital herpes (HSV-2) to the complainant.

The defendant brought a section 276 application seeking to adduce evidence of the complainant's prior sexual activity to support two defences: (1) that the defendant was not the source of the infection (causation), and (2) that the complainant would have consented to unprotected sexual activity even if informed of the defendant's positive viral status (negating fraud-based vitiation of consent).

The court granted the application in part, permitting limited cross-examination of the complainant regarding her sexual history within a defined timeframe and scope, while excluding evidence that would invoke the "twin myths" that prior sexual activity makes consent more likely or credibility less worthy.

The accused pleaded guilty to possession of child pornography and making child pornography available.

The offences occurred between April 2011 and May 2011.

Police investigation identified the accused's computer sharing 105 suspected child pornography files on a peer-to-peer network.

Upon execution of a search warrant, two laptops belonging to the accused were seized containing a total of 404 child pornography videos and 40 child pornography images—the largest collection of child pornography videos ever seized by the Waterloo Regional Police.

The court imposed a sentence of 12 months custody followed by 3 years probation, with ancillary orders including DNA collection, a section 161 order for 5 years, and lifetime registration under the Sex Offender Information Registration Act.

The respondent applied for a police records check and discovered it included a withdrawn assault charge.

After the police service refused to remove the reference, the respondent successfully brought an application before the Superior Court under Rule 14.05 to have the reference removed.

The Court of Appeal allowed the police service's appeal, holding that the application judge lacked jurisdiction.

The court found that the police service's decision was an administrative decision subject to the Judicial Review Procedure Act, and therefore the challenge had to be brought by way of an application for judicial review to the Divisional Court, not via a Rule 14.05 application.

A real estate lawyer pleaded guilty to two counts of fraud over $5,000.

The first count involved operating a Ponzi scheme over 14 years (1994-2008) defrauding individual clients of approximately $4.9 million.

The second count involved defrauding financial institutions of approximately $4.8 million between November 2007 and March 2008.

The Crown sought 10 years imprisonment; the defence sought a blended sentence of 3 years in penitentiary plus a 2-year conditional sentence.

The court imposed a concurrent 6-year penitentiary sentence, rejecting the conditional sentence component and finding that general deterrence and denunciation were paramount given the breach of trust by a member of the legal profession.

The young person appealed a finding of guilt for extortion.

The trial judge provided only half a page of analysis after a ten-day trial, failing to address significant inconsistencies in the evidence or specify which of the five alleged incidents constituted the extortion.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge's reasons were insufficient and demonstrated a failure to consider the whole of the evidence.

The Crown sought leave to appeal from a Superior Court order allowing the respondent's appeal from his conviction on two counts of sexual assault and directing a new trial.

The Crown conceded the appeal did not raise an issue of broader significance but argued leave should be granted because the merits were very strong.

The Court of Appeal denied leave, finding the merits alone did not warrant granting leave in the circumstances.

The Crown appealed a summary conviction appeal court decision that overturned the accused's conviction for failing to provide a suitable breath sample.

The appeal court judge had found that the trial judge failed to appreciate evidence regarding lack of motive and consciousness of innocence.

The Court of Appeal allowed the appeal and restored the conviction, holding that the appeal court judge misapplied the legal test for appellate review and effectively retried the case.

The Court of Appeal found that the trial judge gave thorough reasons for finding the requisite mens rea and was not required to refer to every piece of evidence, particularly where the evidence in question had marginal relevance to the issue of intent.

The Crown appealed the disposition of a conditional discharge imposed on a young person.

The Court of Appeal noted it did not agree with all of the trial judge's reasons or disposition, but refused leave to appeal the sentence because a year had passed and the young person had complied with all terms of the conditional discharge.