Joseph M. Fragomeni

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under s. 253(1)(b) of the Criminal Code.

He argued that the police officer lacked reasonable suspicion to make an approved screening device demand and that the trial judge erred in rejecting his evidence regarding alcohol consumption.

The Summary Conviction Appeal Court held that the constellation of factors—including departure from a bar near closing time, admission of recent drinking, and bloodshot eyes—objectively supported reasonable suspicion.

The court also found no reversible error in the trial judge’s credibility findings or rejection of the defence theory that mislabelled beer bottles explained the elevated readings.

The appeal was dismissed.

The Crown appealed a summary conviction decision quashing an information charging the accused with operating a motor vehicle with excess blood alcohol.

The trial judge had held that the information was a nullity due to deficiencies in the confirmation process under s. 508 of the Criminal Code.

Relying on the Court of Appeal’s decision in R. v. Ladouceur, the appeal court held that non-compliance with the confirmation process does not invalidate a properly laid information but only affects jurisdiction over the person.

Because the accused attended court on multiple occasions, any loss of jurisdiction over the person was cured.

The appeal was allowed and the matter remitted to the Ontario Court of Justice to set a trial date.

A grandmother appealed an interim family court order granting custody of three children to their mother and establishing an access regime.

The appellant argued that the trial judge failed to properly consider the children’s best interests, their views and preferences, and the recommendations of the Office of the Children’s Lawyer, and erred by allowing viva voce evidence from the OCL investigator.

The court applied the deferential appellate standard for custody and access decisions and found no material error, misapprehension of evidence, or error in law.

The trial judge had carefully considered the statutory best‑interests factors under the Children’s Law Reform Act and the children’s views while assessing the parties’ parenting abilities and family dynamics.

The appeal was dismissed and the custody order granting the mother primary care of the children was upheld.

The appellant mother appealed an interim family court order dismissing her motion for contempt against the father and reinstating the father’s access to the children.

She alleged factual errors, unfairness, and insufficient reasons by the motions judge, and challenged the imposition of a police enforcement clause.

The appellate court reviewed the record and found no material error of fact or law and no basis to interfere with the motion judge’s determination that contempt had not been proven beyond a reasonable doubt.

The court emphasized the limited scope of appellate review in custody and access matters.

The appeal was dismissed.

The appellant appealed summary conviction findings of guilt for refusing to provide a breath sample and breach of probation.

The sole ground pursued on appeal was that the trial judge improperly amended the Information before any evidence was heard.

The appeal court accepted that such an amendment would normally require consent or supporting evidence but found that defence counsel effectively consented to the amendment during the trial discussion.

Alternatively, the court held that even if the amendment was premature, no prejudice or miscarriage of justice resulted because the amendment merely corrected the wording to reflect the proper roadside demand offence.

The curative proviso under the Criminal Code therefore applied and the convictions were upheld.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding 80 mg and the resulting sentence.

The appellant argued that the roadside screening demand lacked reasonable suspicion under ss. 8 and 9 of the Charter and that the breath test evidence failed to comply with s. 258(1)(c)(iv) of the Criminal Code because two different technicians were involved in the testing process.

The court held that the trial judge properly considered the constellation of observable indicators supporting reasonable suspicion and applied the correct legal standard.

The court also found no error in the interpretation of the Criminal Code requirement that breath samples be analyzed by an approved instrument operated by a qualified technician, concluding that the involvement of two officers in preparatory and analytical steps did not violate the provision.

The sentence, including an $1,200 fine and 18‑month driving prohibition based on high breath readings, was within the trial judge’s discretion.

The plaintiffs brought an action for damages arising from a workplace accident where the plaintiff truck driver suffered a severe leg fracture while using an electrical pallet jack at the defendant's premises.

The action proceeded as an undefended trial against the defendant Grocery Dayton, who failed to file a Statement of Defence.

Liability was deemed admitted under Rule 25.07(2) of the Rules of Civil Procedure.

The court assessed damages based on the plaintiff's evidence and filed reports, awarding $125,000 in general damages, $799,100 for future economic loss, $26,100 for future care costs, and $30,000 for the spouse's Family Law Act claim, totaling $980,200.

The applicant brought a motion seeking several forms of post‑judgment relief including equal division of the respondent’s pension, amendments to an access schedule, access arranged according to the father’s availability, and orders relating to life insurance securing support obligations.

The court held that many of the requested financial remedies had not been raised at trial and the trial judgment was final, rendering the court functus officio with no jurisdiction to alter the property division or support security terms.

The court also declined to amend the detailed access provisions previously ordered, finding the existing order already governed communication and scheduling issues and that the parties’ conflicting affidavit evidence was insufficient to justify modification.

The respondent was directed only to provide documentary confirmation that the applicant had been designated trustee of his life insurance policy as required by the prior judgment.

The appellant appealed convictions for assault causing bodily harm and assault with a weapon arising from a bar altercation.

The trial judge had relied on generalizations about “bar fight” cases and drew adverse credibility inferences from the accused’s failure to provide certain details during a police statement.

The summary conviction appeal court held that the trial judge improperly relied on the accused’s partial silence when assessing credibility, contrary to principles affirmed in appellate jurisprudence on the right to silence.

The court also found the trial judge’s analytical framework, which treated bar fight cases as having predictable credibility dynamics and sought a “franchise witness,” was inconsistent with the approach mandated by R. v. W.(D.).

The convictions were set aside and a new trial ordered.

In a family law proceeding, the court addressed costs following a motion where the husband sought leave to bring a further motion for disclosure concerning the wife’s income from a family trust pursuant to an earlier court order.

The husband argued he was successful and presumptively entitled to costs under Rule 24(1) of the Family Law Rules.

The wife and the family trust contended that the leave granted was significantly narrower than the broad disclosure sought in the husband’s motion materials and argued they should receive costs.

The court determined that the issue of costs should be reserved to the judge hearing the forthcoming disclosure motion, who would be best positioned to assess the scope and outcome of the disclosure request.

The defendants brought motions seeking to strike or dismiss the plaintiff’s summary judgment motion and for security for costs in a commercial dispute arising from an alleged breach of an agreement of purchase and sale for resort property.

The plaintiff alleged breach of contract, fraudulent misrepresentation, slander of title, and conspiracy relating to a failed $16 million transaction.

The court held that the action involved complex factual issues and significant credibility disputes, making it unsuitable for determination by summary judgment at an early stage.

The court further found that the corporate plaintiff failed to establish impecuniosity with sufficient evidentiary detail and that there was no proven causal link between the defendants’ conduct and the plaintiff’s financial distress.

Security for costs was therefore ordered while the summary judgment motion was stayed pending further steps in the litigation.

The offender was convicted by a jury of manslaughter after being charged with second degree murder arising from a fatal shooting during a struggle in a hotel room.

The sentencing judge considered competing theories regarding who brought the firearm and whether the killing occurred during a robbery, self‑defence, or provocation.

The court found it was not proven beyond a reasonable doubt that the offender brought the gun to commit a robbery, concluding instead that the deceased likely brought the firearm and that the offender gained control of it during an ambush and struggle.

While the killing was unlawful, the offender lacked the state of mind for murder.

Balancing denunciation, deterrence, rehabilitation, the offender’s youth and background, and aggravating factors including a prior record and probation status, the court imposed an eight‑year penitentiary sentence with credit for pre‑trial custody.

The Crown appealed an acquittal on a charge of failing or refusing to comply with a demand for breath samples under s. 254(5) of the Criminal Code.

The trial judge had accepted the defence of officially induced error based in part on the police advising that the accused “may” be charged if she refused to provide a breath sample.

On appeal, the court held that the use of the word “may” was not erroneous because police retain discretion whether to lay charges.

The court further found that the accused’s own testimony demonstrated she did not rely on any police advice in deciding to refuse the demand.

The appeal was allowed, the acquittal set aside, and the matter remitted for a new trial before a different judge.

The Crown appealed an acquittal for refusing to provide a breath sample under s. 254(5) of the Criminal Code.

The trial judge had concluded the accused lacked a settled intention to refuse because he acted on perceived legal advice and confusion, and also relied on a “last chance request” analysis.

On appeal, the court held that the offence is one of general intent requiring only knowledge or awareness of the refusal, not wilfulness.

The court further found the last‑chance defence inapplicable because the accused made no immediate request to provide a sample and remained adamant in refusing despite repeated explanations.

The acquittal was set aside and a new trial ordered.

The appellant appealed a summary conviction for assault with a weapon under s. 267 of the Criminal Code.

The appeal challenged the trial judge’s admission of a 911 call under the principled exception to the hearsay rule and argued the trial judge improperly relied on judicial notice regarding the complainant’s injuries.

The appeal court held that the trial judge correctly assessed threshold reliability and necessity when admitting the 911 call and was entitled to consider surrounding circumstances, including corroborating observations by police and the complainant’s availability for cross‑examination.

The court also held that the trial judge did not improperly take judicial notice but instead made permissible credibility findings based on the evidentiary record.

Deference was owed to the trial judge’s credibility assessments and factual findings.

The appellant appealed a conviction for impaired operation under s. 253(1)(b) of the Criminal Code following a summary conviction trial.

He argued that he was not operating the vehicle, that his investigative detention was arbitrary contrary to s. 9 of the Charter, and that the seizure of his breath samples violated s. 8 of the Charter due to improper administration of the approved screening device.

The appeal court held that the trial judge’s credibility findings and factual determinations were entitled to deference and were supported by the evidence.

The officer had reasonable grounds to detain the appellant while investigating a nearby collision and subsequently developed reasonable suspicion of impaired driving.

The roadside breath demand and arrest were found lawful, and the breath sample procedure was properly conducted.

The Crown appealed a sentence imposed following guilty pleas to assault against a spouse and breach of an undertaking.

The trial judge had granted a conditional discharge with probation for the assault and an absolute discharge for the breach.

The appeal court held that the sentencing judge erred in principle by failing to properly appreciate the distinction between a conviction and a discharge and by inadequately addressing the seriousness of the prolonged domestic assault, which occurred in the presence of the couple’s child.

The court emphasized that denunciation and deterrence are controlling principles in domestic violence sentencing and that the circumstances made a discharge contrary to the public interest.

The appeal was allowed and the sentences were varied to suspended sentences with probation.

Following a long motion in a family law proceeding where success was divided, the court considered the costs submissions of the parties.

The applicant wife was more successful overall, having secured interim spousal support and protective orders regarding property, though the respondents succeeded on the sale of the home and dismissing a motion to strike pleadings.

The court declined to award substantial indemnity costs as there was no bad faith or unreasonable conduct.

The applicant was awarded $10,000 in partial indemnity costs.

The applicant brought a motion for summary judgment in a family law proceeding concerning child support and related relief after the respondent failed to file responding materials or appear.

The court considered the requirements for summary judgment under Rule 16 of the Family Law Rules and reviewed affidavit evidence regarding the respondent’s sporadic contact with the children, his employment history, and ongoing failure to provide financial disclosure or consistent support payments.

Evidence demonstrated significant arrears and difficulty enforcing existing support orders through the Family Responsibility Office due to the respondent’s changing employment and lack of disclosure.

The court concluded there was no genuine issue requiring a trial and granted summary judgment with minor modifications to the proposed order, including deletion of one paragraph and an award of fixed costs.

The plaintiff mortgagee brought a motion for summary judgment seeking possession of several mortgaged properties and payment of outstanding principal, interest, and contractual fees after the defendants defaulted on a blanket mortgage securing five properties.

The defendants admitted the mortgage and default but argued summary judgment was inappropriate because third parties might claim interests in the lands.

The court held there was no genuine issue requiring a trial, noting the mortgage was valid, the default was admitted, and the defendants provided no evidence disputing the accounting of the debt.

Alleged potential interests of third parties did not affect the plaintiff’s entitlement to judgment under the mortgage.

Summary judgment was granted with possession and payment ordered.