Kathryn Hull

The Crown appealed a stay of proceedings granted to the respondent for driving with excess alcohol.

The trial judge found breaches of the respondent's Charter rights (s. 7, 9, 10(b), 11(d)) and that police errors prevented the respondent from accessing a beneficial sentencing program (Stream A), leading to a stay.

The appellate court found the trial judge erred in finding a s. 10(b) Charter breach, as the detention for a second Approved Screening Device (ASD) test was justified and did not trigger the immediate right to counsel.

The appellate court also found the trial judge's reasons for granting a stay were inadequate, lacking a proper s. 24(2) analysis and a balancing of societal and individual interests.

The appeal was allowed, and a new trial ordered.

Mr. Robertson, an accused under the jurisdiction of the Ontario Review Board (Board) and detained at Waypoint Centre for Mental Health Care, applied for a writ of habeas corpus with certiorari in aid.

He challenged the use of the Acute Risk of Violence Scale (ARVS) by Waypoint staff, alleging Charter violations and seeking various remedies including damages, injunctions, and orders for employee termination or police investigation.

The Superior Court, sitting as a criminal court on a habeas corpus application, determined it lacked jurisdiction to grant most of the civil remedies sought.

It affirmed that the Ontario Review Board is a court of competent jurisdiction for Charter remedies related to conditions of detention, and is the more appropriate forum for such issues, except for costs.

The court found no basis to award costs against the Crown.

Consequently, Mr. Robertson's application was dismissed.

The applicant, an 80-year-old man charged with sexual assault, sought a stay of proceedings due to a heart condition, arguing that continued prosecution violated his Charter rights under ss. 7 and 11(d) and constituted an abuse of process.

The court reviewed medical evidence, which indicated that while the applicant had serious health issues, his condition had stabilized, and he was physically able to attend trial with appropriate accommodations.

The court found that the applicant failed to demonstrate a substantial risk to his health or that the trial process would seriously imperil it.

Applying the tests from R. v. Hillier, R. v. Magomadova, and R. v. Babos, the court concluded that this was not one of the "clearest of cases" warranting a stay, especially considering the public interest in adjudicating serious offences involving child harm.

The application for a stay of proceedings was dismissed.

The Crown appealed a summary conviction acquittal on multiple counts of possession and making available child pornography.

The trial judge had excluded computer evidence after finding that police breached s. 489.1 of the Criminal Code by failing to file a return of seized items as soon as practicable, concluding the breach violated s. 8 of the Charter and warranted exclusion under s. 24(2).

The appeal court held the trial judge committed reversible error by misapprehending the evidence regarding the seriousness and systemic nature of the breach and by misapplying the second stage of the Grant analysis.

The trial judge also erred by excluding the accused’s statement under s. 10(b) without notice to the Crown.

The acquittal was set aside and a new trial ordered.

The appellant appealed his convictions for sexual assault, sexual interference, and uttering a threat against his step-daughter, as well as his 5-month sentence.

He argued the trial judge erred in dismissing an application to reopen the trial to admit fresh evidence regarding taxi records, misapprehended evidence, and erred in principle on sentencing.

The Superior Court of Justice dismissed the appeal, finding the trial judge applied the correct test for fresh evidence, made credibility findings supported by the record, and imposed a fit sentence given the aggravating factors, including the vulnerability of the victim and the breach of trust.

On a Crown bail review, the court considered whether a Justice of the Peace erred in releasing the respondent on a reverse-onus basis on charges including sexual assault, unlawful confinement, and breach of recognizance.

The court held that the proposed surety plan did not amount to true 24/7 house arrest, contained material supervision gaps, and failed to adequately address public and complainant safety.

The court further found inadequate consideration of the respondent's prior breach record, evidence of additional breaches, and the strength of the Crown's case on the current breach allegation.

Tertiary grounds were rejected, but detention was ordered on secondary grounds and the release order was vacated.

On a summary conviction appeal from a conviction for impaired care or control of a vessel, the appellant challenged the trial judge's treatment of conflicting Crown evidence on the identity of the operator.

The appeal judge held that the trial judge mischaracterized one witness's evidence by understating her certainty that the conservation officer arrived only after the vessel was already docked.

The court further held that the reasons did not adequately explain why one Crown witness was preferred over the other on the central credibility issue.

The conviction was set aside and the matter was remitted to the Ontario Court of Justice for a new trial.

The Crown brought an application for mandamus with certiorari in aid to quash a discharge at a preliminary inquiry on an aggravated assault charge.

The reviewing court held that the preliminary inquiry judge committed jurisdictional error by weighing competing inferences, considering evidence in isolation, and failing to assess the whole of the evidence in accordance with the committal standard under Part XVIII of the Criminal Code.

Applying the preliminary inquiry sufficiency test for circumstantial evidence, the court found there was a reasonable inference available to the Crown that the respondent was the assailant.

The application was granted, the discharge was quashed, and the matter was remitted with a direction that the respondent be committed for trial.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol level over the legal limit, arguing that an investigative detention in a private parking lot was unlawful and that the trial judge misapprehended the evidence.

The court held that while random Highway Traffic Act stops do not apply on private property, the officer was entitled under common law investigative detention powers to act on reasonable suspicion.

The officer's observations of unusual vehicle movements after 2:00 a.m. in a bar area, combined with public safety concerns and the possibility of medical distress or impairment, provided an objectively grounded basis for detention.

The appeal was dismissed.

The Crown appealed an acquittal for criminal harassment under s. 264 of the Criminal Code.

The trial judge had excluded evidence regarding the content of prior communications between the accused and the complainant and then concluded that the complainant’s fear was not reasonable.

The Superior Court held that prior conduct evidence is presumptively admissible in criminal harassment cases because it provides the context necessary to assess reasonable fear and the accused’s intent or recklessness.

The court further held that the trial judge erred by excluding the evidence without considering less drastic remedies and that the resulting acquittal was unreasonable given the findings of repeated unwanted contact and continued behaviour after police warnings.

The acquittal was set aside and a new trial ordered.

The applicant sought a stay of a driving prohibition order pending appeal of a conviction for failing to provide a breath sample contrary to the Criminal Code.

The application was brought under s. 261 of the Criminal Code.

The court considered whether the proposed appeal was not frivolous, which requires showing a viable ground of appeal that could justify appellate intervention.

Although the applicant demonstrated significant personal hardship arising from the continued prohibition, the court found the proposed unreasonable verdict argument did not disclose an arguable ground of appeal in light of the trial judge’s detailed credibility findings and application of R. v. W.(D).

The applicant failed to meet the burden of establishing that the appeal was not frivolous.

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the trial judge unreasonably concluded he was in care or control of the vehicle.

The appellant had been seated in the driver’s seat of a running vehicle with the headlights and heater on while intoxicated, claiming he intended to walk to a friend’s house rather than drive.

Applying the principles from R. v. Boudreault, the court held that the trial judge reasonably found a realistic risk of danger because the appellant’s alleged alternate plan was vague and had been undermined by subsequent events.

The trial judge was entitled to conclude the appellant exercised care or control by unlocking, starting, and occupying the vehicle without a concrete plan.

The verdict was supported by the evidence and not unreasonable.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood.

The appeal alleged errors of law including misapplication of the evidentiary burden under s. 258(1)(c) of the Criminal Code following the Supreme Court’s decision in R. v. St-Onge Lamoureux, improper reliance on earlier breath samples, and failure to assess the reliability of the breath technician’s evidence.

The court acknowledged that the trial judge overstated the evidentiary burden imposed on the accused but held that no substantial wrong or miscarriage of justice occurred.

The evidence supported the reliability of the final two breath samples obtained after the intoxilyzer testing sequence reset and ambient contamination was cleared.

The conviction was therefore upheld.

The appellant appealed convictions for two counts of assault and one count of mischief under $5,000 following a judge-alone trial.

He argued the verdict was unreasonable because the trial judge failed to resolve material inconsistencies among Crown witnesses and improperly assessed credibility.

He further contended that the trial judge failed to apply an adequate Vetrovec warning regarding the complainant, who had a history of substance abuse and criminal conduct.

The court held that credibility findings are owed deference and that the trial judge reasonably assessed the evidence and addressed inconsistencies.

The court also found that the Vetrovec caution is discretionary and that the trial judge sufficiently considered reliability concerns and corroborating evidence.

The accused applied in the nature of certiorari to quash a committal for trial on a charge of administering a noxious substance under the Criminal Code.

The evidence at the preliminary hearing showed that the complainant had independently formed an intention to commit suicide and asked the accused to bring drugs and prepare a syringe for that purpose.

The court considered whether preparing a syringe and facilitating drug ingestion could constitute "administering" within the meaning of the offence.

Relying on appellate authorities interpreting the term, the court held that administering requires causing the substance to enter the complainant’s system.

Merely providing drugs or preparing them for voluntary ingestion by the complainant did not amount to administering.

The committal on that count was therefore quashed.

The appellant appealed convictions and sentence imposed by the Ontario Court of Justice for three counts of sexual assault.

The appellant argued that the trial judge failed to properly apply the burden of proof and presumption of innocence, misapprehended the evidence, and applied a different standard of scrutiny to Crown and defence witnesses.

The court held that the trial judge properly applied the principles in R. v. (W.D.) and was entitled to accept the complainant’s evidence and reject the accused’s evidence.

No material misapprehension of evidence or error in credibility assessment was established.

The court also found no error in the nine‑month concurrent sentences imposed within the joint submission range.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol level exceeding the legal limit, arguing that a strip search conducted at a police detachment violated s. 8 of the Canadian Charter of Rights and Freedoms.

The appellant contended that the search was conducted pursuant to a routine policy and lacked adequate privacy, contrary to the principles governing strip searches established in R. v. Golden.

The court held that the trial judge properly applied the Golden framework and reasonably concluded that the search was not conducted as a routine policy without regard to individual circumstances.

The trial judge’s factual findings were entitled to deference and disclosed no palpable and overriding error.

Accordingly, the appeal was dismissed.

The accused applied under s. 591(3)(a) of the Criminal Code to sever one count of sexual assault from four other counts involving different complainants.

The court considered the governing factors for severance, including the factual and legal nexus between the counts, potential prejudice to the accused, the possibility of similar fact evidence, and the desirability of avoiding multiple trials.

The allegations involved two related complainants within the accused’s family and shared similarities in circumstances, authority dynamics, and opportunity.

The court found a sufficient nexus between the counts and concluded that a single trial was necessary for completeness of narrative and context.

The accused failed to establish that the interests of justice required severance.

The offender, a bookkeeper, pleaded guilty to theft over $5,000 for stealing approximately $395,000 from her employers over several years.

The Crown sought 4 to 6 months of incarceration, while the defence argued for a conditional sentence.

The court emphasized general deterrence for large-scale employee thefts involving a breach of trust.

Applying the factors from R. v. Bogart, the court rejected a conditional sentence and imposed 5 months of incarceration followed by two years of probation, along with restitution orders.

The appellant appealed a conviction for failing or refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appellant argued the trial judge failed to consider relevant jurisprudence regarding the “last chance” doctrine where an accused initially refuses but subsequently offers to comply with an approved screening device demand shortly thereafter.

The court held that the refusal was clear, repeated, and unequivocal, and that the subsequent offer to comply minutes later did not negate the completed offence.

The trial judge properly applied the jurisprudence, including the principle that compliance must be immediate and not at a time chosen by the driver.

The appeal was dismissed.