Ken Marley

The defendant was charged with sexual assault and forcible confinement following an incident in November 2021 where he sexually assaulted his roommate despite her prior and explicit rejection of his advances.

The defendant pleaded not guilty and applied for a verdict of not criminally responsible by reason of mental disorder (NCRMD) under section 16 of the Criminal Code.

The Crown conceded that the defendant suffered from a qualifying disease of the mind, but contested whether he was incapable of appreciating the nature and quality of his actions or knowing they were wrong.

The court found that while the defendant suffered from a mental disorder, the evidence was insufficient to establish that he lacked the requisite capacity under section 16, and therefore rejected the NCRMD application.

The accused was stopped for speeding in a construction zone on the 401 in Chatham-Kent County.

During the traffic stop, police detected the odour of cannabis and observed what appeared to be a marijuana cigarette in the vehicle.

Police conducted a search of the vehicle and the accused under the Cannabis Control Act, 2017, and subsequently discovered a prohibited firearm, magazines, ammunition, and other items.

The accused was charged with various offences related to possession of prohibited weapons and ammunition.

The court found that the police lacked reasonable grounds to conduct the warrantless search under the Cannabis Control Act, that the detention was arbitrary, and that the accused was handcuffed without objective justification.

The court excluded all evidence obtained as a result of the Charter violations under s. 24(2) of the Canadian Charter of Rights and Freedoms, finding that admission would bring the administration of justice into disrepute.

The court sentenced Ryan Kiteley for theft under $5,000 (as a lesser included offence of robbery), possession of a weapon dangerous to the public peace, and four counts of failure to comply with probation.

The court considered the circumstances of the offences, the offender’s background, and the positions of the parties.

The sentence imposed was a global sentence of 435 days’ imprisonment (with 285 days’ credit for pre-sentence custody), followed by three years’ probation with conditions, and ancillary orders including a DNA order, weapons prohibition, and forfeiture.

The court emphasized the need for specific deterrence and public protection, given the offender’s lengthy record and risk factors.

This sentencing decision by Justice M. Hornblower in the Ontario Court of Justice addresses the appropriate sentence for J.G., convicted of multiple sexual assaults against his half-sister C.W. spanning from when he was 13 to 18 years old.

The offences involved sexual touching and oral sex but excluded penetrative acts.

The court considered the victim impact statements, the offender's diagnosed mental health conditions including autism spectrum disorder and other social deficits, and the high risk of sexual reoffending.

The Crown sought a four-year incarceration, while the defence argued for a conditional sentence based on the offender's unique circumstances.

Applying the Supreme Court of Canada's principles in R. v. Friesen and relevant Ontario Court of Appeal decisions, the court imposed a two-year less one day conditional sentence followed by three years probation, emphasizing rehabilitation potential in the community setting and the offender's vulnerability in custody.

This decision addresses Charter applications by Jonathan Cumming and Lenore Westendorp to exclude evidence obtained during a traffic stop and subsequent search.

The court found that Ms. Westendorp’s section 8 Charter rights were breached by an unreasonable search of her vehicle, as her consent was not fully informed or voluntary.

The evidence was excluded as against her.

Mr. Cumming, as a suspended driver, was found to have no reasonable expectation of privacy in the vehicle and thus lacked standing to challenge the search under section 8.

The court clarified that exclusion of evidence can apply to one accused but not another, depending on whose Charter rights were violated.

Nada Court was found deceased at the bottom of stairs, initially believed to be an accidental death.

Timothy Shawn Nahmabin, her former neighbour, was charged with manslaughter following an investigation.

The Crown argued the accused unlawfully caused her death through physical assault, relying on circumstantial evidence and the accused's statements.

The defence contended there was no evidence of a deliberate act and that the accused's statements were speculative.

The court found that the Crown failed to prove the unlawful act beyond a reasonable doubt, as the evidence did not exclude the reasonable possibility of an accidental fall.

The accused was found not guilty.

The defendant, Evan Beedawia, was sentenced after being found guilty of dangerous driving causing death and dangerous driving causing bodily harm.

The court considered statutory aggravating factors, including the death of one person and serious injury to another, the offender being remunerated, and operating a large commercial vehicle.

Mitigating factors included no prior criminal or driving record, youthfulness, strong family support, and genuine remorse.

The court emphasized denunciation and general deterrence but found that a penitentiary term was not required due to the lower moral blameworthiness of the conduct, which was characterized by acts of omission and negligence rather than intentional acts.

A conditional sentence of two years less a day was imposed, followed by three years of probation, along with a seven-year driving prohibition and other ancillary orders.

The defendant, a commercial truck driver, was found guilty of dangerous operation of a conveyance causing death and bodily harm after failing to stop at a controlled intersection, resulting in the death of a 4-year-old child and serious injury to her mother.

The court found that the defendant's decision to maintain a high speed despite darkness, fog, fatigue, and distraction, and his failure to brake, constituted a marked departure from the standard of care expected of a reasonably prudent commercial driver.

The defendant, Arielle Wall, was charged with impaired driving causing death, dangerous driving causing death, and having a blood alcohol concentration above 80 mg within two hours of operating a conveyance.

The court dismissed the dangerous driving charge due to a lack of evidence regarding the manner of driving.

For the remaining charges, the court relied on expert testimony regarding blood alcohol concentration and its effects on driving faculties.

The defendant's blood alcohol concentration was found to be between 103 and 107 mg/100mL at the time of the blood sample, and calculated to be between 120-127 mg/100mL at the time of the collision.

The court concluded that the defendant's ability to drive was impaired by alcohol, which contributed to the fatal collision.

The defendant was found guilty of impaired driving causing death and having a blood alcohol concentration above 80 mg, and not guilty of dangerous driving causing death.

The Crown applied under s. 714.1 of the Criminal Code for the complainant to testify remotely via video link due to pandemic concerns and travel difficulties.

The defence opposed, citing concerns about trial fairness, the solemnity of the location (complainant's home), and technological reliability, especially given credibility was the central issue.

The court dismissed the application, finding insufficient information regarding the specific location and technology, and emphasizing that while remote testimony is encouraged, it must not compromise trial fairness, particularly when controversial evidence is involved and the application is opposed.

The Crown brought an application seeking to vacate preliminary hearing dates scheduled for three separate matters, arguing that amendments to Bill C-75 restricting preliminary inquiries should apply retrospectively to cases where charges were laid before September 19, 2019.

The defendants opposed the application, contending that the amendments should apply prospectively only.

The court considered the retrospectivity of the amendments to sections 535 and 536 of the Criminal Code and ultimately followed the authoritative decision of Justice Thomas in R. v. R.S., 2019 ONSC 5497, holding that the amendments are procedural in nature and do apply retrospectively.

Consequently, the preliminary hearings were vacated as the offences charged no longer qualified for a preliminary inquiry under the new legislation.

The Crown sought to have Brian Morgan-Baylis declared a dangerous offender following his conviction for aggravated assault, assault with a weapon, uttering threats, and counselling to commit suicide.

The court found Morgan-Baylis to be a dangerous offender under all three subsections of s. 753(1)(a) of the Criminal Code, citing a pattern of repetitive and persistent aggressive behaviour, a failure to restrain his conduct, and the brutal nature of the predicate offences.

Despite the Crown's request for an indeterminate sentence, the court imposed a determinate sentence of 6 years 4 months (after enhanced pre-sentence custody credit) followed by a 10-year Long-Term Supervision Order, concluding that this composite sentence, coupled with robust programming and strict conditions, offered a reasonable expectation of public protection.

The defendants were charged with discharging or causing the discharge of a pesticide (Headline) into the environment contrary to the Pesticides Act.

The Crown alleged that on July 23, 2013, a helicopter operated by the defendants sprayed pesticide near Highway 40 and St. Andrews Line in Chatham-Kent, causing material discomfort to two witnesses.

The trial hinged on identity and whether the pesticide was improperly used.

The court found that while the pesticide was detected and material discomfort was established, the Crown failed to prove identity and improper use beyond a reasonable doubt.

The critical evidence linking the defendants to the incident (Exhibit 13) was found to be unreliable due to authentication and reliability problems.

The defendants were acquitted.

The defendant, J.R.M., was charged with multiple counts of assault, mischief, and sexual assault.

He pleaded guilty to one count of assault and one count of mischief.

The trial proceeded on the remaining charges of sexual assault and assault against his former common-law partner, M.D. The court meticulously reviewed the evidence, focusing on the complainant's credibility and reliability, which was found to be significantly compromised due to admitted lies to police under oath, inconsistencies, and potential ulterior motives related to a plea agreement for other charges.

Applying the principles of reasonable doubt and the analytical framework for credibility, the court found that the Crown failed to prove the essential elements of the remaining offences beyond a reasonable doubt.

Consequently, the defendant was acquitted of all sexual assault and assault charges against M.D.

Two truck drivers were charged with importing cocaine and possession of cocaine for the purpose of trafficking after border officers discovered 45 kilograms of cocaine hidden in boxes of peppers in a commercial shipment.

The Crown relied on circumstantial evidence, including driver logs and an unexplained stop during the trip, to argue that the accused concealed the drugs after loading the cargo in California.

The defence pointed to irregularities in the loading process captured on video, the absence of forensic evidence linking the accused to the boxes, and the possibility that the drugs were inserted before the truck was loaded.

The court held that the Crown failed to prove knowledge and control beyond a reasonable doubt.

Both accused were acquitted.