Kenneth S. Marley

The Crown sought an order permitting two witnesses ordinarily resident in the United Kingdom to testify at trial via videoconference pursuant to section 714.2 of the Criminal Code.

The witnesses had testified at the preliminary inquiry by videoconference and were key to the Crown's case, having heard sounds and voices from the room where the alleged murder occurred.

The defence opposed the request, arguing that videoconference testimony would compromise the accused's right to a fair trial and full answer and defence, particularly given the seriousness of the charges and the importance of assessing witness credibility.

The court granted the Crown's request, finding that the witnesses satisfied the requirements of section 714.2, that the defence had not established that videoconference testimony would be contrary to the principles of fundamental justice, and that the circumstances fell squarely within the legislative intent of section 714.2.

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.

The court considered charges of sexual exploitation and sexual assault against Steven Ronald Moreau, who was accused of engaging in a sexual relationship with VJ, his employee, beginning when she was 16 years old.

The court found Moreau guilty of sexual exploitation under s. 153(1) of the Criminal Code, finding he was in a position of trust and authority as VJ’s employer.

However, the court acquitted him on two counts of sexual assault, finding that the Crown had not proven beyond a reasonable doubt that Moreau abused his position to induce sexual activity or that he engaged in sexual activity without VJ’s consent on the occasion alleged.

The decision provides a detailed analysis of the legal distinctions between sexual exploitation and sexual assault in the context of positions of trust and authority.

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.

The two accused, commercial truck drivers, were charged with importing cocaine and possession for the purpose of trafficking after CBSA officers found 31 kilograms of cocaine in their trailer at the Ambassador Bridge.

The Crown's case relied on circumstantial evidence to prove knowledge and control.

The court rejected the testimony of the accused Sidhu, finding his explanation for his fingerprint on a box containing cocaine to be illogical and implausible.

Sidhu was found guilty on both counts.

However, the court found that the Crown failed to prove beyond a reasonable doubt that the co-accused Singh had knowledge of the cocaine, as there was no physical evidence linking him to the drugs and other reasonable inferences existed.

Singh was acquitted.

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 offender pleaded guilty to second degree murder after stabbing his intimate partner 21 times.

The Crown sought a 16-year period of parole ineligibility, while the defence sought 13 years.

The court considered the brutal nature of the attack, the offender's prior assault on the victim, and his criminal record as aggravating factors.

However, the court also weighed the offender's early guilty plea, remorse, and cooperation with police as mitigating factors.

The court sentenced the offender to life imprisonment with no eligibility for parole for 14 years.

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 accused was charged with operating a conveyance with a blood alcohol concentration over 80mg.

The investigating officer was unable to testify due to serious illness.

The Crown brought a Khan application to admit the officer's notes and reports under the principled exception to the hearsay rule.

While the court found the necessity requirement was met, it held that threshold reliability was not established.

The notes lacked procedural safeguards, contained inconsistencies, and addressed crucial issues like grounds for arrest and Charter rights that required cross-examination.

The application was dismissed.

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.

Mark John Ryn was found guilty by a jury of conspiracy to import fentanyl and possession of fentanyl for the purpose of trafficking.

The court considered aggravating factors, including the dangerous nature of fentanyl, the duration of the trafficking enterprise, and the offender's profit motive and manipulation of a vulnerable co-accused.

Mitigating factors included his youth at the time of the offence and lack of a prior criminal record.

The court rejected the defence's request for a conditional sentence, emphasizing the need for general deterrence and denunciation in fentanyl cases and distinguishing Ryn's circumstances from his co-accused due to her guilty plea, cooperation, and victim status.

Ryn was sentenced to a concurrent term of four years imprisonment for each count.

The youth offender was found guilty of multiple sexual offences against a child family member.

The Crown sought a 12-month custodial sentence, while the offender sought a deferred custody and supervision order.

The court found that the victim suffered serious psychological harm, which constitutes serious bodily harm, thereby precluding a deferred custody order under the Youth Criminal Justice Act.

Emphasizing the profound harm caused by child sexual abuse and the breach of trust, while balancing the offender's youth and rehabilitative prospects, the court imposed a 10-month custody and supervision order followed by 12 months of probation.

The offender, Ghislain Desjardins, pleaded guilty to dangerous driving and assaulting a peace officer with a weapon.

The offences involved intentionally driving a vehicle at a police officer and later assaulting another officer during arrest.

The Crown sought a six-month jail sentence, while the defence requested an 8-9 month conditional sentence, emphasizing the offender's rehabilitative efforts.

The court highlighted the seriousness of violence against law enforcement, emphasizing denunciation and deterrence.

Despite significant aggravating factors, including the planned nature of the attack and a criminal record, mitigating factors such as the guilty plea, remorse, abstinence from alcohol, and personal circumstances (loss of partner) were considered.

The court imposed two consecutive six-month conditional sentences of imprisonment, totaling 12 months, followed by two years of probation, a one-year driving prohibition, a DNA order, and a five-year weapons prohibition.

The Ontario College of Teachers brought disciplinary proceedings against a member following his criminal convictions for sexual assault and sexual exploitation of several students and individuals.

The member admitted to the allegations and pled guilty to professional misconduct, including sexual abuse of students.

The Discipline Committee accepted the agreed statement of facts and found the member guilty of professional misconduct.

Pursuant to the mandatory penalty provisions in the Ontario College of Teachers Act, 1996, the Committee ordered that the member be reprimanded and that his certificate of qualification and registration be immediately revoked.

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 appellant, Kelly W. Morrison, appealed his convictions for criminal harassment and possession of stolen property, and his sentence.

The appeal challenged the trial judge's consideration of the mental element of criminal harassment, the identification of stolen underwear, and the assessment of witness credibility.

The appellant also argued that the sentencing judge erred by failing to explicitly consider alternatives to incarceration.

The court dismissed the appeal, finding no errors in the trial judge's application of the law or assessment of evidence, and that the sentence was fit.