K.L. McLeod

The defendant, Tomas Muliuolis, was charged with impaired operation of a vehicle by drug.

The court addressed Charter issues under sections 10(b) (right to counsel) and 8 (unreasonable search and seizure), and the substantive issue of impairment.

The court found a breach of the right to counsel due to the officer's failure to re-caution the accused upon new charges with changed jeopardy.

A breach of section 8 was also found because the arresting officer lacked reasonable grounds for the DRE demand, largely due to credibility issues with the officer's testimony and inconsistent notes.

Consequently, the DRE evaluation and urine analysis evidence were excluded under section 24(2) of the Charter.

Without this evidence, the Crown failed to prove impairment beyond a reasonable doubt, leading to an acquittal.

Edward Dienaar, a 63-year-old man, was sentenced for two offences: failure to comply with a Long-Term Supervision Order (LTSO) by not reporting a change in his domestic situation, and possession of child pornography (CP).

The court considered the massive and depraved nature of the CP collection (313,482 images and 5,098 videos), Dienaar's prior convictions for similar offences, and the significant victim impact statements.

Despite mitigating factors such as a guilty plea, health issues, and community support, the court imposed a sentence of six years for possession of CP and one year and three months consecutive for the breach of the LTSO, resulting in a net sentence of 4 years and 15 days after pre-trial credit.

Additionally, a 10-year LTSO was imposed, along with a lifetime Section 161 order, DNA order, and Sex Offender Information Registration Act reporting requirements.

The accused, R.N., pleaded guilty to one count of sexual interference involving his 13-year-old step-granddaughter, A.B. The incidents occurred five times over a three-month period in the victim's home, involving digital penetration and touching of breasts.

The Crown sought a four-year penitentiary sentence, while the defence sought a reformatory sentence of two years less a day.

The court considered the profound impact on the victim, the high breach of trust, and the principles of sentencing, particularly denunciation and deterrence as emphasized by the Supreme Court of Canada in R. v. Friesen.

Despite the offender's intellectual delay, remorse, and low risk of reoffending, the court imposed a sentence of two years less one day imprisonment, followed by three years of probation with specific conditions, a 10-year weapons prohibition, and a 20-year SOIRA order, aligning with the defence's request for the length of incarceration.

The accused pleaded guilty to sexual interference and invitation to sexual touching involving his minor daughter.

The Crown sought a 5-year sentence, while the defence sought 3-4 years.

The court considered aggravating factors such as abuse of trust, the victim's young age, the duration and frequency of the assaults, and the degree of physical interference.

Mitigating factors included the guilty plea and the collateral consequences of serving time during the COVID-19 pandemic.

The court also noted the accused's own history of abuse, which explained his actions but did not serve as a mitigating factor for sentencing.

A sentence of 4 years and 6 months in penitentiary was imposed, along with a 15-year Section 161 prohibition order, a DNA order, and lifetime SOIRA registration.

Peter Simms was sentenced for impaired driving causing death and bodily harm.

He drove at excessive speeds with a high blood alcohol content, rear-ending one vehicle and colliding head-on with another, killing a 19-year-old and injuring three others.

The court considered aggravating factors, including his three prior impaired driving convictions and dangerous driving, and mitigating factors such as his early guilty plea, genuine remorse, and supportive family.

The judge imposed a sentence of 9 years and 6 months incarceration for impaired driving causing death, and 4 years concurrent for impaired driving causing bodily harm, along with a 30-year driving prohibition.

Pezhman Saberi pleaded guilty to child luring under s. 172.1(1)(b) of the Criminal Code.

The Crown sought the mandatory minimum penalty (MMP) of one year incarceration.

Saberi challenged the MMP under s. 172.1(2)(a) as a violation of s. 12 of the Charter, arguing it was grossly disproportionate.

The court found that a fit and proportionate sentence, considering Saberi's circumstances, guilty plea, and severe immigration consequences (deportation if sentence is 6 months or more), was 6 months less one day.

The court declared the MMP of one year unconstitutional as applied to Saberi, finding it to be cruel and unusual punishment that would outrage Canadian standards of decency.

Saberi was sentenced to 6 months less one day incarceration (with credit for pre-trial custody) followed by 18 months probation and various ancillary orders.

Ridwan Dalmar, a 20-year-old first offender, was sentenced on two counts of possession of a loaded prohibited firearm, one count of possession of a prohibited device, and one count of careless discharge of a firearm.

The Crown sought a 5-6 year sentence, while the defence sought two years.

The court considered the gravity of the offences, the offender's background, and prevailing legal principles, including the social context of the offences and the impact of the COVID-19 pandemic on incarceration conditions.

The judge found the offences grave but acknowledged the offender's moral blameworthiness was influenced by his fear for safety in his community and distrust of police.

The court applied pre-trial custody credits (Summers and Duncan credits) and a 6-month reduction for collateral consequences of serving a sentence during the pandemic.

The final sentence imposed was two years less one day in a reformatory, concurrent for all charges, along with a lifetime weapons prohibition and a DNA order.

The accused was charged with driving with over 80 milligrams of alcohol in 100 millilitres of blood, drive disqualified, possession of a prohibited weapon, and breach of a weapons prohibition.

At trial, the Crown sought to rely on the presumption of identity regarding breath test readings to establish the accused's blood alcohol level at the time of driving.

The defence challenged whether the breath tests were taken "as soon as practicable" as required by the Criminal Code.

The trial judge found that the police failed to meet this statutory requirement due to unnecessary delays, including an unaccounted period after the demand, a vehicle search, a leisurely personal search, and note-taking at the scene.

The Crown could not rely on the presumption of identity without evidence of compliance with the "as soon as practicable" requirement.

The charge was dismissed.