Laura Petryshen

This decision addresses a Charter application concerning a 95-minute delay in implementing Mr. Mohamed’s s. 10(b) right to counsel following his arrest for impaired driving and related firearms offences.

The court found a breach of the right to counsel due to the delay, primarily caused by the arresting officer’s failure to arrange alternative transport to the station.

However, the evidence of the firearm, ammunition, and breath samples was admitted under s. 24(2) of the Charter after a balancing of factors, given the minor impact on the accused’s rights and the strong public interest in adjudicating the case on its merits.

The court acquitted Mr. Mohamed on the firearms-related charges due to insufficient evidence linking him to the firearm but convicted him on impaired driving and over-80 charges based on reliable breathalyzer evidence.

The Ontario Court of Justice considered whether breath samples obtained following a demand made with a non-operational Approved Screening Device (ASD) should be excluded under section 24(2) of the Charter.

The court found that the initial detention was lawful but became arbitrary when the officer continued detention solely to administer the ASD while lacking mouthpieces, rendering the demand invalid.

Subsequent arrest and breath samples were consequential Charter breaches.

The court held the breach was minor and inadvertent, mitigated by the accused’s opportunity to consult counsel, and that admitting the evidence would not bring the administration of justice into disrepute.

The accused’s application to exclude the evidence was dismissed, and he was found guilty.

The Ontario Court of Justice acquitted Shagaran Senthilgumar of impaired driving contrary to section 320.14(1) of the Criminal Code.

The Crown relied on a high THC blood concentration (72 ng/ml) found after a collision, arguing impairment beyond reasonable doubt.

The court held that no direct evidence established impairment at the time of driving, and that the THC blood drug concentration alone, even at levels far exceeding prescribed legal limits for other offences, could not prove impairment beyond reasonable doubt.

The decision emphasized the necessity of expert evidence and cautioned against judicial notice or speculative inferences based solely on THC levels, especially given alternative reasonable explanations such as a medical crisis (seizures).

The accused brought an application for a stay of proceedings due to unreasonable delay, arguing a breach of his right to be tried within a reasonable time under R. v. Jordan, despite the total delay of 16 months and 9 days being below the 18-month presumptive ceiling for the Ontario Court of Justice.

The court found that the defence demonstrated a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have, primarily due to significant and inexplicable delays by the police in providing crucial video disclosure (complainant's statement, 911 audio, and medical records) for over seven months.

The court emphasized the constitutional disclosure obligations of the Crown and the police's role in timely disclosure.

The application for a stay was granted, and the proceedings were stayed.

The applicants, L.H. and D.P., charged with manslaughter, criminal negligence causing death, and failing to provide necessaries of life, brought an application for a stay of proceedings due to unreasonable delay under section 11(b) of the Charter.

The court analyzed the total elapsed time against the Jordan ceiling, considering periods of delay attributable to the COVID-19 pandemic and defence actions as exceptional circumstances.

The court found that after deducting these periods, the delay fell below the presumptive ceiling.

Furthermore, the court determined that the defence had not taken meaningful steps to expedite proceedings and that the case had not taken markedly longer than it reasonably should have, dismissing both applications for a stay.

The applicant mother brought a motion for interim relief seeking increased access to the children, the sale of the matrimonial home, and the return of belongings.

The respondent father opposed the motion and brought a cross-motion for retroactive and ongoing child support.

The court granted the mother's request for increased access, finding it in the children's best interests to spend roughly equal time with both parents.

The court also ordered the immediate sale of the matrimonial home to allow the mother to secure appropriate housing.

The mother was ordered to pay interim child support, including arrears, given her employment and shared custody arrangement.