Martin Montes

The defendant, Mohamed Belkhier, pleaded guilty to assault simpliciter, failing to provide the necessities of life, refusing a breath demand, impaired operation, and assaulting a peace officer.

The court rejected a joint sentencing submission for the assault and failure to provide necessities of life charges, finding it would bring the administration of justice into disrepute.

The judge emphasized denunciation and deterrence, particularly given the vulnerability of the infant victim and the defendant's breaches of release orders.

The court also clarified that it was bound by the agreed statement of facts for sentencing, not the preliminary inquiry evidence, and that collateral immigration consequences, while relevant, cannot override proportionality.

This preliminary inquiry concerned charges of aggravated assault and criminal negligence against the accused, Mohamed Belkhier, relating to injuries sustained by a 5-month-old infant.

The inquiry focused solely on the aggravated assault count.

The Crown argued that the accused caused the injuries and failed to report them, suggesting a jury could infer intentional force.

The defence contended there was insufficient evidence for intentional force or objective foresight of harm, asserting the injuries were accidental.

The court reviewed the purpose and function of a preliminary inquiry, particularly the limited weighing of circumstantial evidence.

While the court found no evidence to support the Crown's theory of intentional force beyond conjecture, it determined there was sufficient evidence to infer recklessness in the accused's handling of the infant, which could objectively foreseeably cause bodily harm.

Consequently, the accused was committed to stand trial for aggravated assault.

The accused was charged with simple assault.

The trial concluded almost two years after the charge was laid.

The defence brought an application for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The Crown argued that the delay between the charge and the accused's arrest should be deducted as defence-caused delay, alleging the accused evaded police.

The court found the police did not make diligent and reasonable efforts to locate the accused.

Furthermore, the Crown failed to meet its disclosure obligations in a timely manner, causing additional delay.

The net delay of 21.5 months exceeded the 18-month Jordan ceiling, and no exceptional circumstances justified it.

A stay of proceedings was entered.

This decision concerns Heather Vukovic, charged with Careless Driving Causing Death under the Highway Traffic Act.

The charge arose from a collision where Vukovic's vehicle, travelling westbound on Highway 9, collided with another vehicle turning left into oncoming traffic, resulting in the other driver's death.

While the defendant was found to be speeding, the court considered witness testimony and accident reconstruction evidence, which indicated the victim's vehicle caused the collision by turning into oncoming traffic.

The court applied the legal standard for careless driving, emphasizing that it does not require perfection and that speed alone is insufficient.

Ultimately, the court was not satisfied beyond a reasonable doubt that the defendant's driving constituted careless driving causing death, finding her not guilty.

The defendant brought a Charter motion to stay proceedings or exclude evidence, alleging excessive force by police (ss. 7, 12) and violations of his rights to be informed of charges and to counsel (ss. 10(a), 10(b)).

The court found that the police use of force, including pepper spray, was reasonable and proportionate given the defendant's non-compliance and aggressive resistance.

The court also found that the defendant was informed of the reasons for his arrest in a timely manner and that any delay in advising him of his right to counsel was justified by the dynamic and volatile situation, and that he ultimately exercised his right to counsel.

The motion for Charter relief was dismissed.

The appellant appealed his conviction for operating a motor vehicle while impaired by alcohol, arguing that his s. 8 Charter rights were violated by an Approved Screening Device (ASD) demand.

The appellant contended that the investigating officer lacked reasonable suspicion because he also considered a medical condition as a possibility.

The court dismissed the appeal, affirming that "reasonable grounds to suspect" involves possibilities, not probabilities, and the existence of an alternate possibility does not negate a reasonable suspicion of alcohol.

The trial judge's reasons were found sufficient and correct, and claims of misapprehension of evidence were rejected.

The applicant brought a motion to stay proceedings based on an alleged breach of the right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The applicant argued that the net delay exceeded the 18-month presumptive ceiling established in R. v. Jordan.

The Crown argued that the net delay fell below the ceiling once defence delay and judicial deliberation time were subtracted, and alternatively that discrete events should be excluded.

The court found that after subtracting defence delay and judicial deliberation time, the remaining delay was approximately 20 months, exceeding the presumptive ceiling.

However, the court found that the trial continuation periods constituted discrete exceptional events that should be excluded, bringing the remaining delay below the ceiling.

The applicant failed to demonstrate defence initiative or that the delay was unreasonable.

The application to stay proceedings was dismissed.

The defendant was charged with impaired driving and driving with excess blood alcohol (over 80).

The defendant brought a Charter application seeking a stay of proceedings, alleging violations of sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that the defendant was unconstitutionally strip searched and that his thread bracelets were improperly removed and destroyed during the search incident to arrest.

The court also found a breach of the right to counsel when police questioned the defendant before he had consulted with duty counsel.

However, the court dismissed the application for a stay of proceedings, finding that exclusion of evidence under section 24(2) was an adequate remedy.

The Intoxilyzer results were excluded, resulting in dismissal of the over 80 charge.

The defendant was convicted of impaired driving based on the officer's observations of impairment.

Donald Barber appealed his conviction for assault with a weapon, arguing the trial judge misapprehended evidence and applied a stricter scrutiny standard to his testimony.

The Superior Court of Justice found that the trial judge erred in misapprehending the appellant's testimony regarding being 'sucker-punched in the face,' which was a material error affecting the assessment of credibility.

This misapprehension was deemed substantial and played an essential role in the trial judge's reasoning, leading to an unfair trial.

The conviction was set aside, and a new trial was ordered.

The court considered whether the accused's email communications constituted an agreement or arrangement, by telecommunication, to commit sexual interference with a child under s. 172.2(1)(b) of the Criminal Code.

Applying the framework drawn from Legare, the court held that the communications went beyond fantasy or a preliminary meeting and established a concrete plan to sexually assault a child the accused believed to be nine years old.

The court rejected arguments that the copied email record was too incomplete to support conviction and also rejected the submission that the accused lacked knowledge of the child's age.

A finding of guilt was entered on the sole count.

The accused was charged with impaired operation (alcohol and/or drug) and Over 80 following a single vehicle rollover on the QEW in Burlington on February 27, 2015.

The court found a serious breach of the accused's s. 10(b) Charter right to counsel when police failed to make reasonable efforts to contact the accused's counsel of choice before proceeding with breath testing.

The court excluded the breath sample evidence and dismissed the Over 80 charge.

On the impaired operation charge, the court found the evidence of impairment insufficient to prove guilt beyond a reasonable doubt and acquitted the accused, noting that a dangerous operation charge would have been more appropriate.

Following a jury conviction for second degree murder of the offender’s spouse, the court determined the appropriate period of parole ineligibility.

The Crown sought 15 years while the defence argued for 10 to 12 years.

Applying ss. 718–718.2 and 745.4 of the Criminal Code and considering comparable jurisprudence, the court assessed aggravating factors including the brutal domestic killing, breach of trust, and the victim’s defensive injuries, as well as mitigating factors such as the offender’s lack of criminal record and positive community reputation.

The jury’s recommendation of 15 to 20 years was considered but not followed.

The court fixed the parole ineligibility period at 13 years.

The defendant was charged with exceed 80 (impaired driving) following a RIDE check stop.

He challenged the conviction on Charter grounds, arguing unreasonable search and seizure under section 8 and infringement of his right to counsel under section 10(b).

The court rejected both arguments.

While the officer's demand was technically flawed, the breach was not serious enough to warrant exclusion of evidence.

Regarding the right to counsel, the court found that the defendant had a reasonable opportunity to consult with duty counsel and that police were not obliged to wait indefinitely for a second lawyer to call back.

The defendant was found guilty.

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 was charged with driving with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The defence challenged the validity of the approved screening device and Intoxilyzer demands on Charter grounds, arguing the officer lacked reasonable suspicion and that the breath samples were not taken as soon as practicable.

The court found the officer had reasonable suspicion based on the smell of alcohol, glazed eyes, and the accused's admission of coming from a bar.

The court rejected the argument that the officer was required to inquire about mouth alcohol before administering the test.

The court also found the samples were taken as soon as practicable despite a 17-minute delay at the police station.

The accused was convicted.

The applicant sought an extension of time to serve and file a notice of appeal from a summary conviction for operating a motor vehicle with a blood alcohol level exceeding 80 mg.

The court applied the three-part test for extensions of time articulated in R. v. Menear, considering whether the applicant demonstrated a bona fide intention to appeal within the appeal period, whether the delay was adequately explained, and whether the proposed appeal had merit.

The court found no evidence that the applicant intended to appeal within the statutory period and held that the delay was inadequately explained.

The proposed grounds of appeal, relating to alleged Charter breaches concerning mouth alcohol and credibility findings at trial, lacked merit.

The application for an extension of time and the companion request for a stay of the driving prohibition were dismissed.