Michael Gillen

This is a sentencing decision for a young offender, Q.M., who pleaded guilty to sexual interference contrary to s. 151 of the Criminal Code.

The court considered the paramount sentencing principles of denunciation and deterrence for child sexual offences, as mandated by s. 718.01 of the Criminal Code, while also balancing rehabilitation and restraint given the offender's youth and first-offender status.

The court reviewed the factual background, victim impact statement, and offender's background, including psychiatric assessments suggesting pedophilic disorder and a low to moderate risk of recidivism.

Despite the seriousness of the offence, the court imposed a 9-month custodial sentence, followed by 3 years of probation, along with various ancillary orders, finding it to be a proportionate sentence given the significant mitigating factors, including the guilty plea and willingness to engage in therapy.

The defendant, charged with first-degree murder, brought a pre-trial motion (voir dire) to exclude a statement given to police, arguing a violation of his s.10(b) Charter right to counsel.

The police denied his request to contact his stepmother to arrange counsel of choice, instead directing him to duty counsel.

The court found that the police officer's denial was a clear violation of the well-established duty to facilitate access to counsel, even through a third party, and that the defendant was not reasonably diligent in renewing his request because the officer's initial response was a clear "no." Applying the R. v. Grant factors under s.24(2) of the Charter, the court found the breach serious, the impact on the defendant's Charter-protected interests significant (as it affected his ability to make an informed choice with trusted counsel), and the societal interest in adjudication on the merits did not outweigh the breach given the statement's questionable necessity.

Consequently, the January 25, 2018 statement was excluded.

A youth was charged with sexual assault and sexual interference of his sister spanning from approximately age twelve until September 2018.

The complainant provided detailed allegations in a first video statement, then recanted entirely in a second video statement, claiming she had fabricated the allegations based on a television show storyline.

At trial, the complainant retracted her recantation and reasserted the abuse allegations.

The defendant denied all charges.

The trial judge found that while the complainant's testimony was subjectively persuasive, the complete retraction of allegations—forcefully asserted during the second interview—created a reasonable doubt that could not be overcome.

The defendant was acquitted on all charges.

The applicant was charged with care or control of a motor vehicle while impaired by alcohol and exceeding the legal blood-alcohol concentration limit.

He brought Charter applications seeking to exclude evidence derived from roadside conversations with police and breath samples.

The applicant argued his section 7 rights were violated by being compelled to incriminate himself under the Highway Traffic Act, and his section 10(b) rights were violated by improper provision of rights to counsel and steering to duty counsel.

The court found the section 7 application succeeded, excluding all compelled utterances, but the section 10(b) application failed.

The offender, a former teacher, was convicted of sexual exploitation of a former student.

The sexual relationship began when the victim was 16 and lasted for two years, resulting in a pregnancy and abortion.

The Crown sought a five-year sentence based on the breach of trust, while the defence sought 15 to 18 months.

The court weighed the severe impact on the victim against the offender's lack of criminal record, low risk of recidivism, and expressions of remorse.

The court sentenced the offender to 30 months' incarceration, less credit for pre-trial custody and restrictive bail, along with ancillary orders including a DNA order, weapons prohibition, and a 20-year SOIRA registration.

The appellant, Patrick Lemieux, appealed his conviction for assault causing bodily harm, arguing the trial judge failed to properly consider his state of mind regarding self-defence, reversed the burden of proof, and provided inadequate reasons.

The Superior Court dismissed the appeal, finding that the trial judge correctly applied self-defence principles, including the air of reality test, and did not misapply the burden of proof or W.(D.) principles.

The court affirmed that the trial judge's reasons, when read in context, sufficiently demonstrated that the self-defence claim lacked a reasonable basis and that the appellant's response was disproportionate.

The defendant was charged with impaired driving and "Over 80" breath sample.

The defendant sought exclusion of breath test results based on alleged breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found no breach of sections 8 and 9 regarding reasonable grounds for arrest, but found a breach of section 10(b) regarding the right to counsel.

The court determined that the police failed to inform the defendant that his requested counsel was a paralegal rather than a lawyer, and failed to provide a "Prosper warning." However, the court found that the breath samples should not be excluded under section 24(2) of the Charter.

The defendant was found guilty of both counts, with a conditional stay entered on the "Over 80" charge pursuant to R. v. Kienapple principles.

The defendant pleaded guilty to possession of child pornography contrary to section 163.1(4) of the Criminal Code.

The defendant challenged the constitutionality of the mandatory minimum sentence of one year under section 12 of the Charter of Rights and Freedoms.

The court determined that a fit and proportionate sentence was 17 months imprisonment, which exceeded the mandatory minimum.

Consequently, the constitutional challenge was rendered moot.

The defendant was sentenced to 17 months imprisonment, 24 months probation, a 15-year section 161 prohibition order, a 20-year SOIRA order, a DNA order, and forfeiture of all seized materials.

The accused, a self-employed contractor, was charged with multiple counts of fraud for accepting deposits from customers for goods and services that were never provided.

The accused entered into contracts with multiple customers, accepted substantial deposits, and then diverted the funds for his own purposes without authorization.

The accused prioritized more lucrative jobs over his existing contractual obligations and made repeated false promises to customers about his availability and commitment.

The accused was found guilty of two counts of fraud involving deprivation of deposits from two customers.

One count was dismissed at the Crown's request due to evidentiary issues, and guilty pleas were entered on remaining counts related to a separate fraud involving a cheque-cashing business.

The accused pleaded guilty to assault and mischief.

The court accepted a joint submission and sentenced the accused to four months imprisonment on the assault charge (with credit for one and a half days of presentence custody), with the mischief charge resulting in a suspended sentence.

The accused was placed on a two-year probation with conditions including a no-contact order with the victim (with limited exceptions for family court proceedings and contact arrangements regarding their child), a 200-metre non-association order, mandatory counselling and rehabilitation programs, DNA order, and a ten-year firearms prohibition under section 110 of the Criminal Code.

Two summary conviction surcharges of $100 each were imposed.

The accused pleaded guilty to assault causing bodily harm that occurred on July 9, 2016, when he punched the victim twice in the face and threw a bar stool at him while intoxicated at a bar, causing a laceration requiring nine stitches.

The Crown sought a six-month jail sentence followed by two years probation, while the defence sought a conditional sentence of four to six months.

The court imposed a nine-month conditional sentence with restrictive conditions including house arrest and community service, followed by two years probation, finding that a conditional sentence could achieve the objectives of denunciation and deterrence while promoting rehabilitation and restraint principles.

The defendant was charged with having care and control of a motor vehicle while impaired by alcohol and failure to comply with a demand to provide a breath sample.

The Crown conceded the second charge and it was dismissed.

The court found the defendant guilty of the first charge.

The central issue was whether the defendant had care and control of the vehicle.

The court found that the defendant's actual operation of the vehicle—moving it from a gas pump to a parking spot—established care and control.

The defendant's intoxication was established through witness testimony and video evidence.

The defendant was charged with operating a motor vehicle while impaired by alcohol and failure to comply with a demand to provide breath samples.

The trial commenced on December 14, 2012, but was not completed and was scheduled to continue on August 1, 2013.

The defendant brought a motion seeking a stay of proceedings on the grounds that his right to trial within a reasonable time under section 11(b) of the Charter had been violated.

The court dismissed the motion, finding that while 17 months had passed from arrest to the scheduled trial continuation, the delay was not unreasonable when accounting for inherent time requirements, defence unavailability, and the underestimation of trial length.

The court found no prejudice to the defendant's Charter rights beyond stress and strain.

The accused was charged with multiple firearm and drug offences following his arrest while driving with a loaded prohibited firearm and marijuana.

At a bail hearing, the justice of the peace endorsed the information under s. 515(9.1) of the Criminal Code based on the accused's prior criminal record, restricting pre-sentence custody credit to 1:1.

Following conviction on all counts, the accused challenged the constitutionality of s. 719(3.1), which removes sentencing discretion regarding enhanced pre-sentence custody credit when a bail justice has made a s. 515(9.1) endorsement.

The court found the impugned provision violated s. 7 of the Charter and declared it of no force and effect.

The court imposed a global sentence of 6 years imprisonment with 1.5:1 credit for pre-sentence custody.

The accused, a psychological associate licensed by the College of Psychologists of Ontario, was charged with three counts of fraud relating to fees paid for counseling services and child custody assessments.

The Crown alleged that the accused fraudulently represented himself as a psychologist rather than a psychological associate by using the title "Dr." in conjunction with his practice, thereby deceiving clients about his qualifications.

The court found that while the accused's use of the title "Dr." combined with his careful compliance with College guidelines in a manner that obscured his status as a psychological associate constituted "other fraudulent means," the Crown failed to prove the essential element of causation—that the misrepresentation caused financial loss or risk of loss to the complainants.

The court concluded that the complainants' lack of knowledge about the existence and qualifications of psychological associates, rather than the accused's conduct, was the cause of their inability to make an informed choice.

All charges were dismissed.