Michael Ventola

This ruling addresses a Crown application to admit two statements made by the accused, Kenneth Johnson, as circumstantial evidence of consciousness of guilt in a murder trial.

The statements, one to police and one to his landlord, were alleged to be false and fabricated.

Applying the O'Connor framework, the court found a sufficient evidentiary basis for a jury to conclude the statements were false and fabricated, and capable of supporting an inference of guilt, despite some reservations about the compelling nature of the inference for the landlord statement.

The court also considered and rejected the defence's request to exclude the evidence based on residual discretion, finding the probative value, though modest, was not outweighed by prejudice.

The Crown sought to introduce evidence of prior disreputable conduct and ante mortem hearsay statements made by the deceased in a murder trial where the accused allegedly beat his roommate to death.

The court ruled that statements by the deceased expressing a desire to move out and fear of the accused were admissible under the present state of mind exception and the principled approach to hearsay.

However, a statement attributing a 'hard punch' to the accused was excluded for lacking threshold reliability.

The court also admitted most of the circumstantial evidence of the accused's prior physical abuse of the deceased to show context and animus, finding its probative value outweighed its prejudicial effect, but excluded observations of bruising that could not be directly linked to the accused.

During a jury trial, a voir dire was held to determine the admissibility of statements made by the accused to police after he called 911 regarding his roommate's medical emergency.

The defence argued the statements were involuntary and obtained in breach of the accused's s. 10 Charter rights, alleging he was psychologically detained without being cautioned.

The court found that a reasonable person in the accused's position would not have felt detained, as the police were responding to a medical emergency and had no reason to suspect foul play at the time.

The court concluded the statements were voluntary and admissible.

The accused was charged with impaired operation of a motor vehicle.

The Crown alleged that the accused's ability to operate his vehicle was impaired by alcohol consumption.

The accused testified that he consumed only one draft beer and that his loss of consciousness at the roadside was not due to alcohol.

The court found the accused's testimony unreliable and not credible, and accepted the evidence of the police officers regarding the accused's erratic driving, observations at the roadside, and subsequent conduct at the hospital.

The court concluded that the Crown proved the charge beyond a reasonable doubt based on the pattern of impaired driving, the accused's blackout, and the receding of symptoms consistent with alcohol impairment over time.

The applicant was charged with driving with excess alcohol and driving impaired on December 12, 2014, with the information sworn on December 30, 2014.

The applicant brought a motion under Section 11(b) of the Charter of Rights and Freedoms alleging that his right to be tried within a reasonable time had been infringed.

The total delay from charge to trial was 24.5 months.

After deducting defence delay totalling 12.5 months, the net delay was 12 months, which fell below the 18-month presumptive ceiling established in R. v. Jordan.

The court found that the net delay did not markedly exceed what was reasonably required and dismissed the application.

The defendant was charged with drive with excess alcohol and drive impaired on May 14, 2015, with the information sworn on May 27, 2015.

The defendant brought a section 11(b) Charter application alleging that her right to be tried within a reasonable time had been infringed.

The total delay from charge to trial completion was 18 months and 2 days.

After deducting defence delay, the net delay was approximately 14.5 months.

The court applied the transitional provisions of the Jordan framework and found that the case had taken markedly longer than it reasonably should have.

A stay of proceedings was granted.

The defendant, approximately 60 years old, was charged with sexual assault and sexual interference upon a 5-year-old girl who was being babysat at his daughter's home.

The complainant alleged that the defendant touched her vaginal area under her clothing while she was sitting on his lap watching television.

The Crown's case relied primarily on the child's statement to police and statements made by the defendant to the child's parents during a confrontational meeting.

The defendant denied all allegations.

The trial judge found that while the child's evidence could support the allegations, the circumstances surrounding the defendant's statements—including the coercive nature of the confrontation, language barriers, and translation difficulties—rendered those statements of minimal evidentiary weight.

Applying the test from R. v. W.D., the judge concluded that a reasonable doubt existed and acquitted the defendant of all charges.

The defendant was charged with driving while impaired and driving with excess alcohol on June 22, 2015.

He brought a Charter application under Section 11(b) of the Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been infringed and seeking a judicial stay of charges.

The total delay from charge to trial completion was 13 months and 8 days, falling below the 18-month presumptive ceiling established in R. v. Jordan.

The court applied the transitional framework and found that the case did not take markedly longer than it reasonably should have, considering the complexity of impaired driving cases and acceptable institutional delay under the previous Morin framework.

The application was dismissed.

The accused was charged with Impaired and Over 80 Care or Control of a motor vehicle on January 30, 2015.

The Crown admitted the accused's blood alcohol content was 150 mg per 100 ml of blood and that she was impaired in law.

The sole issue was whether the accused was in care or control of the vehicle.

The accused testified she occupied the driver's seat to change her boots while waiting for a restaurant party to begin, not to drive.

The court found the accused rebutted the statutory presumption of care or control under section 258(1)(a) on a balance of probabilities.

However, applying the de facto care or control test, the court found the Crown proved beyond a reasonable doubt that the accused created a realistic risk of danger through her poor judgment in consuming alcohol while seated alone in the driver's seat with her keys and the vehicle in a parking lot approximately 45 minutes before her planned departure.

The accused was charged with impaired operation of a motor vehicle and operation with blood alcohol content over 80 mg/100 ml on April 6, 2015.

A McDonald's employee reported observing an impaired driver, providing a license plate.

Police located the vehicle and observed erratic driving before stopping it at the accused's residence.

The Crown relied on breath test evidence and expert toxicology opinion.

The defence challenged the arrest under section 8 of the Charter and argued the expert report's assumptions were not established.

The court found reasonable and probable grounds for arrest but excluded the expert report due to evidence of bolus drinking (consumption of alcohol shortly before testing).

The court acquitted on both charges, finding the evidence of impairment insufficient to meet the beyond reasonable doubt standard.

The accused was charged with care or control of a motor vehicle while over 80 milligrams of alcohol per 100 millilitres of blood, contrary to the Criminal Code.

Police received a tip that a woman had been drinking all day and was driving to a beer store.

Officers located the vehicle at the beer store and stopped the accused as she reversed out of a parking spot.

The accused failed an approved screening device test and later approved instrument tests at the station.

The defence challenged the lawfulness of the detention under Charter sections 8 and 9, and raised issues regarding compliance with the two-hour requirement under section 258 of the Criminal Code.

The court found that the police had authority to detain and investigate the accused based on the specific information received and the common law ancillary powers doctrine.

The court also found that the Crown proved compliance with the two-hour requirement and that the officer had reasonable grounds for the approved instrument demand.

The accused was found guilty.

The accused was charged with sexual assault upon a young man on January 1, 2014.

The complainant alleged that while intoxicated and under the influence of drugs at a New Year's Eve party, the accused performed fellatio upon him while he lay on a futon in the living room.

The Crown relied on viva voce evidence from the complainant and DNA evidence found on the complainant's underwear.

The defence presented the accused's testimony denying the assault and evidence from the accused's daughter regarding the events of that evening.

The court found that the complainant's evidence was tainted by his extensive drug use that evening and by embellishments added to his initial police statement.

The DNA evidence was found to be inconclusive due to the possibility of secondary transfer from blankets and furniture in the accused's home.

The court applied the proper burden of proof and the W.D. framework, ultimately finding reasonable doubt and acquitting the accused.

The accused was charged with impaired driving following a RIDE spot check.

The defence challenged the admissibility of breath test evidence on Charter grounds, alleging breaches of sections 7, 8, 9, and 10.

The three issues at trial were: (1) whether the right to counsel was breached when the accused initially expressed a desire to speak to a lawyer but later declined; (2) whether breath tests were taken "as soon as practicable" as required by section 258(1)(c)(ii); and (3) whether any breaches warranted exclusion of evidence under section 24(2).

The court found no Charter breaches and convicted the accused.

The accused was charged with assault causing bodily harm after an altercation in a parking lot resulted in the complainant suffering a broken jaw.

The Crown alleged the defendant struck the complainant with a glass bong.

The defendant claimed he acted in self-defence after being attacked by the complainant and his friend while sitting in his vehicle.

The court found the defendant not guilty, determining that the Crown failed to prove beyond a reasonable doubt that the defendant struck the complainant with the bong, and that even if the defendant caused the injury through punching, his response was reasonable self-defence under section 34 of the Criminal Code.

The defendant was charged with failure to provide a breath sample into a roadside screening device (ASD) following a RIDE stop.

After seven attempts to provide a suitable sample, the defendant was arrested.

The Crown proved that the officer made a valid demand under section 254(2) of the Criminal Code, that the ASD was functioning properly, and that the defendant deliberately chose not to blow with sufficient force despite being capable of doing so and receiving clear instructions.

The defendant's credibility was undermined by his initial lie to the officer and inconsistencies in his testimony.

The court found the defendant guilty, rejecting his assertion that he believed he was blowing sufficiently.