Michael K. Wendl

The accused was charged with assault with intent to resist arrest after biting an officer who attempted to arrest her for harassing customers at a restaurant.

The accused argued the arrest was unlawful under s. 495(2) of the Criminal Code and violated her s. 9 Charter rights because the officer did not specifically turn his mind to the statutory limitations on warrantless arrests.

The court found that, viewed objectively, the circumstances justified the arrest in the public interest to establish the accused's identity and ensure her attendance in court, as she was walking away and refusing to stop.

The Charter application was dismissed and a finding of guilt was entered.

Sentencing following guilty pleas to two theft under $5,000 counts arising from coordinated LCBO thefts and one breach of probation count for attending an LCBO contrary to an existing order.

The court rejected a joint submission for 90 days' custody, holding that asserted deportation consequences were either not legally mitigating for an accused without status, not proven on the record, or incapable of justifying a disproportionate sentence.

Applying the Anthony-Cook framework, the court found the proposed sentence demonstrably unfit and unredeemed by any countervailing public-interest consideration.

A sentence of 12 months concurrent on the theft counts and 60 days concurrent on the probation breach was imposed.

The accused pleaded guilty to fraud over $5000 for her role as a courier in a 'grandparent scam' targeting a 71-year-old victim.

The victim was deceived into handing over $6,000 to secure the release of her grandson, who she was falsely told had been arrested.

The court emphasized the principles of denunciation and deterrence, noting the profound impact of elder fraud on victims' financial security and emotional well-being.

Despite the accused's lack of a prior record, guilty plea, and lesser role as a courier, the court found a conditional sentence inadequate and imposed a six-month custodial sentence.

Kevin Carmichael pleaded guilty to fraud and other offences under the Ontario Securities Act for operating a multi-million dollar Ponzi scheme.

The scheme defrauded over 40 investors of an estimated $18 million to $23 million, causing devastating financial and personal impacts.

The Ontario Court of Justice sentenced Carmichael to four years of imprisonment, emphasizing general deterrence as the primary sentencing principle for regulatory fraud of this magnitude.

The court also noted that the current maximum penalty under the Securities Act is too low compared to similar offences under the Criminal Code and called for legislative reform.

The Ontario Court of Justice dismissed Dennis Rhodes' application to renew his section 11(b) Charter application alleging unreasonable delay in the trial process.

The court emphasized the importance of timely and proper notice for 11(b) applications as mandated by the Ontario Court of Justice practice direction and Supreme Court of Canada jurisprudence, particularly Jordan.

The decision highlights the court's concern with procedural compliance, the history of delay and adjournments in the case, and the exceptional nature required for post-verdict 11(b) applications.

The ruling underscores the judiciary's efforts to manage court resources efficiently and maintain the integrity of the criminal justice process.

The accused, Bruce Cavey, brought an application to stay his sexual assault charge for unreasonable delay under section 11(b) of the Charter.

The aggregate delay was 911 days.

The court deducted 31 days for defence delay related to counsel retention and 138 days for a portion of the delay caused by exceptional circumstances (volume of third-party disclosure, Toronto Star involvement) which were partially offset by Crown delay (late complainant's counsel, late Seaboyer application).

The court rejected the Crown's arguments for further deductions based on a "complex case" exception or a "COVID ripple effect" emphasizing the need for concrete evidence and a holistic "bird's-eye view" as per *Jordan*.

The court found the total attributable delay to be 742 days, exceeding the 18-month ceiling for provincial court cases, and consequently stayed the charge.

The applicant sought a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging an unreasonable delay in his trial for impaired driving offences.

The total delay from the information being sworn to the projected end of trial was 673 days (22 months and 3 days).

The Crown argued that several periods were attributable to the applicant, which would bring the net delay below the 18-month ceiling established in R. v. Jordan for provincial court cases.

The court found that delays caused by the applicant's absence, requests for adjournments, and prolonged settlement discussions were attributable to him.

However, a period of delay related to the applicant's request for a French trial was not attributable to him, as the court had failed to inform him of his linguistic rights as required by the Criminal Code.

Ultimately, the court calculated the net delay at 519 days, which is below the 18-month (548-day) ceiling.

The motion for a stay of proceedings was dismissed.

The defendant, Dennis Rhodes, brought an application under section 11(b) of the Charter to stay his charges for delay.

The Crown argued the application was materially deficient due to incomplete transcripts.

The defense requested an adjournment, citing late receipt of the Crown's response.

The court dismissed the adjournment request, noting the Crown had provided timely notice of the transcript deficiency.

The court then dismissed the 11(b) application, finding the defendant failed to meet the high onus of providing all necessary transcripts or demonstrating their immateriality, which is required to establish the evidentiary record for a delay application.

The Crown sought an adjournment on the day of trial due to the complainant's unavailability for day surgery.

The defence opposed the application, citing the Crown's delay in subpoenaing the witness and lack of diligence.

The court applied the Darville test and considered the totality of circumstances, finding the Crown guilty of laches due to unexplained delays and lack of information regarding the complainant's surgery.

The adjournment was denied.

This ruling provides the judge's full reasons for citing defence counsel, Ms. Eliany, in contempt.

The contempt arose from Ms. Eliany's refusal to provide a requested memorandum outlining her position on a s. 276 application during a judicial pre-trial conference.

The court affirmed its authority under s. 625 of the Criminal Code to order such a memo, emphasizing the importance of meaningful participation in pre-trials to promote fair and expeditious hearings and efficient case management.

The judge found that Ms. Eliany's refusal to comply with the order constituted a failure to effectively participate in the pre-trial process.

The defendant, Dennis Rhodes, sought to bring a Charter application alleging unreasonable delay under section 11(b).

The Crown opposed the scheduling of the application, arguing it was untimely under a new practice direction requiring such motions to be heard four months before trial, and asserting that the trial commenced with an upcoming remote testimony motion.

The Ontario Court of Justice held that the remote testimony motion did not mark the start of the trial, which was scheduled for a later date.

The court further determined that because the practice direction's four-month notice requirement conflicted with the court rules requiring sixty days' notice, the rules prevailed.

Consequently, the court allowed the defendant's application to schedule the Charter motion under the sixty-day timeline.

Jeffrey Adubofuor was found guilty of mischief and distributing an intimate image without consent.

The Crown sought a 3-4 month sentence, while the defence requested a conditional sentence, arguing the accused was a first-time offender and subject to anti-Black racism.

The court found no causal connection between the anti-Black racism experienced by the offender and the specific offences, nor did it affect his prospects for rehabilitation.

Emphasizing denunciation and general deterrence for intimate image distribution, particularly given the breach of trust, surreptitious recording, and the offender's lack of insight and disregard for the victim, the court imposed a 4-month sentence for distributing the intimate image and 2 years probation for mischief.

Thomas Swiston pleaded guilty to assault and assault bodily harm.

The court accepted a joint submission for 21 days (enhanced to 32) of pre-sentence custody and two years of probation.

The primary issue was the amount of restitution for the complainant's lost tooth.

The complainant sought $21,075.42, but the court, applying the "readily ascertainable" standard under s. 738(1)(b) of the Criminal Code, only ordered $1,652.40 for out-of-pocket dental expenses, rejecting claims for lost time, future care, and other undocumented losses.

The accused pleaded guilty to criminal harassment and breach of probation, marking his fifth conviction for criminal harassment.

The Crown and defence presented a joint submission for an 8-month conditional sentence.

The court rejected the joint submission, finding it inadequate given the aggravating factors, including the accused's extensive criminal record for similar offences, the harassment of a witness to a criminal offence, repeated violations of warnings and trespass orders, and intimidation of the victim's child.

Emphasizing general and specific deterrence, denunciation, and victim safety, the court imposed an 18-month custodial sentence, followed by 3 years of probation, a lifetime s. 109 order, and a DNA order.

Omar Bataineh was found guilty after trial of failing to stop after an accident resulting in death.

The Crown sought 12-18 months jail, while the defence requested a conditional sentence.

The court found that Bataineh was aware he struck the victim, stopped briefly away from the scene, and then deliberately drove past the scene again without stopping.

Despite his good character and stated remorse, the court noted a lack of insight into his behaviour, as he described himself as a victim.

Emphasizing denunciation and deterrence, the court sentenced Bataineh to 12 months in custody, a three-year driving prohibition, and one year of probation.

The accused, Ryan Schuster, was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol level over 80 mg.

The defence alleged breaches of the accused's Charter rights under sections 9 and 10(b), and sought exclusion of breath readings.

The court summarily dismissed the section 9 breach allegation due to non-compliance with the Criminal Rules of the Ontario Court of Justice regarding factual pleading.

The court found no breaches of section 10(b), ruling that police were not obligated to advise the accused he could wait for specific counsel before speaking with duty counsel, nor were they required to re-offer counsel options after he expressed dissatisfaction with duty counsel, given the reasonable steps taken by the police.

Even if a breach occurred, the court stated it would not exclude the evidence under section 24(2) of the Charter.

On the impaired operation charge, the court found the Crown proved impairment beyond a reasonable doubt based on the totality of circumstantial evidence, including driving behaviour, physical indicia, and belligerent conduct.

Shawn Atkinson pleaded guilty to possession for the purpose of trafficking carfentanil into a detention centre.

The court considered the extreme danger of carfentanil and the aggravating nature of smuggling drugs into a custodial setting, emphasizing denunciation and deterrence.

However, the court also balanced these principles with the offender's youth, difficult upbringing, and prospects for rehabilitation, as per the principles for youthful offenders.

Given the lack of specific precedent for carfentanil trafficking, the court imposed a sentence at the high end of the Crown's requested range.

Matthew Fraser, charged with possession of child pornography, brought an application under section 11(b) of the Charter to stay the charges due to unreasonable delay.

The total delay from the information being sworn to the scheduled trial end date was 665 days, exceeding the 18-month (548-day) ceiling for the Ontario Court of Justice.

The Crown argued that periods of delay were attributable to the defence, specifically for waiting for a non-essential "extraction report" before setting pre-trial and trial dates, and for defence counsel's unavailability for earlier trial dates.

The court agreed with the Crown that waiting for the extraction report constituted defence delay, as it did not alter the trial estimate.

The court also attributed half of the delay from the missed earlier trial dates to the defence due to their late notification of the 11(b) issue, and half to the Crown for not acting with dispatch.

The court rejected the Crown's argument for a "ripple effect" deduction due to COVID-19 without specific evidence.

After subtracting the attributable defence delay, the total delay was calculated to be 537 days, which falls below the 18-month ceiling.

Consequently, the application to stay the charges was dismissed.

The accused, Tony Gordon, pleaded guilty to choking while committing an assault and breach of probation.

The Crown and defence proposed a joint submission of 18 months jail, but the court found this too low, considering it would bring the administration of justice into disrepute.

The judge imposed a total sentence of 3 years less a day, comprising 2 years less a day for the assault and a consecutive 1-year sentence for the breach of probation, after considering Gladue principles, the victim impact, and the accused's extensive criminal record.

Devonte Skye-Davis, charged with manslaughter, brought an application alleging a conflict of interest within the Hamilton Crown Attorney's Office.

This arose because his former defence counsel joined that office.

The applicant argued that the office lacked proper procedures to protect confidential information at the time of the former counsel's arrival.

The Crown contended that safeguards were later implemented and no confidential information was discussed.

The court applied the two-part test from Macdonald Estate v. Martin, finding that while no actual disclosure occurred, the lack of institutional safeguards at the outset created an unacceptable appearance of injustice.

The court rejected the Crown's argument for a different standard for Crown offices.

The Hamilton Crown Attorney's office was found to be in a conflict of interest, and the prosecution was ordered to be continued by a Crown from outside that office.