OCJ 2012

In a custody dispute between separated parents, the court addressed competing motions following the mother's arrest on assault charges and the father's pre-emptive reclamation of their four-year-old child.

The mother sought residential care while the father sought shared 50/50 custody and decision-making.

The court found that the parties had previously agreed to shared care arrangements and ordered a temporary shared custody arrangement with alternating weekly care, Friday visits with paternal grandparents, and mid-week access, pending further proceedings.

The accused was charged with sexual assault following an incident on May 29, 2011, where he engaged in sexual intercourse with a highly intoxicated woman who had also consumed cocaine, ketamine, and GHB.

The complainant had no memory of meeting the accused or consenting to sexual activity.

The accused claimed the complainant consented and appeared normal to him.

The court found that the complainant lacked capacity to consent due to her extreme intoxication and drug use, and that the accused was either knowingly engaging in sexual activity with an incapacitated person or was wilfully blind to her incapacity.

The court convicted the accused of sexual assault.

The accused was charged with refusing to comply with a demand to provide breath samples.

The Crown's case was straightforward: the police had proper grounds to demand samples and the accused verbally refused.

The sole issue was whether the accused, whose first language was Russian, was provided meaningful access to counsel in a comprehensible manner.

The court found that the police took appropriate steps to accommodate the language barrier, including repeating rights, explaining them in plain language, arranging for a Russian-speaking officer, and securing a Russian-speaking duty counsel.

Although the accused claimed confusion about his legal obligations, the court found he understood his choices and their consequences through the translation provided during the breath testing procedure.

The conviction was upheld.

The accused brought a pre-trial application seeking to allow collateral attack on Employment Standards Act orders, alternatively seeking a stay of proceedings for abuse of process, and alternatively seeking a declaration that certain sections of the Employment Standards Act were unconstitutional.

The accused had been charged with failing to comply with orders to pay outstanding wages to employees.

The accused argued he was impecunious and unable to meet the statutory requirement to pay or post a letter of credit to appeal the orders.

The court rejected all three applications, finding that the rule against collateral attack applied, that no abuse of process had occurred, and that the relevant statutory provisions did not violate the Charter.

A young person pleaded guilty to second-degree murder arising from events on March 29, 2010.

The Crown sought to introduce two statements made by the accused to police—one during transport to the detachment and one at the detachment—for use in sentencing and in a psychiatric assessment ordered under section 34 of the Youth Criminal Justice Act.

The defence challenged the admissibility of both statements under section 146 of the YCJA, which provides enhanced procedural protections for statements made by young persons to persons in authority.

The court conducted a voir dire to determine whether the statements complied with section 146 requirements.

A paternal grandmother sought access to her two grandchildren following a breakdown in her relationship with the children's parents.

The grandmother had previously provided regular child care and logistical support but was denied all contact with the children after February 2011 when she withdrew her assistance.

The court dismissed the grandmother's motion for temporary access, finding that although the parents acted somewhat arbitrarily in severing contact, the relationship bonds had dissipated over the two-year period of separation and the ongoing acrimony between the parties posed too great a risk to the children's wellbeing to justify court-ordered access.

The defendant was charged with operating a motorcycle with handlebars exceeding the maximum height of 380 millimetres as prescribed by Ontario Regulation 596, section 10(1) of the Highway Traffic Act.

The defendant challenged the constitutionality of the regulation on grounds of vagueness and anachronism, arguing violations of sections 7, 9, and 26 of the Canadian Charter of Rights and Freedoms.

The court found the regulation was not vague, not anachronistic, and did not violate the defendant's Charter rights.

The defendant was convicted after the prosecution proved the handlebars measured 830 millimetres above the seat.

The appellant appealed his convictions on three provincial offences: failing to have an insurance card, speeding, and failing to surrender his driver's licence.

The appellant raised 20 grounds of appeal based on idiosyncratic interpretations of constitutional law, statutory enactments, and common law, arguing that the relevant statutes did not apply to him.

The court dismissed all grounds of appeal, finding that the appellant's arguments were fanciful and had no air of reality.

The court confirmed the convictions and sentence, relying on binding precedent from a similar appeal involving the appellant's wife.

The defendant was charged with thirteen counts of firearm possession and three counts of robbery with a firearm arising from a home invasion on December 24, 2011.

At the preliminary inquiry, the Crown sought committal on the robbery with firearm charges.

The defendant conceded committal on the possession counts.

The court found sufficient evidence to commit the defendant to trial on the robbery with firearm charges based on the doctrine of recent possession, the timing of the defendant's acquisition of the stolen firearms within hours of the robbery, and circumstantial evidence suggesting prior knowledge of the robbery.

The accused pleaded guilty to extortion under section 346(1.1) of the Criminal Code.

He threatened to disseminate intimate images of a young female complainant unless she engaged in sexual intercourse with him.

The Crown sought 9 to 12 months custody plus probation, while defence counsel sought a conditional sentence of 12 to 18 months or alternatively 90 days intermittent jail.

The central issue was whether the offence constituted a "serious personal injury offence" that would preclude a conditional sentence.

The court found that the threats, while abhorrent and extortionate, did not constitute violence or attempted violence as contemplated by the legislation, distinguishing the case from robbery or assault cases involving weapons.

The court imposed a 15-month conditional sentence with strict conditions including 12 months house arrest, followed by 21 months probation.

The defendant was charged with sexual assault of a co-worker on October 28, 2010.

The Crown alleged non-consensual sexual contact including kissing, breast contact, and masturbation.

The defendant claimed the complainant consented to all sexual activity.

The central legal issue was whether the defence of honest but mistaken belief in consent was available and, if so, whether the Crown had refuted it beyond a reasonable doubt.

The court found that while the defendant's conduct was troubling and his belief in a relationship was self-delusional, the complainant's physical actions—moving her arms aside and performing masturbation—created an air of reality to the defence.

The court concluded the defendant took reasonable steps to ascertain consent by seeking permission for each sexual act and accepting refusals.

The charge was dismissed.

The defendant was charged with operating a motor vehicle with a blood alcohol concentration above the legal limit and breaching a probation order by driving without a valid license.

The charges arose from a RIDE spot check.

The court examined four key issues: whether police failed to wait 15 minutes for residual mouth alcohol to dissipate before using the approved screening device; whether the Intoxilyzer 8000C was an approved instrument; whether the defendant's blood alcohol level was over 80 at the time of the stop; and whether the Crown proved the probation breach beyond a reasonable doubt.

The court found the defendant guilty on both charges.

The defendant was charged with failing to remain at the scene of an accident causing bodily harm, criminal negligence causing bodily harm, and dangerous driving causing bodily harm, arising from a parking lot incident where her vehicle struck and ran over a co-worker.

The court found the defendant guilty of dangerous driving causing bodily harm and failing to remain at the scene, but acquitted her of criminal negligence.

The decision turned on credibility findings, with the court rejecting the defendant's testimony as unreliable and finding that she deliberately failed to investigate the collision due to her vehicle being uninsured.

The defendant was charged with producing marijuana and possessing marijuana for the purpose of trafficking.

He brought a Charter application seeking a stay of proceedings or exclusion of evidence, alleging violations of sections 8 and 9 of the Charter.

The defendant challenged the validity of search warrants executed at his residence and two industrial units, his arrest, and warrantless searches of his person and vehicle.

The court found that the search warrants were validly issued based on reliable information from a confidential informer that was corroborated through police investigation.

The arrest was lawful and the seizure of keys from the defendant's person was a valid search incident to arrest.

The court dismissed the Charter application but excluded evidence seized from the residence under section 24(2) due to the seriousness of police carelessness in drafting the Information to Obtain and the significant impact on the defendant's privacy rights in his home.

Evidence from the industrial units and the keys were admitted.

The defendant sought leave to cross-examine five police officers regarding the validity of three search warrants executed on his residence and industrial units.

The Crown conceded that the search warrants were invalid based on the edited Information to Obtain documents and sought to rely on unedited versions under the "step 6 Garofoli" procedure.

The court granted leave to cross-examine the affiant constable broadly, with restrictions on informer privilege, and permitted limited cross-examination of one sub-affiant regarding trespass issues, while denying leave to cross-examine other sub-affiants.

This is a ruling on an application by the accused in a sexual assault trial for production of the complainant's school records pursuant to section 278.1 of the Criminal Code.

The complainant alleged that the accused had sexual intercourse with her without consent while she was in a paralytic state induced by alcohol consumption.

The trial had commenced and the Crown had concluded examination in chief.

The accused sought production of the complainant's Ontario Student Record, attendance records, and school social worker records.

The court applied the two-stage test under sections 278.3-278.5 of the Criminal Code, considering likely relevance and whether production was necessary in the interests of justice, while balancing the accused's right to make full answer and defence against the complainant's privacy and equality rights.

The defendant, Steven Blondin, pleaded guilty to 112 charges of failing to comply with Orders to Pay issued by an Employment Standards Officer under the Employment Standards Act, 2000.

Blondin was the sole director of six Ontario corporations that failed to pay wages totalling approximately $142,000 to 61 employees between March 2007 and October 2009.

The court imposed a fine of $40,000 against Blondin personally and $240,000 against his six corporations collectively, along with a custodial sentence of three months to be served concurrently.

Restitution orders were issued separately.

The defendant's request for house arrest as an alternative to imprisonment was denied as the Provincial Offences Act does not provide for conditional sentences.

The accused was charged with operating a motor vehicle while impaired by alcohol and having over 80 mg of alcohol per 100 ml of blood.

Following a trial with a blended voir dire, the court considered whether the arresting officer had reasonable and probable grounds to make a breath demand and whether the breath technician was required to have independent grounds.

The court found that the arresting officer had sufficient grounds based on observations of erratic driving, physical indicators of impairment, and odour of alcohol.

The court held that the breath demand was valid and that the breath technician need not have independent grounds, as the demand is a continuing one made by the arresting officer and administered by the technician in an agency capacity.

The accused was charged with impaired driving and driving with a blood alcohol concentration over 80 mg%.

The Crown relied on a breathalyzer certificate as evidence.

The court found that there was an unexplained delay of between 30 to 60 minutes between the accused's arrest at 1:06 and when the breathalyzer test was administered sometime after 2:15.

The delay violated the requirement that breath tests be conducted "as soon as practicable" as established in jurisprudence.

Consequently, the Crown was deprived of the statutory presumption contained in the Criminal Code and could not rely on the certificate as proof of the truth of its contents.

The Crown called no toxicologist to establish what the reading would have been at the time of driving.

The charge was dismissed.

A motion by the applicant mother seeking a declaration that the respondent is a parent of the oldest child for child support purposes, temporary custody of three children, temporary access restrictions, and temporary child support.

The respondent brought a cross-motion seeking temporary joint custody of his two biological children and expanded access.

The court found that the respondent demonstrated a settled intention to treat the oldest child as a member of his family during cohabitation and therefore stands in the place of a parent.

Temporary custody was awarded to the mother.

The respondent was granted graduated access to all three children, with the option to include the oldest child.

Temporary child support was ordered for all three children based on an imputed income.