OCJ 2021

The defendant, Regina Dos Santos, was charged with impaired driving, driving with an excess blood alcohol concentration (BAC), and two Highway Traffic Act offences.

The trial included a Charter application challenging the lawfulness of her arrest and the admissibility of breath test results.

The court found that while the police had reasonable grounds for arrest, the defendant's s. 10(b) Charter right to counsel was violated due to the police's failure to address her obvious language difficulties, leading to the exclusion of the breath test evidence.

Consequently, the defendant was acquitted of the excess BAC charge.

However, based on circumstantial evidence, including her poor driving, vehicle damage, admission of alcohol consumption, and statements, the court found her guilty of impaired driving.

The remaining provincial offence was left for further submissions.

The accused was charged with four offences, including possession of a loaded restricted firearm with an obliterated serial number and threatening to destroy property.

The charges arose after the accused's mother called 9-1-1 during a dispute, leading police to discover a loaded handgun in plain view on a dresser in the accused's bedroom.

The court found that the circumstantial evidence, including the location of the firearm near the accused's health card and clothing, proved beyond a reasonable doubt that the accused was in knowing possession of the firearm.

The accused was found guilty on all counts.

The applicant, charged with child pornography and luring offences, applied for a stay of proceedings under s. 11(b) of the Charter, citing a 24.6-month delay to trial.

The Crown argued the delay was justified by the COVID-19 pandemic as an exceptional circumstance.

The court found that the vast majority of the delay was caused by the Crown's lack of diligence in providing critical disclosure, not the pandemic.

As the net delay exceeded the presumptive ceiling and no exceptional circumstances mitigated the Crown's disclosure failures, the court found the delay unreasonable and stayed the charges.

Karen Cady was found guilty of fraud and possession of forged documents.

The Crown applied for forfeiture of proceeds of crime and a fine in lieu of forfeiture.

The court ordered forfeiture of real property and a motor vehicle, but exercised its discretion under s. 462.41 of the Criminal Code to return a portion of the sale proceeds to innocent third-party secured creditors, Computershare Trust Company of Canada and TD Auto Finance (Canada) Inc., to satisfy their legitimate interests.

A fine in lieu of forfeiture of $928,063.61 was imposed on Cady for the remaining proceeds of crime, with an 8-year payment period and a 4-year default imprisonment term.

Karen Cady pleaded guilty to defrauding her employer, Henninger’s Diesel Ltd., of over $1 million and possessing a forged document.

This was her third fraud conviction, with previous offenses also involving employers.

The court considered aggravating factors including the breach of trust, magnitude and sophistication of the fraud, its duration, and the significant impact on the victim company and its employees.

Mitigating factors included her guilty plea.

The court emphasized denunciation and deterrence, imposing a four-year penitentiary term, a 10-year prohibition from positions of financial trust, a non-communication order, and a restitution order for the full amount of the loss.

In this criminal trial, the accused, Maggie Hallikainen, faced charges of impaired operation and over 80 blood-alcohol concentration.

The impaired charge was dismissed earlier.

The accused brought a Charter application, alleging breaches of sections 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms, seeking exclusion of evidence.

The court found a serious breach of the applicant's section 8 Charter rights due to the arresting officer's unreliable and inconsistent evidence, particularly concerning the Approved Screening Device (ASD) test administration and note-taking.

Applying the Grant test, the court excluded the breath test evidence under section 24(2) of the Charter, finding its admission would bring the administration of justice into disrepute.

Additionally, the Crown failed to prove the over 80 charge beyond a reasonable doubt due to unresolved discrepancies between two Certificates of a Qualified Technician.

Consequently, the remaining charge was dismissed.

This is a judicial interim release (bail) hearing where the Crown sought the detention of the accused on secondary and tertiary grounds.

The court considered the accused's lengthy and violent criminal record, including previous convictions for assault and probation breaches, and current allegations of attempted murder and criminal harassment.

The proposed release plan, involving the Toronto Bail Program and electronic monitoring, was deemed insufficient to mitigate public safety concerns given the gravity of the alleged offences and the accused's history.

The court also considered the accused's status as a member of a vulnerable population under s. 493.2 of the Criminal Code but found that the Crown had met its onus for detention on both secondary and tertiary grounds.

The defendant was charged with impaired driving and driving with excess alcohol.

The trial addressed several Charter issues, including the validity of a breath demand (s. 8), delay in reading rights to counsel (s. 10(b)), and a "Mok" issue concerning the monitoring and recording of the defendant's use of the toilet in a police cell (s. 8).

The court dismissed the challenges to the breath demand and the delay in reading rights, finding police actions reasonable.

However, the court found a Section 8 Charter violation regarding the toilet privacy, as the measures taken (fogging video, blanket provision without instruction) were inadequate to ensure a reasonable degree of privacy.

Despite the violation, the court denied a stay of proceedings or exclusion of evidence, concluding there was no sufficient causal or temporal connection between the Charter breach and the obtaining of the breath samples or other evidence.

The defendant was found guilty of impaired operation, and the excess alcohol count was stayed on the Kienapple principle.

This preliminary inquiry addressed charges of possession for the purpose of trafficking against three accused.

The Crown sought to admit evidence via a s.540(7) application, primarily relying on police notebook notes.

The court found significant issues with the admissibility and trustworthiness of much of the Crown's evidence, particularly hearsay statements within officer notes, which prevented the defence from cross-examining critical witnesses.

While some drug trafficking activity was inferred, the court found insufficient evidence to establish constructive possession for most charges against Bogdan Butean and Justin David Gurley.

Natalie Tovah Abuhav was committed to stand trial only on the charge of Possession for the Purpose of Trafficking Percocet, as her identification was found with those specific drugs.

The other charges against her, and all charges against Butean and Gurley, were not committed for trial due to lack of sufficient evidence for committal.

The defendant, charged with speeding under the Highway Traffic Act, brought a motion for a stay of proceedings alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The court calculated the total delay and deducted neutral time, including the period of court closures due to the COVID-19 pandemic, bringing the net delay below the 18-month presumptive ceiling.

The court found that the defence failed to take meaningful steps to expedite the proceedings or put the Crown on timely notice regarding disclosure issues.

The application was dismissed and the matter proceeded to trial.

The accused was charged with sexual assault and sexual interference following an encounter with his then-boyfriend.

The complainant alleged that the accused engaged in non-consensual sexual acts, while the accused maintained that all activity was consensual.

The court applied the W.D. framework to assess credibility, finding the complainant's evidence inconsistent, exaggerated, and contradicted by external evidence, including a post-incident selfie and testimony from a witness present in the apartment.

The court believed the accused's evidence, found that the complainant consented, and acquitted the accused on both counts.

The Ministry of Labour charged Ya Ya Foods Corp. with three offences under the Occupational Health and Safety Act following a fatal incident where a worker fell from an elevated platform.

The central issue at trial was whether Ya Ya Foods qualified as a "constructor" under the Act, as the charges were laid against them in that capacity.

Applying the "control test" the court found that the deceased worker, Melvin Joyner, had the most control over the project at the time of the incident, not Ya Ya Foods.

The court noted the lack of a clear constructor designation at the outset and the difficulties of retrospective role assignment.

Consequently, the Ministry failed to prove beyond a reasonable doubt that Ya Ya Foods was the constructor, and all charges were dismissed.

Kyle Byrne pleaded guilty to impaired operation of a motor vehicle causing the death of Karli Chomick, contrary to s.320.14(3) of the Criminal Code of Canada.

The incident involved a high-speed collision while the offender's blood alcohol concentration was more than twice the legal limit.

The court accepted a joint submission for a sentence of five years imprisonment, an eight-year driving prohibition (totaling 13 years), a 10-year weapon prohibition, and a secondary DNA order.

The sentencing emphasized denunciation and deterrence, considering aggravating factors such as high blameworthiness, the victim's death, high BAC, excessive speed, and the offender's initial call to his mother instead of 9-1-1.

Mitigating factors included the guilty plea, first-time offender status, and the offender's serious injuries.

The defendant, a club promoter, was charged with multiple counts of sexual interference and sexual assault involving two underage complainants.

The central issues at trial were the credibility of the witnesses, the defendant's assertion of the mistake of age defence for the sexual interference charges, and the defence of honest but mistaken belief in communicated consent for the sexual assault charges.

The court rejected the defendant's evidence, finding he was wilfully blind or reckless regarding the complainants' ages and failed to take reasonable steps to ascertain their ages.

The court also rejected the defence of mistaken belief in consent, finding the defendant engaged in sexual acts without the complainants' consent.

The defendant was found guilty on all counts.

In a sexual assault trial, the Crown applied to admit two out-of-court statements by the complainant (A.M.) as hearsay evidence: a spontaneous utterance to a life skills coach and a videotaped statement to police.

The defence conceded necessity but disputed reliability.

The court applied the principled approach to hearsay, finding both substantive and procedural reliability for the videotaped statement, particularly due to DNA evidence and corroborating video/audio.

The spontaneous utterance was admitted under the res gestae exception, as it was made under the stress of a startling event (learning video evidence was deficient).

Both statements were admitted.

This is an application under section 276 of the Criminal Code to determine the admissibility of evidence regarding a complainant's prior sexual activity in a preliminary inquiry for human trafficking and related sexual services offences.

The court considered whether section 276 applied, given the charges were not explicitly listed sexual offences, and whether the common law Seaboyer regime should apply.

The court adopted the reasoning that section 276 only applies if a listed offence is directly implicated or connected, rejecting the "sexual milieu" test.

It also declined to extend the Seaboyer common law regime to sexual services offences, emphasizing judicial restraint and parliamentary intent.

Consequently, neither section 276 nor Seaboyer applied, and admissibility would be governed by general rules of evidence.

Sean Osborne, a police officer, pleaded guilty to assault committed while on duty.

The assault involved stepping on a restrained young person's head/neck area and twice kicking him in the chest after arrest.

The Crown sought a suspended sentence with 12 months probation, while the Defence sought a discharge.

The court emphasized denunciation and general deterrence, noting that police officers are held to a higher standard due to their position of trust.

Despite significant mitigating factors, including PTSD and extensive community contributions, the court found that a discharge would be contrary to public interest.

A conviction was deemed necessary to convey the seriousness of the offence and breach of public trust.

The court imposed a suspended sentence and 12 months probation with statutory terms.

The accused, a tow truck driver, was charged with assault with a weapon, threatening bodily harm, and dangerous driving following an altercation with another tow truck driver.

The Crown proceeded summarily.

The court found the complainant's evidence credible, supported by video and physical evidence, and rejected the accused's self-defence claim, finding his actions were motivated by vengeance rather than self-protection.

The accused was found guilty of assault with a weapon and threatening bodily harm, but not guilty of dangerous driving as the driving conduct did not meet the criminal threshold.

The mother was found in contempt of prior parenting orders, leading to the father being deprived of access.

The court imposed a $5,000 penalty on the mother and continued a temporary order placing the child in the father's primary care with specific parenting time for the mother.

The court also addressed an urgent motion to change parenting arrangements, finding jurisdiction to make temporary orders in the child's best interests, and requested a section 112 investigation by the Office of the Children's Lawyer.

The child's stated wishes were given little weight due to concerns about independence and potential influence.

In an uncontested trial, the applicant mother sought sole decision-making responsibility, a restraining order, and supervised parenting time for the respondent father.

The father had been noted in default and had a history of substance misuse, mental health instability, and family violence, including breaching a temporary restraining order.

The court granted the mother sole decision-making responsibility and a final restraining order.

The court declined to order any parenting time for the father, finding that unsupervised time posed a risk of emotional harm to the child and that there was no viable plan for supervised time before the court.