OCJ 2022

Following a trial where the offender was found guilty of sexual assault involving penetrative intercourse, the court delivered its sentencing decision.

The victim suffered profound and lasting physical, emotional, psychological, and financial harm.

The Crown sought a minimum of 3 years imprisonment, while the defence proposed a 24-month conditional sentence.

The court emphasized denunciation and deterrence as primary sentencing objectives, rejecting a conditional sentence due to the violent and invasive nature of the crime and numerous aggravating factors.

Despite the offender's youth, lack of criminal record, and potential immigration consequences, the court imposed a sentence of 5 years in the penitentiary, along with ancillary orders for DNA, a 10-year weapon prohibition, and a 25-year SOIRA order.

The Crown sought to vary an unsealing order for an Information to Obtain (ITO) related to a search warrant execution that resulted in a fatality, requesting to seal the identity of a civilian Toronto Police Service employee or impose a five-year publication ban.

The media outlets opposed the application.

The court dismissed the Crown's application, finding that the evidence did not objectively establish a serious risk to an important public interest sufficient to dislodge the presumption of openness under the Dagenais/Mentuck test, as refined by Sherman Estate v. Donovan.

The court noted the threats were directed at the officer who shot the deceased, not the civilian employee, and the link between the employee's identity and potential harm was speculative.

The defendant, Husani Alexander, was charged with three counts of assault against his former partner, Tashina Yorke: assault causing bodily harm on December 22, 2019, assault causing bodily harm on March 10, 2016, and assault on August 24, 2016.

The central issue was credibility.

The court found both the complainant and the defendant to be credible witnesses, albeit with reservations for the complainant.

Regarding the December 2019 incident, the court found the headbutt was accidental, leading to dismissal of that charge.

For the March and August 2016 incidents, the court found both versions of events equally plausible and could not conclude guilt beyond a reasonable doubt.

Consequently, all three charges were dismissed.

Shamar Brown was convicted of drug trafficking and gun possession, including a loaded handgun with an over-capacity magazine, cocaine, Oxycontin, and Xanax for trafficking.

He had an extensive criminal record with multiple firearm convictions and was on federal parole and subject to firearm prohibitions at the time of arrest.

The Crown sought a 10-year sentence, while the defence argued for a 7-7.5 year sentence, reduced to 4.5 years due to harsh custody conditions and a Charter breach.

The court imposed a total sentence of 10 years, applying 1.5:1 credit for pre-trial custody, resulting in 8 years, 5 months, and 15 days remaining to serve.

The court considered aggravating factors such as his criminal history and public threat, and limited mitigating factors, while dismissing the anti-Black racism argument due to lack of specific evidence.

This ruling addresses a Charter application under s. 10(b) and s. 24(2) by two accused seeking to exclude evidence (a firearm and drugs) due to alleged breaches of their right to counsel.

The Crown conceded a s. 10(b) breach occurred due to a communication breakdown between police forces, resulting in a delay of 1 hour 15 minutes for one applicant and 1 hour 45 minutes for the other to speak with counsel.

The court found the Toronto Police Service acted professionally, but the Durham Regional Police Service failed in their duty to facilitate access to counsel at the booking stage.

Applying the R. v. Grant factors, the court characterized the breach as serious but not systemic, found the impact on the applicants moderate, and society's interest in adjudication on the merits high given the serious nature of the charges (firearm and large quantity of drugs).

The application for exclusion of evidence was dismissed.

This is a sentencing decision for Rychez Leslie, a young Black man, who pleaded guilty to possessing a loaded restricted firearm and failing to stop for police.

The court considered the principles of sentencing, particularly deterrence, denunciation, restraint, and rehabilitation, in light of the Ontario Court of Appeal's decision in R. v. Morris regarding social context evidence and anti-Black racism.

Despite the seriousness of the firearm offence, the court found that Leslie's strong rehabilitative potential, lack of prior record, and positive post-arrest activities, coupled with his lived experiences in a high-violence community, mitigated his personal responsibility.

The court imposed a Conditional Sentence Order (CSO) of 2 years less 1 day for the firearm offence, concurrent with a 6-month CSO for the driving offence, followed by a 1-year probation, a 1-year driving prohibition, and a lifetime firearms prohibition.

In a child protection application, the father (A.A.) moved for a Section 98 assessment concerning allegations of sexual abuse against him and potential coaching of the children.

The court found the assessment necessary to determine the issues, particularly regarding coaching, as police opinions were deemed insufficient.

The motion was granted, and the court ordered the Children's Aid Society to pay 75% of the assessment costs, with the father responsible for the remaining 25%, including a repayment plan if he could not pay his share upfront.

The accused, Malik Ahmad, was charged with manslaughter following a physical altercation at a mall that resulted in the death of Mr. Baig due to a catastrophic head injury.

The Crown alleged a consent fight where Ahmad pushed Baig, causing him to fall and hit his head.

The defence argued insufficient evidence of an unlawful act or intent to cause serious bodily harm.

The court found that while an altercation occurred and Baig's death was caused by hitting his head, there was no conclusive evidence to determine what precipitated the fall (e.g., push, punch, slip).

The court also gave less weight to the expert medical testimony regarding certain facial injuries due to a lack of information on medical intervention at the scene.

Ultimately, the court was not satisfied beyond a reasonable doubt that the accused caused the death unlawfully and acquitted him.

The defendant, Brent Mehagan, pleaded guilty to multiple charges including five counts of making child pornography, one count of criminal harassment, and five counts of voyeurism involving over 240 victims.

The court considered aggravating factors such as the systematic and covert nature of the crimes, the large number of victims, the significant psychological impact on victims and the community, and the defendant's prior related conviction for possession of child pornography.

Mitigating factors included the voluntary plea, acknowledgment of the scope of harm, expressed remorse, and engagement in counselling.

Gladue factors were also considered due to the defendant's Indigenous background and disassociation from cultural roots.

The court emphasized denunciation and deterrence, particularly for child-related offenses, while also considering the defendant's progress towards rehabilitation.

A total sentence of 38 months imprisonment was imposed, with credit for pre-sentence custody and onerous house arrest conditions.

Ancillary orders included DNA sample, lifetime Sex Offender Information Registration, a 10-year prohibition from certain public places and internet use for unlawful purposes or photographing females under 16, and forfeiture of seized devices.

The accused, Hamza Jama and Felix Ajayi, brought a motion for standing to challenge a CDSA search warrant.

The court considered whether they had a reasonable expectation of territorial privacy in the searched apartments, applying the factors from R. v. Edwards.

The court denied standing to both accused, finding no sufficient evidence of territorial privacy for Jama in Apartment #6, and for Ajayi in Apartment #15, especially given the allegation of home invasion.

The applicant wife and respondent husband separated after 18 years of cohabitation and marriage, entering into a separation agreement in 2015 that provided for spousal support of $10,000 per month.

The husband ceased payments in April 2019 and brought a motion to vary or terminate spousal support, citing voluntary retirement due to perceived health issues and changes in medical practice.

The wife opposed the motion, asserting her continued entitlement to support.

The court dismissed the husband's motion, finding that his voluntary retirement was not a material change in circumstances warranting a variation, and that he retained the capacity to work.

The court ordered spousal support to continue as per the original separation agreement.

The father sought to change the children's primary residence from Thunder Bay to London, Ontario, and sought sole custody, alleging the mother had mental health issues and failed to address the children's special needs.

The mother opposed the relocation and sought to retain primary care and decision-making.

The court found the mother was the primary parent and the children's status quo was with her.

Applying the Children's Law Reform Act and common law principles, the court determined that the father failed to demonstrate a material change in circumstances or that the relocation was in the children's best interests, noting his history of undermining the mother and his own move from Thunder Bay.

The court dismissed the father's request for relocation and granted the mother sole decision-making authority and primary residence, with specified parenting time for the father and an order for child support arrears and ongoing support.

Maurice Bartley, the payor, brought a motion to change a child support order, seeking retroactive variation and rescission of arrears.

The original order, made in default, imputed income and set support, arrears, s.7 expenses, and costs.

The court, applying the Colucci framework, denied rescission of pre-existing arrears due to lack of participation and insufficient prior financial disclosure.

However, acknowledging a material change in circumstances (medical conditions), the court prospectively varied child support based on a deemed income of $25,000/year, reducing it to $199/month from March 1, 2022.

The court also adjusted payment schedules for pre-existing arrears ($100/month) and costs ($50/month), and stayed s.7 expenses.

A default clause was included, making all arrears and costs immediately due if three consecutive payments are missed.

The parties, Meghan Ruth Gorman (mother) and Terri Richard Gorman (father), separated in 2018.

The mother sought to relocate the children from Thunder Bay to Sault Ste.

Marie, along with orders for decision-making, parenting time, and child support.

The father, self-represented, opposed the relocation.

The court found that the mother failed to provide proper notice of relocation under the amended Children's Law Reform Act, and therefore the onus remained on her to prove the move was in the children's best interests.

The court denied the relocation, finding it was not in the children's best interests due to their happiness with the current arrangements, strong relationship with the father, and existing support networks in Thunder Bay.

The court established a divided decision-making framework, adjusted parenting time to allow for parental contact, and ordered child support from the father.

Conditional spousal support was also ordered for the mother if she pursues a personal support worker program.

This criminal trial concerned the charge of reckless discharge of a firearm against the accused, who had already pleaded guilty to possession of a loaded firearm and possession of a firearm contrary to a prohibition order.

The incident occurred in a busy mall where the accused returned fire after another individual (Shooter 1) discharged a handgun in his direction.

The central issue was whether the accused's actions constituted lawful self-defence under Section 34 of the Criminal Code.

The court found that while the accused reasonably believed force was being used against him and acted with the purpose of self-defence, his response was not reasonable in the circumstances.

The judge emphasized that the accused had other options, such as seeking cover, and that his act of firing into a crowded mall recklessly escalated the risk to numerous innocent bystanders, which does not align with community norms.

Consequently, the Crown successfully disproved self-defence, and the accused was found guilty of reckless discharge of a firearm.

The defendant, Martin Ngigi, charged with assault, brought an O'Connor application for the disclosure of the complainant J.G.'s extensive medical records related to muscular dystrophy and potential cognitive conditions.

The application sought to establish "likely relevance" to the mechanism of injury, credibility, reliability, and competence to testify.

The court dismissed the broad request for all records, finding insufficient evidentiary basis, particularly the lack of an affidavit, to establish "likely relevance" for most records.

However, the court found two specific outpatient records from J.G.'s muscular dystrophy specialist, proximate to the alleged incident, to be "likely relevant" for information on prescriptions, dosage, timing of medications, and the status of J.G.'s muscular dystrophy.

These two records were ordered to proceed to a Stage 2 review for potential disclosure to the defence, while the broader application was denied.

The accused, A.S., brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay was 40 months and 15 days.

The court applied the Jordan framework, determining the presumptive ceiling was 30 months due to the matter having been in Superior Court.

After subtracting defence-caused delay (3 months and 27 days), the net delay was 36 months and 18 days.

The court found that the remaining delay of 33 months and 13 days (after deducting 3 months and 5 days for COVID-19 impact) exceeded the presumptive ceiling and was not justified by exceptional circumstances, including the Crown's decision to add indictable charges and then consent to re-election without a waiver.

The application for a stay of proceedings was granted.

The defendants brought an application for disclosure of information related to four other land development projects, arguing it was relevant for full answer and defence, due diligence, and to demonstrate inconsistent application of environmental legislation by the Ministry.

The court determined that the materials sought were not first-party disclosure in the possession or control of the prosecution but rather third-party records held by the Ministry of Natural Resources and Forestry.

The court outlined the proper two-step process for a third-party production application, emphasizing the need to notify the record holder and any parties with privacy interests, and provided guidance on the Crown's duty to inquire.

The application for disclosure was not granted as first-party, but the court provided a procedural path for the defendants to pursue it as third-party production.

This decision addresses a capacity inquiry under section 16 of the Canada Evidence Act regarding a complainant with a severe mental disability in a sexual assault trial.

The defence challenged the complainant's capacity to testify.

The court found that while the complainant did not understand the nature of an oath or solemn affirmation, she was able to communicate the evidence and was therefore competent to testify on promising to tell the truth.

The ruling emphasizes that deficiencies in perception and recollection are matters of weight for the trier of fact, not competence, provided a basic ability to perceive, remember, and communicate exists.

Ashton Gray was charged with mischief and assault police.

She admitted to the offences but sought a stay of proceedings, alleging a breach of her section 7 Charter rights due to excessive police force during her arrest and subsequent detention at the hospital.

The court found that while the initial arrest force was reasonable, Officer Paulini used unnecessary and excessive force at the hospital, motivated by anger, while Ms. Gray was handcuffed, strapped to a stretcher, and suffering from a mental health crisis.

This conduct constituted a breach of Ms. Gray's section 7 Charter rights.

Applying the R. v. Babos test, the court determined that a stay of proceedings was the appropriate and only adequate remedy to dissociate the justice system from the egregious police misconduct, outweighing society's interest in a trial on the merits.