Criminal and Quasi-Criminal Law - OCJ

This judgment concerns the sentencing of an accused (JG) convicted of sexual assault against his intimate partner.

The court applied the sentencing range established in R. v. AJK, which sets a starting point of at least three years in the penitentiary for penetrative sexual assault, emphasizing that an intimate partner relationship is an aggravating factor due to breach of trust.

Despite numerous mitigating factors, including JG being a first-time offender with strong community support and a low risk of reoffence, the court found no "highly mitigating factor" sufficient to depart below the three-year threshold.

Consequently, JG was sentenced to three years in the penitentiary.

Additionally, the court declined to issue a Sex Offender Information Registration Act (SOIRA) order, finding that JG's low risk of reoffence and the disproportionate impact of such an order on him outweighed the public interest in registration, in accordance with the amended Criminal Code provisions post-R. v. Ndlovu.

This criminal trial concerned charges of assault with a weapon and dangerous operation of a motor vehicle against Aaron J. George.

The charges arose from an incident in a busy parking lot where the accused, after being told to slow down, intentionally drove his vehicle into a pedestrian, causing him to fall onto the car's hood, and then sped away.

The court found the accused's testimony evasive and inconsistent, preferring the evidence of the Crown's witnesses.

The judge concluded that the accused's driving constituted an objectively dangerous marked departure from the standard of care and that the act of striking the pedestrian was intentional.

The accused was found guilty on both counts.

Christopher Navas pleaded guilty to failing to comply with a release order.

The Crown sought a conditional discharge with probation and a DNA order, while the defence argued for an absolute discharge and opposed the DNA order.

The court granted an absolute discharge, finding that Mr. Navas's offending behaviour was linked to significant mental health challenges and that he had made exemplary progress in rehabilitation, rendering a probation order unnecessary and a longer record retention period disproportionate.

The court also declined to impose a DNA order, considering the minor nature of the breach, the offender's lack of prior criminal record, and his rehabilitation efforts.

The applicant, charged with accessing child pornography, brought an application under sections 8 and 24(2) of the Charter to exclude evidence seized during the execution of a search warrant at his residence.

The defence argued that the information to obtain (ITO) did not provide reasonable grounds for the warrant, specifically raising concerns about the staleness of the information.

The Crown contended that the ITO disclosed sufficient information.

The court dismissed the application, concluding that the ITO contained reasonable grounds upon which the issuing justice could have issued the search warrant, emphasizing that the nature of child pornography as non-consumable digital evidence affects the staleness analysis.

Barjot Minhas pleaded guilty to one count of assault causing bodily harm and one count of aggravated assault after stabbing two individuals at a house party.

The court considered the serious nature of the injuries, the use of a concealed knife, and the multiple instances of violence as aggravating factors.

Mitigating factors included the offender's youth, first-offender status, positive pre-sentence report, remorse, and compliance with bail conditions.

The court also considered the impact of the COVID-19 pandemic on conditions of custody.

Applying sentencing principles of denunciation, deterrence, and rehabilitation, the court imposed a global sentence of 18 months custody followed by 2 years probation, along with ancillary orders.

The accused was charged with two counts of breach of undertaking arising from incidents on July 4, 2019.

The Crown alleged that the accused attended at a residence in breach of a condition prohibiting him from attending at that location, and that he communicated with a named individual in breach of a non-communication condition.

The trial proceeded over two days.

The court found the undertaking valid and in force at the time of the alleged breaches.

The Crown proved beyond a reasonable doubt that the accused attended at the prohibited location and that he communicated with the named individual, both in breach of the undertaking conditions.

The court found the accused guilty on both counts, though subsequently a stay was entered on one count pursuant to the Kienapple principle.

The defendant pleaded guilty to conspiracy to traffic in marijuana and trafficking in marijuana under 3 kilograms.

An Agreed Statement of Facts was entered that did not specify the quantity of marijuana involved in the conspiracy.

The Crown subsequently sought to lead evidence at sentencing to establish that the quantity exceeded 3 kilograms.

The court found that the Crown and defence had entered into an implicit agreement that sentencing would be based solely on the facts in the Agreed Statement of Facts.

The Crown's application to call further evidence was dismissed.

The defendant then brought a section 11(b) Charter application alleging breach of the right to be sentenced within a reasonable time.

The court found that the net sentencing delay of 10 months exceeded the 5-month presumptive ceiling established in R. v. Charley, and that no exceptional circumstances justified the delay.

The court granted a stay of proceedings as the remedy for the breach, while preserving the finding of guilt.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mgs of alcohol in 100 mls of blood and having care or control of a motor vehicle while impaired by alcohol.

The trial proceeded following a successful Charter application under s.10(b) that resulted in the exclusion of breath samples.

The accused also brought a s.11(b) Charter motion alleging unreasonable delay, which was dismissed.

On the merits, the court found that the Crown failed to prove beyond a reasonable doubt that the accused was in care or control of the motor vehicle.

The statutory presumption of care or control was rebutted by evidence that the accused occupied the driver's seat solely to smoke a cigarette in cold weather after arriving home.

The court also found no realistic risk of danger to ground a conviction based on de facto care or control.

Both charges were dismissed.

The accused, a police officer, was charged with impaired driving and driving with a blood alcohol concentration exceeding the legal limit following a single-vehicle collision on November 21, 2015.

The Crown's case relied on breath analysis results and expert toxicology evidence.

The defence raised Charter challenges regarding the admissibility of pre-arrest statements, the validity of the breath demand, and the right to counsel.

The court found no Charter breaches and admitted all evidence.

The accused was convicted on both counts based on breath readings showing a blood alcohol concentration of 88 milligrams per 100 millilitres of blood and expert evidence establishing impairment.

A voir dire was conducted to determine the admissibility of statements made by the defendant to a police officer during breath testing procedures.

The Crown sought to introduce utterances made by the defendant during the breath room interaction.

The court found that statements made before the first breath sample were voluntary, as the defendant was properly cautioned regarding his right to remain silent and appeared to have freely chosen to speak with the officer.

However, the court found that statements made between the two breath samples were not established to be voluntary beyond a reasonable doubt, as the defendant may have believed the questions related to the Alcohol Influence Report were part of the compulsory breath testing process and no caution was provided before those questions.

The defendant was charged with driving with excess alcohol following a roadside stop on May 25, 2016.

The defendant alleged several Charter breaches and sought to exclude breath test results.

The principal issue was the extent to which police must attempt to facilitate contact with counsel of choice before offering duty counsel as an alternative.

The court found no breach of the defendant's right to counsel under section 10(b) of the Charter, as the defendant had expressed willingness to speak to duty counsel if his preferred counsel could not be reached, and the officer made reasonable efforts to contact the preferred counsel before offering the alternative.

The breath test results were admitted into evidence, and the defendant was found guilty of operating a motor vehicle with a blood alcohol level exceeding the legal limit.

The accused was charged with assault and sexual assault.

The accused pleaded guilty to assault and proceeded to trial on the sexual assault charge.

The complainant testified that the accused persistently coerced her into sexual intercourse despite her repeated refusals.

The court found that the complainant was a credible witness and that her evidence established that she never consented to the sexual act.

The court rejected the defence argument that the complainant's post-intercourse conduct was inconsistent with non-consent, finding that her disappointment and anger were consistent with having been forced into unwanted sexual activity.

The court convicted the accused of sexual assault.

The accused was charged with drug-related offences following a search warrant executed at his residence.

The defence brought an application to exclude evidence seized during the search, arguing that the Information to Obtain (ITO) supporting the warrant contained erroneous and misleading information and that the search breached section 8 of the Charter.

The Crown argued that the ITO contained sufficient reliable grounds to support the warrant's issuance.

The court conducted a detailed review of the warrant application, examining allegations of errors in the ITO regarding surveillance observations, and determined that despite certain inaccuracies, the warrant was supported by reliable grounds and that any breach would not warrant exclusion of evidence under section 24(2) of the Charter.

The accused was charged with impaired operation of a motor vehicle and operation with blood alcohol content over 80 milligrams per 100 millilitres of blood.

The Crown relied on breath test readings of 136 and 131 milligrams and expert evidence extrapolating the accused's blood alcohol content at the time of driving.

The court found that while the arrest was supported by reasonable and probable grounds, the Crown failed to prove the absence of bolus drinking, rendering the expert opinion unreliable.

Additionally, the evidence of impairment was inconsistent and frail, with minimal evidence of bad driving.

The accused was acquitted on both counts.

The accused was charged with driving with excess alcohol contrary to section 253(1)(b) of the Criminal Code.

The accused brought a Charter application alleging that he was not provided his rights to counsel in a timely manner and was unable to consult with his counsel of choice.

The court found a technical breach of section 10(b) regarding the delay in providing rights to counsel (14 minutes from arrest to provision of rights), but determined that the evidence should be admitted under section 24(2) analysis.

The court also found no breach regarding the failure to provide counsel of choice, as the officer acted with reasonable diligence and the accused failed to act diligently in exercising his rights.

The accused was found guilty.

The accused was charged with failing or refusing to comply with a demand to provide breath samples for an approved screening device (ASD) contrary to section 254(5) of the Criminal Code.

The Crown alleged the accused was observed drinking from a wine bottle in a McDonald's drive-thru and subsequently failed to provide suitable breath samples during ten attempts at roadside testing.

The accused claimed she was unable to provide samples due to anxiety and a pre-existing lung condition.

The court addressed a late challenge to the sufficiency of the charge, finding it was not a nullity but amending it to conform to the evidence presented.

On the merits, the court found the accused guilty, determining that she intentionally failed to provide samples rather than being incapable of doing so.

The accused was charged with operating a motor vehicle while impaired by alcohol on June 7, 2012.

The Crown presented evidence from two police officers and a forensic toxicologist.

The arresting officer observed the defendant making a wide, slow left turn and noted signs of impairment including unsteadiness, slow speech, strong odour of alcohol, and shaking hands.

Breath samples taken at the police station registered 58 and 49 milligrams of alcohol per 100 millilitres of blood.

A toxicologist opined that the defendant's blood alcohol concentration at the time of driving would have been between 40 to 85 milligrams, with impairment occurring at 50 milligrams.

The court found the defendant guilty based on the totality of evidence demonstrating impairment to at least a slight degree.

The Crown brought an application to have the accused found not criminally responsible (NCR) on the basis of mental disorder following her conviction for two counts of criminal harassment.

The accused had been found guilty of changing her surname to that of a man she had been obsessed with for approximately fourteen years.

Expert psychiatric evidence established that the accused suffered from Delusional Disorder, Erotomanic Type, a chronic psychotic disorder characterized by the false belief that another person is in love with the individual.

The court found that the accused's mental disorder rendered her incapable of knowing that her actions were morally wrong, despite her general understanding that the act was legally permissible.

An NCR verdict was recorded.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code.

The accused challenged the lawfulness of the police investigation, alleging violations of section 8 of the Canadian Charter of Rights and Freedoms.

The court conducted a blended voir dire on the Charter issues and found that the arresting officer failed to properly formulate the requisite reasonable suspicion under section 254(2) of the Criminal Code for the roadside screening device demand, and further failed to establish reasonable and probable grounds under section 254(3) for the breath demand at the police station.

The court found that the officer's testimony regarding what the "F" reading on the approved screening device meant was entirely absent, and the officer admitted he had no grounds to arrest the accused until obtaining that reading.

The court excluded the breath sample evidence under section 24(2) of the Charter and dismissed the charge.

The accused was charged with impaired driving and refusing to provide a breath sample following a traffic stop for allegedly running a red light.

The court found insufficient evidence of impairment beyond a reasonable doubt.

The accused's driving was normal apart from the disputed intersection turn, he exhibited no signs of impairment such as unsteadiness, and the only indicators were odour of alcohol and red eyes.

The court determined there were no objectively reasonable grounds for arrest for impaired driving, rendering the breath demand unlawful.

Consequently, the refusal to provide a breath sample was not an offence.

The accused was acquitted of both charges.