Criminal and Quasi-Criminal Law - OCJ

This decision concerns a bail breach charge against Kit Wah Cheng for attending within 100 meters of his daughter’s and former partner’s residence, contrary to a bail condition.

The court carefully considered video surveillance evidence challenged by the accused on grounds of tampering and fabrication.

The judge found the evidence credible and probative, rejecting claims of manipulation or lawful excuse.

The Crown proved beyond a reasonable doubt that Mr. Cheng breached his bail condition on June 15, 2024.

This decision addresses the credibility and reliability assessments in a sexual assault trial involving intimate partners, W.O. and M.M., who were married for 25 years and both served in the Canadian military.

The accused faced multiple charges of sexual assault and one count of assault.

The trial judge carefully applied the W.(D.) framework to evaluate conflicting testimonies, considering medical conditions, memory issues, and inconsistencies in the complainant's evidence.

The judge found the accused not guilty of the sexual assault charges due to reasonable doubt and credibility concerns but convicted him of a minor assault causing injury to the complainant's hand during a physical altercation over trailer keys.

In this decision, the Ontario Court of Justice acquitted Franco Tomasone of the charge of refusing to provide a breath sample under s. 320.15(1) of the Criminal Code.

The court found that the Crown failed to prove beyond a reasonable doubt that Tomasone unequivocally refused to comply with a lawful approved screening device (ASD) demand.

The judge emphasized the statutory immediacy requirement for providing breath samples but recognized that some flexibility is warranted when confusion arises, particularly when the right to counsel is suspended during an ASD demand.

The court also found that the officer did not have objectively reasonable grounds to suspect Tomasone had alcohol in his body at the time of the demand, rendering the demand unlawful.

The decision highlights the importance of the timing and clarity of demands and refusals in impaired driving investigations.

The offender, a massage therapist, was found guilty of sexually assaulting a client during a therapeutic massage.

The court considered the Crown's request for a 9-12 month jail term and the defence's request for a conditional sentence or 2 months intermittent incarceration.

Aggravating factors included a significant breach of trust and the victim's vulnerability.

Mitigating factors included no prior criminal record and the non-violent nature of the assault.

The court rejected a conditional sentence, emphasizing the need for denunciation and deterrence for healthcare professionals who abuse trust.

The offender was sentenced to 90 days intermittent custody, 12 months probation, a DNA order, and a 10-year Sex Offender Information Registration Act (SOIRA) order.

Mitchell Miskie was charged with sexual assault.

He relied on the defence of extreme intoxication akin to automatism, arguing that his consumption of alcohol, marijuana, cocaine, and Xanax rendered him an automaton with no willed control over his actions.

The defence presented expert psychiatric evidence supporting a blackout state.

The court, applying the principles from R. v. Brown and R. v. Sullivan, found that while the accused was significantly intoxicated and claimed no memory, his coherent speech and responsive actions during the assault, along with police observations post-arrest, indicated he was not in a state of automatism.

The court emphasized that a mere blackout or memory loss does not equate to involuntariness.

The defence of extreme intoxication was not made out, and the accused was found guilty.

The offender, Tiago Vieira-Paulino, pleaded guilty to eight criminal charges, including unprovoked knife attacks on strangers and intimate partner violence and child abuse against his partner and her three young children.

The Crown sought an eight-month custodial sentence, while the defence sought six months less a day, primarily to avoid immigration consequences.

The court rejected the proposed sentence as manifestly inadequate, finding it would bring the administration of justice into disrepute.

The judge emphasized the principles of denunciation and general deterrence, particularly for intimate partner violence and child abuse, and the gravity of unprovoked stranger assaults with a weapon.

A global sentence of two years less a day in custody, followed by three years' probation, was imposed, with credit for pre-sentence custody.

The applicant appealed the revocation of his firearms license following his guilty plea to possession of child pornography.

The Area Firearms Officer revoked the license based on the applicant's conviction, his admission of a long-standing sexual interest in children that he could not control, and public safety concerns reflected in the sentencing court's imposition of custody, probation, and a section 161 order with extensive restrictions.

The applicant argued that the revocation was based on an automatic policy rather than individualized assessment and that he had been a responsible firearms owner in full compliance with all regulations.

The court upheld the revocation, finding that the AFO conducted an individualized assessment applying the proper criteria under the Firearms Act and that the decision was objectively reasonable.

The defendant was charged with driving a motor vehicle while operating a handheld communication device contrary to section 78.1(1) of the Highway Traffic Act.

A police officer observed the defendant holding a white iPhone in his left hand while stopped at a red light and tapping the device with his right thumb.

The defendant did not testify.

The court found the officer's testimony credible and reliable, and determined that the prosecution proved beyond a reasonable doubt that the device was a cell phone.

The defendant was convicted.

A young person was found guilty at trial of three counts of assault, two counts of sexual assault, and one count of unlawful confinement committed at age 16, and pleaded guilty to one count of uttering threats, one count of criminal harassment, and two counts of failing to comply with probation terms committed as an adult.

The offences were committed against the mother of his child over a prolonged period involving repeated physical and sexual violence, followed by years of harassment via social media.

The court imposed a global sentence of two years custody and community supervision for the youth offences and three years imprisonment for the adult offences, with ancillary orders including DNA collection, weapons prohibitions, and no-contact orders.

The accused was charged with sexual assault, forcible confinement, and breach of probation arising from an alleged incident in a park on October 27, 2017.

The Crown's case relied primarily on the complainant's testimony, which contained numerous inconsistencies and contradictions regarding material facts including the accused's clothing, sobriety, and the nature of the alleged sexual conduct.

The accused denied all allegations.

The court found that while the complainant's evidence was unreliable due to her intoxication from marijuana, inconsistent statements, and tendency to testify as fact matters she was merely assuming, the Crown failed to prove the charges beyond a reasonable doubt.

The accused was acquitted of all charges.

The accused was charged with assault causing bodily harm to the complainant on October 5, 2016 in Oakville.

The Crown proceeded summarily.

The central issues were whether the contact was intentional or accidental, and whether the accused was acting in lawful defence of his son.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused intended to make physical contact with either the complainant or a third party.

The accused was acquitted.

The court also addressed the defence of third party and found it would not have applied on the facts, as the situation did not constitute a threat of force and any intervention was unreasonable.

The defendant, a 47-year-old man with a previously clean record, was sentenced for trafficking in fentanyl patches.

Following a workplace electrocution eight years prior, the defendant was lawfully prescribed fentanyl for pain management.

He became addicted to the drug, abused his prescription by chewing used patches, and gave patches to his brother-in-law who was experiencing severe back pain.

To cover his tracks, he fabricated fake used patches.

The defendant pleaded guilty to trafficking.

The Crown sought a penitentiary sentence of three to four years.

The court imposed a suspended sentence with three years of probation, 100 hours of community service, and various conditions including substance abuse counselling and a weapons prohibition.

The defendant was charged with operating a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code and with consuming alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code.

The offences were alleged to have occurred on September 18, 2014.

The Crown relied on breath samples taken outside the two-hour window for the presumption of identity, requiring expert toxicological evidence.

The defendant testified that she consumed alcohol in response to phone calls from her abusive ex-husband and that she poured alcohol on her car floor when she saw police pulling her over.

The court found the defendant's credibility seriously undermined by her false statements regarding requesting a Punjabi interpreter and her implausible account of pouring alcohol on the car floor.

The court acquitted on the over 80 charge because the Crown failed to prove the "no bolus drinking" assumption underlying the toxicologist's opinion, given evidence that the defendant was consuming large quantities of alcohol while driving.

However, the court convicted on the impaired driving charge based on poor driving, slurred speech, swaying, and stumbling observed by police officers.

The defendant, a 25-year-old Aboriginal woman with no criminal record, pleaded guilty to theft of prescription medication and three counts of trafficking in controlled substances (Hydromorph Contin, Oxycocet, and Adderall).

The offences occurred while she was employed as a pharmacy technician and involved taking narcotics from the pharmacy safe for personal use and to share with her then-boyfriend.

The Crown sought a penitentiary sentence of 2.5 to 3 years, while the defence sought a suspended sentence with probation.

The court imposed a suspended sentence with 30 months probation, finding exceptional circumstances based on the defendant's genuine rehabilitation efforts, completion of drug and mental health treatment programs, stable employment, family support, and Aboriginal heritage considerations.

The accused was charged with refusing to comply with a lawful breath demand contrary to the Criminal Code.

Following a citizen complaint of impaired driving, police located the accused in the driver's seat of a vehicle with the engine running.

After failing an Approved Screening Device test, the accused was arrested and taken to the station where he was demanded to provide breath samples on an Approved Instrument.

The accused refused to comply.

The trial addressed multiple Charter issues including care or control, reasonable grounds for the demand, timing of the demand, the validity of the refusal, potential reasonable excuse based on mistrust of police, and alleged breaches of sections 10(a), 10(b), 8, and 9 of the Charter.

The court found the Crown proved all elements of the offence beyond a reasonable doubt and rejected all Charter defences.

The accused was charged with driving with excess alcohol after registering a fail on an approved screening device (ASD) at the roadside.

The Crown's case relied on breath samples obtained at the police station.

The defence argued that the ASD result was unreliable due to the presence of a throat lozenge in the accused's mouth and the officer's failure to consider the effects of certain foods and substances on the device, as outlined in an Ontario Provincial Police memorandum.

The court found that the officer could not have reasonably relied on the ASD result and that the breath samples were obtained in violation of the accused's Charter rights.

The evidence was excluded and the accused was acquitted.

The applicants sought costs awards against the Crown following the dismissal of the Crown's forfeiture applications under the Controlled Drugs and Substances Act.

The Crown had sought forfeiture of two properties allegedly used in connection with marijuana grow operations.

The court found that the Crown's conduct in commencing restraint and forfeiture applications against innocent third parties, without evidence of complicity or collusion, constituted a marked and unacceptable departure from the reasonable standards expected of the prosecution.

The Crown failed to properly assess available evidence before proceeding and maintained an intransigent "hardball" attitude throughout the proceedings.

The court determined that costs awards were warranted.

The accused pleaded guilty to three drug trafficking offences involving the trafficking and possession of cocaine and crack cocaine for the purposes of trafficking.

The offences occurred in February 2012 while the accused was on bail for similar charges.

Police conducted surveillance and observed the accused selling cocaine to customers and subsequently seized approximately 1.04 kilograms of cocaine from two locations.

The accused was a commercial-grade trafficker operating a criminal enterprise.

The court imposed a sentence of 5.5 years consecutive to the sentence the accused was already serving, with concurrent sentences on the other two counts.

The accused, a 25-year-old member of the Nipissing First Nation with an extensive violent criminal history, was sentenced following his guilty plea to breaching a high-risk offender recognizance under section 810.2 of the Criminal Code and uttering a threat to burn property contrary to section 264.1.

The breach involved failing to notify police of a change of address.

The threat was made at his mother's apartment complex when he was denied entry to retrieve belongings.

The court imposed a sentence of 45 days jail to be served intermittently on weekends, along with a three-year probation order with conditions including anger management and substance abuse counselling, cultural and First Nations-based programming, and no contact with the complainants.

The defendant, owner of a multi-unit residential building, was charged with five violations of the Fire Protection and Prevention Act, 1997 relating to the Fire Code.

The charges involved: combustible materials stored in a means of egress; obstruction of a means of egress with items on stairs; obstruction of an exterior stairway; failure to maintain an exterior stairway in good repair; and a breach of fire separation requirements between dwelling units.

The defendant raised defenses of temporary storage and necessity, which were rejected.

The court found the defendant guilty on all five counts based on clear photographic evidence and testimony from the Fire Prevention Officer.