Criminal and Quasi-Criminal Law - OCJ

The accused, Estime Ndayihezagiye, was found guilty of possession of a loaded, restricted semi-automatic firearm and careless storage.

In this sentencing decision, the court considered aggravating factors such as the prevalence of gun violence in Toronto, the presence of a laser sight, and the risk to younger siblings due to careless storage.

Mitigating factors included the accused's youth (18 at the time of arrest), lack of criminal record, extensive family and community support, demonstrated commitment to rehabilitation, and a severe mental health crisis experienced during pre-sentence incarceration due to harsh conditions and inadequate medical response.

The court also considered the impact of anti-Black racism on the accused's life and the significant delay in obtaining an Enhanced Pre-Sentence Report.

The judge quantified "Duncan credit" for harsh incarceration conditions and "Downes credit" for stringent bail conditions.

The court ultimately imposed a reformatory sentence, finding that a penitentiary term was not required given the unique circumstances, and allowed the sentence to be served in the community as a conditional sentence.

The Ontario Court of Justice delivered a sentencing decision for Christopher Judge, who was found guilty after trial of multiple offences including assaulting a police officer, resisting arrest, dangerous operation of a conveyance, and failing to stop at the scene of an accident and while pursued by police.

The court rejected the defence's argument for a conditional stay based on the Kienapple rule, finding no legal nexus between the assault charges.

Considering the seriousness of the offences, the offender's high moral blameworthiness, and lack of remorse, the court determined that a conditional sentence would compromise community safety.

The defendant was sentenced to an effective six months in jail, followed by one year of probation with substance abuse counseling, a three-year driving prohibition, a 10-year weapons prohibition, and a DNA order.

This criminal trial concerned Philip Zivkovic, charged with failing or refusing to comply with a breath demand under section 320.15(1) of the Criminal Code.

The Crown alleged that the defendant wilfully refused to provide a sample after being found asleep at the wheel of his vehicle.

The defendant argued that his refusal was not unequivocal due to confusion regarding his right to counsel and the consequences of non-compliance, exacerbated by conflicting information from police officers and his anxiety.

The court, applying the "single transaction test" found that the defendant's immediate change in demeanor and genuine offer to provide a sample upon arrest, coupled with the continued availability of the screening device, raised a reasonable doubt as to whether his refusal was unequivocal.

Consequently, the defendant was found not guilty.

This is a sentencing decision for two defendants, N.P. and C.O., who were convicted of failing to provide the necessaries of life to their daughter, J.P., contrary to s. 215(2)(a)(i) of the Criminal Code.

The conviction followed an appeal by the Crown after initial acquittals.

The court considered the unsanitary living conditions, the defendants' difficult upbringings, their youth at the time of the offence, and the absence of lasting physical or mental harm to the child.

Applying principles of restraint, individual deterrence, and rehabilitation, the court imposed a suspended sentence with 12 months of probation for both defendants, rejecting the Crown's request for a conditional sentence and the defence's request for an absolute discharge for N.P.

The accused was charged with escaping lawful custody, various firearm offences, and possession of cocaine.

The court excluded evidence of the accused's identity and the cocaine found, due to Charter breaches by police, specifically the failure to provide s. 10(a) and (b) rights immediately upon detention and the unreliable basis for arrest (purported "odour of marijuana").

However, evidence of discarded earbuds, which contained the accused's DNA and linked him to a loaded handgun found nearby, was admitted.

The court reasoned that the accused's flight and abandonment of the earbuds broke the chain of causation between the initial Charter breaches and the discovery of this evidence, and that there was no reasonable expectation of privacy in abandoned items.

Consequently, the accused was acquitted of escaping lawful custody and cocaine possession but found guilty of the firearm-related charges.

The judge also emphasized the critical need for updated police training on detention powers and Charter rights.

The court sentenced Vuk Peric after he pleaded guilty to two counts of possession of fentanyl for the purpose of trafficking, involving a total of 82.63 grams.

The offences occurred while he was on bail for prior drug-related charges.

The central issue was determining a proportionate sentence, considering the principle of totality with a previously imposed four-year sentence for other offences.

The court balanced aggravating factors, such as the nature and quantity of fentanyl, re-offending while on bail, and a significant criminal record, against mitigating factors, including guilty pleas, harsh pre-trial detention conditions during the pandemic, and his struggles with addiction and challenging personal background.

The court imposed concurrent four-year sentences for the current offences, to run consecutively to the prior sentence, resulting in a functional equivalent of an eight-year global sentence.

After pre-sentence credit, 14.5 months remained to be served.

The accused was charged with five offences arising from an incident on the Six Nations Reserve: dangerous operation of a conveyance, failing to stop after an accident, flight from police, being unlawfully in a dwelling house, and carrying an imitation weapon (loaded pellet gun) for the purpose of committing an offence.

The trial proceeded over four days.

The Crown's evidence established that the accused fired a pellet gun at the complainant, engaged in a prolonged high-speed pursuit by police, struck another vehicle and failed to stop, drove over a spike belt, and fled on foot.

The accused testified that he was being chased by the complainant and his father out of fear for his life, and that the police were not pursuing him.

The court rejected the accused's evidence as incapable of belief and accepted the Crown's evidence.

The court found the accused guilty on four charges and dismissed the dwelling house charge due to insufficient evidence that the building met the statutory definition of a dwelling house.

The defendant pleaded guilty to driving a motor vehicle on a highway carelessly causing bodily harm contrary to section 130(3) of the Highway Traffic Act.

The incident occurred on August 18, 2019, when the defendant failed to stop at a stop sign and collided with another vehicle, causing severe spinal cord injuries to the victim resulting in full paralysis.

The court imposed a $2,000 fine with one year to pay, a two-year probation order prohibiting driving for the first year and restricting driving to employment or education purposes in the second year, and required completion of an approved educational driving program.

The accused were charged with robbery, pointing and discharging a firearm, and in one case, breaching bail conditions, arising from an incident at a bar in Mississauga on October 9, 2019.

The Crown's case relied heavily on the identification evidence of the victim, who gave inconsistent statements to police and at trial.

The court admitted the victim's prior police statement under the principled exception to the hearsay rule based on procedural reliability.

However, the court found that the victim's evidence contained significant inconsistencies regarding the timing and circumstances of the alleged shooting, and that video evidence did not support her account.

The court concluded that the victim's evidence could not safely carry the whole weight of the Crown's case and acquitted both accused on all charges.

The applicant challenged the warrantless seizure of his cellular phone subscriber information obtained by police during a Part VI wiretap authorization for a robbery investigation.

The applicant was not a suspect and was not named in the authorization.

Police obtained his subscriber information after intercepting an innocuous conversation between the applicant and a named target.

The court found that the seizure violated s. 8 of the Charter as it was not authorized by law.

The assistance order under s. 487.02 does not authorize expansion of investigations to unnamed persons without reasonable grounds.

The court excluded the subscriber information and any derivative evidence under s. 24(2), finding the breach serious and that admission would undermine public confidence in the rule of law.

The defendant was charged with operating a conveyance while impaired by alcohol and having 80 mg or more of alcohol in 100 ml of blood.

She brought a Charter application to exclude breath test evidence, alleging breaches of her s. 10(b) (right to counsel), s. 8 (search and seizure), and s. 9 (arbitrary detention) rights.

The defendant argued that the approved screening device demand was not made immediately, that she was not advised of her right to counsel during the delay caused by her chewing gum, and that her arrest was arbitrary.

The court found that the demand was made immediately, that the delay was too brief to require the officer to facilitate access to counsel, and that the defendant's Charter rights were not infringed.

The application was dismissed and the breath test evidence was admitted.

Constable Daniel Montsion was tried on charges of manslaughter, aggravated assault, and assault with a weapon arising from his role in the arrest of Abdirahman Abdi on July 24, 2016, in Ottawa.

Mr. Abdi died in cardiac arrest shortly after the arrest.

The Crown alleged that Constable Montsion unlawfully assaulted Mr. Abdi by punching him multiple times in the face and head while wearing hard-knuckled gloves, and that this assault was a significant contributing cause of Mr. Abdi's death.

The defence argued that Constable Montsion's use of force was legally justified under section 25(1) of the Criminal Code and that he did not cause Mr. Abdi's injuries or death.

After a 72-day trial, Justice Kelly found Constable Montsion not guilty on all charges, concluding that the Crown failed to prove beyond a reasonable doubt that his conduct was unlawful or criminally negligent, that he caused Mr. Abdi's nasal injuries, or that he caused Mr. Abdi's death.

The defendant pleaded guilty to careless driving causing death under s. 130(3) of the Highway Traffic Act following a fatal motor vehicle collision on May 16, 2019.

The defendant failed to stop at a stop sign while traveling at approximately 60 km/h and struck a vehicle with the right of way, resulting in the death of the other driver.

The court accepted a joint submission on sentence that imposed a $2,000 fine, a four-year driving prohibition, and two years of probation with conditions including 50 hours of community service.

The court considered the defendant's remorse, community contributions, Indigenous heritage, and the impacts of residential school trauma on her family as mitigating factors.

The defendant was charged with possession of cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act after cocaine was discovered in her purse during a mandatory security search at her high school prom.

The defendant challenged the search as violating her s. 8 Charter right to freedom from unreasonable search and seizure.

The court found that although the search was mandatory and without individualized reasonable grounds, it was reasonable in all the circumstances given the school's duty to ensure student safety at an organized school event.

The court distinguished the case from more intrusive searches and held that students have a diminished expectation of privacy in the school setting.

The defendant's Charter application was denied and a finding of guilt was entered.

The accused was discharged on all counts following reconsideration of a committal for trial order.

The original committal was based on evidence that the accused was found alone in an apartment where drugs and a firearm were discovered.

The Court of Appeal quashed the original committal order because the judge had misapprehended key evidence—specifically, a baseball hat that was thought to link the accused to the firearm was not, in fact, the same hat the accused had been seen wearing previously.

On reconsideration, the judge found that without this evidence, the Crown's case rested on impermissible speculation and inferential leaps.

The evidence was insufficient to establish the accused's knowledge and control of the contraband, as multiple other individuals had access to the apartment and forensic evidence linked others to the drugs.

The accused was charged with sexual assault and assault causing bodily harm arising from a sexual encounter with the complainant.

The Crown alleged that the accused became aggressive and violent without consent during the encounter.

The accused admitted to becoming aggressive and dominant but maintained that the complainant consented to all sexual acts.

The trial judge found that the complainant suffered bodily harm but concluded that the Crown failed to prove the absence of consent beyond a reasonable doubt.

The accused's testimony, though not accepted, raised a reasonable doubt regarding consent.

Additionally, the judge found that while bodily harm was caused, the Crown failed to prove that the accused intended to cause bodily harm, as opposed to causing transient pain within the context of consensual sexual activity.

Both charges were dismissed.

The Crown sought to adduce expert opinion evidence from a police accident reconstructionist regarding the speed of the defendant's vehicle at the time of impact with a pedestrian in a speeding charge.

The defence challenged admissibility on the grounds that the Searle method of speed calculation constitutes novel scientific evidence requiring special scrutiny, and alternatively, that the method was being used for a novel purpose.

The defence also argued that the cost-benefit analysis favoured exclusion.

The court admitted the evidence, finding that accident reconstruction methodologies are mathematical rather than scientific techniques, that the Searle method is not novel science, and that the probative value of the evidence outweighs any potential harm to the trial process.

The accused was convicted of uttering threats and mischief for making a bomb threat to the London Abused Women's Centre.

The Crown sought a jail sentence of 4-6 months plus 36 months probation, arguing the offence was a hate crime targeting vulnerable women.

The accused sought an absolute discharge.

The court imposed a suspended sentence with 36 months probation, finding that while the offence was serious and required denunciation, the accused's 60+ year crime-free history, lack of clear hate motivation, and possible mental health issues warranted a non-custodial sentence.

A DNA order and 10-year firearms prohibition were also imposed.

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 defendant was charged with impaired operation and drive over 80 mgs following a motor vehicle accident.

The defence raised two Charter issues: (1) whether the defendant's section 10(b) right to counsel was violated when police offered duty counsel in Mandarin rather than permitting the defendant to use his cell phone to search for a lawyer of his choice; and (2) whether the arrest and approved instrument demand violated sections 8 and 9 Charter rights due to lack of reasonable and probable grounds.

The court found no Charter breaches.

The defendant's primary concern was obtaining legal advice in Mandarin, which was satisfied by duty counsel.

The officer had reasonable and probable grounds based on the serious accident, evidence of alcohol consumption, and observable signs of impairment.

The defendant was convicted of both offences.