Court of Justice

This is a ruling on a section 715.1 application by the defendant A.T. to admit a child victim's videotaped statement as evidence in a trial involving allegations of assault.

The Crown opposed, arguing the child did not "describe the acts complained of" as required by the section, as the child denied the alleged assault (hair pulling) in her statement.

The court found that a non-verbal denial (shaking head "no") constitutes a "description" under section 715.1, and that the section does not require an affirmative or guilt-consistent description.

The application was granted, emphasizing the section's purpose to preserve the child's earliest recollection and aid truth discovery, regardless of whether the statement supports the prosecution's theory.

The defendant was charged with possession of methamphetamine for the purpose of trafficking and possession of the proceeds of crime following the execution of a search warrant at his residence.

Police surveillance observed activities consistent with drug trafficking.

A search of the defendant's apartment revealed a significant quantity of methamphetamine (98.3 grams), drug paraphernalia (scales, baggies with residue), a drug debt list, and cash.

The defendant denied knowledge and possession, attributing the items to a transient roommate.

The court rejected the defendant's testimony as incredible, finding that the circumstantial evidence, including items in plain view and the drug debt list linked to him and his associates, proved his guilt beyond a reasonable doubt.

The applicants, Jide Animashaun and Marlon Johnson, challenged a search warrant for their cell phones and sought to exclude a firearm and cell phone data under s.24(2) of the Charter.

They argued the initial phone seizure was unlawful, the Information to Obtain (ITO) contained errors, the searches were conducted outside the authorized timeframe, and police conduct subverted the pre-authorization process.

The court found the initial seizure lawful, addressed errors in the ITO through excision and amplification, and determined the phone extractions were not outside the authorized timeframe.

The application was dismissed as no Charter violations were established.

The accused, R.M., faced multiple charges including assault, unlawful confinement, and sexual assault stemming from incidents with the complainant, A.J., following their separation.

The court dismissed one assault charge (Count #2) under the de minimis non curat lex defence, finding the contact trivial.

R.M. was found not guilty of unlawful confinement (Count #3) as the complainant was not deprived of freedom for a significant period.

For three sexual assault charges (Counts #4, #5, #6, #8), the court found R.M. not guilty of sexual assault.

Specifically, for Counts #4 and #8, R.M. was found guilty of the lesser included offence of assault simpliciter, as the non-consensual contact was assaultive but not sexual in nature.

For Count #7, R.M. was found guilty of sexual assault, as the intentional, non-consensual contact clearly violated the complainant's sexual integrity.

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.

The offender, Christopher Watts, pleaded guilty to breaching a Long-Term Supervision Order (LTSO) by being in the presence of female children under 18 without supervision.

This was his fourth breach of the LTSO.

The court considered sentencing principles, including denunciation, deterrence, and separation, giving primary consideration to the protection of children.

The offender's lack of insight and resistance to rehabilitation were aggravating factors.

The court imposed a sentence of three years' incarceration, less pre-sentence custody on a 1:1 basis, rejecting enhanced credit due to the need for public protection and the offender's high risk of recidivism.

This criminal trial concerned charges of sexual assault and sexual interference against the defendant, B.(G.), involving his 10-year-old niece.

The central issue was the credibility and reliability of the complainant's and defendant's testimonies, as there was no independent corroborating evidence.

The court found the complainant's evidence to have inconsistencies, though not necessarily undermining her truthfulness, and the defendant's testimony, despite some confusion and a criminal record, did not lead to a conclusion of untruthfulness.

Applying the principles of reasonable doubt, the court determined that the Crown had not proven the charges beyond a reasonable doubt, and therefore, dismissed the charges.

The prosecutor sought a material witness warrant under s. 705 of the Criminal Code for Niloshan Selvakumanran, also known as Neal Kumar, who failed to attend court despite being subpoenaed.

The defendant opposed, questioning the identity of the witness and the reliability of the evidence.

The court found that the subpoena was properly served, the witness's identity was sufficiently established, and the witness possessed material evidence.

Consequently, the court issued a material witness warrant for the arrest of the witness.

The defendant, Minh Vu Nguyen Dao, was charged with impaired operation of a conveyance and operating with a blood alcohol concentration over .08.

He challenged the admissibility of the Certificate of a Qualified Technician, alleging breaches of his s. 10(b) Charter rights.

The court found a one-minute delay in providing the informational component of the right to counsel, but deemed it not serious and without impact on the defendant's rights, thus not warranting exclusion of evidence under s. 24(2).

Regarding the implementational component, the court found that police provided a reasonable opportunity to consult counsel of choice, and the defendant's subsequent decision to speak with Duty Counsel was a valid choice.

Consequently, the Certificate was admitted, and the defendant was found guilty on both charges.

The court addressed motions concerning parenting arrangements for a young child, following the mother's unsubstantiated allegations of sexual abuse by the father's older children and concerns about the mother's repeated, intrusive physical examinations of the child.

Finding no evidence of abuse and concluding the mother's actions were harmful, the court transferred primary care to the father.

The mother's parenting time was ordered to be supervised, with prohibitions on her direct involvement in the child's personal care and from denigrating the father or his children.

The accused, Antony Muchemi, faced a judicial interim release hearing where the Crown sought preventative detention on secondary grounds due to numerous alleged offences and a reverse onus position.

The court considered the accused's background, the nature of the allegations, and the conditions at the Toronto South Detention Centre.

Despite the Crown's concerns, the court found that a preventative detention order was not appropriate, emphasizing the presumption of innocence, the principle of restraint, and the accused's vulnerable circumstances (homelessness, potential mental health issues, and lack of criminal record).

The court determined that a release plan with conditions could reduce the risk to a tolerable level, thereby releasing the accused.

The accused was charged with sexual interference, invitation to sexual touching, child luring, and sexual assault arising from online communications with a person under 16 whom he later met in person.

The court accepted the complainant’s evidence that sexual activity occurred during a brief encounter in the accused’s vehicle after months of sexually explicit communications and grooming behaviour.

The accused asserted he believed the complainant was 16, but the court found no air of reality to the defence under s.150.1(4) of the Criminal Code because he took no reasonable steps to verify age and ignored numerous red flags indicating youth.

The court further concluded that the communications constituted luring intended to facilitate sexual interference.

The Crown proved all elements of the offences beyond a reasonable doubt.

This decision addresses the admissibility of blood and medical records seized from the accused, who was charged with impaired driving and driving with an unlawful blood alcohol concentration (BAC) following a single-vehicle accident.

The accused challenged the search warrant and production order, arguing a lack of reasonable and probable grounds in the Information to Obtain (ITO) and that the ITO was misleading.

The court found that the ITO was misleading regarding the presence of a whisky bottle (implying it was open when its state was unknown) and that a witness's bald suspicion of impairment lacked sufficient factual basis.

Excising the misleading information, the court concluded that the remaining facts did not establish reasonable and probable grounds, rendering the seizure warrantless and a violation of section 8 of the Charter.

Applying the section 24(2) Grant factors, the court determined that admitting the evidence would bring the administration of justice into disrepute, primarily due to the serious impact on the accused's Charter rights, despite the officer's conduct not being particularly egregious.

The evidence was therefore excluded.

A young person, T.M., challenged the constitutionality of sections 42(2)(p) and 42(5)(a) of the Youth Criminal Justice Act (YCJA).

These provisions limit the availability and duration of deferred custody and supervision orders (DCSOs) for offences involving serious bodily harm, making them unavailable for youth in such cases and capping their duration at six months.

The Crown sought to dismiss the application.

The court found that these provisions violate sections 15 (equality) and 7 (liberty and fundamental justice) of the Canadian Charter of Rights and Freedoms.

The court reasoned that the provisions deny young persons a benefit (a community-based custodial sentence option) that is available to similarly situated adults, thereby perpetuating the disadvantage arising from their diminished moral blameworthiness and forcing youth into potentially harsher custodial sentences.

The court declared the impugned sections invalid.

This caselaw entry indicates that the reasons for the decision in R. v. Rocchetti, 2024 ONCJ 717, are not available at this time.

The entry provides basic case information including the date and file numbers, but no details regarding the facts, legal issues, or outcome.

Chris Vagenos pleaded guilty to five offences, including possession of psilocybin for the purpose of trafficking, possession of proceeds of crime, and breach of an undertaking.

The offences stemmed from his employment at a store selling magic mushrooms, and he breached his undertaking by returning to work there shortly after his initial arrest.

The Crown sought a conditional sentence, while the defence sought a conditional discharge.

The court granted a conditional discharge with a 30-month probation order, a lifetime weapons prohibition, and a DNA order, emphasizing rehabilitation and finding the discharge not contrary to the public interest despite the breach of undertaking.

The offender, Tabrez Khan, pleaded guilty to criminal harassment.

The prosecution sought a conviction and suspended sentence, while the defence sought a conditional discharge.

The court considered mitigating factors (first-time offender, youth, rehabilitation efforts, remorse, community support) and aggravating factors (long-term, anonymous, obscene stalking with profound victim impact).

The judge found a conditional discharge inappropriate due to the gravity and violent nature of the offence, the profound victim impact, and the high degree of offender responsibility, noting that collateral immigration consequences should not skew the sentence.

A conviction was registered, and the offender received a suspended sentence with 24 months probation, a victim surcharge, a DNA order, and a firearms prohibition.

The Children's Aid Society brought a motion for summary judgment seeking a protection finding for two children, A.A. and B.B., alleging risk of physical harm, sexual abuse, and emotional harm due to their mother D.C.'s failure to protect them from an abusive male adult, Y.B. The Office of the Children's Lawyer (OCL) supported the protection finding, while the mother opposed it.

The court dismissed the society's motion, finding no genuine issue requiring a trial and concluding that the children were not in need of protection.

The court determined that the risks, primarily related to Y.B., had been mitigated over time, and there was insufficient admissible evidence to establish a present likelihood of serious harm.

The decision emphasized the importance of the 'flexible approach' to the material time period for protection findings and highlighted issues with the admissibility of hearsay evidence in summary judgment motions.

The applicant father brought a contempt motion against the respondent mother for failing to comply with a previous order granting him sole decision-making authority for their child's education for the 2023/2024 academic year.

The mother continued to homeschool the child despite the father's decision to enroll her in an in-person school.

The court found the mother in contempt, ruling that her interpretation of the previous order was without merit and that her actions deliberately violated the order's spirit and intent.

The court imposed a penalty and costs, and extended the father's sole decision-making authority for education for an additional academic year.

Jared Burke was charged with multiple offences including possession of a weapon for a purpose dangerous to the public peace, carrying a concealed weapon, assault with a weapon, and aggravated assault following a violent altercation at a convenience store.

The court found that Burke's initial possession of a knife for self-defence was not a valid defence for the weapon charges, as the situation was avoidable.

He was found guilty of possession of a dangerous weapon, carrying a concealed weapon, and assault (but not assault with a weapon).

For the aggravated assault charge, the court accepted Burke's defence of his brother, finding his actions reasonable given the immediate lethal threat.