ONCJ 2012

The accused was charged with two counts of failing to comply with a recognizance contrary to section 145(3) of the Criminal Code, with alleged offence dates of November 14 and 16, 2011.

The Crown sought to admit an original information and a certified copy of a recognizance as evidence.

The defence challenged the admissibility of these documents on the basis that the Canada Evidence Act notice served by the Crown was deficient because it referred to an information with different offence dates than the one actually tendered.

The court ruled that while the notice was deficient under the Canada Evidence Act, both documents were admissible at common law as public documents and under the principled approach to hearsay established in R. v. Khan.

Following conviction on multiple firearm offences, the Crown applied for revocation of the accused's bail pending sentencing.

The court granted the application, ordering detention until sentencing.

The accused was convicted of six offences including possession of a loaded restricted handgun contrary to section 95 of the Criminal Code (mandatory minimum three years imprisonment), transportation of a firearm in a careless manner, and possession of a firearm while subject to a weapons prohibition.

The court found that the tertiary and secondary grounds under section 515(10) of the Criminal Code justified the exceptional order to revoke bail post-conviction.

The defendant was charged with pedestrian fail to use crosswalk contrary to section 144(22) of the Highway Traffic Act.

The defendant crossed Eglinton Avenue West in Toronto mid-block, approximately 50 meters from a designated crosswalk, and was struck by a vehicle.

The court determined that section 144(22) constitutes an absolute liability offence and that pedestrians have no legal right to cross a roadway mid-block unless using a marked crosswalk.

The defendant was found guilty.

The Children's Aid Society sought Crown wardship with no access for two children based on parental drug use and alleged protection concerns.

The court found that while both parents struggle with long-standing drug addictions, the Society's apprehension of the children was not justified on the evidence presented.

The court determined that the children should be returned to parental care pursuant to a supervision order with a reintegration plan, finding that the parents' drug addictions, while a legitimate concern, did not preclude their ability to parent with appropriate support and monitoring.

The court was critical of the Society's restrictive approach to access and lack of support for the parents' rehabilitation efforts.

The defendant was charged with sexual assault causing bodily harm and criminal negligence causing bodily harm arising from the alleged transmission of genital herpes (HSV-2) to the complainant.

The defendant brought a section 276 application seeking to adduce evidence of the complainant's prior sexual activity to support two defences: (1) that the defendant was not the source of the infection (causation), and (2) that the complainant would have consented to unprotected sexual activity even if informed of the defendant's positive viral status (negating fraud-based vitiation of consent).

The court granted the application in part, permitting limited cross-examination of the complainant regarding her sexual history within a defined timeframe and scope, while excluding evidence that would invoke the "twin myths" that prior sexual activity makes consent more likely or credibility less worthy.

The accused was convicted of theft under $5,000 and criminal harassment.

The offences involved the theft of personal items (diaries, address book, cellphone) and a subsequent orchestrated campaign of harassment including distribution of intimate images and creation of a fake dating profile to cause fear and control the victim.

The court imposed a blended sentence of 90 days intermittent imprisonment concurrent with a 6-month conditional sentence with strict conditions, followed by 3 years probation.

The sentencing balanced deterrence and denunciation with rehabilitation, considering the accused's family responsibilities and lack of prior record.

The accused was charged with three drug-related offences (possession of marijuana, possession for purpose of trafficking, possession of proceeds of crime) and three provincial offences (assaulting a peace officer and two counts of failing to comply with recognizance).

During a traffic stop for a seatbelt violation, a police officer observed the accused with his hand in his jacket pocket and smelled unburned marijuana.

The officer placed his hand on the accused and pushed him back into the vehicle, then subsequently pulled him out to effect an arrest.

A physical altercation ensued.

The trial judge found that the officer lacked reasonable grounds to arrest, violated the accused's Charter rights against unreasonable search and seizure, and used excessive force.

The evidence was excluded under section 24(2) of the Charter.

The Crown brought a motion seeking a ruling permitting cross-examination of a police sergeant on his prior testimony given at a separate trial where he testified as a Crown witness.

The sergeant was subsequently charged with sexual assault.

The central issue was whether the sergeant's prior testimony was compelled and therefore protected by section 13 of the Canadian Charter of Rights and Freedoms.

The court held that the testimony was compelled both because the sergeant was a compellable witness called by the Crown and because he was statutorily compelled to attend court under the Police Services Act and police policy.

The court rejected the Crown's argument that section 13 rights are diminished for police officers and dismissed the Crown's application.

A custody and access application brought by the mother against the father regarding their daughter Emily.

The mother sought sole custody, no access to the father, child support, a restraining order, and permission to travel and obtain identity documents.

The father cross-applied for custody or alternatively reasonable access.

The court found no credible evidence of sexual or physical abuse by the mother's new partner despite the father's allegations.

The court granted sole custody to the mother, denied all access to the father, rescinded child support arrears, and imposed a restraining order.

The decision turned on the father's uncontrolled anger, hostile behavior, and unreliability as a witness.

The offender was sentenced following guilty pleas to certain charges and convictions after trial for offences arising from participation in the G20 demonstration in Toronto on June 26-27, 2010.

The offender engaged in a deliberate and extended pattern of property destruction, including attacking a marked police cruiser containing a uniformed officer, damaging a CBC media van, striking another police vehicle, and throwing an object at a business.

The offender was masked during most of the offences.

The court imposed a sentence of ten months incarceration, emphasizing general deterrence and denunciation as paramount sentencing principles, along with a weapons prohibition order, DNA order, and probation conditions.

A motion by the father for a change in primary residence of the child from the mother to the father.

The child, age 12, had consistently expressed a desire to live with his father for nearly three years.

The court found that the child's clear, consistent, and mature wishes constituted a material change in circumstances.

After applying the best interests analysis under the Children's Law Reform Act, the court granted the motion, permitting the child to move to the father's primary residence while maintaining joint custody and liberal access for the mother.

The court emphasized the importance of respecting a mature adolescent's autonomous decision-making capacity.

The accused pleaded guilty to twelve charges arising from a domestic relationship involving multiple assaults, unlawful confinement, extortion, threats, obstruction of justice, and breach of probation.

The court imposed a global sentence of three years imprisonment, credited on a 1.5:1 basis for two years of pre-trial custody, resulting in a suspended sentence and three years of probation with strict conditions including no contact with the victim and her family, anger management counselling, and weapons prohibitions.

A child protection application concerning two children, S. and J., brought by Chatham-Kent Children's Services.

The Society alleged that the children were in need of protection due to physical and emotional abuse, inappropriate discipline, and inadequate care by their mother and stepfather.

The trial addressed grounds for protection, supervision of access, and whether ongoing protection orders were necessary.

The court found that S. was in need of protection and made her a Crown ward with supervised access to her mother.

The court found that J. was in need of protection in 2007-2008 but that no ongoing protection order was warranted, and he remained in his mother's care without supervision.

The accused pleaded guilty to theft over $5,000 involving the misappropriation of over $722,000 from her employer over a four-year period.

The theft was committed through multiple methods including ATM withdrawals, credit card payments, and cheques written to herself.

The accused was a trusted employee and secretary with signing authority on the company account.

The court imposed a sentence of six months imprisonment followed by three years probation, rejecting a conditional sentence despite significant mitigating factors including the accused's gambling addiction, remorse, and rehabilitation efforts.

The court found that denunciation and general deterrence required custodial time given the magnitude of the theft, duration of conduct, egregious breach of trust, and impact on the victim.

The applicant mother sought child support and section 7 expense contributions from the respondent father for three children.

The father acknowledged his legal responsibility but disputed the income imputation and special expenses claimed.

The court found the father was intentionally under-employed and imputed annual income of $36,960.00, resulting in monthly child support of $717.00.

The court awarded contributions toward swimming lessons, religious studies, and child care for the youngest child only.

The restraining order against the father was terminated.

A child protection trial under Part III of the Child and Family Services Act concerning whether a child was in need of protection due to risk of physical harm.

The Children's Aid Society apprehended the child following disclosures of physical and sexual harm by the father.

The society withdrew allegations of sexual harm at trial.

The court found, on a balance of probabilities, that the child had been subjected to inappropriate physical discipline by the father, including hitting with a belt on multiple body parts, and that the child had expressed consistent fear of the father.

The court found the threshold for protection was met under clause 37(2)(b) of the Act, finding the father's discipline was excessive and created a risk of physical harm.

The disposition phase was adjourned to a later date.

The accused was convicted of assault causing bodily harm (as an included offence to the original charge of aggravated assault) against a newborn child within the first 30 days of life.

The child sustained serious injuries including metaphyseal fractures to both femurs, fractures to the tibia, and multiple rib fractures requiring tremendous force to inflict.

The court imposed a sentence of 12 months custody followed by 2 years probation, with conditions including anger management counselling, parenting programs, and restrictions on contact with the victim's mother.

The court balanced serious aggravating factors (abuse of a child and position of trust, severity of injuries) against mitigating factors (no criminal record, employment, positive support network, participation in rehabilitation programs).

A child protection agency sought to introduce expert psychiatric evidence regarding the impact of parental substance abuse on child parenting capacity.

The court conducted a voir dire to determine the admissibility of the expert evidence.

The respondent parents opposed the evidence on grounds of relevance, necessity, expert qualification, procedural non-compliance, and prejudicial effect.

The court excluded the evidence, finding it lacked relevance and necessity, the expert was not properly qualified in the specific area of substance abuse and parenting, and the probative value was substantially outweighed by prejudicial effect, particularly given inadequate notice and the risk of case delay contrary to the child's best interests.

A young person was charged with assault causing bodily harm following a consensual fist fight at a recreation centre.

The accused struck the complainant with an uppercut while holding him by the neck, causing the loss of two front teeth.

The court examined the law governing consent to street fights, particularly as it applies to young persons, and determined that consent could be vitiated on public policy grounds when bodily harm beyond the trivial is intended and caused.

The court found the accused guilty, holding that the facts met the test established in Jobidon and Paice, and that the circumstances fell within the core policy concerns underlying the law on consent to fights.

The accused was charged with operating a motor vehicle while impaired by alcohol and operating a motor vehicle with blood-alcohol content exceeding eighty milligrams per one hundred millilitres of blood, contrary to sections 253(1)(a) and 253(1)(b) of the Criminal Code.

The accused admitted guilt to both charges.

However, the court found that the police violated the accused's Charter rights under sections 8, 9, 10(a), and 10(b) by arbitrarily detaining him solely based on his residence in the Northwest Territories, conducting an unreasonable strip search, and failing to inform him of the reason for his continued detention or his right to counsel.

The court granted a stay of proceedings as the appropriate remedy, finding that the cumulative effect of the Charter breaches warranted this exceptional remedy despite the seriousness of the offence and the strength of the Crown's case.