ONCJ 2012

The appellant, Rassaun Steel & Mfg.

Co. Ltd., appealed its conviction under section 25(2)(h) of the Occupational Health & Safety Act for failing to ensure that an overhead duct system was adequately supported while it was being demolished or dismantled.

During equipment removal work at a foundry, a large section of ductwork fell onto a worker, causing serious injuries.

The trial court convicted the appellant, but the appellate court found that the conviction was based on findings unsupported by evidence, including that the ductwork was being dismantled or demolished, that the accident was foreseeable, and that lack of training contributed to the incident.

The appeal was allowed and an acquittal was entered.

A motion to change a final custody order from 2007 in which the maternal uncle was awarded custody of a child on consent of both parents.

The mother sought to regain custody after achieving sobriety and stability following a history of substance abuse.

The court found a material change in circumstances and awarded custody to the mother, finding that the uncle's inflexibility, controlling behavior, and unwillingness to facilitate the child's relationship with her mother and paternal family were contrary to the child's best interests, despite the uncle providing a stable home environment.

The father sought custody of Ayden, born in 2003, and child support pursuant to the Children's Law Reform Act and Family Law Act.

The mother cross-claimed for the same relief.

The parties had been in a relationship for approximately five months before the mother and her two older children moved in with the father in 2001.

Ayden was born during the relationship.

The mother left the father in 2007 and initially moved to Guelph, then to Skead near Sudbury in June 2011 to be closer to her family and for support.

The father opposed the move and sought custody.

The court found that the mother had been the primary caregiver throughout Ayden's life and that it was in his best interests to remain in her primary care with access to the father, despite the distance involved.

The defendant was charged with acting as an unlicensed private investigator contrary to section 6 of the Private Security and Investigative Services Act by conducting investigations regarding a municipal tax sale property and subsequently approaching the original owner with an offer to recover any surplus from the tax sale in exchange for a fee.

The defendant conducted research on the property initially for his own purposes as a prospective bidder, but after his unsuccessful bid, used the information gathered to locate and contact the original owner with a business proposal.

The court found the defendant guilty, determining that despite initially gathering information for personal purposes, his subsequent use of that information with the intent to profit from it constituted acting as an unlicensed private investigator.

A construction contractor was charged with two counts under the Occupational Health and Safety Act following an accident on October 28, 2009, where a worker was struck by a falling steel beam (soldier pile) that broke free from its tack weld during a vibratory hammer operation.

The first count alleged failure to ensure adequate bracing under Ontario Regulations 213/91.

The second count alleged failure to take every reasonable precaution for worker protection under section 25(2)(h) of the OHSA.

The court dismissed the first count but convicted on the second count, finding that while the multiple-pile welding method was lawful and industry-accepted, the employer failed to take reasonable precautions by positioning workers in a danger zone without proper risk assessment or safety measures.

The respondent brought a motion to suspend or terminate the applicant's access to two children pending trial, following a section 112 report from the Children's Lawyer that raised concerns regarding the applicant's behaviour, including allegations of sexual abuse of the younger child and parental alienation of the older child.

The court found a material change in circumstances since the original custody order and determined that a temporary variation of access was necessary in the best interests of the children pending trial.

The court suspended access to the younger child entirely and restricted access to the older child to alternate weekend visits with specific conditions prohibiting negative statements about the respondent.

The accused was convicted of assault and sexual assault against his employee at a retail franchise workplace.

The assault occurred between April and June 2010, involving the accused grabbing and dragging the victim toward a stockroom.

The sexual assault occurred on August 26, 2010, when the accused locked the victim in a stockroom and attempted to put his hands down her pants.

The accused maintained a delusional fantasy of a consensual affair throughout trial and sentencing.

The court imposed a custodial sentence of 30 days for assault and 90 days consecutive for sexual assault, followed by two years probation with strict conditions including no contact, a 500-metre exclusion zone, and mandatory counselling for sexual offenders.

The accused pleaded guilty to possession of child pornography and making child pornography available.

The offences occurred between April 2011 and May 2011.

Police investigation identified the accused's computer sharing 105 suspected child pornography files on a peer-to-peer network.

Upon execution of a search warrant, two laptops belonging to the accused were seized containing a total of 404 child pornography videos and 40 child pornography images—the largest collection of child pornography videos ever seized by the Waterloo Regional Police.

The court imposed a sentence of 12 months custody followed by 3 years probation, with ancillary orders including DNA collection, a section 161 order for 5 years, and lifetime registration under the Sex Offender Information Registration Act.

The accused was charged with operating a motor vehicle with excess alcohol.

At trial, the arresting officer testified about the roadside screening device failure but failed to give evidence that a formal breath demand was made before the breathalyzer tests at the station.

The court held that evidence of a valid breath demand is a statutory pre-condition to the admissibility of the Certificate of Analysis.

Alternatively, taking breath samples without a demand violated section 8 of the Charter, and the evidence was excluded under section 24(2).

The accused was found not guilty.

The defendants were charged with unlawful production of a controlled substance (marijuana) and possession of marijuana for the purpose of trafficking following the discovery of a grow operation in their residence.

Police attended the residence in response to a 911 call regarding a shooting in which one defendant was shot in the abdomen.

While conducting what was characterized as a cursory search for additional victims and evidence related to the shooting, officers descended into the basement without a warrant and discovered a marijuana grow operation.

The defence brought a Charter application under section 8 seeking exclusion of the drug evidence on the basis of an unreasonable search and seizure.

The court found that the police had no legal basis to search the basement, that the search was not reasonably incidental to the shooting investigation, and that the conduct constituted a serious breach of Charter rights.

The evidence was excluded under section 24(2) of the Charter, and the defendants were acquitted on both charges.

The accused sought leave to cross-examine the informant who swore the Information to Obtain (ITO) a search warrant for his residence.

The court dismissed the application.

While confirming that a preliminary inquiry justice has jurisdiction to grant leave to cross-examine an informant under the Garofoli test, the court held that the contextual factors at a preliminary inquiry—particularly the protection of confidential informers and concerns about prolixity—warrant a more restrictive approach than at trial.

The court found that the accused failed to meet the threshold for leave in all proposed areas of cross-examination.

The accused was charged with operating a motor vehicle while impaired by alcohol and having a blood alcohol concentration in excess of 80 milligrams per 100 millilitres of blood.

The accused brought a Charter application alleging breaches of section 7 rights based on excessive force during arrest and loss of evidence (14 minutes of DVD recording from the breath room).

The court found that the accused sustained injuries during arrest including abrasions to his face, a cut above his eye, a bump on his head, a severely injured right thigh, and sore shoulders.

The court accepted the accused's testimony that he was subjected to excessive force, including a knee strike to his leg and multiple blows to his back while being restrained.

The court also found that the loss of the final 14 minutes of the breath room recording constituted a breach of the accused's right to make full answer and defence due to unacceptable negligence in evidence preservation.

A stay of proceedings was granted as the appropriate remedy.

The defendant was charged with failing to obey a lane sign contrary to section 154(1)(c) of the Highway Traffic Act and careless driving contrary to section 130 of the Highway Traffic Act.

The charges arose from a collision between the defendant's Jeep (towing a trailer) and a cyclist on Lansdowne Avenue in Toronto.

The court dismissed the lane sign charge due to lack of evidence of clearly marked lanes or official signs.

However, the court found the defendant guilty of careless driving, finding that the defendant's aggressive driving behavior, including passing the cyclist on the right, making a sudden stop at a green light, and subsequently driving away while the cyclist was standing beside the vehicle, constituted a departure from the standard of care expected of a reasonable driver.

The court rejected the defendant's credibility and found that the defendant's actions were motivated by road rage rather than legitimate safety concerns.

The accused was charged with breach of probation for consuming alcohol while prohibited from doing so.

The Crown conceded that the accused should be found guilty if the Charter application was unsuccessful.

The court found violations of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms arising from police conduct during a R.I.D.E. program stop.

The officer demanded identification from the accused as a passenger and ran it through CPIC to discover probation conditions, without lawful authority or consent.

The court excluded the evidence and acquitted the accused.

The offender was found guilty of theft under $5000 and criminal harassment after stealing his ex-partner's diaries and cellphone, and using the information to distribute sexually explicit photos and videos of her to her family and friends.

He also created a fake dating profile in her name.

The court balanced the paramount principles of denunciation and deterrence with the offender's status as a first-time offender and sole provider for his family.

The court imposed a blended sentence of 90 days intermittent custody and a concurrent 6-month conditional sentence, followed by 3 years of probation.

The accused was charged with dangerous operation of a motor vehicle contrary to section 249(1)(a) of the Criminal Code.

The incident occurred in a Canadian Tire parking lot in St. Thomas, Ontario, when the accused's vehicle struck a cyclist from behind.

The Crown was required to prove that the accused operated the vehicle in a dangerous manner, constituting a marked departure from how a reasonable, prudent person would drive in similar circumstances.

The trial focused on the manner of driving immediately before the collision, not the result.

The court found that the accused became upset with the cyclist on the public roadway and followed him into the parking lot in an intimidating manner, either traveling at excessive speed throughout or accelerating before impact, without attempting to brake or maneuver to avoid the collision.

The court rejected the accused's testimony that the cyclist suddenly veered in front of the vehicle and found the driving constituted criminal conduct warranting conviction.

The accused was charged with carrying a concealed weapon (a ball bearing gun) following a police stop in a strip mall parking lot.

The accused brought a Charter application seeking exclusion of evidence obtained through alleged breaches of sections 8, 9, and 10(b) of the Charter.

The court found that the detention was arbitrary, lacking reasonable grounds to suspect the accused was connected to a particular crime.

The court also found violations of the right to counsel and the right against unreasonable search.

Applying the section 24(2) test, the court excluded the evidence due to the seriousness of the multiple Charter breaches and their significant impact on the accused's constitutional rights.

The accused was acquitted.

The accused was charged with impaired care or control of a motor vehicle and driving with a blood alcohol concentration exceeding the legal limit.

The Crown alleged that on May 9, 2010, the accused was found in a parked vehicle with the engine running in a parking lot near a licensed establishment.

A police sergeant observed signs of impairment and made an approved instrument demand.

The accused challenged the lawfulness of the arrest and the admissibility of the breath samples on Charter grounds, alleging violations of sections 8, 9, 10(a), and 10(b).

The court found no Charter breaches and admitted the breath samples.

However, the court found reasonable and probable grounds for the arrest but insufficient evidence to prove impairment beyond a reasonable doubt, resulting in acquittal on the impaired charge but conviction on the over 80 charge.

The accused was charged with care or control of a motor vehicle while impaired by alcohol with a blood alcohol level over the legal limit.

The Crown sought to rely on the presumption under s. 258(1) of the Criminal Code based on the accused occupying the driver's seat when police arrived.

The court found the presumption was rebutted because the accused was initially outside the vehicle, was directed into the car by police for safety reasons, and the vehicle was inoperable.

The court further found that even without the presumption, the Crown failed to prove care or control beyond a reasonable doubt because the vehicle posed no realistic risk of danger given its location in a remote ditch, its inoperability, and the absence of any attempt by the accused to operate it.

The accused was acquitted.

A costs decision following a child support application.

The applicant mother sought costs of $33,006.67 after obtaining a decision on September 25, 2012 regarding child support for her son, retroactive support, life insurance coverage, and health/dental plan coverage.

The court found the applicant was successful on the retroactive support issue but unsuccessful on the life insurance claim.

The court rejected allegations of bad faith and unreasonable conduct by the respondent father.

The court awarded costs of $3,000 to the applicant, finding this to be a fair and reasonable amount in the circumstances, rather than full recovery of actual costs incurred.