ONCJ 2012

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

The Crown relied on breath samples taken at the detachment to establish the offence.

The sole issue at trial was whether the breath samples were taken "as soon as practicable" as required by section 258(1)(c) of the Criminal Code to invoke the presumption of identity.

The defence challenged an unexplained 28-minute delay between the first and second breath samples.

The court found that the entire chain of events from the time of the offence to the taking of the first sample was reasonable, and that the Crown was not required to provide a detailed explanation for every minute of custody.

The court convicted the accused.

The defendants, Paul Nolis and Cathy Nolis, were convicted of failing to maintain a minimum distance for an accessory building (shed) from the property line, contrary to the Town of Richmond Hill Zoning By-Law 128-04.

This was a subsequent conviction for the same offence.

The defendants had previously been convicted and fined $50 each but failed to bring the shed into compliance.

The shed was located only 18 inches from the neighbour's property line, in violation of the required 7.5-metre rear yard setback.

The court imposed fines of $2,000 each and a 12-month non-reporting probation order with a condition requiring compliance with zoning bylaws prior to expiration of the order or sale of the property.

A child protection society sought an order placing two children in the temporary care and custody of their mother subject to society supervision, with the father to have access at the society's discretion.

The father opposed the motion and sought the children be returned to both parents on a week-on, week-off basis.

The court found reasonable grounds to believe the children faced risk of sexual and emotional harm based on evidence of sexually inappropriate behaviour by both parents, the father's history of sexual violence convictions in Utah, allegations of domestic violence, and the father's lack of insight into protection concerns.

The court granted the society's motion, placing the children with the mother under supervision and ordering the father's access remain discretionary pending full disclosure of his criminal and therapeutic records.

The defendant was charged with permitting a motor vehicle to be operated without insurance contrary to section 2(1)(b) of the Compulsory Automobile Insurance Act.

The Crown alleged that the defendant permitted his son to drive an uninsured BMW on September 5, 2011.

The defendant testified that he did not give his son permission to drive the vehicle and was unaware that his son had taken it until police informed him five weeks later.

The court found that the Crown failed to prove beyond a reasonable doubt that the defendant permitted the vehicle to be operated, accepting the defendant's credible and uncontradicted evidence that no permission was granted.

The accused was charged with unsafe storage of firearms (12 counts) and assault.

The Crown alleged that the accused stored shotguns and rifles in an unsafe manner contrary to section 86(2) of the Criminal Code.

The accused raised Charter applications alleging breaches of sections 7, 8, 9, and 10(b).

The court found that the warrantless seizure of firearms pursuant to section 117.04(2) of the Criminal Code was justified based on reasonable grounds to believe that unsafely stored, potentially loaded firearms were present in a residence with two toddlers.

The court rejected the accused's testimony that he possessed a secure gun vault and found him guilty on nine counts of unsafe storage.

The accused was acquitted on three counts where the firearms did not meet the definition of a firearm under the Criminal Code.

The accused was acquitted of assault due to reasonable doubt regarding the exact nature of the physical contact.

The applicant mother sought permission to relocate with her two children from Ontario to Thompson, Manitoba to reside with her common-law partner.

The respondent father opposed the relocation and sought a change in custody.

The court considered the factors established in Gordon v. Goertz and found that the mother's relocation was in the best interests of the children.

The court granted the mother permission to relocate and maintained her custody, while establishing an access schedule for the father consisting of three annual lengthy visits and regular video communication.

The applicant father sought an interim order to prevent the respondent mother from relocating with the two children from Mattawa to Limoges, Ontario (near Ottawa), and to grant him temporary custody pending trial.

The respondent sought permission to move, citing financial necessity and better employment prospects.

The court found that while the respondent is the de facto custodial parent, there was insufficient evidence to establish a strong probability of success at trial to justify granting a temporary relocation order.

The court maintained the status quo by prohibiting the move pending the full hearing on November 15, 2012, and ordered the parties to file financial statements for determination of temporary child support.

A motion to change a custody order in a family law matter involving a ten-year-old child.

The applicant sought to change the existing joint custody arrangement (with primary residence to the respondent) to sole custody of himself.

The child had been placed in temporary sole custody of the applicant in May 2011 but ran away to her mother's residence in July 2012.

The court found that the respondent had demonstrated an inability to support the child's relationship with the applicant and had engaged in parental alienation despite therapeutic interventions.

The court granted sole custody to the applicant with no access to the respondent, finding this to be in the child's best interests.

The applicant brought a motion seeking to strike the respondent's pleadings for failure to comply with disclosure orders and to obtain orders for spousal and child support.

The respondent had repeatedly failed to provide complete financial disclosure despite multiple court orders and extensions over a one-year period.

The court found the respondent made no real attempt to obtain documents and struck his pleadings, proceeding on an unopposed basis.

The court imputed income to the respondent based on his ability to earn investment income from lottery winnings and awarded child support of $664 per month and spousal support of $387 per month on a time-limited basis.

The accused was charged with sexual assault and sexual interference against his daughter between September 2007 and June 2008.

The Crown proceeded summarily with the accused's consent and waiver of limitation periods.

The accused brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that his right to trial within a reasonable time had been infringed.

The total delay from charge to anticipated conclusion of trial was approximately 18 months and 19 days.

After deducting neutral intake time and inherent time requirements, the court determined institutional delay of 12 months, which exceeded but only slightly the 8-10 month guideline established in R. v. Morin.

The court found minimal actual prejudice to the accused, balanced against society's strong interest in having serious sexual assault charges decided on their merits.

The application for a stay of proceedings was dismissed.

The Children's Aid Society brought a motion for summary judgment seeking a declaration that a newborn child was in need of protection and should be made a Crown ward for adoption purposes.

The parents opposed the motion and sought to have the child placed in their care subject to supervision.

The court found that the child was in need of protection based on the mother's presentation at birth, lack of stable housing and income, intellectual and cognitive limitations, and a parenting capacity assessment revealing significant deficits in both parents' ability to meet the child's developmental and emotional needs.

The court granted the Society's motion and made the child a Crown ward without access for adoption purposes.

The accused pleaded guilty to failure to remain at the scene of an accident causing death contrary to s.252(1.3)(b) of the Criminal Code.

The accused struck a pedestrian with her vehicle and fled the scene without rendering assistance.

The victim died from injuries sustained in the collision.

The court imposed a five-month custodial sentence followed by 12 months probation and a two-year driving prohibition.

The sentencing balanced the serious nature of the offence and the need for general deterrence and denunciation against the accused's youth, lack of prior record, genuine remorse, and excellent rehabilitation prospects.

The accused, a 20-year-old first-time offender, pleaded guilty to one count of Attempt to Obstruct Justice contrary to section 139(2) of the Criminal Code.

The accused was observed cleaning the interior of a vehicle that had been used in a homicide, removing evidence including blood and other forensic material.

The Crown sought a 12-month jail sentence plus probation, while the defence sought a suspended sentence or conditional sentence.

The court imposed an 18-month conditional sentence to be served in the community with strict conditions, followed by 2 years probation, along with a 5-year weapons prohibition and a DNA order.

The accused brought a section 11(b) Charter application alleging that his right to be tried within a reasonable time had been infringed.

Charged with impaired operation of a motor vehicle and operating with blood alcohol exceeding 80 mgs per 100 mls of blood, the accused faced a delay of approximately 15 months and 20 days from charge to trial conclusion.

The court found institutional delay of 12 months and 3 weeks to be unacceptable for a straightforward drinking and driving case.

The accused suffered actual financial and emotional prejudice from the delay, including unexpected adjournment after the first trial date commenced.

The court granted a stay of proceedings.

The accused was charged with domestic assault.

He brought a Charter application seeking a stay of proceedings, arguing that police conduct during his arrest violated sections 7, 9, and 12 of the Charter.

The accused alleged that police used excessive force when they tackled him to the ground, resulting in a broken cheekbone and broken ribs.

He also challenged the lawfulness of police entry into his apartment and raised concerns about being denied access to a washroom while in custody.

The court found that while the police use of force was excessive and violated section 7 of the Charter, a stay of proceedings was not the appropriate remedy.

The court determined that the officer acted in good faith in a volatile situation, and that sentencing principles would be flexible enough to address the circumstances of the arrest.

This is a summary judgment motion brought by the Children's Aid Society seeking a final order for placement of two children with their father and stepmother pursuant to section 57(1) of the Child and Family Services Act.

The children had been placed with their stepmother following a protection application initiated due to the mother's drug overdose.

The court found that the mother, while making some progress in addressing her substance abuse issues, had not established a sustained lifestyle change and had not demonstrated that the children would be better served by residing with her.

The court granted the society's motion, finding no triable issues and that the children's stability in their current placement outweighed any potential benefit of returning them to the mother's care.

The Crown applied to cross-examine the accused, a police officer charged with sexual assault, on testimony he previously gave as a Crown witness in a related prosecution.

The Crown argued the prior testimony was voluntary because the accused was not under a court-issued subpoena, but rather an internal police notification.

The court dismissed the application, finding that the accused was compelled to testify in the prior proceeding due to his statutory duties under the Police Services Act and the internal police subpoena.

Therefore, his prior testimony was protected by section 13 of the Charter and could not be used to incriminate him or impeach his credibility.

A summary judgment motion brought by the Children's Aid Society of Toronto seeking a finding that two children were in need of protection and should be made Crown wards for adoption purposes.

The respondent mother opposed the motion; the respondent father did not file material.

The court found no genuine issue for trial on the protection findings or the disposition.

The children had been in temporary Society care for over 23 and 21 months respectively following apprehension due to a home invasion.

The court found the children at risk due to the father's involvement in a lifestyle associated with street-level violence and the mother's history of domestic violence, untreated mental health issues including depression and self-harm, and unstable living circumstances.

The mother's plan lacked detail and corroborative evidence.

The father presented no viable plan.

The court ordered both children to be made Crown wards.

The Children's Aid Society brought a summary judgment motion seeking a finding that a child was in need of protection under clause 37(2)(b) of the Child and Family Services Act based on the mother's mental health issues, substance abuse, and domestic violence.

The father supported the motion while the mother opposed it.

The court granted the motion and found the child in need of protection, determining that the mother's combination of untreated mental health conditions, ongoing drug use during pregnancy and post-birth, and inability to protect herself from domestic violence created a real and likely risk of physical harm to the child.

Following a four-day trial in which the applicant was granted sole custody of a child, the court determined costs payable by the unsuccessful respondent.

The applicant sought full recovery costs of $29,912.50, while the respondent argued no costs should be awarded, claiming the applicant behaved unreasonably and the costs were excessive and beyond her ability to pay.

The court rejected the respondent's arguments, finding neither party acted in bad faith and both sincerely believed custody was in the child's best interests.

The court awarded partial indemnity costs of $10,000.00, considering the importance of the custody issue, the complexity of the case, and the respondent's modest financial circumstances.