ONCJ 2012

The applicant children's aid society sought a finding that a five-year-old child was in need of protection due to a risk of physical harm from the father.

The child made consistent disclosures to police and social workers that the father hit her with a belt and slapped her, and she expressed fear of him.

The parents denied the allegations, claiming the father only rarely spanked the child over two years ago.

The court found the child's disclosures credible and reliable, rejecting the parents' evidence.

The court concluded that the father's excessive physical discipline and the mother's failure to protect the child created a real risk of physical harm, finding the child in need of protection under the Child and Family Services Act.

The applicant mother brought a motion for child support and section 7 special expenses.

The respondent father, a taxi driver, claimed his income was $12,726.00 and opposed the special expenses.

The court found the father was intentionally under-employed and imputed his income at $36,960.00.

The court ordered the father to pay his proportionate share of swimming lessons, religious studies, and child care for the youngest child only.

The court also terminated the restraining order against the father, finding no meaningful evidentiary foundation to continue it.

The defendant was charged with driving a motor vehicle with a blood alcohol concentration exceeding the legal limit.

At trial, the defendant challenged the Crown's ability to prove care or control of the vehicle, arguing he had rebutted the statutory presumption under section 258(1) of the Criminal Code by demonstrating his intent not to drive.

The court found the defendant's evidence not credible and concluded that the Crown had established care or control both through the presumption and the evidence.

The defendant was convicted and sentenced to a fine of $1,300 plus victim fine surcharge, with a 12-month driving prohibition.

Two additional charges (open liquor and drive no insurance) were withdrawn by the Crown.

The accused was convicted of sexual assault and sentenced to 2 years, 5 months and 15 days in custody with a Long Term Supervision Order (LTSO) for ten years.

The National Parole Board imposed conditions including a prohibition on entering establishments where the primary source of income is derived from the sale of alcohol, and a requirement to reside at an approved community-based residential facility.

The accused was charged with breaching both conditions by entering an off-track betting establishment in the basement of a tavern and by failing to abide by residence rules.

The court dismissed the first charge but found the accused guilty on the second charge, holding that the tavern must be considered as a single entity where the primary source of income is derived from alcohol sales.

Four defendants charged with possession for the purpose of trafficking marijuana and related offences arising from a grow operation investigation applied for a stay of proceedings pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms on grounds of unreasonable trial delay.

The defendants had been before the court for approximately 21.5 months.

The court conducted a detailed analysis of the delay, allocating it among inherent delay, actions of the accused, actions of the Crown, and institutional resource limitations.

The court found that the total delay attributable to the Crown or systemic factors was 8 months and 19 days, which fell within the Askov/Morin guidelines of 8 to 10 months.

The court determined that the prejudice suffered by the defendants was modest and that society's interest in a trial on the merits outweighed the defendants' interest in prompt adjudication.

The application was dismissed.

The defendant was charged with care or control of a motor vehicle while impaired by alcohol after police observed him exit a vehicle that had just pulled over.

The Crown's case rested on the officer's testimony that the defendant was the driver.

The defence argued that the defendant's ex-girlfriend, Sandra Driscoll, was the actual driver and had pulled over due to an argument about the defendant's intoxication.

The defendant's evidence was rejected as unreliable due to his extreme intoxication and internal inconsistencies.

However, the ex-girlfriend's testimony, while raising questions about her conduct, was not rejected and created a reasonable doubt as to the defendant's identity as the driver.

The charge was dismissed.

A youth was tried for sexual assault of a young child occurring between 1994 and 1996.

The complainant, who was four or five years old at the time, testified that the accused forced her to perform fellatio on multiple occasions in the basement of their family home.

The accused denied all allegations.

The court found the complainant to be truthful but harbored significant concerns about the reliability of her recollection given the passage of time, her very young age at the time of the incidents, inconsistencies in her account, and the vagueness of certain details.

The court acquitted the accused, finding that while abuse may have occurred, the evidence did not meet the criminal standard of proof beyond a reasonable doubt.

A police constable was charged with assault causing bodily harm after forcibly taking an intoxicated man to the ground during an arrest for public intoxication.

The Crown alleged excessive use of force.

The court found the arrest was lawful under the Liquor Licence Act and that the force used was necessary and not excessive.

The officer believed the arrestee was about to strike his partner and pulled him away, resulting in an unintended fall.

The defendant was acquitted.

The applicant children's aid society sought child protection orders for two children.

The older child, who had complex behavioural needs and diagnoses of ADHD and depression, experienced significant conflict and emotional abuse from her stepfather, leading to suicidal ideation.

The court found her in need of protection and made her a Crown ward with access to the mother at the society's discretion.

The younger child had historically been subjected to inappropriate discipline, including being locked in his room, but was currently thriving.

The court found the younger child was historically in need of protection but declined to make an ongoing supervision order, allowing him to remain in the mother's care without conditions.

A corporation engaged in construction work pleaded guilty to criminal negligence causing death following a swing stage collapse that killed four workers and seriously injured another.

The incident occurred when six workers and a site supervisor were on a swing stage with only two lifelines available, and three of the four deceased had marijuana in their systems.

The court imposed a fine of $200,000 plus a 15% victim fine surcharge of $30,000, considering the corporation's financial circumstances, prior good character, and the statutory factors for corporate sentencing under the Criminal Code.

The defendant, a director of a construction company, pleaded guilty to four counts of failing to take all reasonable care to ensure compliance with occupational health and safety regulations.

The charges arose from a catastrophic incident on December 24, 2009, when a suspended work platform collapsed during balcony repair work on two Toronto buildings, resulting in four deaths and one serious injury.

The defendant failed to ensure non-English-speaking workers received written safety instructions in their native languages, failed to maintain required training records, allowed defective equipment to be used without proper documentation, and failed to prevent overloading of the work platform.

The court imposed fines of $22,500 per count with a 25% victim fine surcharge, payable over 12 months.

A costs endorsement following a four-day family law trial on custody, access, and child support.

The respondent mother was successful at trial and sought costs on a substantial indemnity basis.

The respondent had served a valid offer to settle prior to trial that was more favourable or as favourable as the trial outcome.

The court awarded costs in the amount of $3,599.98, finding that the respondent's counsel had submitted a conservative bill of costs based on legal aid rates, and that the applicant father had the financial capacity to pay despite limited resources and additional child support obligations.

The mother brought a motion for summary judgment seeking sole custody of four children, supervised access for the father, a restraining order, imputed income and child support.

The father opposed and brought a cross-motion seeking joint custody, mental health assessment of the mother, spousal support, and other relief.

The court found no genuine issue for trial and granted the mother's motion.

The father's untreated mental health issues, refusal to comply with court orders, harassment of the mother, and lack of involvement with the children supported sole custody and supervised access.

The court imputed income of $22,000 to the father based on his education, work history, and capacity to earn.

A motion by counsel for the respondent mother to be removed as counsel of record in a child protection status review application.

The Children's Aid Society sought Crown wardship for three children (ages 11, 10, and 5) who had been in care for approximately 18 months.

Counsel sought removal because Legal Aid would only fund representation for a summary judgment motion, not for trial.

The court refused the motion, finding that the harm to the children and administration of justice from delay outweighed the unfairness to counsel.

The court emphasized the importance of timely permanency planning in child protection cases and noted that counsel could seek public funding pursuant to the Supreme Court's decision in New Brunswick v. J.G.

The Crown sought to admit pharmacy prescription records obtained pursuant to a production order as evidence in a trial involving allegations of diverted funds from the Shelburne Branch of the Royal Canadian Legion.

The defendant objected to the admission of the documents.

The court ruled that the records were admissible as business records under the Canada Evidence Act, finding that the electronic documents satisfied the best evidence rule under Sections 31.1 through 31.4 of the Act.

The court found that the records were kept in the usual and ordinary course of business by a disinterested party, with integrity backed by professional obligations imposed by the Ontario College of Pharmacists.

The accused was charged with dangerous driving, impaired driving, and driving with excess alcohol following a traffic stop on Highway 400.

The Crown's case established that the accused was speeding and changing lanes erratically.

After a roadside screening device failure, breath samples were obtained showing readings of 210 and 200 milligrams of alcohol per 100 millilitres of blood.

The court found the accused not guilty of impaired driving due to insufficient evidence of impairment beyond the blood alcohol readings.

The court upheld the validity of the breath tests as taken as soon as practicable and found no Charter breach.

The accused was convicted of driving with excess alcohol under section 253(1)(b) of the Criminal Code.

This is a ruling on the admissibility of child statements made to police officers in a child protection proceeding.

The respondent mother sought to exclude statements made by two children (ages 14 and 12) to police, arguing that the necessity test should be applied to state of mind exceptions and that many statements did not qualify under that exception.

The court ruled that while the principled exception of necessity and reliability applies to categorical hearsay exceptions, this was not a rare case warranting application of the necessity requirement to state of mind statements.

The court admitted certain statements that clearly reflected the children's emotional and mental state at the time they were made, while excluding statements that were too intertwined with causation or allegations of parental conduct.

The court also excluded a police interview transcript sought to be admitted for the truth of its contents, finding it insufficiently reliable without cross-examination given the high stakes of the proceeding.

The applicant was arrested for drinking and driving offences on April 24, 2011, with his trial scheduled for July 24, 2012—a delay of 15 months.

The applicant brought a Charter section 11(b) application seeking a stay of proceedings based on an alleged infringement of his right to be tried within a reasonable time.

The court dismissed the application, finding that after accounting for periods attributable to defence conduct, inherent time requirements, and institutional factors, the remaining delay of approximately eight months fell within the Morin guidelines for straightforward provincial court trials.

The applicant suffered minimal prejudice, and no violation of his Charter rights was established.

The accused was charged with multiple firearm and drug offences following his arrest while driving with a loaded prohibited firearm and marijuana.

At a bail hearing, the justice of the peace endorsed the information under s. 515(9.1) of the Criminal Code based on the accused's prior criminal record, restricting pre-sentence custody credit to 1:1.

Following conviction on all counts, the accused challenged the constitutionality of s. 719(3.1), which removes sentencing discretion regarding enhanced pre-sentence custody credit when a bail justice has made a s. 515(9.1) endorsement.

The court found the impugned provision violated s. 7 of the Charter and declared it of no force and effect.

The court imposed a global sentence of 6 years imprisonment with 1.5:1 credit for pre-sentence custody.

The accused was charged with criminal harassment and uttering threats to cause death or injury to children, arising from an incident on March 25, 2011 during a custody transfer.

The Crown alleged that the accused made threatening statements to the complainant regarding her children after she refused to allow him to pick up their daughter at her home.

The court found the accused not guilty on both charges.

While the court accepted the complainant's credible testimony that the accused made the alleged statement, it found that the threat did not constitute a threat of bodily harm as defined in the Criminal Code, as there was insufficient proof of substantial interference with the psychological integrity of the children.

Additionally, the harassment charge failed because it required proof of repeated following on more than one occasion, and only a single incident of following was established.