ONCJ 2014

The accused was charged with driving over 80 mg/100 mL of blood alcohol.

During a RIDE spot-check, the accused was directed to a secondary investigation area without explanation, and subsequently arrested after failing a screening test.

The accused sought to contact his counsel of choice but was ultimately directed to duty counsel instead.

The court found two Charter breaches: (1) a violation of section 10(a) for failure to inform the accused of the reason for detention when directed to the secondary area, and (2) a violation of section 10(b) for failure to adequately facilitate access to counsel of choice.

The court found that the Toronto Police Service's institutional practice of controlling access to counsel and channeling accused persons to duty counsel, combined with inadequate resources and efforts to locate private counsel, resulted in the accused being denied a reasonable opportunity to obtain legal advice from counsel of his choice.

The defendant was charged with impaired driving and driving with over 80mg of alcohol in 100ml of blood following a motor vehicle collision on April 28, 2013.

This was the second section 11(b) Charter application challenging the delay in bringing the matter to trial.

The trial commenced on June 16, 2014 (approximately 14 months after arrest) but did not conclude, requiring a continuation date of October 3, 2014 (an additional 109 days of delay).

The court found total state-caused delay of 11.5 months, exceeding the Morin guidelines by six weeks.

The defendant suffered actual prejudice including stress, anxiety, sleep disturbance requiring medication, and loss of a job opportunity.

Balancing the defendant's prejudice against the serious nature of the offence and strong societal interest in trial on merits, the court found the delay constitutionally intolerable and granted a stay of proceedings.

The Crown sought to introduce a statement made by the defendant to Constable Foreman in the Intoxilyzer room for purposes of cross-examination.

The defendant was charged with impaired driving and driving with over 80 mgs. per cent blood alcohol.

The court conducted a voluntariness voir dire and found that the Crown failed to call all persons in authority who had dealings with the defendant, specifically the Staff Sergeant and booking officer who were observed in conversation with the defendant on video.

The court excluded the statement, finding that the Crown's failure to call these witnesses prevented it from satisfying the burden of proving the statement was voluntarily made.

The Crown charged two accused with possession of a handgun found in a vehicle during the Beaches Jazz Festival in Toronto.

A handgun was discovered under the rear driver's side floor mat of a black motor vehicle after police responded to a 911 call reporting suspicious activity.

The Crown argued that circumstantial evidence established that both accused had knowledge and control of the handgun.

The defence contended that two other individuals who were released from investigative detention may have been the only persons with knowledge of the weapon.

The court found that while there was a probability the accused knew of the handgun's existence, the Crown failed to establish knowledge and control beyond a reasonable doubt.

The competing inferences—that either the accused or the two released individuals knew of the handgun—created reasonable doubt.

Both accused were acquitted.

Parents in a child protection proceeding brought a motion to remove the child's legal representative, Ms. Samira Ahmed of Justice for Children and Youth.

The child, nearly sixteen years old and in the care of the child protection society since February 2013, opposed the motion.

The parents argued the child lacked capacity to instruct counsel, that the representative exceeded her role, that a litigation guardian should be appointed, and that the representative had misused confidential information.

The court dismissed the motion, finding that the child had clearly expressed views separate from both parents and the society, that legal representation was desirable, and that the representative had properly discharged her duties in advocating for the child's interests.

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

The Crown relied on observations of the accused's driving, physical signs of impairment, and breath test results showing readings of 110 and 100 milligrams.

The defence challenged both the impairment charge and the admissibility of the breath test results on the basis that the Crown failed to prove the samples were taken as soon as practicable.

The court found reasonable doubt on both counts due to inadequate police notes, vague timing evidence, and unexplained delays between arrest and breath testing.

The accused was acquitted on both charges.

The court ruled on whether a Drug Recognition Officer must qualify through a Mohan voir dire before providing expert opinion evidence regarding drug impairment.

The accused challenged the scientific basis of drug recognition testing, arguing that expert evidence proving the reliability of the science was required before a DRE could testify.

The Crown argued that Parliament had already conducted its own voir dire when amending the Criminal Code and that accreditation under the applicable regulations was sufficient.

The court held that no Mohan voir dire is required if the officer meets the regulatory accreditation criteria, as Parliament has legislated the qualifications and found the science sufficiently reliable.

Any challenge to the science itself should be brought as a constitutional question.

The defendant was charged with unsafe turn/lane change contrary to section 142(1) of the Highway Traffic Act.

The collision occurred at the intersection of Spadina Avenue and Bremner Boulevard in Toronto when the defendant's Honda SUV made a right turn and collided with a motorcycle.

The court found that the prosecution proved the actus reus of the offence beyond a reasonable doubt.

The defendant's due diligence defence failed because he made an unsafe right turn in a short distance where he was unable to see the motorcycle or stop to avoid collision.

The court rejected the defendant's assertion that the curb lane was clear, finding it unreasonable given the traffic conditions and the short distance and time available for the maneuver.

The accused was charged with three offences arising from a motor vehicle collision at Weston Road and Eglinton Avenue West in Toronto: (1) care or control of a motor vehicle with blood-alcohol concentration exceeding the legal limit; (2) failure to remain at the scene of an accident; and (3) care or control of a motor vehicle while impaired by alcohol.

The Crown's theory was that the accused drove a Lexus that fled the collision scene and subsequently had care or control of the vehicle while parked on Cordella Avenue with elevated blood-alcohol levels.

The defence challenged the admissibility of the accused's pre-arrest statements and breath sample results on Charter grounds, arguing violations of sections 8, 10(a), and 10(b).

The court rejected all Charter applications and found the accused guilty on all three counts.

The accused was charged with operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg per 100 mL of blood.

The Crown's case relied on breath test results and toxicological evidence.

The court had previously ruled that the accused's Charter rights were violated during the investigation, removing the Crown's access to statutory presumptions of identity and accuracy.

The Crown was therefore required to prove beyond a reasonable doubt that the breath test results were accurate and that the accused's blood-alcohol concentration at the time of driving exceeded the legal limit.

The court found that the Crown met this burden, rejecting the defence arguments regarding bolus drinking and the reliability of the toxicological assumptions.

The applicant sought a reference hearing under section 74 of the Firearms Act to challenge the Chief Firearms Officer's refusal to issue him a firearms licence.

The refusal was based on the applicant's membership in the Hells Angels Motorcycle Club, deemed a criminal organization.

The applicant had no criminal record, no mental health issues, and no history of violence.

The court upheld the refusal, finding that membership in a criminal organization constitutes a legitimate public safety concern under section 5(1) of the Firearms Act, even absent specific enumeration in section 5(2).

The accused was charged with operating a motor vehicle with a blood alcohol concentration in excess of eighty milligrams percent contrary to section 253(1)(b) of the Criminal Code.

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

The overall delay from the swearing of the information on September 5, 2013 to the second scheduled trial date on November 6, 2014 was approximately fourteen months.

The court found that institutional and Crown delay totaled approximately ten months and twenty-five days, with significant delay attributable to late disclosure.

The accused established actual prejudice, as he was caring for his wife who had been paralyzed in an accident on the same day he was charged.

The court found that the delay, exacerbated by the real prejudice, was excessive and offended section 11(b) of the Charter, and ordered a judicial stay of proceedings.

The accused, a vice-principal at a Toronto high school, was charged with obstructing a peace officer by allegedly counselling a student to leave the school and misleading police about the student's whereabouts when police were present to execute an arrest warrant.

The court found that while the accused failed to fully disclose to police that he had seen the student in the classroom, the Crown failed to establish beyond a reasonable doubt that the accused intended to obstruct the officer or that his conduct was intended to make it more difficult for police to execute their duty.

The accused was acquitted.

A young person charged with robbery with a firearm, point firearm, assault with a weapon, disguise with intent, and conspiracy to commit robbery brought a Charter application seeking a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms.

The applicant alleged that Toronto Police Service Hold-up Squad officers used excessive force by beating him while he was detained in an interview room at 41 Division.

The applicant also alleged breaches of his rights under sections 7, 10(a), 10(b), and 12 of the Charter.

The court found that the applicant failed to establish on a balance of probabilities that he was assaulted in the manner alleged.

The court rejected the applicant's evidence as unreliable and found that the injuries observed were inconsistent with the alleged brutal assault.

The court concluded that the officers' actions were justified and proportional to the applicant's aggressive behaviour.

The application for a stay of proceedings was dismissed.

A police officer with 14 years of service pleaded guilty to breach of trust and careless storage of a firearm.

The Crown sought 12 months imprisonment plus probation, emphasizing denunciation and deterrence.

The court found exceptional mitigating circumstances including severe alcohol addiction, emotional abuse by a partner, unresolved grief from a parent's death, and a sleep disorder.

The officer had undergone significant rehabilitation post-arrest, including residential treatment, weekly AA attendance, and psychotherapy.

Despite the serious nature of breaching a position of trust, the court imposed a suspended sentence with three years probation and 150 hours community service, recognizing that the officer's conduct was entirely out of character and driven by addiction rather than corruption or venality.

The applicants sought costs awards against the Crown following the dismissal of the Crown's forfeiture applications under the Controlled Drugs and Substances Act.

The Crown had sought forfeiture of two properties allegedly used in connection with marijuana grow operations.

The court found that the Crown's conduct in commencing restraint and forfeiture applications against innocent third parties, without evidence of complicity or collusion, constituted a marked and unacceptable departure from the reasonable standards expected of the prosecution.

The Crown failed to properly assess available evidence before proceeding and maintained an intransigent "hardball" attitude throughout the proceedings.

The court determined that costs awards were warranted.

The accused was charged with impaired driving and refusing to comply with a demand to provide a breath sample into an approved screening device.

The accused brought a Charter application to exclude evidence, arguing the officer unlawfully entered private property to make the demand and that the accused's section 10(b) rights were infringed.

The court denied the Charter application, finding the officer had express consent to enter the building and that section 10(b) rights were not violated given the brief timeframe before the approved screening device would be available.

At trial, the court found the accused guilty of refusing to provide a sample but dismissed the impaired driving charge, finding reasonable doubt based on a possible medical explanation for balance issues and the unlikelihood the accused would have been sold alcohol if visibly intoxicated.

The accused was charged with three counts of sexual assault contrary to section 271 of the Criminal Code.

The Crown alleged that on July 19, 2013, the accused grabbed the complainant's breasts from behind at a bar in Goderich.

On July 20, 2013, the Crown alleged the accused groped the complainant in a taxi and subsequently engaged in non-consensual sexual intercourse with her at the accused's best friend's residence.

The accused's defence was that the first incident did not occur and that the second and third incidents were consensual.

The trial judge found the complainant to be a credible and reliable witness and rejected the accused's evidence as discordant with ordinary behaviour.

The court found the accused guilty on counts 2 and 3 but acquitted him on count 1 due to insufficient evidence of identification in the crowded bar setting.

The Crown appealed two acquittals of the respondent on charges under the Highway Traffic Act and Compulsory Automobile Insurance Act.

The respondent was charged with operating a motor vehicle without insurance, without a licence, and without displaying a licence plate, as well as operating a motorcycle without a helmet.

The respondent's defence in both trials was that he was operating a power-assisted bicycle (e-bike), which is exempt from the definition of motor vehicle under the HTA.

The key factual issue was that at the time of each police stop, the respondent's e-bike had one or both pedals removed or disabled.

The Crown argued that without operable pedals, the vehicle lost its exemption and became a motor vehicle.

Both trial courts acquitted the respondent, finding the vehicle remained a power-assisted bicycle despite the missing pedals.

The appellate court dismissed the Crown's appeals, holding that the trial courts did not err in law.

The accused was charged with dangerous driving, possession of stolen license plates, and breach of probation arising from an incident on January 31, 2014, in a parking lot behind a bar in Hamilton.

Two plainclothes police officers observed a vehicle with three occupants and initiated a liquor license investigation.

When the officers approached, the vehicle accelerated and fled the scene.

The central issue was identification of the driver.

The court found the accused guilty of possession of stolen plates and breach of probation but acquitted on the dangerous driving charge due to insufficient evidence regarding the officer's precise location at the time of acceleration and uncertainty about whether the officer was directly in front of the vehicle.