ONCJ 2015

The accused was charged with sexual assault and sexual touching of a child under sixteen years of age.

The Crown's case rested primarily on the testimony of the eight-year-old complainant, who alleged that his grandfather had licked his fingers and inserted them into his anus.

The accused denied all allegations.

The trial judge assessed the credibility and reliability of both the child witness and the accused, applying the framework from R. v. W(D) and contemporary jurisprudence regarding child testimony.

The court found the child to be a credible and reliable witness and rejected the accused's denial, finding him guilty of both charges.

The accused was charged with eight sexual offences involving two young complainants, aged three and five years old, who were in his care at his home-based daycare.

The Crown sought to admit the out-of-court statements of both complainants to their parents and police through a Kahn application, arguing necessity and threshold reliability.

The trial judge found that both complainants would be unable to provide coherent testimony and that testifying would cause them undue trauma.

The court admitted the hearsay statements and found them reliable based on the circumstances of disclosure, the complainants' lack of knowledge of sexual conduct, and corroborating details.

The accused's defence was a simple denial.

The trial judge found the complainants' evidence accurate and reliable, and convicted the accused on all counts.

A Section 21 Mental Health Act assessment including a Sexual Behaviours Assessment was ordered prior to sentencing.

The accused was convicted of sexual offences against two young victims under the age of four.

The offences included sexual interference and invitation to touch contrary to sections 151 and 152 of the Criminal Code.

The accused operated a daycare centre and abused his position of trust.

A forensic assessment concluded the accused posed a low risk of sexual or violent re-offence and found insufficient evidence of pedophilic disorder.

The court imposed a sentence of 60 months in jail with ancillary orders including DNA banking, communication prohibitions, sex offender registration, and restrictions on contact with minors and employment involving positions of trust.

The accused was convicted of impaired driving causing bodily harm after sideswiping a cyclist on a country road on October 9, 2012.

The victim suffered devastating injuries including a traumatic brain injury.

The court found the accused was so substantially intoxicated that he may not have even realized he struck the victim.

The court emphasized that general deterrence and denunciation were paramount sentencing objectives for this serious impaired driving offense.

The accused had no prior criminal record and demonstrated genuine remorse, but the severity of the victim's injuries and the degree of impairment were significant aggravating factors.

The accused was charged with operating a motor vehicle while impaired and with a blood-alcohol concentration over 80 milligrams per 100 millilitres of blood, contrary to s. 253(1)(a) and (b) of the Criminal Code.

The vehicle in question was an electric scooter.

The court determined that the electric scooter constituted a motor vehicle within the definition in s. 2 of the Criminal Code, as it was designed to be propelled by means other than muscular power.

The court rejected the defence argument that the vehicle was not a motor vehicle when operating without battery power, finding that the nature of the vehicle, not its operability at a particular moment, determines its classification.

The court also found that the Crown proved beyond a reasonable doubt that the accused's blood-alcohol concentration exceeded 80 at the time of operation, rejecting the defence argument regarding bolus drinking based on the presence of a partially consumed bottle of wine.

The accused was found guilty on both counts.

The accused pleaded guilty to attempted robbery committed at a shopping mall parking lot.

The offender, a youthful individual with significant mental health issues including paranoid schizophrenia and ADHD, approached the complainant's vehicle and demanded money while his hand was in his jacket pocket, creating the impression of a weapon.

No money was taken and no actual weapon was found.

The court imposed a suspended sentence with three years probation, taking into account the offender's youth, mental health conditions, minor criminal record, the relatively minor nature of the attempted robbery, and substantial credit for 20 months of stringent house arrest bail conditions.

The Toronto Police Service and a police officer sought access to youth records of a young person (L.D.) who was a witness and complainant in a police disciplinary hearing.

The officer was alleged to have assaulted L.D. while in police custody.

The court considered whether access to L.D.'s youth records was permitted under sections 119(1)(s) and 123 of the Youth Criminal Justice Act.

The court held that the applicants failed to establish a valid or valid and substantial interest in the records, and that permitting access would undermine the proper administration of justice under both the YCJA and the Police Services Act.

The application was dismissed.

This is a dispositional phase decision in a child protection matter involving two children, J.C. (age 6½) and N.Y. (age 11), who were apprehended from their grandmother's care.

The Children's Aid Society sought Crown wardship with no access for J.C., arguing he was adoptable.

The grandmother sought return of J.C. to her care or, alternatively, access if Crown wardship was ordered.

The court found that J.C. had serious behavioral and mental health issues requiring long-term residential treatment and was not adoptable in the foreseeable future.

The court made J.C. a Crown ward but granted access to his grandmother and sister, finding that such access would not impair future adoption opportunities and that the familial relationships were meaningful and beneficial to the child.

This is a child protection matter involving two children, L and C, and a status review application.

The Highland Shores Children's Aid Society sought Crown Wardship with no access for L and a Supervision Order for C. The court found that while Society intervention was necessary to protect the children from an abusive partner, the apprehension of L was not justified and the Society's subsequent handling of the case was unreasonable.

The court found the Society failed to conduct thorough investigations, failed to consider kinship care options, and abused its discretion by using access as a punitive tool rather than focusing on the children's best interests.

The court ordered L returned to his mother's care subject to a six-month supervision order and C placed in joint care of both parents subject to supervision.

A 16-year-old youth sought a review of a bail order denying release with a proposed surety.

The youth faced charges including theft and two counts of arson involving serious property damage.

The Crown argued detention was necessary under the secondary grounds to protect the public from a substantial likelihood of serious reoffending.

The court found that detention was not necessary, considering the youth's minimal criminal record, underlying mental health and social issues requiring community support, and the triable issues regarding her level of involvement in the arson charges.

The court released the youth on her own recognizance with conditions.

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

The accused was found asleep in the driver's seat of her vehicle, which was stuck in a snowbank at the end of a residential driveway.

She had called for a tow truck and was waiting inside the vehicle with the engine running for warmth.

The trial judge found that the accused rebutted the statutory presumption of care or control under section 258(1)(a) of the Criminal Code by establishing that her occupancy of the driver's seat began for the purpose of awaiting the tow truck, not for setting the vehicle in motion.

The court further found no realistic risk of danger to the public, as the vehicle was immobilized and incapable of being set in motion.

The accused was acquitted of both charges.

The accused was charged with two offences arising from a fraudulent scheme: (1) defrauding a victim of $10,000 contrary to section 380(1)(a) of the Criminal Code, and (2) possessing currency knowing it was obtained by the commission of an offence.

The victim was defrauded through a Publisher's Clearinghouse sweepstakes scam.

The accused received $10,000 of the fraudulently obtained funds into her bank account at the direction of a family friend, withdrew approximately $8,000 in cash, and handed it to an unknown individual.

The court found the accused guilty on count 2 (possession of stolen property) based on wilful blindness to the illegal source of the funds, but acquitted her on count 1 (fraud) as the Crown failed to prove she had subjective knowledge of the fraudulent scheme specifically.

The accused was charged with sexual assault and sexual touching of his granddaughter between December 2013 and February 2014, when the complainant was twelve years old.

The Crown alleged that the accused licked the complainant's legs and stomach on separate occasions and placed his hand down her shirt.

The accused denied all allegations.

The court found that while the complainant had motive and animus to fabricate the allegations due to her unhappiness with living arrangements and disciplinary conflicts over internet use, the accused's testimony was straightforward, uncomplicated, and credible.

The court was not satisfied beyond a reasonable doubt that the allegations were proven and acquitted the accused on all counts.

Hard Luck Inc., operating as a live music venue bar, was charged with five provincial offences under the City of Toronto Municipal Code: operating an entertainment establishment without a licence (counts 1 and 3), causing noise likely to disturb residents (counts 2 and 5), and permitting sound from electronic devices to project beyond the property (count 4).

The prosecution relied on testimony from a resident living approximately one city block away who documented extensive noise complaints over several months, and a provincial offences officer who observed and heard noise emanating from the premises.

The defendant presented evidence of soundproofing efforts and expert acoustic testing suggesting minimal noise projection.

The court found the defendant guilty on counts 1, 2, 4, and 5, but acquitted on count 3 based on a due diligence defence.

The court rejected the defendant's acoustic expert evidence as having little probative value given the temporal gap between testing and the alleged offences, and found the resident's testimony credible and compelling.

A temporary care and custody hearing under Part III of the Child and Family Services Act wherein the applicant society sought to place a child in its care and custody with access at the society's discretion.

The respondent mother sought an order placing the child in her care subject to society supervision.

The child's counsel supported the mother's position.

The court found reasonable grounds to believe the child would likely suffer harm if returned to the mother's care based on the mother's history of involvement with child protection agencies, her failure to protect children from relationships with men posing risk, and her lack of insight into protecting her children.

The court determined that a supervision order would be inadequate to protect the child given the mother's past non-compliance and her strongly held belief in the alleged perpetrator's innocence.

The court ordered the child placed in the temporary care and custody of the society.

The accused was charged with four counts of sexual interference and four counts of sexual assault against four sisters (his nieces) between January 1, 2002 and January 1, 2010.

The complainants testified that the accused engaged in multiple sexual violations including digital penetration while they slept over at his apartment during their early and pre-teen years.

The accused denied all allegations and testified that his bedroom was locked and he had limited contact with the complainants.

The court found the complainants' evidence credible and reliable, applying the appropriate standard for assessing child evidence.

The court rejected the accused's evidence as contrived and self-serving.

The accused was found guilty on all eight counts.

The defendant was charged with abandoning a child under section 218 of the Criminal Code after leaving her four-and-a-half-year-old daughter sleeping in a locked car on a hot July day while she briefly entered a supermarket.

The Crown alleged the child was left unattended for approximately 30 minutes in temperatures reaching 28.6 degrees Celsius.

The court applied the Supreme Court of Canada's decision in R. v. A.D.H., which requires proof of subjective fault—specifically, awareness of the risk created by the conduct.

The court found that while the defendant's actions were unwise, the evidence did not establish beyond reasonable doubt that she had the requisite awareness of the risk.

The charge was dismissed.

The accused pleaded guilty to assault on a domestic partner, mischief under $5,000, and two counts of breach of probation.

The Crown sought 10 months incarceration plus pre-trial custody credit.

The court imposed a suspended sentence with three years' probation, finding that while domestic violence requires custodial sentences, the relatively minor nature of the physical injuries and the accused's demonstrated remorse warranted a non-custodial disposition.

The court credited 166 days of pre-trial custody on a 1.5:1 basis (249 days equivalent), which satisfied the custodial component.

Strict probation conditions were imposed, including abstinence from alcohol and drugs, no contact with the victim, and mandatory counselling for alcohol abuse and anger management.

The accused, young first-time offenders and parents, pleaded guilty to causing the death of their one-month-old infant son.

Tran pleaded guilty to manslaughter after striking the child twice in the face to stop him from crying, fearing discovery by his brother.

Bui pleaded guilty to failure to provide necessities of life after failing to seek immediate medical attention due to fear of family discovery of the out-of-wedlock birth.

The court imposed sentences reflecting principles of denunciation and general deterrence while considering mitigating factors including genuine remorse, guilty pleas, and the momentary nature of the assault.

The applicant brought a motion for an order declaring a mistrial due to ineffective assistance of counsel following her conviction on charges of impaired operation of a motor vehicle, operating a motor vehicle with blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood, dangerous operation of a motor vehicle, and failing to remain at the scene of an accident.

The court examined whether counsel's conduct fell below the standard of reasonable professional assistance and whether such conduct resulted in a miscarriage of justice.

The court found that while certain trial strategy decisions were reasonable, critical failures in file preparation and transfer, inadequate disclosure of key evidence to trial counsel, and insufficient preparation for cross-examination of expert witnesses fell below the standard of care.

The court determined that the reliability of the verdict was called into question and declared a mistrial.