ONCJ 2015

A Kingston Police officer was charged with dangerous driving arising from an incident on March 18, 2012, when his police cruiser struck a suspect on the sidewalk during a foot chase.

The Crown alleged the officer deliberately drove his vehicle onto the sidewalk to obstruct the suspect's path.

The defence contended the collision occurred on the roadway and was unavoidable.

The court found, based on the evidence of the suspect and five independent eyewitnesses, that the collision occurred on the sidewalk.

The court further found that the officer deliberately steered his vehicle onto the sidewalk to apprehend the suspect, knowing there was heavy pedestrian traffic in the area.

The officer was found guilty of dangerous driving.

The Crown brought an application during a sentencing hearing seeking access to the raw psychological data and assessment materials prepared by Dr. Paul Valliant, a defence expert witness.

The accused opposed the application, arguing the Crown should serve a subpoena duces tecum directly on the witness.

The court held that while the Crown is entitled to access the foundational materials underlying expert opinions to enable effective cross-examination, the defence should serve as the intermediary to obtain and produce these materials to the Crown, rather than the Crown serving a subpoena directly on the defence witness.

The accused was charged with sexual assault contrary to Section 271 of the Criminal Code for alleged incidents occurring during a house party.

The complainant testified that she woke twice to unwanted sexual touching by the accused while she was in bed with another woman.

The accused testified that he dozed off in the bed and denied all allegations.

The court found the accused not guilty, determining that the Crown had not discharged its burden of proving guilt beyond a reasonable doubt based on credibility issues with the complainant's testimony, corroborating evidence from a third party in the bed, and inconsistencies in the complainant's account.

The court issued a decision on the admissibility of electronic documents during a criminal trial.

The Crown sought to admit three distinct packages of electronic documents: Google Hangout conversations, Gmail exchanges, and additional Google Hangout chats.

The defence did not pursue arguments against admissibility.

The court admitted all three packages of documents as exhibits after conducting a blended admissibility voir dire.

The decision addresses the requirements for authenticating electronic documents under the Canada Evidence Act and establishes the evidentiary standards for proving authenticity and compliance with the best evidence rule for electronic documents.

The accused brought a motion to stay proceedings on the basis that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time had been violated.

The accused was charged with dangerous operation of a motor vehicle causing bodily harm, impaired operation causing bodily harm, and operation with blood alcohol exceeding 80 mg per 100 mL of blood, all straight indictable offences.

The overall delay from the laying of charges to the scheduled trial completion was approximately 31 months.

The first trial date was adjourned due to late disclosure of a critical expert toxicology report.

The court dismissed the application, finding that while there was some actual prejudice, the institutional and Crown delay did not rise to the level of a Charter violation when considered holistically against the complexity of the case, the conduct of the defence, and society's interest in a trial on the merits.

The defendant brought a motion seeking to cross-examine the complainant regarding whether she claimed to have previously engaged in sexual activity with a 30-year-old man.

The Crown objected, arguing that such questioning constituted an attempt to elicit evidence of prior sexual activity under section 276 of the Criminal Code and therefore required a formal section 276 application.

The court ruled that section 276 was not engaged because the defense sought to prove that the statement was made, not for the truth of its contents, but to establish that the complainant was attempting to present herself as older.

The court distinguished between evidence of prior sexual activity and evidence of a claim of prior sexual activity made for a non-truth purpose.

A preliminary inquiry into charges of human trafficking, forcible confinement, dangerous driving, and related offences.

The Crown sought committal on all counts.

The court committed the accused on counts relating to trafficking in persons, material benefit, dangerous driving (both counts), forcible confinement, and failure to comply with undertaking.

The court discharged the accused on counts of escape from lawful custody and failure to stop for police, finding insufficient evidence on the essential elements.

The court also granted bail with stringent conditions, finding that a suitable supervision plan could manage the risk of reoffending.

The accused was charged with impaired driving and driving with over 80 mgs of alcohol in 100 mls of blood.

He brought a motion for a stay of proceedings alleging violations of his Charter rights under sections 7 and 11(b) due to unreasonable delay.

The trial was scheduled approximately 14 months after arrest.

The court applied the Morin framework to assess the reasonableness of the delay, considering the length of delay, waivers, reasons for delay (including actions of the accused, crown, and institutional resources), and prejudice to the accused.

The court found that the accused's Charter right to be tried within a reasonable time had been violated and granted the stay of proceedings.

The accused was charged with refusing to provide a breath sample to a peace officer.

The Crown alleged the officer had reasonable suspicion to demand an approved screening device (ASD) test, made the demand forthwith, and the accused refused to comply.

The defence argued the officer lacked reasonable suspicion, the demand was not made forthwith, and the accused was unable to use the machine properly due to inadequate instruction and anxiety.

The court found the officer had reasonable suspicion based on the accused coming from a licensed establishment, odour of alcohol, and red watery eyes.

The court found the forthwith requirement was met.

Most significantly, the court found the accused eventually refused to blow into the device, which constituted the offence.

The accused was convicted.

The defendant was charged with failing to provide a breath sample contrary to Section 254(5) of the Criminal Code.

The defendant claimed the statutory defence of "reasonable excuse," arguing that his emotional state prevented him from complying with the demand.

The court found that while the defendant was nervous during the police interaction, his anxiety did not constitute a marked departure from that of a reasonable person in similar circumstances.

The court rejected the defence and found the defendant guilty.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood and having care or control of a motor vehicle on December 31, 2013.

The vehicle had mounted a snowbank after the accused swerved to avoid a collision.

When police arrived, the accused was found in the driver's seat with keys in the ignition.

The court examined whether the accused had care or control of the vehicle despite it being immobilized on the snowbank, and whether the breath samples were taken as soon as practicable as required by law.

The court found the accused guilty on both counts.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code.

The accused challenged the admissibility of statements made to police at the accident scene, arguing they were statutorily compelled under the Highway Traffic Act and therefore inadmissible as a violation of the right to remain silent under section 7 of the Charter.

The court found that the accused failed to establish on a balance of probabilities that he held an honest and reasonably held belief that he was required by law to report the accident.

The accused's testimony regarding his knowledge of the Highway Traffic Act was found to be not credible, and his statements were therefore admitted into evidence.

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

The central issue was whether the accused's Charter rights to counsel were properly informed and whether the "forthwith" requirement under section 254(2) of the Criminal Code was satisfied.

The Crown conducted an approved screening device (ASD) demand approximately 13 minutes after the initial traffic stop.

The defence argued that the accused was not provided with his rights to counsel at the roadside and that the delay in administering the ASD violated the forthwith requirement.

The court found that the accused had been informed of his rights to counsel and declined them, rendering the evidence admissible.

The accused was charged with possession for the purpose of trafficking and possession of a controlled substance following the discovery of crack cocaine and powder cocaine in the front console of a vehicle he was driving on November 14, 2013.

At the preliminary inquiry, the Crown sought to establish a prima facie case based on circumstantial evidence.

The court found that while the accused had control over the drugs, the Crown failed to establish knowledge of the hidden drugs beyond a reasonable inference.

The court discharged the accused on both counts, finding that knowledge could not be the only reasonable inference from the facts presented.

Appeals from convictions and sentences imposed on a corporation and individual for offences related to unauthorized access to Crown land and trespass for fishing purposes.

The appellants organized a public protest and removed trees that had been felled by the Ministry of Natural Resources to restrict access to Oswald Lake.

The court upheld the convictions, finding that the Ministry lawfully restricted access under the Public Lands Act and that the appellants were parties to the offences committed by others.

The court also upheld the sentence, finding no error in principle regarding the failure to inquire into financial ability to pay and determining the fine was not demonstrably unfit given the circumstances of organized civil disobedience.

The applicant sought custody of the child, child support, guardianship over the child's property, and permission to relocate the child's residence from Kitchener, Ontario to Happy Valley-Goose Bay, Newfoundland and Labrador.

The respondent opposed the relocation and sought custody with child support if relocation occurred.

The parties had previously entered into a mediation agreement providing for joint custody with equal time-sharing on a week-about basis.

The court determined that custody should remain joint with equal time-sharing, and denied the applicant's request to relocate the child, finding that such a move would be contrary to the child's best interests by dramatically reducing contact with the respondent father and disrupting the child's established relationships and community.

The accused was charged with impaired driving and driving with excess alcohol in his system following a motor vehicle collision on October 3, 2014.

The Crown relied on breath sample readings from an Intoxilyzer 8000C device taken outside the two-hour presumption window, supported by expert toxicology evidence projecting the accused's blood alcohol content at the time of driving.

The defence argued the accused had consumed less alcohol than the Crown's hypothetical suggested and attributed observed symptoms to fatigue and an acid reflux condition.

The court found the accused guilty on both counts, finding that the Crown had proven beyond a reasonable doubt both impairment and a blood alcohol content exceeding 80 mg per 100 ml of blood.

A stay was entered on the impaired driving count to avoid double punishment.

The appellant, a commercial property owner, was convicted of infractions under the Ontario Fire Code for permitting a private school to operate on the premises without compliance with fire safety regulations.

The appellant appealed, arguing that the private school was regulated by the Education Act and therefore exempt from the Ontario Fire Code under section 9.2.1.2 of Regulation 213/07.

The court dismissed the appeal, holding that the private school was not governed by the Education Act because no notice of intention to operate had been filed as required by section 16(1) of the Education Act.

The court found that the burden of proof rested on the appellant to establish the exemption and that a factual finding at trial could not substitute for the express statutory requirement of filing a notice of intention.

The respondent, biological father of a child born in 2005, brought a motion to change a 2006 custody and access order that granted the applicant (mother) sole custody and the respondent no access.

The respondent sought to establish access with himself and his family.

The court found that the respondent failed to meet the threshold test under section 29 of the Children's Law Reform Act, as he did not demonstrate a material change in circumstances affecting the child's best interests.

The court found the respondent's true motivation was to control and harass the applicant, not to establish a genuine relationship with the child.

The motion was dismissed and the original order was upheld.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code and touching for a sexual purpose of a person under the age of 16 contrary to section 151 of the Criminal Code, relating to alleged conduct on or about May 25, 2014.

A voir dire was held to determine the voluntariness of a videotaped statement made by the accused to police.

The defence challenged the voluntariness of the statement on the grounds of improper inducement and alleged violation of the right to counsel.

The court found that the Crown had established beyond a reasonable doubt that the statement was voluntary, rejecting the defence's arguments regarding both inducement and the right to counsel violation.