ONCJ 2015

In a child protection status review hearing under Part III of the Child and Family Services Act, the respondent mother brought a mid-trial motion requesting that two society witnesses be recalled for re-cross-examination.

The court denied the motion, finding that the respondent mother's counsel had adequate opportunity to cross-examine the witnesses prior to trial and at trial, no new evidence had emerged that would warrant re-cross-examination, and allowing the recall would cause undue delay prejudicial to the children's interests.

However, the foster mother was ordered to be recalled to give evidence regarding events occurring after April 1, 2015.

Application for custody, access, and child support involving parents of a child born in 2006 who separated in 2010.

The mother sought custody and proper child support calculations after the father failed to pay adequate support and retained the child during a scheduled access visit in July 2014.

The court awarded sole custody to the mother, established a regular access schedule for the father, calculated child support arrears of $8,631.00, and ordered ongoing monthly child support of $469.00 with a support deduction order.

The defendant was charged with two offences under the Compulsory Automobile Insurance Act: operating a motor vehicle without insurance and knowingly using a false insurance card.

The trial proceeded in the defendant's absence.

The Crown proved that the defendant was operating a motor vehicle on Highway 403 in Oakville on November 7, 2011, and that she was the registered owner of the vehicle.

The defendant's insurance policy had been cancelled on October 8, 2011, due to non-payment of premiums.

The defendant failed to prove on a balance of probabilities that the vehicle was insured at the time of the offence.

The defendant also failed to establish the defence of reasonable care.

The Crown stayed the second count, and the defendant was convicted on the first count.

The accused was charged with impaired driving and driving with blood alcohol content exceeding the legal limit (over 80) following a motor vehicle stop on January 16, 2010.

The accused brought multiple Charter applications alleging breaches of sections 8, 10(b), 11(b), 9, and 15.

The court dismissed the Charter applications.

On the substantive charges, the court found that while the Crown proved the over 80 charge beyond a reasonable doubt based on breath test readings of 170 and 180 milligrams, the impaired driving charge was dismissed because the Crown's evidence regarding impairment was undermined by the accused's pre-existing physical disabilities from a chemical fire injury, which made certain behavioral markers attributable to disability rather than alcohol consumption.

The defendant was charged with failing or refusing to provide a suitable breath sample following a roadside stop for speeding.

The Crown alleged the defendant refused to comply with a valid screening demand.

The defendant challenged both the validity of the screening demand and alleged a violation of his right to counsel.

The court found the screening demand was valid and made "forthwith" as required by the Criminal Code.

The court also found no violation of the defendant's right to counsel prior to arrest, and any post-arrest delay in providing rights to counsel was minor and did not warrant exclusion of evidence.

The defendant was found guilty.

The accused was charged with driving with an excessive proportion of alcohol in his system (over 80 offence).

Following conviction and successful appeal, the matter proceeded to retrial.

The accused brought Charter applications alleging violations of sections 8, 9, and 10(b).

The court found that the approved screening device test was administered in violation of section 8 of the Charter due to the officer's failure to comply with mandatory police procedures and guidelines regarding device calibration, self-testing, location of testing, and in-car camera system activation.

The court excluded the evidence under section 24(2) and dismissed the charge.

The Children's Aid Society brought a motion seeking to introduce evidence of the respondents' conviction and sentencing for manslaughter of one of their children in a Crown wardship proceeding.

The Society sought to adduce this evidence by way of a 14B motion without an oral hearing.

The respondents opposed, arguing that an oral hearing should be held to permit submissions on the weight to be attached to the convictions.

The court found that sentencing is a distinct process from conviction and dismissed the motion without prejudice, ordering that the matter proceed by way of an oral motion at a scheduled court date to allow the respondents an opportunity to be heard.

The defendant was charged with impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration in excess of the legal limit.

The defendant brought Charter applications alleging breaches of section 8 (warrantless search of breath samples) and section 10(b) (right to counsel).

The court found that the 45-minute delay at the roadside before transporting the defendant to the testing facility violated the statutory requirement that breath samples be taken "as soon as practicable," constituting a section 8 breach.

The court also found a section 10(b) breach because police failed to facilitate the defendant's expressed desire to contact counsel during the roadside delay.

However, under section 24(2) of the Charter, the court admitted the breath testing evidence, finding that while the breaches were serious, the impact on the defendant's Charter-protected interests was minimal, the evidence was highly reliable and discoverable, and society's interest in adjudicating impaired driving cases on their merits favoured admission.

The defendant was convicted on both counts.

The defendant was charged with obstructing a public health inspector lawfully carrying out her duties under the Health Protection and Promotion Act.

The inspector attended the defendant's barber shop to conduct a routine annual inspection.

After the inspector made comments about the cleanliness of the Barbicide solution, the defendant lost his temper, left the shop, and subsequently prevented the inspector from completing the inspection by swearing at her, making obscene gestures, and directing her to leave the area.

The court found the offence to be one of strict liability and determined that the prosecution proved all elements of the prohibited act beyond a reasonable doubt.

The defendant failed to establish the defence of reasonable care or honest and reasonable mistake of fact.

The defendant was found guilty.

The defendant was charged with having care or control of a motor vehicle while impaired by alcohol and with having care or control of a motor vehicle with a blood alcohol level exceeding 80 milligrams per 100 millilitres of blood.

The Crown conceded it could not prove the defendant drove the vehicle.

The central issue was whether the defendant, found in the driver's seat with the engine running, was in care or control of the vehicle.

The defendant testified she was in the vehicle to smoke and continue a conversation with her boyfriend, with the engine running for heat on a cold night.

The court found the defendant rebutted the presumption of care or control under section 258(1)(a) of the Criminal Code based on her credible evidence supported by corroborating witnesses, a concrete plan to spend the night at the location, and the presence of a sober adult in the passenger seat.

The Crown failed to prove beyond a reasonable doubt that a realistic risk of danger existed.

The Crown applied pursuant to section 117.05 of the Criminal Code for an order disposing of weapons seized by police and prohibiting the respondent from possessing weapons for five years.

The respondent had voluntarily surrendered firearms and edged weapons to police during a domestic assault investigation.

The court found it lacked jurisdiction to make the requested order because the application was brought approximately seven months after the seizure, far exceeding the 30-day statutory requirement under section 117.05(1).

Additionally, the court found that the preconditions for a lawful seizure under section 117.04 had not been met, as there was no evidence of the seizing officer's subjective belief that seizure was necessary for safety reasons.

On a hypothetical basis addressing the merits, the court found no legitimate concerns that the respondent lacked the responsibility and discipline required of a gun owner, noting the respondent's responsible storage practices and voluntary surrender of the weapons.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml of blood.

The defence challenged the validity of the breath demand and the timing of the breath samples, arguing they were not obtained as soon as practicable as required by the Criminal Code.

The court found that the officers acted reasonably and diligently throughout the investigation, including in administering the approved screening device, managing delays at the police station, and contacting duty counsel.

The court concluded that the crown had complied with the statutory requirements and was entitled to rely on the presumption of identity based on the breath readings.

The accused was found guilty.

The accused was charged with trafficking in a substance held out to be cocaine and possession of proceeds of crime.

An undercover officer conducted three drug transactions with the accused over several months, purchasing what the officer believed to be cocaine.

The substance from the final transaction tested negative for cocaine.

The court found that while the accused clearly sold a substance held out to be a narcotic and received proceeds from the transaction, the Crown failed to prove beyond a reasonable doubt that the substance was specifically held out to be cocaine, as neither party ever explicitly or implicitly referenced cocaine during any transaction.

The accused was acquitted of the trafficking charge but convicted of possession of proceeds of crime.

The accused was charged with five offences arising from an alleged assault on February 26, 2014, including choking, uttering death threats, assault with a weapon (knife), and subsequent breaches of probation by contacting the complainant.

The Crown relied on the complainant's testimony and 74 pages of photographed text message screenshots purporting to be from the accused's phone.

The accused denied committing the assault and denied sending the text messages.

The court admitted reply evidence in the form of the accused's cell phone records from the service provider after the accused testified, finding the second exception to the rule against reply evidence was satisfied.

The court found the accused guilty of the two probation breach counts but acquitted him of the substantive offences due to reasonable doubt arising from credibility concerns regarding the complainant's evidence and employment records suggesting the accused was at work during the alleged assault.

The accused was charged with refusing to provide a suitable sample into an approved instrument following a RIDE program stop.

The Crown alleged the accused deliberately failed to provide a proper breath sample during approximately 10 attempts over 12 minutes at the police station.

The accused testified she was genuinely attempting to provide a sample.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused intended to refuse to provide a suitable sample, as the video evidence (without audio) was not conclusive and the accused's testimony raised a reasonable doubt.

The accused was charged with driving with excess alcohol in her system and impaired driving following a motor vehicle collision on the Don Valley Parkway on February 20, 2013.

The trial raised significant Charter issues regarding the accused's right to counsel.

The court found that the accused did not receive a reasonable opportunity to consult with duty counsel due to the duty counsel's unprofessional and rude conduct, combined with the police's failure to provide a Prosper warning or explore alternative options for legal consultation.

The court excluded the breath readings as evidence under section 24(2) of the Charter, finding that their admission would bring the administration of justice into disrepute.

Without the breath readings, the Crown could not prove impairment beyond a reasonable doubt, and the accused was acquitted on both counts.

The accused was charged with operating a motor vehicle with more than the legal limit of alcohol in his blood.

The Crown presented evidence of breath test results showing a blood alcohol content of 100 milligrams per 100 millilitres of blood.

The accused challenged the admissibility of the evidence on multiple grounds, including Charter violations relating to the loss or failure to preserve relevant evidence.

Specifically, the accused sought disclosure of Cobra data, simulator certification documents, and calibration and maintenance records relating to the Intoxilyzer 8000C machine used to obtain his breath samples.

The court found that certain information had been lost and that this constituted a non-disclosure breach of the accused's Charter rights.

However, the court determined that no remedy was warranted because the accused suffered no material prejudice, as the Crown presented compelling evidence that the test results were reliable regardless of the lost evidence.

The breath analysis evidence was admitted at trial.

The defendant pleaded guilty to possession for the purpose of trafficking in oxycodone.

The Crown sought 18-24 months incarceration, while the defence sought a conditional sentence of 12-16 months followed by probation.

The court imposed a 16-month conditional sentence followed by one year probation.

The court found that while general deterrence and denunciation are paramount in drug trafficking cases, the defendant's circumstances—including advanced age (73 years old), first offender status, small role in the trafficking scheme, motivation driven by personal oxycodone dependence, and significant pre-trial custody and house arrest—warranted a conditional sentence as a rare exception to the typical incarceration requirement.

The accused was charged with impaired driving and "over 80" following a traffic stop in the early morning hours.

The court found that while the arresting officer lacked reasonable and probable grounds for the impaired driving arrest, the breathalyzer evidence was admissible under the Charter s. 24(2) test.

The court also found breaches of the accused's s. 9 rights due to arbitrary detention both at the point of arrest and through "overholding" in police custody, but declined to grant a stay of proceedings.

The accused was acquitted of impaired driving but convicted of "over 80."

The respondent father brought a motion for expanded access to his two children, including overnight access.

The applicant mother opposed the motion and sought to maintain the existing day-access schedule.

The mother also brought a cross-motion to change the children's counsellor.

The court found that after over one year since separation, the children were ready for expanded overnight access.

The court granted the father's motion for increased access on alternate weekends and mid-week overnight access, and dismissed the mother's motion to change counsellors.

The decision emphasizes that children benefit from maximum contact with both parents consistent with their best interests, and that the party seeking to restrict access must justify such restrictions.