ONCJ 2015

The Children's Aid Society brought a motion to vary a temporary supervision order to compel a 15-year-old child to attend a special education program daily.

The child had been absent from school for three years due to serious medical conditions involving chronic urination, vomiting, and diarrhea.

The mother opposed the motion, believing home schooling was in the child's best interests.

The court dismissed the motion, finding that the requested condition was not proportionate to any increase in risk, was overly intrusive, and was based on untested expert opinion.

The court was also concerned about potential emotional harm to the child if forced to attend school.

The respondent brought a motion to change seeking termination of child support and rescission of arrears.

The child support obligation was established in 1989 at $200 per month and was to terminate when the child was no longer in school.

The respondent claimed he paid child support directly to the applicant from 1990 to 1998 after the applicant withdrew from the Family Responsibility Office, and that he was unaware of her subsequent reinstatement with the enforcement program.

The court found that the respondent reasonably believed the applicant had removed herself from the enforcement program and was entitled to pay directly.

The court terminated child support as of August 1, 2006, and rescinded all arrears claimed by the Ministry.

The Crown sought a warrant to obtain bodily substances for forensic DNA analysis from the respondent pursuant to Section 487.05(1) of the Criminal Code.

The respondent was charged with break and enter of a dwelling house and mischief by wilful damage.

The Crown's evidence consisted of a DNA profile obtained from a half-consumed can of Fruitopia found at the crime scene, which had been matched to the respondent through the National DNA Data Bank.

The respondent argued that there was insufficient evidence that he was a party to the offence and that it was not in the best interests of justice to issue the warrant given the Crown already possessed the original DNA match.

The court granted the DNA warrant, finding reasonable grounds to believe the respondent was a party to the offence based on the inference that the beverage can was introduced to the secured property during the break-in period.

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

The accused brought a Charter application challenging the validity of breath demands made under sections 254(2) and 254(3) of the Criminal Code, and argued that the breath samples were not taken as soon as practicable as required by section 258(1)(c).

The court found that the officer had reasonable grounds to suspect alcohol consumption based on observed driving behavior and the smell of alcohol on the accused's breath.

The court also found that the ASD fail result provided reasonable and probable grounds for the section 254(3) breath demand, and that the presence of empty beer cans in the vehicle did not undermine the reliability of the ASD result.

The court concluded that the breath samples were taken as soon as practicable, considering the lodging process, counsel contact, and the overall timeline.

The accused was found guilty.

The offender pleaded guilty to stealing $777 from his employer, the LCBO, due to severe family financial stress.

The court granted a conditional discharge, finding it was in the offender's best interest and not contrary to the public interest given his lack of prior record and extensive community service.

The offender also challenged the constitutionality of the mandatory victim surcharge under s. 12 of the Charter.

The court dismissed the constitutional challenge, holding that the surcharge is a user-fee or general restitution rather than a sentence, and its mandatory imposition does not constitute cruel and unusual punishment.

The offender was ordered to pay a $200 victim surcharge with one year to pay.

The respondent father, a resident of New York, brought a motion to dismiss an application for custody and child support brought by the applicant mother, a resident of Ontario.

The father argued that the Ontario Court of Justice lacked jurisdiction to hear the matter and that the mother should instead proceed under the Interjurisdictional Support Orders Act (ISOA).

The father also raised forum non conveniens arguments based on fairness and practicality concerns.

The court dismissed the motion, finding that Ontario had jurisdiction based on the real and substantial connection test, as the child was born in and resided in Ontario with the mother.

The court further held that the father failed to discharge the burden of proving that ISOA was clearly more appropriate than proceeding under the Family Law Act.

The Children's Aid Society sought an order for Crown wardship with no access for a 6.5-year-old child with severe behavioural and mental health needs, arguing he was adoptable.

The grandmother sought the child's return or, alternatively, access.

The court found the child could not safely be returned to the grandmother and ordered Crown wardship.

However, the court rejected the Society's plan for adoption, finding the child required long-term residential treatment and was not currently adoptable.

The court granted access to the grandmother and sister, finding the relationship was meaningful and beneficial, and that access would not impair foreseeable opportunities for adoption.

The accused pleaded guilty to robbery with a firearm, forcible confinement, and possession of proceeds of crime arising from an armed robbery of an armoured car service.

The robbery was carefully planned and executed by four accomplices, including the accused who provided inside information and access credentials.

The accused was sentenced to 6 years imprisonment with credit for pre-sentence custody and bail conditions, a fine in lieu of forfeiture of $175,000, and a restitution order of $175,000.

The court emphasized denunciation and deterrence as the primary sentencing principles given the gravity and planning involved in the crime.

The accused was charged with trafficking in a fentanyl patch contrary to section 5(3)(a) of the Controlled Drugs and Substances Act.

She attended a detention centre to deliver forms to an inmate.

A fentanyl patch was discovered attached to one of her personal documents by a correctional officer during inspection.

The accused denied knowledge of the patch.

The court applied the R. v. W.(D.) framework and found that while the Crown's evidence raised suspicions, it did not prove beyond a reasonable doubt that the accused knew of or was complicit in the smuggling.

The charge was dismissed.

The defendant was charged with impaired driving and failing or refusing to provide a breath sample following a traffic stop on Highway 10 in Orangeville in the early morning hours of January 12, 2012.

The Crown alleged the defendant's ability to operate a motor vehicle was impaired by alcohol and that he refused to comply with a valid breath demand.

The defendant denied impairment and claimed he sought only to delay the breath test until he could speak with his chosen counsel.

The court found the defendant not guilty of impaired driving but guilty of refusing to provide a breath sample.

The court rejected the defendant's Charter arguments regarding denial of counsel, arbitrary detention, and lost video evidence.

The respondent mother wrongfully removed two children from their habitual residence in North Carolina to Ontario.

The applicant father sought the return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, alternatively seeking recognition and enforcement of a North Carolina custody order, or an order under the Children's Law Reform Act.

The court found that the removal was wrongful under Article 3 of the Hague Convention, that no grave risk exception applied under Article 13(b), and that the North Carolina order could not be recognized due to lack of reasonable notice and opportunity to be heard.

The court ordered the return of the children to North Carolina with specific undertakings and conditions to protect the mother during the transition.

A commercial trucking company was charged with transporting dangerous goods (wet-filled acid batteries) without displaying required safety placards and labels in violation of the Dangerous Goods Transportation Act.

The defendant argued that an exemption under 49 CFR 173.159(e) applied because the shipment originated from the United States.

The court rejected this argument, finding that 173.159(e) pertains only to packaging and bracing requirements, not placarding and safety marking requirements.

The court held that the exemption under section 9.1 of the Canadian Transportation of Dangerous Goods Act, 1992 only applies when United States placarding and marking requirements are met, which they were not.

The defendant was convicted.

The accused was charged with possession of a prohibited weapon without authorization, two counts of possession of a prohibited weapon, careless storage of a firearm, careless storage of ammunition, possession of a firearm obtained by an indictable offence, and possession of a firearm with its serial number defaced.

A .32 calibre silver revolver with three live rounds and a spent shell casing were discovered during a search warrant execution at the accused's apartment.

The accused challenged committal for trial, arguing insufficient evidence of knowledge, a material element of possession.

The court found the evidence circumstantial and sparse, with equally plausible inferences available regarding knowledge by either the accused or a third party with regular access to the apartment.

The court discharged the accused, finding the Crown failed to meet the threshold for committal.

A worker fell approximately 22 feet from a roof while operating a motorized buggy to dump garbage during a re-roofing project.

The defendant corporation was charged with two counts under the Occupational Health and Safety Act for failing to ensure prescribed fall protection measures were carried out.

The defendant had installed a guardrail system and provided fall protection equipment, but the worker removed the guardrails without tying off.

The court found the actus reus proven beyond a reasonable doubt and rejected the defendant's due diligence defence, finding no clear process was in place for the alternative garbage disposal method at the time of the accident.

The applicant, convicted of sixteen counts of fraud, brought an application for a mistrial alleging that his trial counsel was ineffective in her representation.

The central issue was whether the applicant or his counsel made the decision that he would not testify in his own defence.

The court found that trial counsel made the decision contrary to the applicant's express wishes and without adequately informing him that the decision to testify was ultimately his to make.

The court declared a mistrial, finding that a miscarriage of justice had occurred.

The defendant was charged with care or control of a motor vehicle with a blood alcohol level exceeding 80 milligrams per 100 millilitres of blood, contrary to section 253 of the Criminal Code.

The sole issue at trial was whether the police violated the defendant's right to counsel under section 10(b) of the Charter.

The defendant claimed she was not afforded a reasonable opportunity to exercise her right to counsel and sought exclusion of the breath sample evidence under section 24(2).

The court found that the defendant was properly informed of her right to counsel, understood this right, but failed to exercise reasonable diligence in attempting to retain counsel.

The defendant repeatedly claimed to have a lawyer but could not identify one, refused to pursue duty counsel despite being informed of this option, and engaged in what appeared to be deliberate delay tactics.

The court dismissed the Charter motion and found the defendant guilty.

The accused was charged with having care and control of a motor vehicle while exceeding the legal blood alcohol content under section 253(1)(b) of the Criminal Code.

The accused challenged the admissibility of breath analysis evidence, alleging violations of her Charter rights under sections 7, 8, and 9.

The court found that the investigating officers had reasonable suspicion and reasonable and probable grounds to demand breath samples, that the detention was not arbitrary, and that no Charter violations occurred.

The court convicted the accused based on toxicological evidence and the totality of circumstances demonstrating impairment.

The accused was charged with aggravated assault and break and enter following a violent altercation in downtown Brantford.

The victim, who was already blind in one eye, suffered a ruptured left eye resulting in permanent blindness after being attacked by the accused and his uncle.

The accused claimed he acted in defence of his uncle under section 34 of the Criminal Code.

The court rejected this defence, finding that the victim was the one being attacked without provocation and that the accused joined in a one-sided beating of a vulnerable victim.

The break and enter charge was dismissed by Crown concession, but the accused was convicted of aggravated assault as a principal to the offence.

The accused was convicted of sexual assault, forcible confinement, and choking against his 16-year-old cousin.

The Crown sought a custodial sentence of two to three years, while the defence sought a significantly shorter sentence with creative sentencing approaches including conditional sentences and intermittent sentences.

The court rejected the defence's proposed sentencing approach as violating fundamental sentencing principles and statutory requirements.

The court imposed a 12-month custodial sentence to be served concurrently on all charges, followed by two years of probation, with ancillary orders including DNA collection, a lifetime weapons prohibition, and 20-year sex offender registry requirement.

The accused was charged with assault, choking, threatening, and unlawful confinement of his girlfriend.

The complainant initially provided a detailed statement to police alleging violent assault, but later recanted at trial, claiming the injuries resulted from consensual rough sexual activity.

The court found the complainant's trial testimony and recantation to be implausible and internally inconsistent, while accepting her original police statement as truthful based on its detail, consistency with injuries, the complainant's emotional demeanor during the statement, and the voluntary and uncoerced circumstances of its creation.

The court convicted on assault, choking, and threatening charges but acquitted on the unlawful confinement charge due to insufficient evidence of coercive restraint for a significant period.