ONCJ 2015

At a preliminary inquiry, the defendant was charged with attempted murder under s. 239 of the Criminal Code for an alleged assault on the complainant on August 18, 2014.

The Crown presented evidence of a brutal beating with a wooden board that resulted in serious injuries including a lacerated liver, broken ribs, broken arm, and head injury requiring a three-and-a-half-week coma.

The defendant did not testify but called one witness.

The central issue was whether there was sufficient evidence to establish the specific intent to kill required for attempted murder, or whether the evidence only supported a committal on the lesser charge of aggravated assault under s. 268 of the Criminal Code.

A child protection application by Highland Shores Children's Aid Society seeking Crown wardship of two young children.

The Society alleged the children suffered physical harm and were at risk of emotional harm due to assault by the father, general neglect, parental substance abuse, and the mother's failure to emotionally support the child following disclosure of abuse.

The court found the father assaulted the older child by choking and striking her, and that both children were in need of protection.

The court rejected the parents' alternative plans for care and made both children wards of the Crown for purposes of adoption, with no parental access but with access between the siblings.

A costs decision following a three-day family law trial concerning the primary residence of a child.

The applicant mother was successful in obtaining primary residence of the child in Ottawa, while the respondent father sought to retain custody in Trenton.

Both parties were members of the military.

The court awarded costs to the successful mother, but at a reduced amount due to the complexity and importance of the mobility issue, the absence of a formal settlement offer from the mother, and the reasonableness of both parties' conduct throughout the proceedings.

The accused was charged with impaired driving, dangerous driving, failing to provide the necessities of life, refusal to provide a breath sample, and failing to comply with probation following an incident on January 9, 2011.

The accused was observed driving erratically on Finch Avenue with two young daughters in the vehicle.

Police observed signs of impairment including vomit on the accused and his clothing, glossy red eyes, slurred speech, and unsteady gait.

The accused claimed he was suffering from a viral illness with vertigo rather than impairment.

The court rejected the accused's evidence and found him guilty on all counts, finding that the accused was intoxicated and drove in a dangerous manner while failing to provide safe transportation to his daughters.

The court also found the accused deliberately failed to provide a breath sample.

The court imposed sentences on two Aboriginal defendants following their guilty pleas to assault causing bodily harm.

Garrett Skead received 13 months incarceration (60 days additional after 11 months pre-trial custody credit) plus two years probation.

Bradley Jack received 15 months incarceration (7 months additional after 8 months custody credit) plus two years probation.

Both received concurrent 30-day sentences on breach charges.

The sentencing was informed by extensive Gladue reports and the judge's detailed consideration of the historical context of Aboriginal marginalization and the residential school system's impact on the defendants' community.

The accused was charged with driving with over 80 milligrams of alcohol contrary to the Criminal Code.

The accused brought Charter applications seeking exclusion of breath test evidence on grounds of breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found multiple Charter breaches: (1) a breach of section 10(b) rights due to a 10-minute delay in providing rights to counsel following arrest; (2) a breach of sections 8 and 9 rights due to an 11-minute delay in making the breath demand without reasonable justification; (3) a breach of section 8 rights due to video recording of the accused using the toilet without his knowledge or consent, with his genitals clearly visible on multiple occasions; and (4) a breach of section 10(b) rights due to police questioning the accused about the offence after he indicated he wished to speak to counsel but before he had an opportunity to do so.

The court excluded the breath test evidence pursuant to section 24(2) of the Charter, finding that the cumulative effect of the Charter breaches, combined with the serious invasion of privacy and the lack of justification for the police conduct, outweighed society's interest in adjudication on the merits.

The accused was charged with care and control of a motor vehicle while blood alcohol concentration exceeded the legal limit contrary to section 253(1)(b) of the Criminal Code.

The accused brought a Charter application alleging violations of sections 8 and 9, seeking exclusion of breath sample analysis.

The court found that the officer had both subjective and objective reasonable grounds to believe the Approved Screening Device (ASD) was functioning properly and that the "fail" reading provided sufficient grounds for an Intoxilyzer demand.

The court rejected the Charter application and admitted the breath analysis results.

The defendant was convicted of two counts of possessing child pornography following a trial.

The court addressed the applicability of the Kienapple principle and imposed sentence.

The defendant, a 24-year-old security guard with no criminal record, had accumulated child pornography on his computer and external hard drive.

The material was discovered when a co-worker accessed the hard drive left at the workplace.

The court found that the Kienapple principle did not apply as the two offences had different factual and legal nexuses.

The court imposed a sentence of ten months incarceration on each count to be served concurrently, followed by three years probation, along with ancillary orders including a five-year prohibition order under section 161 of the Criminal Code, DNA order, and sex offender registration for life.

The accused was convicted of three counts of failing to comply with probation contrary to s. 733.1 of the Criminal Code.

The Crown sought an 8-month custodial sentence with 1:1 credit for pre-trial custody.

The defence sought a time-served sentence followed by probation with 1.5:1 credit for pre-trial custody.

The court imposed a 90-day custodial sentence on counts 4 and 5 concurrent, with a further 90 days on count 6 consecutive, followed by a 2-year probation term.

The court credited 71 days of pre-trial custody as 107 days pursuant to R. v. Summers.

The sentence emphasized the need for the accused to comply with court orders given his pattern of non-compliance, while also recognizing rehabilitation as a relevant sentencing principle.

Media representatives applied for a copy of the Agreed Statement of Facts filed in support of guilty pleas by the accused.

The court granted the application and ordered that the Agreed Statement of Facts be provided to the media.

However, the court reminded all parties that a publication ban under s.539 of the Criminal Code applies to all common evidence heard at the preliminary hearing and continues until all parties have been discharged or completed trial, as two co-accuseds remained in ongoing preliminary hearings.

The defendant was charged with impaired driving and operating a motor vehicle with a blood alcohol level above the legal limit following a multi-vehicle collision in Toronto.

The trial was blended with a Charter voir dire addressing numerous constitutional and procedural issues.

The court found that while the Crown proved the defendant was the driver of the vehicle involved, it failed to prove impairment beyond a reasonable doubt.

Additionally, the court found breaches of the defendant's Charter rights regarding the right to counsel and the timing of breath sample demands.

The breath test evidence was excluded under section 24(2) of the Charter due to serious breaches of the right to counsel.

Both charges were dismissed and the defendant was acquitted.

The Crown sought to admit the initial hearsay statement of a highly vulnerable complainant with severe cognitive and developmental disabilities, who alleged sexual assault by the defendant while he was working as temporary staff at a group home.

The complainant was unable to testify due to the traumatic effects of a court visit, which caused significant behavioral regression.

The court admitted the statement under the principled hearsay exception, finding both necessity and threshold reliability were established.

The complainant's cognitive profile, emotional vulnerability, and the spontaneous nature of the initial statement to a trusted support worker provided adequate circumstantial guarantees of trustworthiness.

The applicant brought a Rowbotham application seeking a conditional stay of proceedings until state-funded counsel was provided for her trial on charges of fail to comply with a recognizance, criminal harassment, and assault with a weapon.

The Crown conceded that the applicant was indigent and ineligible for Legal Aid.

The court considered whether counsel was essential to a fair trial, examining the seriousness of charges, complexity of proceedings, and the applicant's ability to participate effectively.

The court found that while the applicant faced health challenges and limited education, she was intelligent and articulate, the case involved only credibility issues without legal complexity, and judicial assistance could adequately equip her for trial.

The application was dismissed.

The accused was charged with seven offences arising from two temporally and physically proximate events on May 17, 2014: a dangerous motor vehicle collision causing bodily harm, failure to remain at the scene, break and enter, mischief, assault on a peace officer, impaired operation causing bodily harm, and refusal to comply with a drug recognition evaluation demand.

The Crown led evidence from 15 witnesses.

The accused contested the driving and drug-related charges.

The court found insufficient evidence to establish the accused was the operator of the vehicle involved in the collision, as no eyewitness could identify the driver and both front doors of the vehicle were found open.

The court found the accused guilty of mischief, assault on a peace officer, and refusal to comply with the drug recognition evaluation demand, but acquitted on the remaining charges.

The accused pleaded guilty to theft under s. 322 of the Criminal Code, having misappropriated $14,200 from her elderly mother's bank account while acting as power of attorney.

The victim, an 83-year-old widow suffering from dementia, was residing in long-term care.

The court imposed a conditional sentence of one year to be served in the community, followed by three years of probation.

The sentence emphasized the aggravating factor of breach of trust and the vulnerability of the victim, while considering the accused's age, lack of prior criminal record, and character references.

The appellants appealed sentences imposed for violations of the Town of Milton zoning bylaw, specifically for operating retail sales and outdoor storage in a rural A-1 zone, and for parking oversized motor vehicles on agricultural property.

The appellants raised two grounds of appeal: that comments by the Justice of the Peace raised a reasonable apprehension of bias, and that the fines imposed were excessive.

The appeal court dismissed both grounds, finding that while certain comments were inappropriate, they did not raise a reasonable apprehension of bias when viewed in context, and that the sentences were reasonable and within the appropriate range given the regulatory nature of the offences and the need for general deterrence.

The accused was charged with refusing to comply with a demand for a breath sample into an approved screening device contrary to section 254(5) of the Criminal Code.

The accused brought a Charter application claiming a violation of section 9 rights, arguing the officer lacked reasonable suspicion that he had consumed alcohol.

The matter proceeded as a blended Charter voir dire and trial.

The court found that the officer had reasonable suspicion based on the odour of alcohol from the vehicle, an unsealed bottle of brandy, and the odour of alcohol on the accused's breath when isolated from the vehicle.

The accused was given multiple opportunities to comply with the demand and refused several times despite clear explanations of the consequences.

The accused's subsequent request to provide a sample after arrest was found to be too late.

The court found the accused guilty of refusing to provide a breath sample.

The accused was charged with multiple counts of sexual assault, sexual touching, counselling to touch, and incest involving his daughter over a period from 2005 to 2012.

The complainant was between 9 and 15 years old during the alleged offences.

The case involved testimony from the complainant, her mother, and her brother, with significant credibility issues arising from recantations and minimizations during trial testimony compared to original police statements.

The court found the accused guilty on all eight counts, relying primarily on the original videotaped police statements and the corroborating evidence of the witnesses, while rejecting the minimized trial testimony as influenced by family pressure and the complainant's desire to reunite the family unit.

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

The Crown proceeded summarily.

The impaired driving charge was dismissed at the conclusion of the Crown's evidence.

At trial, the defence raised two issues: a Charter application to exclude breath test results based on an allegedly invalid approved screening device demand, and an argument that the presumption relating breath test readings to the time of driving did not apply because the tests were not taken as soon as practicable.

The court found no Charter breach but determined that the Crown failed to prove the tests were taken as soon as practicable, thereby defeating the statutory presumption.

The over 80 charge was dismissed.

The accused pleaded guilty to attempted theft while armed with bear spray and wearing a mask with intent to commit an indictable offence.

The offences arose from a planned armed robbery attempt on Garda Security guards making a cash delivery of approximately $200,000 to a TD Bank.

The Crown sought a penitentiary sentence of four to five years, while the defence sought a reformatory sentence of 18 months to two years less one day.

The court imposed a sentence of four years less pre-trial custody, with enhanced credit for 11 months of pre-trial custody at a rate of 1.5 months per month, resulting in a net sentence of 31.5 months.

The court also imposed a lifetime weapons prohibition, forfeiture order, no-contact order with victims, and DNA order.