ONCJ 2015

The accused pleaded guilty to assault against his former domestic partner.

This was the second assault conviction involving the same victim, with a prior conviction in 2007.

The court imposed a sentence of 22 days imprisonment on an intermittent basis, with credit for pre-sentence custody, followed by 24 months probation with conditions including no contact with the victim, a 500-metre exclusion zone, weapons prohibition, and mandatory participation in alcohol assessment and counselling programs.

The court rejected both a suspended sentence and a conditional sentence, finding that specific deterrence and denunciation of domestic violence required a custodial sentence.

The defendant was charged with driving while holding a hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act.

A police constable observed the defendant holding a dark object in his right hand while driving a van on Speers Road in Oakville.

The constable identified the object as a cell phone based on his specialized experience in distracted driving enforcement.

The defendant's counsel challenged whether the object was definitively a cell phone, given the observation distance of 12 feet, light rain conditions, and lack of detailed description.

The court found the constable's lay opinion credible and reliable, considering his vantage point, specialized experience, and the subsequent observation of a matching cell phone on the vehicle's console.

The defendant was found guilty.

The Regional Municipality of Waterloo sought an order directing that charges against the defendants for engaging in a prohibited activity on courthouse premises be tried by a judge of the Ontario Court of Justice rather than a justice of the peace.

The defendants had been charged under the Trespass to Property Act for protesting and distributing literature on the courthouse steps on August 9, 2013.

The defendants raised a Charter challenge alleging breaches of sections 2 and 9 of the Canadian Charter of Rights and Freedoms.

The Crown and the intervenor (Ontario) consented to the application.

The Regional Senior Justice granted the application, finding that the broader public interest, precedent value, and complexity of Charter issues warranted judicial assignment despite the usual practice of assigning provincial offence matters to justices of the peace.

A summary judgment motion brought by the Children's Lawyer on behalf of two Indigenous children seeking Crown wardship without access.

The maternal grandfather and Walpole Island First Nation opposed the motion, arguing a trial was necessary.

The court found no genuine issue for trial and granted Crown wardship, finding that the children's best interests were served by remaining in their current foster placement with an Indigenous family rather than transitioning to the grandfather's care on the First Nation territory.

The court considered the children's special needs, cultural identity, continuity of care, and the grandfather's inconsistent access pattern over two years.

The appellant appealed his conviction for operating a commercial motor vehicle with an insecure load contrary to section 111(2) of the Highway Traffic Act.

The central issue was whether the Crown was required to prove that the vehicle was a commercial motor vehicle weighing over 4,500 kilograms.

The court held that the offence under section 111(2) does not require proof that the vehicle is commercial; rather, the commercial motor vehicle designation is a penalty provision under section 111(5).

The court further held that the weight threshold is an exception or exemption that must be proven by the defendant under section 47(3) of the Provincial Offences Act.

The appeal was dismissed.

The City of Toronto charged Hard Luck Inc., a live music venue, with multiple by-law infractions relating to noise disturbances and operating an entertainment establishment without the necessary licence.

The court found the testimony of the primary complainant and the investigating by-law officer credible, establishing that the noise was likely to disturb a reasonable person and that the venue operated as a nightclub rather than an eating establishment.

The defendant failed to establish a due diligence defence for four of the five counts.

Hard Luck Inc. was found guilty on four counts, while one count of operating without a licence was dismissed because the defendant reasonably believed its eating establishment licence was sufficient at the time.

In this drug trafficking trial arising from Project Wanipitee, the court applied the Carter test to determine whether intercepted communications could be admitted under the co-conspirator's exception to the hearsay rule.

The court found that a joint enterprise existed between the accused and others to traffic cocaine in the Durham Region.

The court identified the accused on intercepted communications through circumstantial evidence including surveillance, text message patterns, and physical movements.

The court convicted the accused of trafficking cocaine on two dates and possession of cocaine for trafficking purposes.

The court acquitted on charges related to marijuana possession and possession of cocaine at a separate location due to insufficient evidence of possession and control.

Motion and cross-motion in a family law matter involving a separated couple with a young daughter.

The father sought expanded residential time with the child, including overnight visits, and an order preventing the mother from obtaining a replacement birth certificate.

The mother sought to restructure the existing access schedule, obtain a conduct order, production of documents, questioning on financial issues, child support, and spousal support.

The court addressed the enforceability of a mediation order, the child's residential schedule, makeup time provisions, production and questioning orders, child support, and spousal support in the context of a marriage contract waiver.

The court found a triable issue regarding the enforceability of the spousal support waiver and ordered temporary spousal support despite the waiver.

The accused pleaded guilty to two counts of possessing child pornography contrary to s. 163.1(4) of the Criminal Code.

The offences occurred on July 18, 2012 at his workplace and September 11, 2012 at his residence.

A forensic psychiatric assessment revealed the accused had pedohebephilia and was assessed as low risk for hands-on sexual offending but low-moderate risk for further child pornography offending.

The court imposed an 18-month concurrent jail sentence, three years probation with strict conditions including prohibition on contact with minors, a lifetime s. 161 prohibition order, lifetime weapons prohibition, lifetime SOIRA registration, and a primary DNA order.

The court emphasized the principles of denunciation and general deterrence in sentencing for child pornography offences.

The father brought a motion to change a July 2013 order granting the mother sole custody of three children with no access to the father and a restraining order.

The father claimed a material change in circumstances, citing withdrawal of criminal charges, completion of an anger management program, and stabilized mental health.

The mother opposed the motion and sought to dismiss it.

The court found that while the father demonstrated some changes, these did not constitute a material change in circumstances affecting the best interests of the children.

The court was troubled by the father's lack of credibility, his false statements in affidavits about his mental health and criminal history, and his continued denial of abuse allegations despite corroborating police and medical records.

The motion was dismissed, and the father was prohibited from bringing further motions to change prior to January 1, 2016 without court permission.

The accused was charged with abandoning her four-and-a-half-year-old child after leaving her sleeping in a locked car on a hot July day while she went into a supermarket.

The court applied the Supreme Court of Canada's decision in R. v. A.D.H., which requires proof of subjective fault for the offence.

The court found that while the accused's actions were extremely unwise, the Crown failed to establish beyond a reasonable doubt that she had the requisite awareness of the risk to which she was exposing her child.

The charge was dismissed.

The respondent brought a motion to change a 1999 child support order, seeking to terminate his obligation to support both children retroactively.

The applicant opposed the motion and sought a retroactive increase in support for both children, including section 7 expenses, and ongoing support for the adult child attending university.

The court found that the respondent's obligation to support his son terminated on July 1, 2009, when the son ceased full-time enrollment in an educational program.

The court ordered ongoing support for the daughter attending university using a hybrid approach combining table amounts and section 3(2)(b) calculations based on actual expenses.

The court granted a retroactive increase in support for the daughter from July 1, 2009 onward, but declined to award retroactive section 7 expenses for extracurricular activities.

The accused was charged with careless driving following a motor vehicle collision at an intersection.

The Crown presented evidence from police officers and the other driver involved in the collision.

The accused testified that she stopped at the stop sign, looked both ways, waited for traffic to pass, and then proceeded into the intersection where she was struck.

The court applied the legal test from R. v. Beauchamp and R. v. Wilson, finding that while the accused made a brief mistake in judgment, this constituted mere inadvertent negligence rather than the degree of carelessness required for conviction.

The charge was dismissed.

At a preliminary inquiry into a charge of first-degree murder, the Crown alleged that the accused intentionally shot his wife following marital discord and separation discussions.

The defence argued the shooting was accidental, occurring during a struggle over a firearm as the accused attempted suicide.

The court found sufficient evidence of intentional shooting based on the common sense inference from pointing and firing a loaded handgun at close range, forensic evidence regarding trigger force and muzzle proximity, circumstantial evidence of the victim's incapacity at the time of shooting, and evidence of animus.

The court also found some evidence of forcible confinement based on ante-mortem and peri-mortem injuries and the time gap between the victim's final text and the 911 call.

The accused was committed to trial for first-degree murder.

The accused was charged with arson/damage to property contrary to section 434 of the Criminal Code following a fire that destroyed her trailer in the early morning hours of March 21, 2014.

The Crown alleged the accused deliberately started the fire in the wood stove to damage and destroy her common law partner's property following an argument between them.

The accused claimed she lit the fire for warmth and did not intend to cause damage.

The court found the accused guilty, determining that she made a voluntary act causing damage by fire and that she was reckless as to whether damage would occur, despite her advanced intoxication at the time.

The defendant was charged with possession of cocaine for the purpose of trafficking following a traffic stop for an expired vehicle registration.

The defendant challenged the lawfulness of his arrest and the subsequent search of his vehicle, claiming violations of sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The defendant sought to exclude the cocaine evidence under section 24(2) of the Charter.

The court found that the officer had reasonable and probable grounds to arrest the defendant for possession of marijuana based on the smell of burnt marijuana, the defendant's nervous demeanor, and his apparent attempt to conceal something in the vehicle's centre console.

The court dismissed the application to exclude the evidence.

The defendant was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit contrary to section 253(1)(b) of the Criminal Code.

The Crown sought to rely on breath test results obtained through an approved screening device at the roadside and an approved instrument at the police division.

The defendant challenged the admissibility of the evidence on Charter grounds, arguing the officer lacked reasonable grounds to demand the roadside breath test and that the samples were not taken as soon as practicable.

The court found the officer had reasonable grounds for the initial demand but determined the Crown failed to establish that the breath samples were taken as soon as practicable due to an unjustified twenty-minute delay at the roadside.

Without the statutory presumption of identity, the Crown could not prove the defendant's blood alcohol concentration at the time of driving, and the charge was dismissed.

The accused was charged with two counts of historical sexual assault and sexual interference against his daughter spanning from 1996 to 2003.

The Crown sought to introduce evidence of similar acts from four other complainants to establish a pattern of predatory behavior.

The court conducted a voir dire to determine the admissibility of this similar fact evidence.

The court found that the Crown failed to meet its burden of proof regarding collusion and that the prejudicial effect of the evidence substantially outweighed its probative value.

The similar fact application was dismissed due to lack of temporal proximity, insufficient similarity of circumstances, different relationships between the accused and the various complainants, and concerns about potential collusion among witnesses.

The accused was charged with over 80 care or control and impaired care or control.

Police arrested the accused for possession of stolen property and subsequently made a breathalyzer demand based on observations of an odour of alcohol and allegedly slurred speech.

The defence brought a Charter application to exclude the breath sample results, arguing the police lacked reasonable and probable grounds for the demand.

The court found that the observations of alcohol odour and slurred speech were insufficient to establish reasonable and probable grounds for arrest and the breathalyzer demand, constituting a section 8 Charter breach.

Applying the Grant analysis, the court excluded the breath sample evidence under section 24(2) of the Charter, finding the seriousness of the breach and deprivation of liberty outweighed society's interest in adjudicating the case on its merits.

A child protection agency sought a temporary order placing a child in society care following disclosures by an older sibling of prolonged sexual and physical abuse by the stepfather and allegations of physical assault against the younger child.

The mother denied the allegations and sought the child’s return under a supervision order after the stepfather left the home.

The court accepted the sibling’s detailed allegations and the younger child’s disclosure of choking as credible at the temporary stage and considered the family’s history with child protection authorities.

It concluded there were reasonable grounds to believe the child would suffer harm if returned to the mother and that supervision conditions would not adequately mitigate the risk.

Temporary society care with controlled parental access was therefore ordered pending the protection application.