ONCJ 2015

The defendant brought a motion for production of medical records held by two hospitals pursuant to R. v. O'Connor.

The records related to the complainant's psychiatric hospitalizations.

The complainant, who retained counsel, opposed the application arguing the defendant had not met the "likely relevance" threshold.

The court ordered production of records from the first hospitalization on the date of the alleged assault, finding the complainant's mental state and hallucinations on that specific date were relevant to her credibility and the reliability of her evidence.

The court also ordered production of records from a second hospitalization several months later, finding a case-specific link between the complainant's delusional episodes and her allegations against the defendant.

The defendant was charged with failing to stop for a red light contrary to Section 144(18) of the Highway Traffic Act.

The charge arose from a motor vehicle collision at the intersection of Main Street and Queen Street in Brampton on April 10, 2015.

The defendant claimed she had a green light when she proceeded through the intersection; the Crown presented evidence from an independent witness and post-accident observations of traffic light functionality.

The court applied the W.D. analysis and found the defendant's evidence of a green light was not credible and did not raise a reasonable doubt.

The court convicted the defendant.

The accused, a 24-year-old Antiguan national, pled guilty to importing 4,322 grams of cocaine into Canada concealed in false-bottomed suitcases.

She travelled with her three-year-old daughter and co-accused Teesha Thomas, who was also carrying cocaine.

The accused was arrested at the border and has been in pre-trial detention since May 9, 2015.

The Crown sought seven years imprisonment; the defence sought five years.

The court imposed a sentence of 66 months (5.5 years) imprisonment, with credit for 223 days of pre-trial detention at an enhanced rate, resulting in a further 55 months to be served.

The court also imposed a DNA order, a 10-year firearms prohibition, and a $200 victim fine surcharge payable within two years.

The Crown brought an application to remove the defendant's counsel of choice, Tyler Smith, on the basis of a disqualifying conflict of interest.

Smith had previously represented both the defendant and a material Crown witness, Karri Dymond, in an unrelated criminal harassment matter in 2011.

The court granted the application in part, implementing a partial disqualification model whereby Smith was excluded from the courtroom during Dymond's testimony and prohibited from conducting her cross-examination, with independent counsel Peter Bawden conducting the cross-examination instead.

The court balanced the defendant's constitutional right to counsel of choice against concerns regarding the administration of justice and public perception of the criminal justice system.

The accused was charged with sexual assault contrary to s. 271 of the Criminal Code.

The complainant alleged that the accused sexually assaulted her in his bedroom by grabbing her, using his body weight to restrain her, and touching her breast and vagina without consent.

The accused denied the allegations entirely.

The trial judge applied the test from R. v. W.(D.) and found reasonable doubt based on the detailed account provided by the accused, corroborating evidence from the accused's son, inconsistencies in the complainant's account regarding the mail, and the circumstances of the complainant's departure from the apartment.

The accused was acquitted.

The accused was charged with assault and careless storage of firearms.

The assault charge was dismissed when the alleged victim did not testify and evidence suggested the accused was the victim.

The court found the accused guilty of careless storage of firearms under section 86(1) of the Criminal Code.

The firearms were stored on an accessible rack in an unlocked shack with ammunition nearby and no trigger locks, constituting a marked departure from the applicable standard of care under the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations.

The Children's Aid Society brought a motion for summary judgment seeking a finding that a newborn child (A.G.) was in need of protection under the Child and Family Services Act and requesting an order for crown wardship with no access.

The respondent parents had executed a written custody agreement transferring sole custody of the child to a third party (A.G.1) on the day of the child's birth.

The court dismissed the motion, finding genuine issues requiring trial on multiple grounds: (1) the identity of the person having charge of the child at the time of apprehension; (2) the validity and legal effect of the custody agreement; (3) whether A.G.1 qualifies as a statutory party to the proceeding; (4) whether the grounds for finding the child in need of protection (abandonment and risk of physical harm) were established; and (5) procedural and temporal issues arising from delays in the proceedings.

The accused brought a section 11(b) Charter application alleging that his right to be tried without unreasonable delay was violated.

The charge of impaired driving contrary to section 253(1)(b) of the Criminal Code was laid on September 8, 2011.

The prosecution involved two trials and an appeal, spanning over four years.

The court conducted a detailed analysis of the delay attributable to the Crown versus delay caused by the defence and inherent in the case.

The court found that while the total delay was substantial at 15.75 months of Crown-caused and institutional delay, it fell within the acceptable range for a retrial (14-18 months).

The court also found that the defence had not acted with sufficient diligence, including late disclosure of trial complexity, last-minute tactical changes, and a late section 11(b) application.

The court found no meaningful prejudice to the accused and dismissed the application.

The Children's Aid Society of Toronto brought a summary judgment motion on a status review application seeking to place a child in the care of her grandparents pursuant to section 57.1 of the Child and Family Services Act.

The respondent mother challenged the court's jurisdiction to make such an order, arguing that because a section 57.1 order is deemed to be made under the Children's Law Reform Act, the court must satisfy the jurisdictional requirements of that Act, including that the child be habitually resident in Ontario.

The court rejected this argument and found it had jurisdiction to make the order, holding that the deeming provision does not restrict the court's authority to make the initial custody order and that the Legislature would have explicitly stated such a restriction if intended.

The court determined the burden of proof regarding consent in a sexual interference prosecution under section 151 of the Criminal Code where section 150.1(2.1) applies.

The accused, a 16-year-old, was charged with sexual interference and sexual assault involving a 15-year-old complainant.

The defence argued that the Crown bears the burden of disproving consent beyond a reasonable doubt, despite section 150.1 referring to consent as a "defence." The court held that section 150.1(2-2.2) operates to add consent as an element the Crown must prove, rather than imposing a burden on the accused to prove consent.

Therefore, the Crown must prove the absence of consent beyond a reasonable doubt.

The respondent brought a motion to set aside the registration of two support orders issued by a Polish court (dated November 27, 2012 and July 23, 2013) on the grounds that he did not receive proper notice or a reasonable opportunity to be heard in the Polish proceedings.

The applicant sought to maintain the registration.

The court found that the respondent did not receive notice of the initial Polish proceedings and was not given a reasonable opportunity to be heard, despite providing a financial statement at a Polish consulate interview.

The court set aside the registration of both orders.

The defendant was charged with six offences arising from a police search of his residence: five counts of unsafe storage of non-restricted firearms and one count of ammunition storage.

The defendant challenged the validity of the search warrant under section 8 of the Charter.

The court conducted a blended trial and Charter voir dire.

The court found the search warrant was validly issued based on reliable information from a complainant regarding the defendant's firearm possession and concerns about safe storage.

The defendant was found guilty on three counts (unsafe storage of a .22 calibre rifle, unsafe storage of an SKS rifle in an unlocked case, and unsafe storage of a loaded Chiappa shotgun) and not guilty on three counts (two rifles stored in a glass cabinet and ammunition storage).

The defendant was found guilty of mischief for video recording women's buttocks at Woodbine Beach without consent and acquitted of voyeurism and criminal harassment.

At sentencing, the court imposed seven days intermittent incarceration and 24 months probation with conditions including non-attendance at Woodbine Beach and no contact with the victims.

The court rejected a conditional discharge despite mitigating factors, finding that the defendant's prior 2009 conditional discharge for identical conduct, combined with the significant impact on victims and the defendant's lack of insight, warranted a custodial sentence to protect the public interest and deter similar offences.

The defendant was charged with exceed 80 following a traffic stop on March 4, 2014.

While the defendant's impairment was not disputed, the case was defended on Charter grounds and the contention that the "as soon as practicable" requirement had not been met.

The court found that police violated the defendant's Charter section 7 rights by failing to provide access to toilet facilities, a change of wet clothing, adequate warmth, and food during approximately 12 hours of custody.

The court determined that the totality of this neglect amounted to a violation of the defendant's right to fair, humane, and dignified treatment.

A stay of proceedings was granted as the appropriate remedy.

The accused was charged with impaired operation of a motor vehicle and operating a motor vehicle with excess blood alcohol following observations by police officers on July 6, 2014.

The Crown proved impairment based on erratic driving conduct, physical symptoms observed at roadside, and evidence of alcohol consumption.

Although the breath samples were not taken as soon as practicable, depriving the Crown of the statutory presumptions of accuracy and identity, the court found the Crown proved the case beyond a reasonable doubt through viva voce evidence and judicial notice of toxicological principles.

The accused was convicted on both counts, with the excess blood alcohol count conditionally stayed as a single delict.

The defendant was charged with impaired driving, exceeding 80 mg/100 mL of blood alcohol, and breach of recognizance.

She raised multiple Charter issues arising from her custody at the police station, including allegations of assault, unreasonable search, denial of right to counsel, and unreasonable video surveillance and recording while held in custody.

The court found no Charter violation regarding the alleged assault, the strip search, or the right to counsel.

However, the court found a section 8 breach regarding video recording of the defendant in holding cells while using the toilet.

Despite the breach, the court declined to grant a stay of proceedings or exclude evidence, finding that neither remedy was appropriate in the circumstances.

The defendant was charged with racing a motor vehicle on a highway contrary to section 172(1) of the Highway Traffic Act, specifically for outdistancing or attempting to outdistance another vehicle while driving at a marked departure from the lawful speed limit.

The Crown's evidence, provided by a police constable, alleged the defendant was driving in the northbound lane at 110-120 km/h beside another vehicle.

The defendant testified he remained in the southbound lane at approximately 60 km/h, attempting to pass a stopped vehicle.

The court found the defendant's evidence credible and, when considered in context with all evidence, raised a reasonable doubt as to whether he was outdistancing another vehicle or driving at a marked departure from the lawful speed.

The defendant was acquitted of racing but convicted of the included offence of speeding.

An application for spousal support under the Interjurisdictional Support Orders Act (ISOA) where the applicant, a medical graduate residing in British Columbia, sought $2,500 per month in support from the respondent, a lawyer residing in Ontario.

The parties had been in a common-law relationship for approximately six years and eight months, from August 2007 to February 2014.

The respondent contested the application, arguing the parties did not meet the qualifying period for common-law status and that the applicant was capable of self-support.

The court found the parties constituted a common-law couple within the meaning of the Family Law Act, established the applicant's entitlement to spousal support on a non-compensatory basis, and declined to impute income to the applicant.

The court also declined to set off RBC loan payments against support payments, finding it lacked jurisdiction over property matters.

A thirteen-year-old accused was charged with sexual assault contrary to Section 271 of the Criminal Code against a twelve-year-old complainant, his cousin.

The Crown alleged the accused forcibly engaged in oral sex and sexual intercourse with the complainant without consent.

The accused claimed the sexual activity was consensual, relying on a purported Facebook message from the complainant.

The trial judge found the complainant's evidence credible and rejected the accused's account, finding the sexual activity was performed under duress and without consent.

The judge convicted the accused, noting the accused's consumption of marijuana, evasiveness regarding timing, and inability to explain details of the incident.

The judge also considered Gladue factors affecting the complainant's credibility and circumstances.

The accused was charged with care and control of a motor vehicle while impaired by alcohol and with having a blood alcohol content exceeding 80 milligrams per 100 millilitres of blood, following a single-vehicle collision.

The Crown relied on breath test results showing 149 milligrams per 100 millilitres.

The court found that the arresting officer lacked reasonable grounds for arrest, having relied in part on an inadmissible compelled statement.

The breath samples were obtained in violation of section 8 of the Charter.

Additionally, the court found the samples were not obtained as soon as practicable, depriving the Crown of the presumption of identity.

The court also found insufficient evidence of impairment based on the observations of the officers.

Both counts were dismissed.