ONCJ 2016

The accused pleaded guilty to defrauding a non-profit minor baseball association of $468,166.66 over a six-year period while serving as Treasurer.

The Crown sought imprisonment for two to three years, while defence counsel sought a conditional sentence of two years less one day followed by probation.

The court imposed a conditional sentence of two years less one day in the community followed by three years probation, along with restitution orders and a fine in lieu of forfeiture.

The court balanced the serious aggravating factors (breach of trust, large amount, extended period) against mitigating factors (guilty plea, remorse, no prior record, family support, and rehabilitation potential) and found that a conditional sentence could achieve denunciation and deterrence while promoting restorative justice.

The accused was charged with possessing Dilaudid and Fentanyl for the purpose of trafficking and elected trial by judge of the Superior Court.

During a focus hearing for the preliminary inquiry, the Crown indicated it would not call the officer who made the arrest based on information from a confidential informant.

The defence sought to examine this officer regarding the lawfulness of the arrest and the grounds for arrest.

The Crown argued that a Dawson application was required and raised concerns about protecting the informer's privilege.

The court ruled on the scope and purpose of preliminary inquiries, the Crown's discretion not to call witnesses, the accused's right to call witnesses, the preliminary inquiry judge's authority to manage the hearing, and whether a Dawson application was necessary.

A stepfather sought to adopt a six-year-old child and brought a motion to dispense with notice to the biological father of an application to dispense with the biological father's consent to the adoption.

The biological father had minimal involvement with the child, had been "incommunicado" since 2013, and his whereabouts were unknown.

The court found that the applicant had not made reasonable efforts to locate the biological father or provide notice, and adjourned the motion and application for further evidence.

The court provided comprehensive guidance on what constitutes reasonable efforts to locate a party in adoption proceedings.

The defendant was charged with impaired driving and driving with blood alcohol concentration exceeding the lawful limit following a traffic stop on the Queen Elizabeth Way.

The Crown presented evidence of erratic driving, observations of impairment by the arresting officer, and breath test results of 143 and 141 mg/100ml.

The defendant challenged the admissibility of the breath results on Charter grounds, alleging a violation of his right to counsel of choice.

The court acquitted on the impaired charge due to insufficient evidence beyond a reasonable doubt, but convicted on the excess blood alcohol charge after finding no Charter breach and determining that even if a breach occurred, the breath results would be admissible under section 24(2) of the Charter.

The accused was charged with sexual assault against a co-worker.

The Crown alleged that the accused kissed and groped the complainant without consent during a lunch break in his pickup truck.

The accused testified that the complainant consented to kissing and that no groping occurred.

The trial judge found the accused's testimony to be contradictory, inconsistent, and illogical, and accepted the complainant's testimony that she did not consent to any sexual touching.

The trial judge also found that the accused failed to take reasonable steps to ascertain consent and was reckless or wilfully blind to the absence of consent.

The accused was convicted of sexual assault.

The court conducted a voir dire to determine whether statements made by the accused to the breath technician during breath testing were voluntary.

The Crown bore the burden of proving voluntariness beyond a reasonable doubt.

Although there was no coercion, oppression, threats, inducements, or promises, the court found that the breath technician failed to provide a primary caution before asking questions and engaged in trickery to induce statements.

The technician asked the accused to jump on a scale, which is not part of the breath testing procedure, and falsely represented that information about the collision was needed for an insurance report.

The court excluded all statements made to the breath technician as involuntary.

A status review hearing concerning a child in the protection system where the applicant society sought to place the child with paternal grandparents, while the foster parent sought custody.

The court found that the child had formed a secure and selective attachment to the foster parent and that severing this attachment would cause significant trauma.

The court rejected the society's plan and granted custody to the foster parent under section 57.1 of the Child and Family Services Act, finding that the child's best interests required maintaining the established attachment relationship.

The decision addresses the tension between family reunification principles and the child's psychological well-being, and clarifies the scope of foster parent rights at the status review stage.

A custody and access application concerning one child, Haedyn Alexa Karambetsos, born March 15, 2011.

The father sought joint custody with shared residence, while the mother sought sole custody with primary residence.

The mother alleged domestic violence and claimed inability to communicate with the father.

The court found both parents equally capable of parenting, rejected the domestic violence allegations as unsubstantiated, and determined the mother's refusal to communicate was a strategic choice rather than a consequence of abuse.

The court awarded joint custody with a week-about shared residence arrangement and minimal child support.

The applicant sought a final restraining order against the respondent and determination of access to their two children.

The respondent had a history of verbal and physical abuse toward the applicant, including assault and uttering threats for which he was convicted.

After the applicant ended the relationship in December 2013, the respondent repeatedly breached probation and restraining orders by attempting to contact her and harass her.

The respondent sought unsupervised access to the children, while the applicant sought access to remain in her discretion with supervision.

The court found the applicant credible and the respondent lacking insight into his abusive behavior.

The court made the restraining order final and granted custody to the applicant with access to the respondent in the applicant's discretion.

The applicant sought joint custody of his two biological children with the respondent.

The respondent sought custody of all three children (including her daughter from a previous relationship) and child support.

The court determined that the applicant demonstrated a settled intention to treat the respondent's daughter as a child of his family under the Family Law Act.

The court also imputed income to the applicant for child support purposes, finding his reported income unreliable based on his lifestyle, expenses, and business operations.

The court ordered child support for all three children based on an imputed annual income of $50,000.

A costs decision following a summary hearing on child support and arrears.

The applicant sought costs based on late disclosure by the respondent and the respondent's failure to provide affidavit evidence.

The respondent argued there was divided success.

The court found no late disclosure that increased costs and determined that success was divided: the applicant achieved a higher ongoing child support order than the respondent proposed, but the arrears calculation was significantly lower than claimed.

The court ordered no costs under Rule 24(6) of the Family Law Rules.

The mother brought a motion to change the child support order of June 18, 2010, and the father brought a cross-motion for arrears and section 7 expenses.

The parties had two children; as of March 1, 2015, one child began residing with the mother.

The court found a material change in circumstances and determined child support obligations on a set-off basis.

The central issue was the income to be attributed to each parent.

The court imputed income to the father based on his incomplete financial disclosure and negative inferences regarding his capacity to earn, while accepting the mother's actual income for the relevant periods.

This is a costs decision arising from a motion to change child support.

Although the applicant mother's motion to change was dismissed on the merits, the court awarded her costs due to the respondent father's blameworthy conduct in failing to provide required financial disclosure, unilaterally reducing child support payments, refusing to contribute to special and extraordinary expenses, and refusing to engage in mediation.

The mother obtained substantially all relief sought through her comprehensive offer to settle.

The court fixed costs at $22,000 inclusive of HST, representing close to full recovery, to sanction the father's unreasonable behaviour and encourage compliance with court orders and separation agreement obligations.

The offender pled guilty to seven counts of counselling misrepresentation contrary to section 126 of the Immigration and Refugee Protection Act.

Over a five-year period, the offender, an unlicensed immigration consultant, exploited vulnerable would-be immigrants seeking entry through the Live-In Caregiver Program by providing false employment contracts and Labour Market Opinions, charging substantial fees while delivering no legitimate services.

The offender threatened victims who complained.

The court imposed a sentence of 12 months imprisonment (11 months after pre-trial custody credit), three years probation with conditions including a prohibition on providing immigration advice, no contact orders with victims, and restitution orders totalling $23,500.

The Crown prosecuted Alpa Lumber Mills Inc. and its supervisor Van Kham Sichantha for failing to ensure that a rip saw machine (Rip Saw #1) was properly shielded or guarded to prevent product or material being processed from endangering worker safety, contrary to sections 25(1)(c) and 27(1)(a) of the Occupational Health and Safety Act and section 26 of Ontario Regulation 851/90.

A worker was injured when a wooden stake was ejected from the machine at high velocity and pierced his arm.

The defendants argued they had taken all reasonable care by relying on the machine's built-in safety features, regular maintenance, and worker training.

The court found both defendants guilty, holding that the hazard of ejected material was reasonably foreseeable based on the manufacturer's own warnings, and that the defendants failed to take all reasonable steps including obtaining and reviewing the correct operating manual, implementing regular inspection of anti-kickback mechanisms, and ensuring workers did not stand in front of the infeed opening.

The accused was charged with impaired driving contrary to section 253(1)(a) and (b) of the Criminal Code, and with having a blood alcohol concentration above zero while licensed as a novice driver contrary to section 44.1(3) of the Highway Traffic Act.

The Crown alleged the accused drove his vehicle into a tree while impaired by alcohol.

The defence argued the accused had not consumed alcohol prior to the accident but had consumed a large quantity of vodka immediately after the accident.

The court rejected the defence evidence as contrived and illogical, finding the accused's blood alcohol content at the time of driving was between 290-335 milligrams per 100 millilitres of blood.

The court convicted on the impaired driving charge and the Highway Traffic Act charge, staying the section 253(1)(a) charge.

The accused was charged with two drinking and driving offences under sections 253(1)(a) and 253(1)(b) of the Criminal Code following a single motor vehicle accident.

The defence challenged the lawfulness of the arrest and breath demand under the Charter, alleging breaches of sections 8 and 9.

The court found that the officer had reasonable and probable grounds for the arrest and breath demand based on the totality of circumstances.

The court convicted on the over-80 charge but acquitted on the impaired driving charge, finding insufficient evidence of impairment of driving ability despite the elevated blood-alcohol readings.

The accused was charged with five firearms-related offences following a search warrant executed at his residence.

He conceded guilt on three counts relating to careless storage and unlicensed possession of two long guns found under his mattress.

He denied knowledge of an SKS assault rifle and ammunition found hidden in his basement and a cache of 7.62mm ammunition found in his garage.

The court found that the only reasonable inference from the circumstantial evidence was that the accused had knowledge of and was in possession of all three firearms and the ammunition.

The court rejected the defence theories that someone else had stored or planted the weapons without the accused's knowledge, finding such scenarios contrary to common sense and logic.

The accused was convicted on all five counts.

The defendant was charged with speeding 139 km/h in a posted 100 km/h zone on Highway 407 on October 12, 2014.

Following the prosecution's case, the defendant moved for a non-suit, arguing that the prosecution had failed to establish a prima facie case regarding the speed element of the offence, specifically challenging the reliability of the laser speed measurement device and the officer's testimony regarding its operation.

The court dismissed the motion, finding that the prosecution had met its evidential burden by presenting direct evidence of all essential elements of the offence, including the speed measurement obtained through a properly calibrated and operated laser device by a trained officer.

The accused was arrested on impaired driving charges on November 28, 2014, but no Information was sworn until February 4, 2015—over two months later.

The trial commenced almost 22 months after arrest.

The accused challenged the delay under s. 11(b) of the Charter, arguing it exceeded the 18-month ceiling established in R. v. Jordan.

The Crown argued delay should be calculated from the swearing of the Information, not arrest.

The court held that delay must be calculated from arrest, as the accused was subject to court process through the Promise to Appear.

After subtracting defence delay, the net delay exceeded 18 months, and the Crown failed to establish exceptional circumstances.

The charges were stayed.