ONCJ 2016

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

A police officer observed the defendant holding a cell phone in his hand while operating a motor vehicle at an intersection.

The defendant testified that the phone had fallen from its dashboard mount due to rough road conditions and that he was merely cleaning debris from the screen when observed.

The court classified the offence as one of absolute liability and found that the prosecution proved all essential elements beyond a reasonable doubt.

The court rejected the defendant's explanation as incredible and found that even if the offence were strict liability, the defendant failed to establish a due diligence defence.

Conviction entered.

The defendant was charged with two counts of uttering a threat to cause death and one count of sexual assault against his wife.

The Crown's case rested entirely on the complainant's evidence, as she was the sole Crown witness.

The defendant testified in his own defence.

The trial judge assessed the credibility and reliability of both witnesses and found the complainant's evidence to be credible, consistent, and logical, while finding significant gaps in logic and implausibility in the defendant's evidence.

The defendant's narrative failed to explain why the complainant would leave the home on two separate occasions if his version of events were true.

The trial judge found the defendant guilty on all three counts.

A child protection application brought by the Children's Aid Society following the apprehension of three young boys.

The parents consented to a finding that the children were in need of protection under section 37(2)(g) of the Child and Family Services Act due to risk of emotional harm.

The father's authoritarian parenting style, combined with his voluntary withdrawal from the children's lives for nearly two years following a high-conflict marital separation, resulted in significant emotional harm to the children.

The court granted full custody to the mother with sole discretion over access, finding that the father's intransigence and refusal to cooperate with the Society made supervised access futile and potentially harmful to the children.

The accused was convicted of sexual assault after having sexual intercourse with a complainant who was extremely intoxicated and incapable of consent.

The accused failed to take any steps to ascertain consent and the complainant was unaware of the sexual contact until the accused informed her two days later.

The Crown sought a sentence of 2 years less 1 day, while the defence sought 6 months less 1 day, citing potential immigration consequences.

The court imposed an 18-month custodial sentence followed by 2 years of probation, finding that while the offence was opportunistic rather than planned, it required a sentence in the upper reformatory range to address specific and general deterrence and denunciation.

The accused was charged with sexual assault following an incident at a women's basketball tournament in Toronto.

The complainant alleged that after heavy drinking and blacking out, the accused had sexual intercourse with her without consent.

The accused admitted to intercourse but claimed it was consensual, asserting the complainant initiated and insisted on sexual activity.

The central issues were consent and the complainant's capacity to consent.

The court found the accused's testimony regarding the circumstances of the sexual activity not credible, particularly his account of aggressive sexual advances by the complainant on a hotel balcony and in the bedroom.

The court determined that the complainant was extremely intoxicated, had blacked out, and lacked capacity to consent.

The accused knew of her extreme intoxication but took no steps to ascertain consent.

The court convicted the accused of sexual assault.

The applicant, charged with Assault Causing Bodily Harm arising from an incident at a nightclub where the complainant allegedly fell down stairs, sought a Conditional Stay of prosecution on the basis that he required state-funded defence counsel to receive a fair trial.

The applicant had been denied Legal Aid and exhausted all appeals.

The court applied the Rowbotham test, examining whether the accused had exhausted legal aid efforts, lacked personal financial resources, and whether his right to a fair trial would be infringed without counsel.

The court found that the case presented significant complexity involving eyewitness identification and potential self-defence issues, and that the accused's ability to defend himself without counsel was insufficient to ensure a fair trial.

The court granted the Conditional Stay pending provision of state-funded counsel.

The Crown applied for a Dangerous Offender designation against the accused following his guilty pleas to 35 counts involving sexual offences against 14 victims ranging from infants to adults, as well as bestiality and child pornography offences.

The accused had engaged in systematic sexual predation over approximately nine years, from age 14 to 22, including plans to drug and rape children.

The defence argued for a Long Term Offender designation instead, emphasizing the accused's potential for treatment and rehabilitation.

The court found that the Crown had proven beyond a reasonable doubt that the accused met the statutory criteria for Dangerous Offender designation under section 753(1) of the Criminal Code, considering the pattern of repetitive and aggressive behaviour, the complete inability to control sexual impulses, and the escalating nature of the offences.

The court designated the accused as a Dangerous Offender.

The accused was charged with "Over 80" following a traffic stop for running a red light.

The Crown obtained breath samples through an Approved Instrument (AI) demand after the accused failed an Approved Screening Device (ASD) test.

The defence challenged the lawfulness of the AI demand on the basis that it was made in English to an accused with limited English proficiency, and that subsequent translation by a police officer did not cure the defect.

The court found that the initial demand by the arresting officer was lawful under s. 254(3) of the Criminal Code, that lack of understanding due to language difficulty does not invalidate the demand, and that the demand was properly translated into Mandarin before testing.

The court also found that even if there were a technical breach, exclusion of evidence would not be warranted under s. 24(2).

The accused was found guilty.

The accused was charged with Over 80 following a minor motor vehicle collision.

The defence challenged the lawfulness of the Approved Screening Device (ASD) demand and subsequent breath tests on Charter grounds, arguing the officer lacked reasonable suspicion, the demand was not made promptly, and the test was not administered forthwith.

The court found the officer had reasonable suspicion based on the odour of alcohol on the accused's breath, the admission of past drinking, glossy eyes, and the motor vehicle collision.

The court found the delay between the informal demand and formal demand was reasonable given safety concerns and the need to locate an available ASD.

The court found no Charter breaches and convicted the accused of Over 80.

The accused was charged with failing to comply with an approved screening device (ASD) demand contrary to section 254(5) of the Criminal Code.

The Crown conceded that the ASD demand was lawful.

The sole issue was whether the accused had a reasonable excuse for failing to provide an adequate sample.

The accused did not outright refuse but failed to provide a suitable sample after multiple attempts.

The defence argued that language difficulties and the accused's request for an interpreter, which was difficult to hear and not understood by the officer, reasonably explained the confusion and failure to follow instructions.

The court found that the evidence disclosed a reasonable excuse due to language difficulties and dismissed the charge.

The accused pleaded guilty to gross indecency relating to events from 1978 to 1987 and sexual assault relating to an offence that occurred from 2006 to 2009.

The offences involved the sexual abuse of two child complainants over extended periods.

The court imposed a sentence of 34 months imprisonment based on a joint submission, along with ancillary orders including lifetime sex offender registration, lifetime prohibition from contact with persons under 16, and lifetime firearms prohibition.

A status review application brought by the Children's Aid Society concerning an 11-year-old child placed in the care of the maternal aunt under an order dated January 20, 2016.

The Society failed to comply with statutory and procedural requirements for service of the status review application.

The application was issued before the order's expiry but served significantly late, and the maternal aunt was not served prior to the first return date despite being entitled to service.

The court dismissed the application for non-compliance with Section 64(2)(b) of the Child and Family Services Act and Rule 33(6.1) of the Family Law Rules, finding that jurisdiction for status review had been lost.

The accused was charged with wilfully evading or attempting to evade payment of $552,976 in Federal taxes by failing to file income tax returns for the taxation years 2007-2010 contrary to s.239(1)(d) of the Income Tax Act.

The accused admitted the failure to file but claimed he always intended to pay taxes in the future.

The Crown argued the accused deliberately chose not to file to avoid immediate tax payment.

The court found the accused guilty, determining that the Crown proved beyond a reasonable doubt that the accused had the requisite intent to evade taxes.

The court found the accused was not a credible witness and that his claim of future intent to pay did not provide a defence to tax evasion.

The accused was charged with three counts of sexual assault, three counts of sexual interference with a person under 14, and one count of invitation to sexual touching with a person under 16.

The defence sought to cross-examine a police officer at the preliminary hearing regarding redacted emails between York Regional Police and the Crown's office, claiming solicitor-client privilege.

The defence argued that if privilege was asserted, the court could review the redacted materials to determine whether privilege actually applied.

The court dismissed the application, holding that disclosure and privilege disputes are not within the jurisdiction of a preliminary hearing court and that the defence was attempting indirectly to circumvent disclosure rules that are reserved for the trial court.

The Crown applied for leave to cross-examine their own witness on two prior inconsistent statements made to police.

The witness, the wife of the accused, had made statements on the night of the incident and again three days later under solemn affirmation.

The defence opposed the application, citing concerns about the reliability of the statements due to the witness's emotional state, lack of sleep, language barriers, and alleged compulsion.

The court granted the Crown's application, finding that the statutory criteria under s.9(2) of the Canada Evidence Act were met and that the ends of justice were best served by permitting cross-examination.

The accused was charged with Failing to Comply with Probation (x2), Break and Entry to a Dwelling, Threatening Death, Assault, Mischief to a Cellphone, and Assault Causing Bodily Harm.

The defence conceded the two probation breaches.

The Crown's case on the remaining charges rested entirely on the complainant's testimony regarding two incidents in November 2014 and February 2015.

The court found the complainant to be a reluctant but generally credible witness.

However, the court found significant inconsistencies in her account of the February 2015 incident, particularly regarding contemporaneous text messages that contradicted her trial testimony.

The court found the Crown had proven the probation breaches beyond a reasonable doubt but failed to prove the remaining counts beyond a reasonable doubt.

The accused was charged with assault of his minor son during a family dispute.

The Crown alleged that the accused, in anger, pulled his son to the doorway, threw him towards the door, choked him, and forced him onto a stool by the entrance.

The defence claimed the accused only pulled his son across the floor after reasonable persuasion failed, held his face briefly to get his attention, and that section 43 of the Criminal Code provided a defence for reasonable parental discipline.

The central issue was credibility.

The court found the accused's testimony unreliable and accepted the credible evidence of the three child witnesses.

The court determined that the accused's actions were plainly outside the scope of section 43 and constituted excessive force.

The accused was found guilty.

The accused was charged with impaired driving after being stopped by police and failing an approved screening device test.

The trial addressed multiple Charter issues: whether grounds existed for further testing despite the presence of mouthwash in the vehicle, whether the initial stop was arbitrary, and whether the accused's right to counsel was breached.

The court found no breach of sections 8 or 9 of the Charter, but found multiple breaches of section 10(b) when police failed to provide a reasonable opportunity to speak with counsel of choice and made comments discouraging the exercise of that right.

The evidence was excluded under section 24(2) and the charge was dismissed.

The accused pleaded guilty to four counts relating to child sexual exploitation: attempt to live on the avails of a person under 18, exercise control, procuring, and child luring.

The accused, along with two co-accused, lured three young girls aged 14 and 15 into prostitution at the Scarborough Town Centre.

The Crown sought 5 years imprisonment less pre-trial custody credit, while the defence sought 4 years.

The court imposed a global sentence of 4 years, finding this to be the minimum necessary to meet sentencing principles.

The court credited 1,157 days of pre-trial custody at the 1.5:1 ratio, resulting in 303 days remaining to be served, followed by 2 years probation and a 10-year s.161 order.

The accused pleaded guilty to attempting to live on avails, exercising control, and procuring minors for prostitution.

Three girls aged 14-15 were recruited at a shopping mall and exploited in a prostitution scheme.

The Crown sought four years imprisonment; the defence sought three to three-and-a-half years.

The court imposed a four-year sentence, finding it the minimum necessary to meet sentencing principles of denunciation and deterrence given the serious harm to the young victims and the cruel exploitation involved.