ONCJ 2017

At a preliminary inquiry into Project Neebing, the Crown sought to commit the defendant to stand trial on seven charges including trafficking in cocaine and production of methamphetamine.

The defendant was discharged on the marijuana possession charge but the Crown sought to proceed on two disputed counts.

The court found sufficient evidence that a properly instructed jury could convict on both the trafficking and production charges based on circumstantial evidence, including intercepted communications, surveillance, and physical evidence of drug production materials and controlled substances seized from two residences associated with the defendant.

The defendant was charged with operating a motor vehicle while his driver's licence was suspended, operating a motor vehicle without proper number plates, and failing to surrender proof of insurance.

The central issue was the identity of the person who operated the vehicle.

The investigating officer identified the defendant based on a name provided at the scene and CPIC information.

The defence called a corroborating witness who testified that he, not the defendant, was the person encountered by police and that he had falsely identified himself using the defendant's name to avoid charges due to his own suspended licence.

The defendant testified he was not in Norfolk County at the time of the alleged offences.

The court found that the defence evidence, while suspect, raised a reasonable doubt as to the Crown's case, particularly regarding identity.

The charges were dismissed.

A motion brought by the mother seeking exclusive decision-making authority regarding ADHD treatment for the parties' thirteen-year-old son, including the right to consent to medication and to choose treatment providers.

The father opposed the motion, arguing for a collaborative approach and non-medication alternatives.

The court found that medication is the most effective treatment modality for ADHD based on expert evidence from the child's psychologist and pediatrician.

The court granted the mother exclusive decision-making authority regarding ADHD treatment and prohibited the father from discussing medication with the child or attempting to dissuade him from its use, finding that the father had engaged in manipulative conduct and was not open to evidence-based treatment.

The accused pleaded guilty to assault, threatening to cause death, failing to comply with probation arising from a domestic altercation involving strangulation and death threats, and possession under in relation to theft of a Blu-Ray player.

The accused had an extensive criminal record dating back to 1999, including 13 theft-related convictions, 14 prior breaches of court orders, and two recent serious domestic violence convictions against the same complainant.

The court imposed a global sentence of six months custody less time served, with the remaining sentence to be 91 days, to be followed by probation with conditions including domestic violence and drug treatment counselling.

The defendant was charged with importing opium, possession for the purpose of trafficking in opium, and conspiracy to commit both offences.

The defendant brought a section 11(b) Charter application alleging unreasonable delay in trial.

The total delay from arrest to scheduled trial was 20.5 months, exceeding the presumptive ceiling established in R v Jordan.

The court found no defence delay attributable to the defendant and rejected the Crown's arguments regarding exceptional circumstances and transitional exceptions.

The court concluded that the delay, particularly the Crown's failure to prioritize the case and complete disclosure in a timely manner, constituted a breach of the defendant's right to trial within a reasonable time.

The proceedings were stayed.

The defendant was charged with possession of crack cocaine for the purpose of trafficking, simple possession of marijuana, and failing to comply with a condition of his recognizance.

A Charter application was brought alleging breaches of sections 7, 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The defendant sought a stay of proceedings or, alternatively, exclusion of evidence under section 24(2).

The court found that while the initial investigative detention was lawful, the police conducted an unjustified strip search in the field without exigent circumstances.

The court determined that a pat-down search would have been sufficient to address officer safety concerns.

The strip search violated section 8 of the Charter.

Evidence of all drugs seized was excluded as a remedy under section 24(2).

The accused was charged with having care or control of a motor vehicle with over 80 ml of alcohol per 100 ml of blood.

A police officer responded to a radio call about a possibly impaired driver and found the accused sitting in the driver's seat of a parked vehicle.

The accused failed a breath screening device and subsequently provided breath samples exceeding the legal limit.

The central issue was whether the accused occupied the driver's seat, which would engage the statutory presumption of care or control.

The court found the accused's evidence unreliable and internally inconsistent, while accepting the officer's credible testimony.

The court concluded the Crown proved beyond a reasonable doubt that the accused was seated in the driver's seat, engaged the presumption, and the accused failed to rebut it on a balance of probabilities.

Guilty verdict entered.

At a preliminary hearing, the Crown sought committal on second degree murder charges following the death of a victim from injuries sustained in a physical altercation.

The defendant conceded that he was involved in a consensual fight with the deceased and that he unlawfully caused the injuries leading to death, but argued there was insufficient evidence of the specific intent required for second degree murder.

The Crown argued that circumstantial evidence supported an inference that the defendant intended to cause bodily harm he knew was likely to cause death and proceeded recklessly.

The court examined the evidence regarding the nature and severity of the assault, the relative physical condition of the parties, and the defendant's post-incident statements and conduct.

The accused was convicted at trial of three counts of sexual assault contrary to section 271 of the Criminal Code.

While providing hair salon services, he touched the breasts of three female customers on separate occasions, with the touching being deliberate and repeated, and in one case occurring under the victim's bra.

The Crown sought a custodial sentence of 4 to 6 months followed by probation.

The defence sought a conditional sentence or, alternatively, a 90-day intermittent sentence, citing the accused's status as a permanent resident and potential immigration consequences.

The court imposed a 90-day intermittent sentence followed by two years of probation with restrictive conditions, finding that incarceration was necessary to meet the principles of denunciation and deterrence despite the accused's lack of criminal record and stable employment.

Appeal of a conviction under the Occupational Health and Safety Act arising from a fatal workplace accident at a steel processing plant.

The defendant was convicted on one count of failing to provide information, instruction and supervision to a worker, and acquitted on two other counts.

The appellate court found that the trial judge erred in failing to consider the worker's negligence in assessing whether the Crown had proven the actus reus beyond a reasonable doubt, and also erred in failing to consider the defence expert's evidence.

The court allowed the appeal and set aside the conviction, finding either that the actus reus had not been established or, alternatively, that the defendant had proven due diligence.

The accused was charged with committing an indecent act by exposing his genitals and masturbating in a public place on a highway in the presence of a minor, and with criminal harassment by repeatedly following the minor and causing her to fear for her safety.

The Crown sought to introduce similar fact evidence relating to a subsequent incident on Highway 401.

The court admitted the similar fact evidence and convicted the accused on both charges.

The accused subsequently brought a section 11(b) Charter application alleging unreasonable delay.

The court dismissed the application, finding that the total delay of 17 months and 5 days (after deducting defence delay) fell below the 18-month presumptive ceiling established in R. v. Jordan for provincial court proceedings.

The applicant brought a Charter application challenging the validity of a surety warrant for arrest and the searches conducted following his arrest.

The applicant argued breaches of sections 8, 9, and 10 of the Charter.

The court found that although the surety warrant was not properly executed through the required procedure (the accused did not go into actual custody), it remained validly in existence on the CPIC system and grounded a lawful arrest.

The court rejected all Charter arguments, finding no breach of section 9 (arbitrary arrest), no breach of section 8 (unreasonable search and seizure) for either the pat-down search or the strip search, and no breach of section 10 (right to counsel).

The evidence was admitted at trial.

The appellant appealed the dismissal of a charge for failing to stop at a stop sign under section 136(1)(a) of the Highway Traffic Act.

The justice of the peace dismissed the charge because the police officer had no independent recollection of the specific events and relied solely on his notes.

The appellate court found this was reversible legal error, as the officer's notes qualified as a record of past recollection recorded and were properly admissible as an exception to the hearsay rule.

The court allowed the appeal and ordered a new trial.

The accused was charged with threatening to cause bodily harm contrary to section 264.1 of the Criminal Code.

The Crown alleged that the accused made threatening statements to a Children's Aid Society caseworker when she attended his home to remove his children.

The accused denied making the threats.

The trial judge found the caseworker to be a credible and reliable witness and rejected the accused's evidence as unreliable.

The court found that the Crown proved the charge beyond a reasonable doubt and entered a conviction.

The accused was convicted of criminal harassment contrary to s. 264(3) of the Criminal Code after persistently pursuing a man from her church despite his repeated refusals and the intervention of church officials.

The court found that underlying mental health issues significantly reduced the accused's moral culpability.

The court imposed a conditional discharge with two years' probation, including conditions prohibiting contact with the complainant and church members, requiring attendance at mental health counselling, and imposing a 10-year firearms prohibition under s. 109 and a DNA order.

Application for child and spousal support following separation.

The applicant, a former homemaker, sought child support and spousal support from the respondent, a roofer.

The court determined the parties' incomes for support purposes, finding the respondent's income should be based on current earnings rather than a three-year average that included an anomalous high-income year.

The applicant's income was determined based on her full-time employment only, as she was justified in relinquishing secondary employment to spend time with the child.

The court ordered retroactive child support from the date of separation and prospective spousal support at the upper end of the Spousal Support Advisory Guidelines range, based on both compensatory and needs-based grounds.

The accused brought a Charter application seeking exclusion of approved instrument breath test readings pursuant to s. 24(2) of the Charter, alleging multiple breaches of his Charter rights.

The primary focus at trial was whether the officer had reasonable grounds for the approved instrument demand given the possibility of mouth alcohol contamination.

The court found no Charter breach.

The officer's observation of the accused drinking while driving, the presence of an open beer can in the vehicle console, the accused's admission of prior drinking, and the odour of beer on the accused's breath provided reasonable suspicion for the approved screening device test.

The court rejected the defence argument that the officer should have suspected further drinking during a two-minute interval when the accused was briefly unattended, finding the accused's testimony unreliable and the officer's belief that no further drinking occurred to be logical and reasonable.

The officer properly waited more than 15 minutes after the accused's last observed drink before administering the approved instrument test, ensuring test reliability.

The Charter application was dismissed.

The accused brought a motion for a mistrial based on concerns raised by the Crown during trial that the accused may have been drinking alcohol and impaired.

The Crown's concern was based on observations by an officer in the hallway.

Defence counsel confirmed with the accused that he had not been drinking and was fit to proceed.

The defence argued that the mention of the issue could prevent a fair trial given that the charge related to alcohol and driving.

The court dismissed the mistrial application, finding that trial courts routinely hear prejudicial evidence later found inadmissible and must disregard such evidence.

The court noted that no prejudicial result occurred from the Crown's concern, which was appropriately raised and addressed.

The applicant father brought a motion seeking temporary joint decision-making, amendment of the child's birth registration to include his particulars as the father, a name change for the child, expanded access terms, and child support modifications.

The child, Kieran, was diagnosed with Autism Spectrum Disorder, Severity Level 2 in June 2017.

The respondent mother opposed expanded access and sought to restrict visits to Windsor only.

The court found material changes in circumstances warranting intervention, including the child's autism diagnosis and the parents' inability to communicate effectively about the child's special needs.

The court increased the father's access to every third weekend in Toronto (rather than limited monthly visits in Windsor), ordered the mother to consult with the father on major health and educational decisions, and increased child support.

The court deferred ruling on the name change and birth registration issues pending written submissions on jurisdictional questions.

A motion to change a final child support order concerning the financial obligations of separated parents for their daughter's post-secondary education at Lakehead University.

The applicant mother sought retroactive changes to section 7 expenses and post-secondary cost sharing consistent with the separation agreement.

The respondent father sought termination of table support at the child's 18th birthday and a 50% contribution to post-secondary expenses for three years.

The court found a material change in circumstances and determined reasonable post-secondary costs, the child's contribution, and each parent's proportionate share based on income.

The court also addressed arrears for non-post-secondary section 7 expenses including dance classes, driving lessons, and a school trip.