ONCJ 2017

The defendant was charged with operation of a motor vehicle with excess blood alcohol.

The defence brought a motion under sections 7 and 8 of the Canadian Charter of Rights and Freedoms seeking to exclude breath sample results.

The central issue was whether the defendant's roadside statements identifying himself as the driver were statutorily compelled statements under section 199 of the Highway Traffic Act.

The court found that the statements were compelled and that their use to establish reasonable suspicion for an ASD demand and reasonable and probable grounds for breath samples violated section 7 of the Charter.

The court excluded the breath sample evidence.

The defendant was charged with three offences arising from a motor vehicle collision on November 5, 2015: careless driving contrary to section 130 of the Highway Traffic Act, failing to remain at the scene of an accident contrary to section 200(1)(a) of the Highway Traffic Act, and making a false statement in a collision report contrary to section 9(1) of the Highway Traffic Act.

The Crown presented evidence from the victim, an independent civilian witness, and a police officer.

The defendant testified in her own defence.

The court found the Crown's evidence credible and reliable, particularly the corroborating testimony of the independent witness.

The defendant's testimony was found to be problematic, inconsistent, and contradictory.

The court found the defendant guilty on all three counts.

The accused was charged with operation of a motor vehicle with excess blood alcohol following a three-vehicle collision.

The central issue at trial was whether the Crown could prove beyond a reasonable doubt that the accused's blood alcohol concentration exceeded 80 milligrams per 100 millilitres of blood at the time of the collision, given that breath samples were taken more than two hours after the driving occurred.

The court considered whether it was appropriate for the trial judge to draw inferences from toxicology evidence regarding a readback calculation to an earlier time period.

The court found that on the specific facts of this case, with a narrow time gap between the proven time of driving and the toxicologist's opinion timeframe, and with no evidence of post-collision drinking or bolus consumption, it was appropriate to draw the inference that the accused's blood alcohol concentration exceeded the legal limit at the time of driving.

The accused was charged with impaired care or control of a motor vehicle and operating a motor vehicle with a blood alcohol content exceeding 80 mgs per 100 mls of blood.

The Crown relied on breath sample evidence obtained following a traffic stop at a gas station.

The defence challenged the lawfulness of the detention and the grounds for the breath demand under the Charter.

The court found no arbitrary detention but did find a violation of section 8 of the Charter regarding reasonable and probable grounds for the breath demand.

However, the evidence was admitted under section 24(2) as the breach was minor and society's interest in adjudication on the merits favoured inclusion.

The court found the Certificate of Qualified Breath Technician admissible and the presumptions under section 258 of the Criminal Code were not displaced.

The accused was convicted of the over 80 offence but acquitted of impaired care or control, as the Crown failed to prove impairment of driving ability beyond a reasonable doubt.

The defendant was convicted after trial of sexual assault and sexual interference against a 15-year-old victim.

The Crown sought a sentence of 12 months jail followed by two years probation, while the defence urged the mandatory minimum of 90 days intermittent.

The court dismissed an adjournment application seeking to introduce fresh evidence and proceeded to sentencing.

The defendant was sentenced to 90 days incarceration served intermittently on weekends, three years probation with strict conditions including a 200-metre no-contact order, DNA order, 10-year weapons prohibition, 10-year SOIRA order, and s. 161 order prohibiting contact with persons under 14 years of age.

The defendant was convicted after trial of criminal harassment contrary to section 264 of the Criminal Code and distribution of intimate images contrary to section 162.1(1) of the Criminal Code.

The defendant engaged in a pattern of electronic communications designed to harass the complainant, his former fiancée, including messages documenting what she wore at school.

He also distributed intimate photographs of the complainant without her consent to family and friends both within Canada and overseas, using an anonymizing email service on two separate occasions.

The court imposed consecutive sentences totalling approximately nine months in custody, along with extensive probation conditions and ancillary orders, emphasizing denunciation and specific deterrence given the defendant's complete absence of remorse and empathy.

The accused was charged with assault contrary to Section 266 of the Criminal Code following an incident on April 3, 2017.

The accused and the complainant were in a former intimate relationship and were engaged in a custody dispute over their seven-year-old son.

During an access visit, a heated argument arose regarding the child's school behaviour.

When the complainant's daughter intervened, the accused applied force to the complainant's chest with his fingertips, causing her to step back.

The accused claimed he made only a waving gesture to move past the complainant.

The court found the accused guilty of assault, characterizing it as technical and of an exceedingly minor nature, but nonetheless constituting the intentional application of force without consent.

The accused were arrested based on a confidential informant tip indicating they possessed cocaine and oxycodone.

The Crown charged Adams with possession of oxycodone contrary to the Controlled Drugs and Substances Act and Harkness with possession for the purpose of trafficking and trafficking in oxycodone.

The defence challenged the lawfulness of the arrest and subsequent searches on Charter grounds.

The court found that the arrest lacked reasonable and probable grounds, being based on a tip that spoke only of "possibilities" rather than credibly based probability.

The court also found violations of the right to counsel and unreasonable searches of the accused's person and cell phone.

All evidence obtained as a result of these violations was excluded under section 24(2) of the Charter.

The accused was charged with extortion and sexual assault.

The primary issue was whether the complainant, a young woman with intellectual disabilities, properly identified the accused as the person who extorted her into sending nude photographs and subsequently sexually assaulted her at a marina.

The Crown's case rested entirely on identification evidence.

The accused denied ever meeting the complainant or engaging in any of the alleged conduct.

The court found the complainant's identification credible and reliable, distinguishing this case from typical eyewitness identification cases because the complainant had a photograph of the accused before meeting him in person.

The court rejected the accused's denials as implausible and found him guilty of both counts.

The Crown appealed the acquittal of a construction company on charges under the Occupational Health and Safety Act arising from the death of an employee struck by a reversing dump truck.

The trial court had directed a verdict of acquittal on one count and dismissed the remaining three counts.

The central issue was whether the company failed to ensure that a competent signaller assisted the dump truck operator in accordance with the applicable regulations.

The appellate court found that the trial court erred in concluding that the Crown had not proven the absence of a required signaller, as the evidence established that the deceased was not exclusively performing signaller duties and was not in full view of the truck operator.

The court set aside the acquittals and remitted the due diligence defence for reconsideration.

A six-day trial concerning custody, access, and support of two children.

The father sought custody of the 10-year-old daughter with alternate weekend access to the mother, while the mother sought to maintain the existing week-on/week-off arrangement.

The 17-year-old son had been living exclusively with his father for over five years with minimal contact with his mother.

The court found material changes in circumstances since the 2012 separation agreement, including the father's remarriage and blended family, breakdown in parental communication, and the daughter's escalating anxiety.

The court determined that the daughter's relationship with her mother was characterized by inappropriate role reversal and emotional interdependence, with the daughter feeling responsible for her mother's well-being.

The court awarded custody of both children to the father, with the mother receiving alternate weekend access to the daughter and one evening per week, plus extended summer access.

The son's access was left to his discretion.

Child support arrears and ongoing support obligations were calculated.

The accused was charged with possession of cocaine for the purposes of trafficking and possession of proceeds of crime (money over $5,000).

The Crown relied on expert evidence regarding the quantity of cocaine seized (104 grams packaged in four separate baggies), drug paraphernalia (scale, spoon, baggies), cash found in the residence, and a recorded telephone conversation.

The defence argued the cocaine was for personal use and that much of the money found belonged to the accused's partner.

The trial judge found that key facts relied upon by the Crown's expert were not proven at trial, significantly diminishing the probative value of the expert opinion.

The court found reasonable doubt existed regarding the trafficking charges and convicted only on simple possession.

The applicant brought a Charter application challenging the validity of a search warrant executed on his apartment on the grounds that the Information to Obtain (ITO) lacked reasonable and probable grounds.

The applicant was charged with possession of cocaine for the purposes of trafficking and possession of a prohibited weapon following the seizure of 156.5 grams of cocaine and brass knuckles from his apartment.

The court examined the sufficiency of the ITO content, considering the credibility and reliability of three confidential informants, the degree of corroboration by police surveillance, and the quality of the investigation.

Despite identifying deficiencies in the ITO including incomplete criminal record disclosure and reliance on unproven informants, the court found that the totality of the circumstances provided sufficient reasonable and probable grounds for the warrant's issuance.

The respondent sought access to a sealed youth criminal justice record under Section 123 of the Youth Criminal Justice Act.

The respondent claimed the record related to a conviction for making a false report of sexual assault and sought to use it to impeach the credibility of the complainant in a Section 810 peace bond application.

The court dismissed the application, finding that while the respondent had a valid and substantial interest in the record, disclosure was not necessary in the interests of justice.

The probative value of a nearly ten-year-old youth conviction was minimal, particularly given the principle of diminished responsibility inherent in the Youth Criminal Justice Act and the complainant's maturation into adulthood.

The privacy rights of the young person under the legislative scheme outweighed the probative value of the record.

Maternal grandparents brought a motion for summary judgment seeking sole custody of their granddaughter, born in 2011.

The mother opposed the motion and sought custody herself.

The court held a mini-trial under expanded summary judgment powers, hearing evidence from the grandparents, the mother, and the mother's brother, as well as two detailed reports from an Office of the Children's Lawyer clinical investigator.

The court found no genuine issue for trial and granted sole custody to the grandparents, finding they provided greater stability and security.

The mother was granted expanded access including alternate weekend overnight visits, mid-week access, and extended summer and holiday access, subject to conditions including no marijuana use during access periods.

This is a preliminary inquiry ruling on committal following a shooting incident on November 17, 2016, in which two defendants were jointly charged with multiple offences including attempt murder and aggravated assault.

The Crown sought committal on all charges; the defence conceded committal on most counts but contested the attempt murder charges and one aggravated assault count.

The court applied the well-settled test for committal, requiring assessment of whether sufficient evidence exists to permit a properly instructed jury to convict.

The court found sufficient circumstantial evidence to commit both defendants on attempt murder, based on the nature and location of gunshot wounds to vital areas, the number of shots fired, evidence of planning and coordination, and the circumstances of the shooting.

The court also committed both defendants on aggravated assault and various firearm-related offences.

The accused was charged with possession of cocaine for the purposes of trafficking contrary to section 5(3)(a) of the Controlled Drugs and Substances Act, and possession of a prohibited weapon.

The weapons charge was withdrawn during trial.

The Crown alleged that the accused possessed cocaine for trafficking purposes based on surveillance evidence showing him driving a rental vehicle in suspicious circumstances, his tenancy of an apartment where drugs and paraphernalia were found, and the presence of a scale in his bedroom.

The defence argued that the Crown had not proven the requisite knowledge and control for constructive possession, and that other occupants of the apartment could have been responsible for the drugs.

The court found that while the Crown established a drug trafficking operation existed at the apartment, the circumstantial evidence permitted reasonable exculpatory inferences regarding the accused's knowledge and control of the drugs, particularly given the possibility that drugs were recently deposited by another occupant and the limited visibility of drugs from the accused's bedroom.

The accused was charged with operating a motor vehicle while impaired by alcohol and while her blood alcohol level exceeded the legal limit, contrary to sections 253.1(a) and 253.1(b) of the Criminal Code.

The defence raised a Charter application challenging whether provincial offence officers were acting as peace officers and whether there were breaches of the right to counsel and the "as soon as practicable" requirement for breath sample demands.

The court found that the provincial offence officers were not peace officers for Charter purposes, that there was no breach of the right to counsel, and that the breath sample demand was made as soon as practicable.

The court convicted the accused on both charges based on the totality of evidence demonstrating impairment.

The accused was charged with obstructing police and assaulting a police officer in resisting the arrest of her son.

The Crown alleged the accused physically interfered with an officer's lawful arrest of her son for armed robbery.

The defence argued the arrest was unlawful because the officer lacked reasonable and probable grounds.

The court found that while the officer held a subjective belief in reasonable and probable grounds, the objective review revealed non-inculpatory factors (presence of an accompanying adult, appropriate behaviour of the suspect, unknown duration of association) that were not considered.

The court concluded the arrest was unlawful and therefore the officer was not engaged in lawful execution of duty.

The accused was acquitted of both charges, and the court found her actions constituted lawful defence of her son under section 34 of the Criminal Code.

The accused was charged with assault, assault causing bodily harm, assault with a weapon, and two counts of failure to comply with a recognizance arising from an incident on February 11, 2017.

The Crown's case rested entirely on the testimony of the complainant, Angel Bryan.

The court found significant credibility issues with the complainant's evidence, including inconsistencies between her police statement and trial testimony, admitted lies regarding the identity of a witness, and a prior conviction for attempted fraud.

Despite evidence of injuries and blood at the scene, the court concluded that the credibility problems and absence of corroborating evidence left reasonable doubt as to whether the assaults occurred.

All charges were dismissed.