ONCJ 2017

The appellant appealed his conviction for failing to stop at a red light contrary to section 144.18.1 of the Highway Traffic Act.

The evidence consisted solely of red light camera photographs and encoded data.

The appellant raised four grounds of appeal: (1) no photograph showed the vehicle in the intersection during the red light; (2) the court referred to outside knowledge not in evidence; (3) the prosecutor gave evidence via submissions; and (4) there was a reasonable apprehension of bias.

The appellate court dismissed all grounds and upheld the conviction, finding that the circumstantial evidence from the photographs reasonably supported the inference that the vehicle entered the intersection on the red light.

The appellant appealed his conviction for stunt driving contrary to section 172(1) of the Highway Traffic Act.

The appellant raised five grounds of appeal: (1) the officer should not have reviewed his notes prior to testimony; (2) the Justice of the Peace erred in finding the officer had sufficient independent recollection; (3) the Justice of the Peace erred in accepting speedometer evidence without independent certification; (4) the prosecution failed to prove the vehicle's speed exceeded 50 km/hr over the posted limit; and (5) the Justice of the Peace pre-judged the case.

The appeal was dismissed on all grounds.

The appellant appealed the acquittal of the respondent on a charge of failing to signal a lane change contrary to section 142(1) of the Highway Traffic Act.

The trial court had erred in law by requiring proof that other vehicles were actually affected by the failure to signal.

The Court of Appeal clarified that the offence requires only that another vehicle "may be affected" by the movement, not that it actually be affected.

The appeal was allowed and a finding of guilt was entered.

Four provincial offence appeals concerning the arbitrary rejection of joint submissions as to sentence by Justices of the Peace.

The appellate court found that in each case, the trial courts erred in law by rejecting joint submissions without applying the appropriate legal test established in R v. Anthony-Cook.

The rejections were based on improper considerations including insistence on set fines, desire for consistency without regard to circumstances, unfounded concerns about ability to pay, and assertions of judicial independence.

The court emphasized that joint submissions are essential to the efficient operation of provincial offences courts and should only be rejected where the proposed sentence would bring the administration of justice into disrepute or be contrary to the public interest.

All four appeals were allowed and sentences were varied to reflect the original joint submissions.

A young person brought an application to stay charges pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms for breach of section 11(b) rights (right to be tried within a reasonable time).

The applicant faced charges on two informations arising from offences alleged to have occurred on October 25, 2015.

The application was heard following the recusal of the original trial judge.

The court considered the framework established in R. v. Jordan, 2016 SCC 27, and applied it contextually to a case involving a young person and proceedings that commenced before the Jordan decision was released.

The court found that the Crown established exceptional circumstances justifying the delay and that the defence failed to demonstrate a violation of section 11(b) rights.

The accused was stopped by police ostensibly for speeding and running red lights, but the officer's actual purpose was to investigate impaired driving.

The officer failed to immediately advise the accused of the true reason for the detention, conducted an unjustified pat-down search, and unlawfully detained the accused in the back of a police cruiser before administering a roadside screening device.

Although the officer made reasonable efforts to facilitate contact with counsel of choice, the court found violations of sections 8, 9, and 10(a) of the Canadian Charter of Rights and Freedoms.

The breath sample evidence was excluded under section 24(2) of the Charter, and the charge was dismissed.

In a child protection proceeding involving a medically fragile infant hospitalized with severe cardiac complications, the Society sought authority over medical decision‑making after concerns arose about the mother’s refusal to consent to a potential do‑not‑resuscitate order.

The court held the matter should be determined de novo and that the Society bore the burden of showing why the parent should be deprived of decision‑making authority.

Evidence demonstrated the mother had consistently engaged with medical professionals and appropriately consented to prior treatments.

Applying the principle of least intrusive intervention under the Child and Family Services Act, the court concluded there was no basis to remove the mother’s authority.

The court therefore vested medical decision‑making authority in the mother pursuant to s.62 while the child remained in temporary Society care.

The offender, a 30-year-old first offender, pleaded guilty to sexual interference contrary to section 151 of the Criminal Code for sexual intercourse with a 14-year-old complainant.

The Crown sought 18 months imprisonment while the defence sought the minimum 90 days.

The court imposed the mandatory minimum sentence of 90 days to be served intermittently on weekends, followed by two years probation with stringent conditions including no contact with the victim or persons under 18, community service, and counselling.

The court balanced the seriousness of the offence against the offender's youth, first-offender status, genuine remorse, guilty plea, and employment circumstances.

The accused was charged with simple possession of crack cocaine.

The defence challenged the lawfulness of the police detention, search of the vehicle, and strip search, alleging breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that the police detained the accused based on mere suspicion and hunches rather than reasonable grounds, conducted an unlawful search of the vehicle, and performed an unjustified strip search.

The court excluded the evidence of the crack cocaine under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted.

The accused was charged with impaired operation of a motor vehicle, operation with excessive blood-alcohol concentration, and dangerous driving arising from an incident where he grabbed the steering wheel of a vehicle being driven by his former partner, causing it to crash into a ditch.

The Crown's case was not disputed on the facts of impairment and dangerous operation.

The sole issue was whether the defence of necessity applied.

The accused claimed he grabbed the wheel to prevent the driver from deliberately causing an accident after she threatened to harm them both.

The court found an air of reality to the necessity defence and, applying the three-part test from R. v. Perka and R. v. Latimer, determined that the Crown failed to prove beyond reasonable doubt that the accused did not act out of necessity.

The accused was acquitted on all counts.

The Crown brought a pre-trial motion seeking an order to permit the complainant to testify by video conference from Dartmouth, Nova Scotia, rather than attend trial in person in Oshawa, Ontario.

The defendant opposed the motion.

The court applied the test under Section 714.1 of the Criminal Code, which permits video testimony where appropriate in all the circumstances, considering the witness's location and personal circumstances, costs of physical attendance, and the nature of the anticipated evidence.

The court rejected the Crown's application, finding insufficient evidentiary foundation regarding the complainant's inconvenience and the quality of video technology, and noting that the complainant's testimony was central to the case and her credibility was crucial to the truth-seeking function of the trial.

The Crown sought leave to withdraw charges against four defendants (three members of Batchewana First Nation and one self-identified Métis individual) for unlawfully harvesting forest resources in Crown forests without proper licenses, contrary to the Crown Forest Sustainability Act.

The defendants opposed the withdrawal, arguing the prosecution was a vehicle to establish aboriginal and treaty rights.

The court granted the Crown leave to withdraw the charges, finding it was in the public interest to resolve such complex aboriginal issues outside the criminal forum.

However, the court awarded substantial costs against the Crown for its delay in withdrawing the charges and for failing to reassess its position when it received the defendants' expert report in May 2014.

The court awarded $90,000 to Clinton Robinson and $300,000 to the three other defendants.

The defendant pleaded guilty to three counts of breach of probation and was found not guilty of four additional counts following a three-day trial.

The defendant had been charged with child pornography offences in 2013 and 2014, and was released on conditions prohibiting attendance at public parks where children under 16 were present.

The breaches involved attending Canada's Wonderland, the Toronto Zoo, and a public park with his girlfriend's two children.

The Crown sought two years less a day; the defence sought 30 to 45 days.

The court imposed a sentence of five months imprisonment concurrent on each count, followed by 24 months probation with conditions including counselling and employment requirements.

The defendant was charged with seven counts of breach of probation.

He pleaded guilty to three counts involving attendance at public parks or swimming areas where persons under 16 years were present.

The trial concerned the interpretation of bail conditions, specifically whether the defendant breached paragraph 5 of his release order by attending the Toronto Zoo, Canada's Wonderland, a cottage in Thornbury, and a local park while in the company of T.M. and her children under 16 years of age.

The Crown argued the defendant could not be in the company of T.M. when she had children under 16 present.

The defendant argued that if he was in the company of any of the other named persons in the release order, the exception to house arrest would apply.

The court found the defendant not guilty of all four remaining counts, holding that paragraph 5 was a provision dealing with house arrest exceptions, not a general prohibition on being in the company of children under 16 years.

A police officer employed by the Niagara Regional Police Service pleaded guilty to pointing a firearm at another officer without lawful excuse.

The incident occurred at a police station when the defendant, at the end of her night shift, pointed an unloaded rifle at a colleague and pushed the muzzle into his chest as a lark.

The Crown sought a conditional discharge with probation and community service, while the defence sought an absolute discharge.

The court granted an absolute discharge, finding that denunciation was achieved through the public criminal process itself and that specific deterrence and rehabilitation were not relevant factors given the defendant's remorse, lack of prior record, and the significant personal consequences she had already suffered.

The accused was charged with impaired driving and over 80 milligrams of alcohol in 100 millilitres of blood following a traffic stop on November 15, 2013.

The accused challenged the charges on Charter grounds, alleging violations of sections 8, 9, 10(a), and 10(b).

The court found no violation of the right to counsel, determining that the accused had sufficient English comprehension to understand her rights despite English being her second language.

However, the court found a violation of section 9 (arbitrary detention) because the booking sergeant relied solely on blood alcohol content when determining when to release the accused, rather than considering all relevant circumstances as required by section 498 of the Criminal Code.

The court found the over-holding to be approximately 3-4 hours.

The court convicted the accused of both charges but stayed the impaired driving charge under the Kienapple principle to avoid double punishment.

The defendant pleaded guilty to robbery with an imitation firearm and use of an imitation firearm in commission of an indictable offence.

The offences arose from a robbery of an individual who had advertised a ring for sale on Kijiji.

The defendant brandished an imitation firearm during a struggle over the ring but was not disguised and did not use gratuitous violence.

The court imposed a total sentence of 30 months imprisonment, with enhanced credit for pre-trial custody, resulting in a net sentence of 16.2 months imprisonment plus 12 months consecutive, followed by 3 years probation.

The court considered the defendant's youth, early guilty plea, criminal record, and rehabilitation potential in fashioning the sentence.

The accused was charged with robbery with a knife, possession of a knife for a dangerous purpose, and unlawfully being in a dwelling house arising from a home invasion robbery.

The Crown's case relied primarily on identification evidence from the victim and a witness who called 911.

The victim could not identify the assailants.

The witness provided identification through a 911 call but later testified he only "vaguely" identified the accused based on information from a third party rather than direct observation.

The court found the identification evidence unreliable due to multiple factors including the witness's drug use at the time, significant discrepancies in physical descriptions (particularly height), inconsistencies between the 911 call and trial testimony, and the fleeting nature of the observation.

The accused was acquitted.

The accused was charged with careless storage of ammunition, possession of a prohibited weapon (crossbow), production of cannabis, and possession of cannabis for trafficking purposes.

The defence brought a Charter application challenging the validity of the search warrant on the basis that there were insufficient reasonable and probable grounds.

The court found that the Information to Obtain contained misleading information, impermissible speculation, and material omissions.

The affiant drew unreasonable inferences unsupported by the evidence, particularly regarding the accused's involvement in an outdoor marijuana grow operation discovered on an adjacent property.

The court found a serious breach of section 8 Charter rights and excluded all evidence obtained from the search warrant execution.

The accused was charged with operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg%.

Following a traffic stop, the accused requested to speak with counsel of choice.

Police made two attempts to contact the named lawyer over approximately 21 minutes but received no response.

The accused subsequently declined offers to contact duty counsel or pursue alternative means to reach counsel of choice.

The trial judge found a breach of s. 10(b) of the Charter but admitted the breath test evidence under s. 24(2), finding the violation to be at the less serious end of the scale.

The accused was convicted.