ONCJ 2018

The defendant was charged with impaired operation and exceeding 80 milligrams of alcohol per 100 milliliters of blood following a single-vehicle accident on January 31, 2017.

The Crown established that the defendant was found in the driver's seat of a severely damaged vehicle that had travelled over 150 meters off the road.

The defendant's blood alcohol content was measured at 220 milligrams at 2:10 and 3:01 a.m., which toxicological evidence interpolated back to 220-260 milligrams at the time of the accident.

The court rejected Charter arguments regarding the right to counsel and found the defendant guilty on both counts.

A provincial offence trial under the Smoke-Free Ontario Act concerning whether a tobacco retailer failed to post prescribed government identification signs in a conspicuous manner as required by regulation.

The Crown alleged the defendant failed to post the identification sign where tobacco transactions occurred.

The defendant argued the sign was posted conspicuously on the countertop near the cashier and that even if the actus reus was proven, a due diligence defence applied.

The court found the prosecution failed to prove the offence beyond a reasonable doubt due to conflicting testimony regarding sign placement and visibility.

The defendant was acquitted.

The court also found that had the actus reus been proven, the defendant would have successfully mounted a due diligence defence based on the owner's comprehensive compliance systems, training procedures, and reasonable care measures.

The defendant was charged with sexual assault following an encounter with the complainant on February 12, 2017.

The complainant alleged that she initially consented to protected sexual intercourse, but withdrew her consent when the condom slipped off.

She maintained that the defendant continued with unprotected intercourse without her consent.

The defendant claimed that the complainant consented to resuming unprotected intercourse after he reminded her that he had no protection.

The case turned entirely on credibility and the question of whether the Crown proved beyond reasonable doubt that the defendant acted without the complainant's consent.

The court found that while the complainant's account was coherent, the defendant's account, when combined with concerns about the complainant's narrative, left reasonable doubt as to whether the defendant knowingly proceeded without consent.

The father brought a motion to change a child support order dated August 8, 2016, seeking to reduce his monthly support obligation from $773 to $150 per month based on claimed income of $8,652 per year, and to rescind all accumulated arrears.

The mother cross-moved to dismiss the motion and to increase support based on imputed income of $83,517 per year.

The court found the father intentionally underemployed, rejected his claims of medical disability, found his education/retraining plan unreasonable and unsupported, and determined the father had engaged in intentional deception and gamesmanship throughout the proceedings.

The court imputed income of $59,491 per year retroactive to March 17, 2015, resulting in increased monthly support obligations and a conduct order restricting future motions without court permission.

The defendant pleaded guilty to possession of child pornography, making child pornography available, and agreeing by telecommunication to commit an offense under section 163.1 of the Criminal Code.

The Crown sought a three-year sentence, while the defence sought 18 months.

The court imposed a global sentence of three years in custody, with credit for 315 days of pretrial custody enhanced at a 1.5:1 ratio.

The court emphasized that denunciation and deterrence are paramount sentencing principles in child pornography cases, particularly given the egregious nature of the written material discovered in chat logs that reached the highest level of depravity on the Oliver scale.

The accused was charged with "over 80" and impaired operation of a motor vehicle following an accident in Brampton.

The Crown sought to rely on three sets of statements made by the accused to police and a breath technician.

The defence challenged the admissibility of all statements under section 7 of the Charter, arguing they were obtained in violation of the accused's rights.

The court conducted a voir dire to determine admissibility.

The court found that only the accused's spontaneous remarks to himself in the police cruiser were admissible.

All other statements were excluded because they were made under an honest and reasonably held belief that the accused had a statutory duty to report the accident.

Without the excluded statements, the Crown could not establish the identity of the driver beyond a reasonable doubt.

The accused was acquitted.

The accused pleaded guilty to attempting to break and enter a dwelling house with intent to commit an indictable offence and theft under five thousand dollars.

The Crown sought a global sentence of twelve months less pre-sentence detention credited at 1.5 to 1, followed by three years probation.

The defence sought time served plus two years probation, emphasizing the accused's difficult personal history as a Kurdish Convention refugee and the minimal nature of the offences.

The court imposed a sentence of time served plus one day in gaol on the attempt charge, with fifteen days concurrent on the theft charge, followed by three years concurrent probation.

The court considered collateral consequences under immigration law but found no risk of deportation given the accused's protected status as a Convention refugee.

The defendant was charged with driving with excess alcohol after failing an Approved Screening Device test and subsequently providing a breath sample of 160 milligrams per 100 millilitres of blood.

The defendant brought multiple Charter challenges, including challenges to the lawfulness of the traffic stop, the timing of the ASD demand, compliance with section 254(2)(b) of the Criminal Code, and alleged violations of rights to counsel.

The court rejected all Charter applications and found the defendant guilty of the offence.

The accused was tried on two counts: assault contrary to section 266 of the Criminal Code and assault causing bodily harm contrary to section 267(b) of the Criminal Code.

The charges arose from incidents on February 23, 2017, involving a 21-month-old toddler in the accused's home daycare.

The Crown alleged the accused repeatedly dropped the child onto a carpeted floor in a hallway and assaulted the child in a stairwell by yanking her arm and slapping her face.

The accused claimed the injuries resulted from accidental falls and normal childcare activities.

The court found the accused guilty on both counts based on video surveillance evidence of the stairwell assault and credible eyewitness testimony regarding the hallway incidents.

This is a child protection proceeding concerning two children.

The court addressed trial readiness issues and the appointment of amicus curiae for the unrepresented mother.

The mother had cycled through three lawyers and was unable to retain counsel despite having a legal aid certificate.

The court appointed amicus to assist in presenting the mother's case at trial, ensuring the proceedings could move forward without further delays and that the children's interests would be protected through a fair and organized trial process.

The applicant father sought to maintain jurisdiction in the Ontario Court of Justice over custody and access matters involving his son, who had been relocated to Japan by the respondent mother following a mobility order granted in August 2017.

The court determined that while it had jurisdiction when the proceedings were commenced in 2016 (when all parties and the child were physically present in Ontario), it no longer had jurisdiction after the child's relocation to Japan.

The court found that the criteria under section 22(1)(b) of the Children's Law Reform Act could no longer be satisfied, specifically regarding substantial evidence availability, real and substantial connection to Ontario, and balance of convenience.

The court stayed the proceedings.

The accused was charged with impaired driving and possession of cocaine after police investigated a minor collision in a parking lot.

The accused brought a Charter application alleging unlawful arrest and search, which the court dismissed, finding the officer had reasonable grounds to arrest for impaired driving and the search was a valid incident to arrest.

At trial, the court found the Crown failed to prove beyond a reasonable doubt that the accused's ability to drive was impaired by alcohol or drugs, resulting in an acquittal on that charge.

However, the court rejected the accused's testimony that he was unaware of the cocaine found in his sweatpants, finding him guilty of possession of cocaine.

A trial concerning custody, access, and child support for Eden Jade Oliveira-Blackett, born July 6, 2016.

The applicant mother sought sole custody with detailed access restrictions based on the respondent father's work and volunteer coaching schedule.

The respondent sought joint custody with primary residence to the mother.

The court found that sole custody with the applicant was in the child's best interests, citing the respondent's poor communication, inability to cooperate on significant parenting decisions (particularly regarding the child's baptism and medical care), and his pattern of prioritizing his own interests over the child's welfare.

The court imputed income to the respondent and ordered child support and section 7 expense sharing.

The accused pleaded guilty to assault causing bodily harm on November 1, 2011 and assault on November 9, 2017, both involving his wife.

The Crown sought a conditional sentence of one year followed by two years probation, while defence counsel sought a conditional discharge.

The court imposed a conditional discharge with three years probation, finding that despite the seriousness of the offences, the accused's good character, remorse, rehabilitation efforts, and collateral consequences warranted this disposition, which would not be contrary to the public interest.

The accused was charged with failing to provide a sample of breath into an approved screening device.

The Crown proceeded summarily and the accused pleaded not guilty.

The sole issue was whether the demand for a breath sample was valid, specifically whether it was made "forthwith" as required by law.

The constable delayed approximately five to seven minutes between detecting alcohol on the accused's breath and making the demand, during which time he conducted a records check and reflected on which demand to make.

The court found that the delay was not justified and that the Crown failed to prove beyond a reasonable doubt that the demand was made forthwith.

The charge was dismissed.

The accused was charged with multiple counts of assault, sexual assault, mischief, criminal harassment, and breaking and entering against a domestic partner.

The Crown sought to introduce the complainant's audio-recorded statement to police as hearsay evidence for the truth of its contents after the complainant recanted or expressed uncertainty about portions of her original statement at trial.

The court ruled on the admissibility of the hearsay statement under the principled exception established in R. v. Khan, applying the twin criteria of necessity and reliability, and considering whether the probative value outweighed any prejudicial effect.

A trial concerning parenting arrangements for two children following the separation of the parties.

The mother sought sole custody with discretionary access for the father and the ability to change the children's surnames.

The father sought modified joint custody with expanded access and overnight visits during the school week.

The court found a material change in circumstances since the previous consent order and awarded sole custody to the mother while significantly expanding the father's access and involvement in the children's lives.

The court prohibited the mother from changing the children's surnames, finding the request was motivated by improper purposes.

The court heard competing motions regarding temporary access orders for a five-year-old child.

The father sought liberal and generous access including overnight weekend access, while the mother sought to eliminate overnight access and restrict visits to two separate eight-hour visits.

The court found that the mother had misled the court and the father about her residence, having returned to Ontario from Las Vegas months earlier without disclosure.

The court determined that overnight access was in the child's best interests and ordered a graduated schedule commencing with weekend access from Saturday noon to Sunday 4:00 p.m., progressing to alternating weekend access from Friday 4:00 p.m. to Sunday 6:00 p.m.

The court also granted the father information rights regarding the child's education, health, and welfare, and prohibited the mother from removing the child from Ontario without a court order.

At a preliminary inquiry, the accused was charged with sexual assault, sexual interference, and sexual exploitation involving two complainants.

The Crown conceded committal on charges involving the first complainant.

Regarding the second complainant, the defence argued that the complainant consented to the sexual activity at the time it occurred, and that the accused was not in a position of trust or authority.

The court found that the complainant's subjective state of mind at the time of the sexual activity was determinative, and that her later retrospective characterization of the relationship as abusive did not negate consent that existed at the time.

The court also found no evidence that the accused was in a position of trust or authority over the complainant despite her volunteering at his mother's martial arts facility.

All charges involving the second complainant were discharged.

A youthful first offender pleaded guilty to assault causing bodily harm after throwing a glass of beer at a stranger during an altercation at a bar, causing a laceration requiring four stitches.

The Crown sought a suspended sentence with probation and a conviction, while the defence sought a conditional discharge.

The sentencing judge imposed a conditional discharge with two years' probation, finding that the exceptional circumstances of the case—including the offender's youth, lack of criminal record, significant rehabilitative efforts undertaken after being charged, and the disproportionate impact a conviction would have on her employment prospects in the security field and future career aspirations—warranted a discharge despite the violent nature of the offence.