ONCJ 2018

The accused, Marcus Gil, age 19, was arrested in January 2017 on serious charges including kidnapping, forcible confinement, robbery, break and enter, robbery with a firearm, and possession of a firearm arising from a violent home invasion.

He was released on bail in April 2017 on strict conditions including house arrest, two sureties (his grandparents), and GPS monitoring.

While on release, he allegedly breached his conditions by meeting with a witness, dealing crack cocaine, and attempting to obstruct justice by trying to convince the witness to leave the city.

The Crown brought a s. 524(8) application to cancel his previous release, and the accused brought a bail application on the new charges.

The court found the accused had not met his onus to show cause for release and ordered him detained on both tertiary and secondary grounds.

The accused was charged with three counts of breach of probation for allegedly contacting his wife and children in violation of probation orders.

The first allegation occurred on July 7, 2014, but the information was not sworn until July 21, 2017.

The accused was arrested on March 11, 2017.

The accused brought a section 11(b) Charter motion arguing his right to be tried within a reasonable time had been violated.

The court dismissed the motion, finding that while the total delay exceeded the Jordan presumptive ceiling of 18 months, the pre-arrest delay qualified as a discrete event attributable to exceptional circumstances, as the police acted with reasonable diligence in attempting to locate the accused.

Additionally, the accused's failure to appear at trial demonstrated he was not genuinely exercising his 11(b) rights.

The accused was charged with prowling and breaking and entering with intent to commit an indictable offence on December 31, 2016 and January 2, 2017, as well as breach of probation for possessing a pellet gun on January 24, 2017.

The Crown relied primarily on the identification evidence of the victim, supported by circumstantial evidence including motive, the presence of a matching ammunition magazine at the scene, and sightings of the accused's vehicle.

The defence challenged the reliability of the identification, highlighting significant discrepancies between the victim's descriptions and the accused's physical characteristics, the victim's failure to identify the accused in a photo lineup, and exculpatory DNA evidence from a tuque found at the scene.

A young person was charged with four counts arising from a stabbing incident in a school parking lot, including assault with a weapon, assault causing bodily harm, and weapons dangerous.

The Crown relied on testimony from the complainant, a witness, and the complainant's mother.

The defendant was alleged to have aided an adult perpetrator under section 21(1)(b) of the Criminal Code or to have acted pursuant to a common purpose under section 21(2).

The court found the Crown's evidence unreliable and insufficient to prove guilt beyond a reasonable doubt.

Critical evidence, including the alleged weapon (a taser baton), was never recovered by police.

The court acquitted the defendant on all charges.

The accused was charged with sexual assault of a minor cousin, invitation to sexual touching, and uttering threats.

The Crown's case relied primarily on the complainant's testimony regarding an alleged assault occurring between November 17-21, 2016.

The accused provided an alibi defence, testifying he was at a friend's residence during the entire specified period.

The critical issue became the date of the alleged offence.

The complainant's evidence, while credible on the substance of the allegations, established that any assault could not have occurred on the dates specified in the information.

The court found that although the date of an offence is generally not material, it became critical when the accused raised an alibi defence.

The Crown failed to prove the offence occurred within the timeframe alleged, and no amendment to the information was sought.

The charges were dismissed.

A young person was charged with sexual assault of a 19-year-old complainant following an incident in a wooded area behind apartment buildings in Scarborough in the early morning hours of July 30, 2016.

The complainant was heavily intoxicated at the time.

The court found that the Crown proved beyond a reasonable doubt that the complainant neither had the capacity to consent nor did she express any consent to the sexual activity.

The court convicted the accused of sexual assault.

The accused was charged with forcibly confining his wife and two children, and assaulting his wife, arising from an incident at the family home on August 15, 2016, when a fire broke out.

The Crown's case relied primarily on the wife's statement to police, which she recanted at trial.

The children's testimony was largely based on what they overheard their mother tell their aunt rather than direct observation.

The accused testified that he did not assault his wife and did not prevent anyone from leaving the house.

The court found the accused not guilty on all counts, determining that the evidence raised reasonable doubt and that the wife's trial testimony was more reliable than her police statement.

The defendant was charged with sexual assault and sexual interference against a child victim.

The Crown alleged that the defendant touched the victim's vaginal area and kissed her on the mouth during a visit to the victim's home in December 2016.

The defendant did not testify and challenged both the credibility of the victim's evidence and whether the Crown could prove the offence occurred within the six-month limitation period for summary conviction proceedings.

The court found the victim's evidence credible and reliable, and determined that the offence occurred in December 2016, within the limitation period.

The defendant was found guilty on both counts.

The accused was charged with aggravated assault for stabbing the victim in the neck on August 14, 2017.

The accused pleaded not guilty and raised the defence of not criminally responsible on account of mental disorder under section 16 of the Criminal Code.

The Crown and defence agreed on the facts of the assault.

The defence called expert psychiatric evidence from Dr. Beth Eayrs, a forensic psychiatrist, who opined that the accused was suffering from schizophrenia and was psychotic at the time of the offence, acting under command hallucinations.

The court found that while the accused may have been experiencing auditory hallucinations, the evidence demonstrated that he had the capacity to know his conduct was morally wrong.

The court rejected the defence and found the accused criminally responsible for aggravated assault.

A motion concerning interim custody and access of a two-year-old child.

The father sought temporary sole custody after the child sustained unexplained injuries to her face while in the mother's care.

The mother opposed the motion and sought sole custody with liberal access to the father, or alternatively, joint custody.

The court found the mother's evidence regarding the injuries to be inconsistent and unreliable, and determined that the mother had failed to provide adequate supervision and stability.

The court granted the father temporary sole custody with the mother receiving limited supervised day access only.

A fourteen-year-old youth was charged with second degree murder as a party to the offence (instigator) in connection with the stabbing death of a fifteen-year-old victim.

The Crown sought detention under section 29(2) of the Youth Criminal Justice Act.

The court found that while the youth had no prior criminal record, extensive Children's Aid Society records documented a pattern of severe and escalating violence toward his mother since May 2017, including assaults with weapons, threats, and dangerous behavior.

The court determined that detention was necessary for public protection and the safety of the victim (the mother), finding a substantial likelihood the youth would commit serious offences if released.

The court rejected the proposed release plan involving the mother and family members as sureties, finding they could not adequately control the youth's violent behavior and impulsivity.

A motion to change a child support order where the respondent sought to reduce his child support obligation from $303 per month based on a claim of changed circumstances (return to full-time Ph.D. studies) and undue hardship.

The respondent also had other child support obligations and claimed financial hardship.

The applicant sought to increase the respondent's contribution to daycare costs and to impute additional rental income.

The court found that while there was a change in circumstances, income should be imputed to the respondent at the same level as the original order ($35,000 annually) based on intentional underemployment.

The court rejected the undue hardship claim as the respondent failed to establish clear and cogent evidence of exceptional hardship.

The court granted the applicant's motion regarding increased daycare contributions.

The accused was charged with six counts of assault on his wife occurring between 2007 and 2013, one involving a television remote control as a weapon, as well as criminal harassment in summer 2016 and failing to comply with a recognizance on September 9, 2016.

The case turned on credibility.

The Crown called only the complainant as a witness.

The accused testified and denied all allegations, providing an alibi for September 9, 2016.

The court found the complainant credible and rejected the accused's evidence.

The court convicted on all assault counts but acquitted on the fail to comply and criminal harassment charges, finding reasonable doubt regarding the accused's presence at the complainant's workplace on September 9, 2016.

The Crown sought to introduce a 911 call recording and transcript as evidence in a trial for breaking and entering, assault, and threatening bodily harm.

The complainant, Matthew Turner, testified that he could not recall the events of October 31, 2016, and was uncertain whether the voice on the 911 recording was his own.

The Crown argued the 911 call was admissible under the res gestae exception to hearsay or alternatively under a principled approach to hearsay.

The defence opposed admission on both grounds.

The court ruled the 911 call admissible under the res gestae exception as a spontaneous statement made in the immediate aftermath of traumatic events while the caller was under emotional stress with no opportunity to fabricate.

The defendant was convicted of assault causing bodily harm to her nephew following a trial.

The Crown sought imprisonment of 21-30 days followed by two years probation.

The defence sought a suspended sentence with one year probation or alternatively a conditional sentence.

The court imposed 21 days imprisonment followed by two years probation, rejecting both a conditional sentence and suspended sentence as inconsistent with the sentencing principles of denunciation and deterrence required for unprovoked violence causing bodily harm.

The court found the assault was serious, unprovoked, involved a weapon, and the defendant showed no remorse or insight into her actions.

A defendant was charged with possession for the purpose of trafficking in prescription drugs following a traffic stop and roadside search.

The court conducted a Charter application to determine whether evidence obtained during the stop should be excluded.

The defendant challenged the lawfulness of the investigative detention, the warrantless search of her purse and vehicle, and the denial of timely access to counsel.

The court found that the detention was arbitrary, lacking reasonable suspicion; the search was unlawful, as there was no valid consent and no genuine officer safety concern; and access to counsel was improperly delayed.

The court excluded all evidence obtained as a result of these Charter breaches under section 24(2), finding that admission would bring the administration of justice into disrepute.

The Crown sought a dangerous offender designation for the accused following his conviction for sexual assault and two counts of threatening death.

The accused, aged 48 with over 50 prior convictions and a history as a long-term offender, committed a sexual assault on an elderly shelter resident and made death threats to police officers.

A forensic psychiatrist assessed the accused as presenting high to very high risk for violent and sexual recidivism with intractable mental disorders including anti-social personality disorder, schizoaffective disorder, and substance abuse disorder.

The accused consented to the dangerous offender designation and an indeterminate sentence.

The court accepted the consent and imposed detention in a penitentiary for an indefinite period.

The appellants appealed their convictions for driving a commercial motor vehicle with major brake defects.

The driver was charged under section 107 of the Highway Traffic Act, and the company was charged with operating a vehicle with push rod stroke exceeding prescribed limits under HTA Regulation 587.

The appellants challenged the convictions on four grounds: failure to distinguish between owner, operator, and driver; failure to consider due diligence; failure to establish the owner-operator's knowledge of defects; and failure to establish that brake testing was conducted in accordance with regulations.

The court dismissed all grounds of appeal, finding that the Crown proved the actus reus of the offence beyond a reasonable doubt and that the appellants failed to establish a factual basis for the due diligence defence.

The appellant appealed his conviction for failing to slow down and proceed with caution for an emergency vehicle contrary to section 159(2) of the Highway Traffic Act.

At trial, the appellant testified that he slowed to approximately 40 kilometres per hour upon seeing the emergency vehicle lights, while the officer testified the vehicle did not slow down as it approached the RIDE checkpoint.

The trial justice found the appellant guilty, accepting that slowing to 40 kilometres per hour was insufficient to meet the statutory obligation to slow down and proceed with caution.

The appeal was dismissed, with the court finding the conviction was reasonable and well-supported by the evidence.

An appeal from a conviction for entering inaccurate information in a daily log contrary to Ontario Regulation 555/06 section 27(1) under the Highway Traffic Act.

The appellant was charged with maintaining inaccurate records regarding duty status times in a commercial motor vehicle logbook.

The trial justice found the appellant guilty and imposed a fine of $400 plus costs.

On appeal, the appellant challenged the conviction on three grounds: insufficient evidence of inaccuracies, misinterpretation of the legislation regarding on-duty and off-duty hours, and failure to prove the vehicle was a commercial motor vehicle.

The appellate court dismissed all grounds of appeal and upheld the conviction.