ONCJ 2018

The appellant appealed her conviction for speeding (159 km/h in a 100 km/h zone) on the grounds that her paralegal agent entered a guilty plea without proper instructions and that her plea was uninformed.

The appellant sought to introduce fresh evidence consisting of her affidavit and supporting documents.

The court dismissed the appeal on two grounds: first, the appellant's agent on appeal failed to follow the required protocol for allegations of incompetent assistance by not providing notice to trial counsel or conducting independent investigation; second, the proposed fresh evidence failed to meet the Palmer test for admissibility and actually supported the conclusion that the plea was voluntary and informed.

The appellant appealed his conviction for driving a motor vehicle with a speed measuring device (radar detector) contrary to section 79(2) of the Highway Traffic Act.

The appellant raised three grounds of appeal: (1) the officer lacked reasonable and probable grounds to stop and search the vehicle; (2) insufficient evidence proved the seized device was a speed measuring device; and (3) the trial judge reversed the burden of proof.

The appellate court dismissed all grounds, finding that the officer had reasonable grounds based on the Spectre device detection and visual observation, that the prosecution adequately proved the device was a radar detector through the officer's experience and the device's response to police radar, and that while one passage appeared problematic, the trial judge's overall decision correctly applied the burden of proof.

The accused pleaded guilty to assault and mischief.

The court accepted a joint submission and sentenced the accused to four months imprisonment on the assault charge (with credit for one and a half days of presentence custody), with the mischief charge resulting in a suspended sentence.

The accused was placed on a two-year probation with conditions including a no-contact order with the victim (with limited exceptions for family court proceedings and contact arrangements regarding their child), a 200-metre non-association order, mandatory counselling and rehabilitation programs, DNA order, and a ten-year firearms prohibition under section 110 of the Criminal Code.

Two summary conviction surcharges of $100 each were imposed.

The defendant brought a motion to compel production of an Approved Screening Device (ASD) printout and notes from two police officers regarding the storage and handling of the ASD used during a RIDE program stop.

The defendant was charged with care or control of a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml of blood.

The Crown resisted disclosure, arguing the ASD printout was a third-party record governed by the O'Connor test and that the officer notes were not relevant.

The court found the ASD printout was a third-party record not subject to first-party disclosure obligations and dismissed that portion of the application.

However, the court ordered disclosure of the officer notes from the two assisting officers, finding they were potentially relevant to the defendant's ability to make full answer and defence, particularly given the anticipated evidence regarding ambient temperature conditions and the placement of the ASD prior to testing.

The Crown brought an application under section 714.1 of the Criminal Code seeking to have its central witness in a sexual assault case testify by videolink from Regina, Saskatchewan, rather than attend in person in Barrie, Ontario.

The witness had relocated out of province and faced financial hardship and an unspecified health issue.

The court dismissed the application, finding that where credibility is central to the case and the witness is a primary Crown witness, the defendant's right to make full answer and defence requires the witness to attend in court before the trier of fact.

The court emphasized that while videolink technology is a useful tool, it should not be used where it would impair the defendant's ability to confront the witness and the court's ability to assess credibility through observation of demeanour and facial expressions.

The defendant was charged with unlawful possession of cocaine contrary to section 4(1) of the Controlled Drugs and Substances Act.

The Crown proved beyond a reasonable doubt that the substance seized was cocaine and that the defendant had knowledge and control of it.

However, the court found that the strip search conducted at the police detachment violated the defendant's Charter rights under section 8 against unreasonable search and seizure.

The search lacked reasonable and probable grounds, was conducted as a matter of routine policy rather than on a case-by-case basis, and was not authorized by a supervisor.

Applying the Grant test under section 24(2) of the Charter, the court found that the seriousness of the Charter violation and its impact on the defendant's protected interests outweighed society's interest in adjudication on the merits, resulting in the exclusion of the evidence and a finding of not guilty.

This is a costs decision arising from a motion for custody and access in a high-conflict family law matter involving a child with significant special needs and medical requirements.

The applicant mother sought custody and access, while the respondent father made competing claims for sole custody and supervised access for the mother.

The court awarded sole custody to the mother and restricted the father's access.

The mother was successful on the motion and sought costs of $14,203.20.

The father argued the amount was excessive and claimed inability to pay.

The court found the father's conduct was unreasonable throughout the litigation, including his refusal to vacate the home despite repeated requests, his assault of the mother, his refusal to engage with settlement negotiations, and his failure to present adequate evidence for his claims.

The court awarded costs to the mother on a substantial recovery basis.

The accused pleaded guilty to robbery with an imitation firearm, use of an imitation firearm in the commission of an indictable offence, break and enter to commit robbery, and assault.

The offences constituted a home invasion where the accused and a co-accused forcibly entered an occupied residence armed with weapons, with the accused assaulting a victim who attempted to contact police.

The court imposed a sentence of three years less a day, less pre-trial custody credit, recognizing the serious nature of home invasion offences while considering the accused's youth, first-offender status, difficult upbringing, and prospects for rehabilitation.

The court also imposed a weapons prohibition, DNA order, and probation conditions upon release.

A youth was charged with two counts of assault arising from an incident where burning flammable liquid came into contact with another youth's face and torso.

The Crown alleged the defendant deliberately threw the burning liquid at the complainant.

The defence argued it was an accidental splash caused by the defendant slipping and falling after being struck with water.

The court found the defendant's evidence credible and consistent, and that both versions of events provided reasonable explanations for how the injury occurred.

The court held that the Crown failed to prove the charges beyond a reasonable doubt and acquitted the defendant on both counts.

The defendant was charged with speeding 80 km/h in a 50 km/h Community Safety Zone under the Highway Traffic Act.

The defendant brought a section 7 Charter application challenging the prosecution's disclosure obligations, arguing that outstanding disclosure items were required to be provided.

The court considered the binding precedent from Region of York v. McGuigan and found that the prosecution was not obligated to disclose the requested items, as they did not constitute "fruits of the investigation" in a routine regulatory speeding offense.

The court dismissed the section 7 Charter application, finding no infringement of the defendant's rights.

The accused was charged with two counts of sexual assault and two counts of sexual interference against his girlfriend's two daughters over a three-year period ending in 2004.

The complainants, now adults, testified that the accused entered their bedrooms at night while they slept and engaged in inappropriate sexual touching.

The accused denied all allegations.

The court found the complainants credible and reliable witnesses, rejected the accused's minimization of his presence in the home, and found him guilty on all four counts.

The court also addressed the admissibility of similar fact evidence and found no collusion between the complainants despite the opportunity for communication.

The accused was charged with three offences: recruiting, holding, concealing, harbouring or exercising control over a person under 18 years of age to offer or provide sexual services for consideration contrary to section 286.3(2) of the Criminal Code; receiving a financial or material benefit from the commission of an offence under section 286.1(2) contrary to section 286.2(2); and knowingly advertising an offer to provide sexual services for consideration contrary to section 286.4.

The Crown's case relied primarily on the testimony of the complainant, a vulnerable 17-year-old who was homeless, drug-addicted, and desperate for money when she met the accused through Instagram.

The court found the complainant credible and reliable, and determined that the accused recruited her into sex work, controlled her movements, plied her with drugs, created a Backpage advertisement using her photographs, and took money from her after she engaged with a client.

The accused was found guilty on all three counts.

The accused, a registered massage therapist, was charged with sexual assault under s. 271 of the Criminal Code.

The complainant alleged that during a massage treatment, the accused placed his hand under her underwear and touched her vagina with his fingers, then attempted to kiss her.

The accused denied the allegations, claiming he performed a legitimate orthopaedic test with the complainant's verbal consent.

The trial judge found the accused not credible, noting inconsistencies between his testimony and his post-incident conduct, including his apology and settlement offer.

The complainant's evidence was found credible and reliable despite minor inconsistencies regarding details such as the number of fingers used and the nature of the attempted kiss.

The court rejected the defence theory that the complainant and her husband conspired to extort money from the accused.

The accused was found guilty of sexual assault.

A 16-year-old youth was charged with assault causing bodily harm after punching two individuals during a basketball game at a school.

The youth intervened to protect his cousin and struck one victim in the face, causing a broken jaw requiring surgery, and struck another victim in the teeth.

The youth pleaded guilty to the charge.

The Crown sought two years' probation with conditions, 120 hours of community service, a weapons prohibition, and a DNA order.

The defence sought a conditional discharge to preserve scholarship opportunities.

The court imposed a conditional discharge with terms of discharge including reporting to a youth worker, no contact with victims, anger management counselling, 120 hours of community service, a weapons prohibition, and a DNA order, balancing rehabilitation principles with accountability.

A youth was charged with two counts of sexual assault and unlawful confinement arising from incidents on April 25 and June 2, 2017.

The Crown withdrew the charges related to the June 2 incident at the mid-trial stage.

The trial proceeded on the April 25 sexual assault allegation.

The complainant testified that the accused sexually assaulted her in a park by forcing vaginal intercourse against her will.

The accused denied the assault occurred.

The court found the complainant's credibility undermined by surveillance video evidence and inconsistencies in her testimony, and acquitted the accused.

The accused was charged with one count of sexual assault alleged to have occurred on an Air Canada flight from Toronto to New Delhi on October 28, 2016.

The complainant testified that while she was sleeping, the accused placed her hand on his erect penis.

The accused denied the allegations, claiming the complainant had fallen asleep with her head on his shoulder.

The trial judge found significant inconsistencies in the complainant's evidence, particularly when compared to the testimony of the Air Canada Service Director.

While the judge believed something occurred on the flight, the reliability of the complainant's evidence was undermined by multiple inconsistencies regarding the timing of the incident, how the flight attendant became aware of the complaint, and the nature of the touching.

The accused was acquitted due to reasonable doubt.

This is a costs endorsement following motions to change child support and custody arrangements between former partners.

The applicant sought retroactive child support adjustment back to 2003 and prospective support, while the respondent sought termination of his child support obligation and support from the applicant.

The court found the respondent was the more successful party, having achieved termination of his support obligation effective March 1, 2017, and obtaining support from the applicant.

The applicant was partially successful in obtaining a three-year retroactive adjustment (2014-2017) and some section 7 expense contributions, but her 15-year retroactive claim was rejected.

The court awarded costs to the respondent.

Two motions to change were brought regarding child support and section 7 expenses for an adult child (age 18) who had relocated from the mother's residence to the father's residence.

The father sought termination of his child support obligation and retroactive child support from the mother.

The mother sought ongoing child support, retroactive adjustment of child support based on undisclosed income increases, and retroactive section 7 expenses.

The court found the child was no longer entitled to ongoing support as she was not pursuing post-secondary education.

The court ordered retroactive child support adjustment limited to 2014-2017 based on the three-year principle, awarded partial section 7 expenses (child care and medical/orthodontic costs), and dismissed claims for private school fees and extracurricular activities.

Net arrears were fixed at $7,686.50 payable by the father to the mother.

A young person was sentenced following a guilty plea to possession of an unloaded prohibited firearm (sawed-off shotgun) with readily accessible ammunition.

The offence was discovered during execution of a search warrant at the young person's residence.

The court found this to be an exceptional case under the Youth Criminal Justice Act, warranting a custodial disposition.

The court imposed a six-month Deferred Custody and Supervision Order followed by 16 months of probation, along with a ten-year weapons prohibition and a DNA order.

The sentence balanced the serious aggravating factors (possession of multiple types of ammunition, storage in a shared residence with the young person's mother) against significant mitigating factors (guilty plea, no prior record, unloaded firearm, constructive rather than actual possession, and strong rehabilitative potential).

The accused was charged with impaired driving by drugs.

Prior to trial, the defence raised two Charter issues: (1) whether the toxicologist's testing of bodily fluids for a broad range of drugs violated section 8 Charter rights when the Drug Recognition Evaluator had only identified narcotic analgesics as the suspected impairing substance, and (2) whether the DRE tests lacked scientific basis and thus violated section 7 Charter rights, rendering the tests and evidence inadmissible.

The court rejected both arguments, finding that the legislation does not limit toxicological testing to the specific drug suspected by the DRE, and that the applicant failed to meet the burden of establishing on a balance of probabilities that the 12-step DRE evaluation lacks scientific support.