ONCJ 2019

A 17-year-old youth was convicted of second degree murder following a guilty plea.

The Crown sought an adult sentence, and the defence did not oppose.

The court found that the presumption of diminished moral blameworthiness was rebutted based on the youth's maturity, sophistication, and capacity for moral reasoning demonstrated through methodical planning and execution of the offence.

The court further found that a maximum youth sentence of seven years would be insufficient to hold the youth accountable.

The court imposed a life sentence with no eligibility for parole for seven years, to be served in a penitentiary, along with ancillary orders including a lifetime weapons prohibition and DNA order.

The defendants brought an application to dismiss charges in a private prosecution alleging violations of a municipal fence by-law.

The defendants raised five grounds: abuse of process due to prior adjudication, statutory bar due to limitation period expiry, insufficient knowledge of the informant, res judicata and issue estoppel, and unauthorized practice of law by the informant.

The court dismissed all grounds, finding that the prior proceeding involved different charges and a different fence, the limitation period had not expired as the fence had been modified, the informant had reasonable and probable grounds, the doctrine of issue estoppel did not apply, and the informant's conduct was permitted under applicable law society by-laws.

This is a summary judgment motion in a child protection case involving three children and allegations of risk of sexual harm by their father.

The Children's Aid Society sought a finding that the children are in need of protection under section 74(2)(d) of the Child, Youth and Family Services Act based on risk of sexual abuse or sexual exploitation.

The case involved complex evidentiary issues, including the admissibility of hearsay evidence, police interview recordings, and expert assessments.

The court conducted a careful screening of evidence and made specific rulings on admissibility, ultimately finding that sufficient admissible evidence existed to conclude there was no genuine issue requiring a trial on the risk of sexual harm ground.

The Children's Aid Society brought a summary judgment motion seeking a finding that two children were in need of protection on grounds of risk of physical harm and risk of emotional harm, a disposition order of deemed sole custody to the mother, and an order for supervised access to the father.

The court dismissed the motion, finding that the Society had not established a genuine issue requiring trial on either ground for finding.

The court noted that while the father exhibited difficult behaviour, there was no credible evidence of a mental health disorder causally connected to risk of physical harm, and no evidence of emotional harm to the children.

The court also expressed concerns about the disposition sought and the practical feasibility of the proposed access arrangement.

This is a ruling on a voir dire held in a summary judgment motion in a child protection application.

The Children's Aid Society sought findings that two children were in need of protection, an order of deemed sole custody to the mother, and an order for supervised paternal access.

The voir dire addressed the admissibility of two letters from Office of the Children's Lawyer counsel containing the views and wishes of the children.

The court applied the state of mind exception to the hearsay rule to determine which statements were admissible, requiring that statements describe the contemporaneous emotional state of the children without describing the cause of that state.

Sentencing decision for an Indigenous offender convicted of escape from lawful custody, breach of recognizance under section 810.2 of the Criminal Code, and failure to attend court.

The offender had an extensive criminal history including violent offences and numerous breaches of court orders.

The court imposed a 12-month custodial sentence with credit for pre-sentence custody at a 1.5:1 ratio, followed by a two-year probation order with conditions for monitoring and protection of the public.

The court rejected the Crown's request for a three-year probation term, finding that two years was sufficient given the proportionality principle and the offender's circumstances.

A young person was charged with operating a motor vehicle with a blood alcohol level over 80 milligrams per 100 milliliters of blood and with having a blood alcohol concentration above zero as a novice and young driver.

The defendant challenged whether his right to counsel was breached, alleging he was funneled to duty counsel.

The court found no breach of section 10(b) of the Charter.

The defendant was properly informed of his right to counsel through the standard caution, understood that right, and was appropriately offered duty counsel when he indicated he did not have a lawyer.

The court rejected arguments that non-compliance with section 146 of the Youth Criminal Justice Act regarding statements rendered the breath samples inadmissible, as breath samples are not statements and section 146 compliance is not a Charter requirement.

The defendant was convicted on all three counts, with one charge stayed pursuant to the Kienapple principle.

The Crown appealed a sentence imposed by a Justice of the Peace after the respondent pleaded guilty to leaving the roadway not in safety contrary to section 142(1) of the Highway Traffic Act.

The respondent had originally been charged with careless driving but agreed to plead guilty to the reduced charge.

The Crown and defence jointly submitted a $500 fine with 180 days to pay.

The Justice of the Peace imposed a $350 fine instead, undercutting the joint submission.

The appellate court allowed the appeal, finding that the trial judge erred in principle by failing to invite further submissions before rejecting the joint submission and by failing to make a finding that the submission was contrary to the public interest.

The court also criticized the trial judge's comments regarding the victim fine surcharge and its comparison to Criminal Code provisions.

Trial decision concerning custody, parenting time, and child support for two children (ages 11 and 8) following separation.

The applicant mother sought sole custody with specified parenting time for the respondent father, travel rights, and child support based on imputed income.

The respondent father sought sole custody with limited parenting time for the mother and opposed child support.

The court granted sole custody to the mother, established a parenting schedule for the father, and imputed annual income of $29,120 to the father, ordering child support of $447 monthly retroactive to October 1, 2018.

The father's conduct, including failure to pay support, sporadic parenting involvement, and non-compliance with court orders, was determinative.

The accused, charged with historical sexual offences against his second cousin, brought an application under section 278.7 of the Criminal Code for the production of the complainant's third-party clinical and counselling records.

The complainant conceded the first stage of the test, allowing the judge to review the records.

After reviewing the records and balancing the accused's right to make full answer and defence against the complainant's privacy interests, the court ordered limited production of portions of the records that substantively referenced the alleged incidents.

The accused Ashley Perry and Christian Walters were charged with unlawful possession of a loaded restricted firearm, two over-capacity magazines, and cocaine following a police search warrant executed at their apartment.

The Crown's case was entirely circumstantial.

The court found that while the Crown could not prove beyond a reasonable doubt that Perry had knowledge and control of the contraband items, it could establish that Walters had such knowledge, either because he placed the items himself or was informed of their location by his brother or an associate.

Perry was acquitted on all counts; Walters was convicted.

The accused pleaded guilty to possession for the purpose of trafficking marijuana (approximately 2.4 kilograms), simple possession of Psilocybin (60 grams), and simple possession of cocaine (approximately 3.4 grams).

The Crown sought a fine of $5,000 with no probation, while the defence sought a discharge with probation.

The court imposed a conditional discharge with 12 months probation and 50 hours of community service, finding the accused to be an exceptional candidate for rehabilitation despite the commercial nature of the marijuana trafficking.

The court considered the accused's youth, guilty plea, genuine remorse, substance abuse issues, and significant post-charge rehabilitation efforts.

The accused was charged with six counts: possession of child pornography (s. 163.1(4)), accessing child pornography (s. 163.1(4.1)), breach of undertaking conditions, and voyeurism (s. 162(1)(c)).

The Crown proved that the accused possessed and accessed child pornography on two seized cellphones through forensic analysis demonstrating the accused's exclusive use of the devices, intentional downloading and accessing of images from a specific website, and knowledge of the material's nature.

The accused was also found guilty of surreptitiously recording a child at a shopping mall food court for a sexual purpose, breaching her reasonable expectation of privacy.

The court rejected the defence arguments regarding data integrity, accidental downloading, and the definition of child pornography.

The accused was charged with two offences: breach of probation by contacting the complainant contrary to a no-contact condition, and distributing an intimate video recording without consent contrary to section 162.1 of the Criminal Code.

The accused admitted to sending Facebook messages in breach of the probation order and was found guilty on that count.

On the second count, the Crown relied on circumstantial evidence to establish that the accused uploaded an intimate video to Pornhub.

The court found the complainant credible and the accused's testimony unsatisfactory.

Based on the timing of the accused's release from custody, his hostile Facebook messages, his motive for revenge, and the absence of any realistic alternative explanation, the court found the accused guilty of distributing the intimate image without consent.

A preliminary inquiry into a robbery charge where the sole issue was identification.

The Crown sought to rely on surveillance video from the robbery, a dated mug shot, and Facebook photos to establish identification of the defendant.

The court applied the test from R. v. Nikolovski and found that the identification evidence was insufficient.

The surveillance video was of poor quality with only generic facial features visible, and the Facebook photos lacked proper foundation and evidentiary connection to the defendant.

The court discharged the defendant, finding that no reasonable jury properly instructed could convict on the identification evidence presented.

The defendant was charged with making an unsafe left turn contrary to section 142(1) of the Highway Traffic Act.

The defendant's vehicle collided with an eastbound motorcycle, resulting in the death of the motorcycle driver.

The court found that the defendant's vehicle crossed the centre line into the path of oncoming traffic without first ensuring the movement could be made safely.

The defendant did not testify and raised no defence.

The court convicted the defendant of the offence, finding that the prosecution proved the actus reus beyond a reasonable doubt and that the defendant failed to establish a due diligence defence.

A mother sought retroactive child support from the father of their 11-year-old daughter, claiming support arrears from January 1, 2017 to March 2019.

The parties had previously agreed to a mediation summary report in 2012 providing for $300 monthly child support and $100 monthly RESP contributions.

The father's income had substantially increased since 2012 but he failed to disclose this increase or adjust support accordingly.

The court found the father engaged in blameworthy conduct by not increasing support despite a material change in circumstances.

The court ordered retroactive support retroactive to January 1, 2017, with credits for payments made and RESP contributions.

The father was ordered to pay arrears of $15,683 over four years at $326 monthly, plus ongoing support of $924 monthly based on his 2019 income of $101,816.

A motion concerning jurisdiction and venue in a child protection matter.

The Children's Aid Society of Dufferin County brought a motion for temporary care and custody of two children, with the respondents seeking to have the matter heard in Orangeville (Dufferin County) rather than Guelph (Wellington County), where the original protection application had been filed.

The court found that despite the children's current residence in Dufferin County and the respondents' preference for Orangeville, the overwhelming connection to Guelph—where the Guelph CAS had been involved for over a year, where the original protection application was filed, and where prior court orders had been made—warranted transferring the matter to Guelph for hearing.

The defendant was charged with sexual assault following an incident at an Airbnb apartment in Toronto.

The complainant alleged she was asleep when the defendant initiated sexual contact without her consent.

The defendant did not testify and called no evidence.

The trial turned on the credibility of the complainant and two corroborating witnesses.

The court found significant inconsistencies and contradictions in the complainant's evidence, including discrepancies between her trial testimony and her initial police statement, exaggerations regarding her level of intoxication, and unsubstantiated claims about the defendant's drug use.

Critically, a witness testified that the complainant and defendant appeared to engage in consensual sexual activity in the bed before walking together into the washroom, directly contradicting the complainant's account of being assaulted while asleep.

The court found it dangerous to rely on the complainant's evidence and acquitted the defendant.

The applicant brought a motion to exclude evidence obtained from a search warrant executed at a residence, arguing the Information to Obtain (ITO) was deficient and violated section 8 of the Charter.

The applicant contended there were insufficient grounds to establish the credibility and reliability of the confidential informant, inadequate corroboration, and material omissions in the ITO.

The court upheld the validity of the warrant, finding the confidential informant had a history of providing reliable information, the information was sufficiently corroborated through police investigation and surveillance, and the firearm information was compelling and recent enough to justify the warrant.

While the court found the omission regarding withdrawn charges was problematic, it determined this did not invalidate the warrant as there was compelling evidence independent of this omission.

The application was dismissed.