ONCJ 2019

This is a Status Review proceeding under the Child, Youth and Family Services Act concerning an 8-year-old child.

Following a trial on the issue of paternal access, the court ordered no access and directed the appointment of an assessor to determine how and when the child should be informed of her father's identity.

The motion addresses the appointment of Dr. Rex Collins as the assessor and concerns serious disclosure failures by the Society and its counsel, who failed to disclose that the mother had told the child about her father and disclosed traumatic information about the mother's past, contrary to the court's findings that the child did not know her father's identity.

The Crown brought an application to halt a preliminary inquiry in light of recent amendments to the Criminal Code that came into effect on September 19, 2019, which restricted preliminary inquiries to offences punishable by 14 years' imprisonment or more.

The Crown argued the amendments were retrospective in effect and applied to all preliminary hearings scheduled after September 19, 2019.

The respondent argued the amendments were prospective and only applied to matters where no prior election had been made.

The court found that the determination of whether legislation is prospective or retrospective is a matter of law and that it was bound by the decision in R v. R.S., which held the amendments were retrospective.

The court accordingly found it had no jurisdiction to hold the preliminary hearing and directed the respondent to make a new election under the amended legislation.

The Crown brought an application to vacate the preliminary inquiry date and remand the accused to Superior Court following amendments to the Criminal Code effective September 19, 2019, which restricted preliminary inquiries to offences carrying a maximum sentence of fourteen years or more.

The accused had elected for trial by judge and jury with a preliminary inquiry prior to the amendments coming into force.

The court considered whether the amendments applied retrospectively to cases already in the system.

The court found that a Superior Court decision on a prerogative writ application (R. v. R.S., 2019 ONSC 5497) was binding authority establishing that the amendments applied retrospectively as procedural changes affecting court jurisdiction.

The Crown's application was allowed, the preliminary inquiry was vacated, and the accused was given the opportunity to re-elect pursuant to section 536(2.1) of the Criminal Code.

The Crown applied to vacate the preliminary hearing of N.J. and sought a ruling that Niyazi Rasidoff was not entitled to a preliminary hearing.

Both accused were charged with sexual assault, which carries a maximum sentence of 10 years imprisonment.

They had requested preliminary hearings before September 19, 2019, when amendments to the Criminal Code came into effect, restricting preliminary hearings to offences carrying potential imprisonment of 14 years or more.

The court considered whether the amendments applied retrospectively or prospectively and was bound by the Superior Court decision in R. v. R.S., which held the amendments were procedural and applied retrospectively.

The court vacated N.J.'s preliminary hearing and ruled that Rasidoff was not entitled to one.

The court considered whether amendments to section 535 of the Criminal Code, effective September 19, 2019, which restricted preliminary inquiries to offences carrying a maximum sentence of 14 years or more, applied retroactively to invalidate elections for preliminary inquiries made before the amendment.

The Crown argued that prior elections were nullified and the court lacked jurisdiction.

The defence argued the amendment did not apply retroactively to vested rights and that validly made elections survived the enactment.

The court found itself bound by the Superior Court decision in R. v. R.S., which held that the Ontario Court of Justice lost jurisdiction to conduct preliminary inquiries except for offences with a 14-year maximum penalty as of September 19, 2019.

The accused pleaded guilty to multiple offences including forcible confinement, robbery, assault with a weapon, trafficking in a controlled substance, possession of property, theft of motor vehicle, breach of probation, and unauthorized use of a credit card.

The court imposed a joint submission sentence of three years custody less 146 days of presentence custody credit, resulting in a remnant sentence of 949 days.

The court also imposed lifetime firearms prohibitions under Section 109 of the Criminal Code and a no-contact order under Section 743.21 with respect to specified individuals.

The accused brought an application seeking increased legal aid funding for defence counsel to cover the full estimated budget for a constitutional challenge.

The court dismissed the application, finding that while the state has a constitutional obligation to ensure fair trials for indigent accused, the accused's right to a fair trial (not a perfect trial) was not imperiled by the shortfall of approximately $3,000 between the legal aid budget and the defence budget.

The court acknowledged the financial burden on defence counsel accepting legal aid certificates but held that absent evidence that no competent counsel would accept the certificate, the application must fail.

The accused was charged with "Over 80" and impaired driving on November 3, 2017.

The trial was scheduled to commence on October 21, 2019, resulting in a total delay of 23 months and 19 days.

The accused brought a motion to stay the charges pursuant to s. 11(b) of the Charter, arguing that the delay exceeded the 18-month presumptive ceiling established in R. v. Jordan.

The Crown argued that approximately 9 months of delay should be attributed to the defence, bringing the net delay below the ceiling.

The court found that 3 months of delay was attributable to the defence, resulting in a net delay of 20 months and 20 days, which exceeded the presumptive ceiling.

The charges were stayed.

The accused was charged with numerous offences following a police investigation and arrest that led to the discovery of a loaded firearm and a substantial quantity of cocaine in a bedroom.

The defence applied for exclusion of the evidence pursuant to section 24(2) of the Charter.

The court conducted a blended voir dire and found that the warrantless search of the residence by police violated section 8 of the Charter.

The court excluded the firearm and cocaine from evidence, finding that admission would bring the administration of justice into disrepute.

The accused pleaded guilty to luring a 15-year-old victim, making sexually explicit material available to that victim, sexually assaulting that victim, and luring a police officer posing as a 14-year-old boy.

The offences involving the actual victim occurred between January and September 2016 when the victim was 15 and the accused was 35.

The accused groomed the victim through social media, provided gifts and alcohol, and engaged in repeated sexual conduct including unprotected anal penetration.

The luring of the undercover officer occurred between August 2016 and January 2018.

The court imposed a global sentence of five years imprisonment, finding that deterrence, denunciation, and separation from society were the primary sentencing principles.

The court also imposed SOIRA registration for life, a section 109 weapons prohibition, DNA order, and section 161 prohibitions for 10 years.

The accused was charged with failing or refusing to comply with a breath demand made pursuant to section 254(2) of the Criminal Code.

A civilian witness reported a possible impaired driver, and police conducted a traffic stop.

The officer made a demand for a breath sample into an Approved Screening Device (ASD).

The Crown alleged the accused failed to provide a suitable sample through feigned attempts and by verbal refusal.

The court found the Crown had not proven beyond a reasonable doubt that the accused intentionally failed or refused to provide a sample, nor that the accused unequivocally expressed an intention to refuse.

The accused was acquitted.

The accused pleaded guilty to theft over $5,000 committed between May 2, 2012 and March 1, 2016.

As Power of Attorney for her mother's personal care and property, the accused depleted her mother's bank accounts and investments by approximately $161,000, spending the money on gambling, living expenses, and overseas travel.

The court rejected a conditional sentence and imposed six months imprisonment followed by three years probation with conditions prohibiting the accused from holding positions of trust and requiring counselling.

A stand-alone restitution order of $161,000 was made in favour of the estate.

The accused was charged with "over 80" (operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 milliliters of blood).

The Crown sought to rely on the presumption of accuracy under section 320.31(1) of the Criminal Code for breath test results.

The court determined that the Crown failed to prove beyond a reasonable doubt that the target value of the standard alcohol solution used in the calibration check was 100 milligrams of alcohol in 100 milliliters of blood.

The breath technician's evidence was undermined by cross-examination revealing he had received instructions from the Crown on what testimony to provide and had no independent recollection of the specific solution used.

The court found that without proof of the target value, the presumption of accuracy could not be invoked, and the Crown could not establish accuracy through common law means either.

The accused was acquitted.

The accused was charged with sixteen Criminal Code and CDSA offences: four counts punishable by 14 years or more imprisonment (14+ offences) and twelve counts punishable by less than 14 years (less than 14 offences).

The accused elected trial by judge and jury and requested a preliminary inquiry.

The Crown argued the preliminary inquiry should be limited to the 14+ offences only, while the defence argued it should encompass all counts on the information.

The court held that the preliminary inquiry is restricted to the 14+ offences only, based on the plain language of the amended Criminal Code provisions following Bill C-75.

The Crown brought an application seeking to vacate preliminary hearing dates scheduled for three separate matters, arguing that amendments to Bill C-75 restricting preliminary inquiries should apply retrospectively to cases where charges were laid before September 19, 2019.

The defendants opposed the application, contending that the amendments should apply prospectively only.

The court considered the retrospectivity of the amendments to sections 535 and 536 of the Criminal Code and ultimately followed the authoritative decision of Justice Thomas in R. v. R.S., 2019 ONSC 5497, holding that the amendments are procedural in nature and do apply retrospectively.

Consequently, the preliminary hearings were vacated as the offences charged no longer qualified for a preliminary inquiry under the new legislation.

The Crown brought applications to quash preliminary inquiry requests made by defendants before new provisions limiting preliminary inquiries came into effect on September 19, 2019.

The new provisions restrict preliminary inquiries to cases where the maximum penalty is at least 14 years imprisonment.

The defendants faced indictable offences with maximum penalties less than 14 years.

The court considered whether the new section 535 of the Criminal Code applied retrospectively to eliminate jurisdiction over previously valid preliminary inquiry requests.

The Crown argued the amendments were purely procedural and applied retrospectively.

The defence argued the court retained jurisdiction over validly requested inquiries.

The court found itself bound by a Superior Court decision granting the Crown's certiorari application in a related case and allowed the Crown's applications, finding the defendants' preliminary inquiry requests to be of no force and effect.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

He was stopped at a RIDE checkpoint and failed an approved screening device (ASD) test.

The Crown sought to rely on the presumption of accuracy for the breath test results.

The defence challenged the reasonableness of the officer's reliance on the ASD test result and argued the breath samples were not taken as soon as practicable.

The court found the officer's belief was objectively reasonable, the delay was justified, and the statutory preconditions to the presumption of accuracy were met.

The accused was found guilty.

The accused was found passed out in the driver's seat of his vehicle in a ditch in Mississauga in the early morning hours of February 19, 2018.

The Crown charged him with impaired care and control and refusal to provide a breath sample.

The accused claimed he suffered an epileptic seizure while driving, resulting in involuntary conduct (automatism), and alleged Charter violations regarding arrest and right to counsel.

The court rejected the automatism defence due to lack of expert evidence, found reasonable and probable grounds for arrest, found a minor breach of section 10(b) regarding privacy during counsel consultation but admitted the evidence under section 24(2), and found the accused guilty of both impaired care and control and refusal to provide a breath sample.

The defendant was charged with speeding 81 kilometers per hour in a 40 kilometer zone on Westhumber Boulevard in Toronto on December 8, 2017, contrary to section 128 of the Highway Traffic Act.

The defendant pleaded not guilty and raised three arguments: (1) the prosecution failed to provide specific times for laser device testing; (2) the speed limit signs were not proven to be proper regulatory signs; and (3) the municipality where the offence occurred was not established.

The court found that the officer's viva voce evidence of daily testing procedures, combined with his training and qualification, was sufficient to establish the device was working properly.

The court applied the presumption of regularity to the speed signs and found that the officer's evidence established the location was in Toronto.

The defendant was found guilty.