ONCJ 2019

The Crown applied for a dangerous offender designation and indeterminate sentence following the defendant's guilty pleas to robbery and failure to comply with probation.

The defendant, who represented himself despite the court's urging that he retain counsel, presented a self-defeating defence and repeatedly stated his agreement with the Crown's position.

The court found that the defendant's pattern of repetitive robberies, escalating violence, substance abuse, and personality disorders established the statutory criteria for dangerous offender designation.

The court imposed an indeterminate sentence of imprisonment, while noting the defendant's tragic background and the possibility of eventual parole if he demonstrates genuine rehabilitation.

The Crown brought a motion to vacate a preliminary inquiry scheduled for October 1, 2019, and to require the defendant to re-elect pursuant to amended Criminal Code provisions that came into force on September 19, 2019.

Bill C-75 fundamentally changed the preliminary inquiry regime by restricting preliminary inquiries to offences punishable by 14 years or more of imprisonment.

The defendant's offences did not meet this threshold.

The central issue was whether the new amendments applied retrospectively to cases already in progress or only prospectively to future cases.

The court held that the presumption against retrospective application applies, that the amendments affect substantive rights (the right to a preliminary inquiry and the right to elect), and that there was no clear legislative intent to rebut this presumption.

The Crown's motion was dismissed.

The appellant was convicted of trespassing on private agricultural property under the Trespass to Property Act after following a wounded coyote across a split rail fence onto the respondent's property.

The trial justice found the property was a woodlot on land used primarily for agricultural purposes and that the fence indicated the occupier's intention to exclude persons.

The appellant appealed, arguing errors in statutory interpretation regarding whether the woodlot fell within the Act's automatic prohibition provisions and whether the fence constituted adequate enclosure.

The appeal court upheld the conviction, finding the trial justice properly interpreted the legislation and that the findings were supported by evidence and owed deference.

The Crown brought an application seeking to terminate a preliminary inquiry that had commenced on September 18, 2019, arguing that amendments to Section 535 of the Criminal Code (Bill C-75), which came into effect on September 19, 2019, eliminated the jurisdiction of the court to conduct preliminary inquiries where the maximum punishment is under 14 years of imprisonment.

The Crown had withdrawn a Section 244 charge (punishable by 14 years or more), leaving only offences with maximum sentences under 14 years.

The court denied the Crown's application, finding that the legislation should not apply retrospectively to proceedings already commenced.

The accused was charged with "Over 80" following a traffic stop for speeding on Highway 7 in Markham.

The defence challenged whether the Approved Screening Device (ASD) test was administered "forthwith" as required by section 254(2) of the Criminal Code, arguing that the investigating officer's delay in making the demand while conferring with a colleague breached the accused's Charter rights.

The court found that the approximately three-minute-and-thirty-seven-second delay was not a breach of the "forthwith" requirement, or alternatively, if it was a breach, it was trivial and should not result in exclusion of the evidence under section 24(2) of the Charter.

The accused was found guilty.

The accused was found highly intoxicated in the driver's seat of his vehicle at a shopping plaza.

He was arrested for impaired driving and care or control of a motor vehicle.

The Crown proved that the accused's blood alcohol concentration was between 220 and 316 mgs/100ml.

The defence raised Charter breaches regarding the adequacy of the reasons for arrest and challenged whether the accused was in care or control of the vehicle, arguing there was an alternate plan for pickup.

The court found no Charter breaches and determined the accused was in care or control of the vehicle.

The accused was convicted on both counts, with the Over 80 count stayed.

The Crown brought an application to remove counsel for the accused charged with two counts of second degree murder due to a conflict of interest.

The accused's counsel had previously represented a key Crown and defence witness in an unrelated impaired driving matter.

The court found that while a solicitor-client relationship existed, partial disqualification was a sufficient remedy to address the conflict of interest concerns while preserving the accused's right to counsel of choice.

The court ordered that counsel be prohibited from participating in the cross-examination of the witness and from being present when that witness testified.

The defendant, a teacher and sports coach, was charged with 30 counts of sexual assault and sexual interference involving 13 complainants (12 female students and 1 male student).

The allegations spanned from 2009 to 2018, involving students aged 9-16 at the time of the alleged offences.

The Crown sought to admit evidence of similar fact conduct across multiple counts.

The trial judge dismissed the Crown's application to admit discreditable conduct evidence across counts, finding that collusive circumstances among complainants undermined the probative value of such evidence.

The judge then assessed each count individually, finding the defendant guilty on 16 counts and not guilty on 14 counts.

Key issues included the credibility and reliability of child witnesses, the impact of collusive discussions among complainants, delayed disclosure, and the distinction between inappropriate professional conduct and criminal sexual offences.

The offender pleaded guilty to five child pornography-related charges and one count of sexual assault of his five-year-old daughter.

The offender had engaged in online communications with a UK offender discussing the sexual abuse of their own children and exchanging child sexual abuse material.

Police discovered 212 child sexual abuse images and 2 videos on the offender's devices, including images of his own daughter.

The offender had a prior 2010 conviction for possessing and importing child pornography.

The court imposed a global sentence of 8 years less 983 days of pretrial custody, with 5 years concurrent on the child pornography charges and 3 years consecutive on the sexual assault charge.

The court emphasized denunciation and deterrence as paramount sentencing objectives given the severity of crimes against children.

The applicant mother brought a motion to change the child support order, seeking an increase retroactive to March 1, 2018 based on the father's actual income.

The respondent father brought cross-motions to change the custody and access orders, seeking joint custody and equal parenting time.

The father also claimed undue hardship to resist the support increase.

The court dismissed the father's custody and access motions, finding no material change in circumstances affecting the best interests of the children.

The court granted the mother's motion to change support, increasing the father's obligation from $454 to $1,165 per month based on his current income of $42,000, with retroactive adjustment to July 1, 2018.

The father's undue hardship claim was dismissed.

The offender pleaded guilty to sexual interference against a child victim between 2008 and 2011, when the victim was eight to ten years old.

The offender was involved in an extra-marital affair with the victim's mother, who facilitated the abuse.

The court imposed a sentence of two years less-a-day in the reformatory followed by two years' probation, rejecting the Crown's submission for four years in the penitentiary.

The court found that while the offence was serious and caused significant harm, the offender was not a predator and did not systematically groom the victim.

Mitigating factors included the offender's guilty plea, lack of criminal record, remorse, low risk of reoffending, and excellent prospects for rehabilitation.

The accused pleaded guilty to operating a conveyance while impaired by a drug contrary to section 320.14(1)(a) of the Criminal Code.

Although this was the accused's first impaired driving conviction, he had an extensive driving record with 16 infractions since April 2018, including careless driving, multiple driving while suspended offences, and driving with alcohol in blood as a novice driver.

His license was suspended at the time of the offence.

The Crown sought a conditional sentence based on the substantial driving record.

The court imposed a two-month conditional sentence and an elevated two-year driving prohibition.

This is a bail hearing concerning 13 newly laid charges against the accused arising from allegations of serious abuse of two minor step-sons.

The charges include multiple counts of assault with weapons, criminal negligence causing bodily harm, threats to cause bodily harm, and assault causing bodily harm.

The accused had been released on bail two weeks prior by Justice Bovard on 26 related charges.

The Crown sought detention on the secondary and tertiary grounds under Section 515(10) of the Criminal Code.

The court found that detention was justified on the tertiary ground to maintain confidence in the administration of justice, having regard to the serious nature of the charges, the apparent strength of the Crown's case, the vulnerability of the victims, and the pattern of protracted and cruel abuse alleged.

This is a Hague Convention Application brought by the father seeking the return of three children to the United Kingdom.

The children were removed from the UK on August 25, 2018, by their mother without the father's knowledge or consent.

The application was commenced within one year of removal.

The court found that while the children's habitual residence was in the UK and the father held parental responsibility under UK law, he had not actively exercised custody rights at the time of removal.

The father was characterized as an access parent who maintained contact through visits and financial support but did not exercise day-to-day parental responsibility.

The mother was the primary caregiver and exercised custodial rights.

The application was dismissed as the father failed to meet the threshold requirement under Article 3(b) of the Hague Convention that custody rights be "actually exercised" at the time of removal.

The defendant was found guilty of aggravated assault after trial.

The victim suffered a near-complete amputation of his hand when the defendant swung a machete at him during an altercation.

The defendant claimed self-defence, which was rejected by the court.

At sentencing, the court considered the defendant's difficult childhood, prior criminal record involving serious violent offences with weapons, the severity of the victim's injuries, and the lack of rehabilitation.

The court imposed a sentence of six years imprisonment, finding the case fell within the high end of the sentencing range for aggravated assault.

The Crown applied to vacate preliminary inquiries scheduled for thirteen accused persons, seeking to apply amendments to section 535 of the Criminal Code (Bill C-75) retrospectively.

These amendments, which came into force on September 19, 2019, restricted the availability of preliminary inquiries to a reduced class of offences.

The accused had elected to proceed to trial in the Superior Court with a request for a preliminary inquiry prior to the amendments coming into force.

The court considered whether the amendments applied retrospectively to strip the accused of their vested right to a preliminary inquiry.

The court dismissed the Crown's application, finding that the amendments do not apply retrospectively to accused persons who had already requested a preliminary inquiry before the amendments came into force.

The Crown brought a motion to vacate a preliminary inquiry scheduled for September 23, 2019, arguing that new amendments to the Criminal Code restricting preliminary inquiries to offences with maximum penalties of 14 years or more should apply retrospectively to eliminate the court's jurisdiction to conduct the inquiry.

The accused had validly requested the preliminary inquiry in December 2018 under the former law.

The court held that the amendments should not apply retrospectively to cases where the right to request a preliminary inquiry had already vested prior to the legislative change.

The Crown's motion was dismissed and the preliminary inquiry proceeded as scheduled.

The Crown sought a ruling that amendments to sections 535 and 536 of the Criminal Code, which came into force on September 19, 2019, apply retrospectively to eliminate the availability of preliminary inquiries for charges attracting a maximum punishment of less than 14 years imprisonment.

The accused argued that the amendments affected their substantive statutory right to a preliminary inquiry, which had vested upon their election, and that the amendments altered the jurisdiction of provincial courts.

The court held that the amendments are purely procedural in nature and do not affect substantive rights.

The court found no vested right in procedure and determined that procedural legislation is presumed to apply immediately to pending cases.

The court granted the Crown's application, vacating the preliminary inquiry dates and remanding the matters to the Superior Court of Justice, while preserving the accused's right to re-elect trial in the Ontario Court of Justice.

The accused brought a section 11(b) Charter application alleging unreasonable delay in trial.

The application was dismissed on two grounds: first, for failure to comply with the Ontario Court of Justice Rules requiring section 11(b) applications to be heard 60 days in advance of trial; and second, on the merits, as the net delay fell below the 18-month presumptive ceiling for Ontario Court of Justice trials and the defence failed to demonstrate meaningful steps to expedite proceedings.

The court found that the defence was responsible for significant delay between February and September 2018 by repeatedly declining to set a trial date despite the Crown and court being ready to proceed.