ONCJ 2019

The applicant father sought an order to enroll the three-year-old child in a full-time preschool program at K.B. Daycare, five days per week.

The respondent mother opposed the enrollment on her parenting days and sought transfer of the custody and access proceedings to the Superior Court of Justice to consolidate with her property and support claims.

The court granted the transfer to the Superior Court and ordered the child enrolled in the full-time program but exempted the child from attendance on the mother's parenting days, without prejudice to the father renewing the motion once the child starts junior kindergarten.

The court found that avoiding a multiplicity of proceedings and consolidating all family law issues in one court served the interests of justice, despite concerns about delay.

The Crown sought to vacate preliminary inquiries in five cases on the basis that amendments to the Criminal Code contained in Bill C-75, which came into force on September 19, 2019, retrospectively eliminated the right to a preliminary inquiry for offences punishable by less than 14 years imprisonment.

The accused had all elected to be tried by judge and jury and requested preliminary inquiries before the amendments came into force, but the inquiries had not been completed by the effective date.

The court held that the amendments do not apply retrospectively because they affect substantive rights and vested rights of the accused.

The preliminary inquiry is a substantive right that protects accused persons from exposure to unwarranted public trials.

The Crown's application was dismissed.

A 23-year veteran Toronto Police sergeant was charged with two counts of sexual assault arising from incidents on September 24, 2015 and November 1, 2015.

The accused offered rides home to two young women leaving bars in the Entertainment District and allegedly touched them on their inner thighs without consent.

The accused denied the allegations, claiming he offered the rides out of concern for the women's safety.

The trial judge found both complainants credible and rejected the accused's evidence, finding his explanations implausible and inconsistent with his actions.

The judge found the accused deliberately failed to follow police policies and procedures to conceal his conduct.

The accused was convicted on both counts.

A preliminary inquiry ruling on committal for trial involving five defendants charged with multiple counts including drug trafficking, possession of firearms, shootings, and criminal organization offences.

The Crown sought committal on 52 counts based on intercepted communications, surveillance evidence, and physical evidence.

The court applied the scintilla test for committal, requiring evidence on each essential element such that a reasonable jury could return a guilty verdict.

The judge committed the defendants on most counts while discharging them on certain fentanyl-related charges absent specific evidence of fentanyl trafficking.

The court found sufficient evidence of a criminal organization (SSW-G2M) engaged in drug trafficking and violence to enforce territorial control.

A child protection agency brought an application seeking temporary care and custody of two children.

The respondent mother challenged the court's jurisdiction, arguing that the agency failed to comply with statutory timelines for bringing the matter before the court.

The central issue was whether a customary care agreement was validly executed and, if not, whether the agency's failure to commence proceedings within five days of removing the children from the mother's care resulted in a loss of jurisdiction.

The court found that the consent to the customary care agreement was invalid due to lack of voluntariness and absence of independent legal advice, and that the mother's subsequent revocation of consent was clear and unequivocal.

The court concluded that the agency's failure to bring the matter before the court within the statutory five-day period resulted in a loss of jurisdiction.

The defendant was charged with failing to comply with a breath demand made by a peace officer to provide a breath sample into an approved screening device, contrary to the Criminal Code.

The Crown also proceeded on associated provincial offences alleging breach of a probation order prohibiting driving with a blood alcohol concentration above zero and failure to provide a breath sample as a novice driver.

The defendant challenged the admissibility of evidence on Charter grounds, arguing that his rights to counsel were violated while awaiting the arrival of the approved screening device.

The trial judge found no Charter breach.

However, on the substantive issue, the Crown failed to prove beyond a reasonable doubt that the defendant intentionally failed to provide a sample, as opposed to merely being unable to do so.

The defendant was acquitted of all charges.

The offender pleaded guilty to 14 amended counts involving multiple break and enters into residential laundry rooms, thefts from laundry machines, damage to property, a theft from Canadian Tire, and a breach of recognizance.

The offences occurred between December 2018 and February 2019, with the offender committing further offences while on bail.

The Crown sought two years less a day plus probation, while the defence sought time served plus probation.

The court imposed 15 months incarceration with credit for 419 days of pre-sentence custody (including 90 days for harsh conditions), resulting in 36 additional days to serve, followed by three years probation with conditions including counselling, mental health treatment, and restitution orders.

The applicant, charged with sexual assault and sexual interference, sought an order permitting the admission of evidence of extrinsic sexual abuse of the complainant.

The applicant challenged the constitutional validity of sections 278.93 and 278.94 of the Criminal Code, arguing that the statutory procedure for determining admissibility of extrinsic sexual history and private records compels disclosure of defence evidence and strategy in advance of trial, breaching sections 7 and 11(d) of the Charter.

The applicant also contended that granting the complainant standing on the admissibility voir dire creates an appearance of unfairness.

The court dismissed the application, finding that the statutory provisions can be applied in a manner consistent with the principle against self-incrimination, the right to a fair trial, and the complainant's rights to privacy and equality, provided that applications under section 278.93 are brought during cross-examination of the complainant rather than as pre-trial motions.

The accused was charged with assault causing bodily harm after pushing the victim twice during an altercation in a shared residential home.

The accused admitted to using force but claimed self-defence.

The court found that while the first push may have been justified as self-defence, the second push was an act done in anger and not a reasonable act of self-defence.

The court determined that bodily harm was objectively foreseeable from the force used, and convicted the accused of assault causing bodily harm.

The accused pleaded guilty to conspiracy to traffic fentanyl and methamphetamine over a two-week period in October 2017.

The court found the accused was the directing mind and principal actor in a large drug trafficking conspiracy in Waterloo Region.

The accused possessed approximately three kilograms of fentanyl, cocaine, and methamphetamine for distribution.

The court imposed a sentence of fifteen years imprisonment on the fentanyl conspiracy count, with a concurrent five-year sentence on the methamphetamine count, after crediting three years time served.

The court emphasized the severity of fentanyl trafficking and its devastating impact on the community.

The defendant was charged with assault with a weapon following an altercation at a public rally.

The Crown alleged the defendant used his cane to strike the complainant in the face, causing a bloodied nose.

The defendant claimed his actions were justified in defence of his son, whom he alleged the complainant had threatened to kill, and in defence of his property (the cane).

The court rejected the defendant's evidence and defences after reviewing video evidence that contradicted key aspects of his testimony.

The court found the defendant guilty of assault with a weapon.

The accused was charged with operating a motor vehicle with more than the legal limit of alcohol in his blood contrary to s.253(b) of the Criminal Code and operating his vehicle with an unsealed container of liquor contrary to s.32(1) of the Liquor Licensing Act.

The trial judge found that the arresting officer failed to make a roadside breath demand "forthwith" upon forming reasonable suspicion, breaching the accused's s.8 and s.9 Charter rights.

The trial judge also found that the police breached the accused's s.10(b) right to counsel of choice by failing to inform him that he could search for a lawyer other than duty counsel, particularly after he expressed dissatisfaction with duty counsel.

However, applying the s.24(2) test from R. v. Grant, the trial judge admitted the breath test results, finding that the breaches were not sufficiently serious and the impact on the accused's Charter-protected interests was minimal.

The Crown proved compliance with s.320.31(1)(a) regarding the presumption of accuracy for the breath analysis.

The accused was found guilty.

The accused was convicted of seven counts of possession for the purpose of trafficking in various controlled substances (fentanyl, heroin, cocaine, methamphetamine, GHB, hydromorphone, and cannabis), one count of possession of proceeds of crime under $5,000, one count of careless storage of a firearm, one count of possession of a loaded prohibited firearm, and four counts of breach of firearms prohibition orders.

The court imposed a global sentence of 9 years imprisonment, including a 1-year consecutive term for the prohibition breaches, with time served credited on a 1.5:1 basis.

The sentencing emphasized the serious dangers of fentanyl and heroin trafficking, the toxic combination of drugs and firearms, and the need for denunciation and deterrence.

The Crown charged the defendant with impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The defendant was found slumped over the steering wheel of a running vehicle in a parking lot.

The Crown established that the defendant occupied the driver's seat of a running motor vehicle with a blood alcohol concentration exceeding the legal limit.

The defendant's evidence that he did not intend to drive and was merely waiting for a ride was rejected as not credible.

The court found the defendant guilty of impaired driving and stayed the over 80 charge pursuant to R. v. Kienapple.

The accused was charged with impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood following a motor vehicle collision.

The defence raised multiple Charter applications challenging the lawfulness of the arrest, the failure to preserve video evidence, and alleged breaches of the right to counsel.

The court dismissed all Charter applications and found the accused guilty on both charges, though a conditional stay was entered on the impaired driving charge.

The court found the officer had reasonable and probable grounds to arrest based on observations of impairment, that the loss of video evidence did not breach the accused's right to make full answer and defence, and that the right to counsel was not breached.

The appellant appealed her conviction under the Building Code Act and brought two motions: (1) to bifurcate the appeal into separate hearings on different grounds, and (2) to perfect the appeal without filing all trial transcripts due to financial constraints.

The trial lasted 8 days over 15 months.

The court dismissed both motions, finding that the appeal grounds were factually and legally interrelated and that permitting severance would not be fair or expeditious.

The court also rejected the request to proceed without transcripts, holding that the appeal must be perfected in the usual course with all transcripts filed.

The accused brought an application for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable period of time contrary to section 11(b).

The accused was charged with impaired driving on May 8, 2019, and was scheduled for trial on October 3-4, 2019, resulting in approximately 17 months of delay.

Applying the Jordan framework, the court found that although the delay was concerning and disappointing, it did not constitute constitutionally intolerable delay.

The application for a stay was dismissed.

The defendant was charged with impaired driving and operating a motor vehicle with a blood-alcohol concentration in excess of 80 milligrams per 100 milliliters of blood.

The trial occurred after amendments to the Criminal Code regarding drinking and driving offences.

The court found the defendant not guilty of impaired driving due to insufficient evidence of impairment beyond a reasonable doubt, despite evidence of poor driving and a strong odour of alcohol.

However, the court found the defendant guilty of the over-80 charge, relying on the presumption of accuracy under the new legislation and determining that breath readings were admissible despite a Charter violation regarding the right to counsel.

A voir dire decision addressing the admissibility of evidence regarding the complainant's sexual activity during captivity.

The Crown sought to elicit evidence through cross-examination of the defendant regarding his reasons for having children with the complainant while in captivity, arguing it was relevant to his credibility.

The court found the evidence had minimal probative value and that its prejudicial effect substantially outweighed any probative value.

The court excluded the evidence and emphasized the importance of pre-trial applications and proper procedure when Crown seeks to adduce evidence of prior sexual activity.

The defendant was convicted after trial of aggravated assault and assault with a weapon.

The offences arose from a street confrontation where the defendant stabbed one victim in the collarbone and slashed another with a knife.

The defendant claimed lawful self-defence under section 34 of the Criminal Code, asserting she was protecting her boyfriend from an altercation with university wrestlers.

The court found the defendant's response was wholly disproportionate to the threat faced, driven by cocaine intoxication, and rejected the self-defence claim.

At sentencing, the Crown sought 21 months imprisonment emphasizing denunciation and general deterrence, while the defence argued for a conditional sentence given the defendant's rehabilitation efforts and lack of criminal record.

The court imposed 12 months custody followed by two years probation, finding that while the defendant's post-offence rehabilitation was commendable, the serious nature of stabbing without legal justification required incarceration to satisfy denunciation and deterrence principles.