ONCJ 2019

A voir dire was held to determine the admissibility of two statements given by the defendant to police following a motor vehicle collision that resulted in a pedestrian fatality.

The defendant was charged with speeding contrary to the Highway Traffic Act.

The defendant conceded the roadside statement was voluntary under the traditional test but argued his Charter s.7 rights were breached because the statement was compelled by statute.

The court held that liberty interests under s.7 are not engaged for an absolute liability speeding offence, as the only penalty is a fixed fine with no risk of incarceration.

The roadside statement was therefore admissible.

The prosecution withdrew its request to adduce the video statement, rendering its admissibility moot.

A youth pleaded guilty to armed robbery with an imitation firearm and using an imitation firearm while committing an indictable offence, as well as two counts of breaching a recognizance by violating curfew conditions.

The central legal issue was whether custody was available as a sentencing option.

The court determined that while robbery does not include bodily harm as a statutory element, the offence constituted a violent offence under section 39(1)(c) of the Youth Criminal Justice Act because the youth endangered the safety of victims by creating a substantial likelihood of causing psychological bodily harm.

The court imposed a custodial sentence of 34 days in open custody followed by 17 days of community supervision and 18 months of probation with strict conditions.

The Crown sought a detention order for an 18-year-old accused charged with eight firearms offences and one drug possession offence.

The accused was found in possession of a loaded 40-calibre semi-automatic handgun with 11 rounds of ammunition in his waistband during a RIDE check.

The defence proposed a strict house arrest plan with parental supervision and a $5,000 monetary pledge.

The court found that while the accused's youth and lack of criminal record were mitigating factors, the serious nature of the allegations, the strength of the Crown's case, and the escalating risk posed by the loaded firearm in a vehicle where drugs were being consumed justified detention under the tertiary ground of section 515(10)(c) to maintain public confidence in the administration of justice.

The defendant was sentenced following a guilty plea to a domestic violence offense.

The court imposed a conditional discharge with 18 months probation, including terms requiring the defendant to keep the peace, complete the Partner Assault Response (PARS) program, attend counseling for psychiatric and psychological issues, maintain a 100-meter distance from the victim, and comply with a weapons prohibition under section 110 of the Criminal Code.

The court also ordered a DNA sample and waived the victim surcharge.

The sentencing emphasized the seriousness of domestic violence, the controlling behavior exhibited, and the importance of rehabilitation through counseling programs.

The accused was sentenced following a guilty plea to charges involving violence.

The court imposed a suspended sentence with 12 months of probation, having credited four months of pre-sentence custody on each count concurrent.

A lifetime weapons prohibition under section 109 of the Criminal Code was imposed.

The court accepted a joint submission from counsel and imposed conditions including a no-contact order with the victim, a one-time reporting requirement to probation, and a 100-metre radius restriction.

Other charges were withdrawn by the Crown.

The accused pleaded guilty to two counts of sexual assault and one count of assault causing bodily harm.

The first sexual assault occurred against an adult woman jogging in a public place.

The second sexual assault and assault causing bodily harm occurred against a 14-year-old girl walking home from school through a wooded area.

The Crown sought a global sentence of 7.5 years; the defence sought 2.5 to 3 years.

The court imposed a global sentence of 58 months (4 months for the assault on the adult and 4 years 6 months concurrent for the offences against the minor, consecutive to the first offence), with credit for 18 months of pre-trial custody, resulting in a net sentence of 40 months.

Ancillary orders included lifetime SOIRA registration, firearm prohibition, DNA orders, no-contact orders, and 20-year s. 161 restrictions.

The accused was charged with care or control of a motor vehicle while impaired by a drug.

The Crown alleged impairment by oxycodone and/or alprazolam based on civilian witness observations of erratic driving, police observations at the scene and during arrest, breath testing showing zero alcohol, a drug recognition evaluation, and toxicology evidence.

The accused testified she consumed the medications as prescribed for chronic pain and anxiety, but had limited recollection of the relevant period.

She alleged she may have been involuntarily drugged by a former partner.

The court found the accused voluntarily consumed the drugs and that her ability to operate the vehicle was impaired by the drugs, resulting in a conviction.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code for allegedly touching the complainant's breasts without consent in a hospital room.

The complainant testified that she was given alcohol that caused her to become disoriented, and she did not consent to the sexual contact.

The accused testified that the sexual contact was consensual.

The court found significant credibility and reliability issues with the complainant's evidence, particularly regarding the effects of the alcohol consumed, the presence of a nurse who allegedly intervened, and inconsistencies with objective evidence from nursing and security staff.

The court found that the accused's evidence, while not fully accepted, raised a reasonable doubt as to whether the Crown had proven the charge beyond a reasonable doubt.

The accused was acquitted.

The accused pleaded guilty to two counts of possession for the purpose of trafficking in fentanyl and cocaine, two counts of possession of a prohibited weapon, and two counts of possession of a prohibited weapon while subject to a weapons prohibition order.

Police executed a search warrant and found 1.9 gm of fentanyl powder (mixed with heroin), 4.6 gm of cocaine, 0.7 gm of crack cocaine, 220 gm of cannabis, 3 MDMA pills, packaging materials, and over $11,000 in cash.

The accused had a lengthy criminal record, serious drug addiction, and significant personal challenges including intergenerational trauma.

The court imposed a 21-month sentence consisting of time served plus 9 months and 26 days, followed by 18 months of probation, balancing denunciation and deterrence against rehabilitation prospects and section 718.2(e) considerations.

This is a costs decision in a family law matter involving a mother's claims for child support and a father's claim for spousal support, as well as a motion to strike the father's answer and for final unopposed orders.

The mother was successful on all motions.

The court awarded costs on a substantial recovery basis, finding the father's conduct throughout the litigation was unreasonable, including his refusal to leave the matrimonial home, his failure to comply with court orders and disclosure requirements, his unreasonable positions on support, and his failure to pay previous costs orders.

The court rejected the father's argument that his inability to pay should shield him from liability for costs, particularly given his unreasonable conduct.

The accused pleaded guilty to luring a minor online.

The court imposed a sentence of six months imprisonment (the mandatory minimum) followed by three years probation.

The judgment addresses the serious nature of child exploitation offences, the evolution of sentencing ranges, and the increasing maximum penalties Parliament has imposed.

The court imposed extensive probation conditions including restrictions on contact with minors, internet usage restrictions, a ten-year SOIRA order, a ten-year weapons prohibition, and a DNA order.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mgs of alcohol in 100 mls of blood and having care or control of a motor vehicle while impaired by alcohol.

The trial proceeded following a successful Charter application under s.10(b) that resulted in the exclusion of breath samples.

The accused also brought a s.11(b) Charter motion alleging unreasonable delay, which was dismissed.

On the merits, the court found that the Crown failed to prove beyond a reasonable doubt that the accused was in care or control of the motor vehicle.

The statutory presumption of care or control was rebutted by evidence that the accused occupied the driver's seat solely to smoke a cigarette in cold weather after arriving home.

The court also found no realistic risk of danger to ground a conviction based on de facto care or control.

Both charges were dismissed.

The accused was charged with having care or control of a motor vehicle while her blood-alcohol concentration exceeded 80 mgs of alcohol in 100 mls of blood contrary to s.253(1)(b) of the Criminal Code.

The accused advanced multiple Charter arguments challenging the lawfulness of the police investigation, including violations of ss.8, 9, 10(a), and 10(b) of the Charter.

The court found a technical breach of ss.8/9 based on a three-minute unexplained delay in administering the approved screening device demand, but rejected all other Charter arguments.

The court concluded that the breach was minor and did not warrant exclusion of the breath sample evidence under s.24(2) of the Charter.

The Crown proved the offence beyond a reasonable doubt, and the accused was found guilty.

The applicant was charged with care or control of a motor vehicle while impaired by alcohol and exceeding the legal blood-alcohol concentration limit.

He brought Charter applications seeking to exclude evidence derived from roadside conversations with police and breath samples.

The applicant argued his section 7 rights were violated by being compelled to incriminate himself under the Highway Traffic Act, and his section 10(b) rights were violated by improper provision of rights to counsel and steering to duty counsel.

The court found the section 7 application succeeded, excluding all compelled utterances, but the section 10(b) application failed.

The defendant was charged with careless driving contrary to s. 130 of the Highway Traffic Act of Ontario, arising from a motor vehicle collision that resulted in a fatality.

The defence brought an abuse of process application alleging three breaches of s. 7 Charter rights: loss of evidence (destruction of the defendant's vehicle), breach of settlement privilege (disclosure of privileged pretrial discussions to the expert witness), and late disclosure of material evidence.

The court found all three breaches established and granted a stay of proceedings.

The Ontario Motor Vehicle Industry Council prosecuted a used car salesman for making unconscionable representations to a consumer with acquired epileptiform aphasia in violation of the Consumer Protection Act.

The consumer purchased a 2007 Mitsubishi vehicle and subsequently experienced mechanical issues and unexpected repair costs.

The court found that while the consumer had a significant disability affecting language comprehension and expression, the prosecution failed to prove beyond a reasonable doubt that the defendant possessed the requisite mens rea (intent, knowledge, or recklessness) for the offence.

The court dismissed the charge, finding that the consumer had meaningfully engaged in the transaction, the terms were reasonable, and there was no evidence of undue pressure or unconscionable conduct.

This is a voir dire ruling on the admissibility of hearsay evidence consisting of statements made by a four-year-old child during an interview at an Ontario Provincial Police detachment.

The child's statements concerned alleged discipline practices in the home, including kneeling with nose to wall and siblings having hands tied behind their backs.

The court applied the principled approach to hearsay admissibility, examining both necessity and threshold reliability.

While the court found necessity was established, it concluded that threshold reliability was not met due to multiple concerns including the child's age and distracted state, lack of oath or affirmation, absence of questioning about understanding truth versus lies, destruction of audio and video recordings, incomplete case notes, and contradictions with statements from older siblings.

This ruling addresses the admissibility of child hearsay evidence consisting of statements made by three children to clinical social worker Carrie-Lynn Wilton during a child protection proceeding.

The court conducted three separate voir dires to determine whether statements from each child met the principled approach to hearsay admissibility, requiring both reasonable necessity and threshold reliability.

The court found that the first child's statements did not meet the necessity requirement as the child had already testified at trial.

The second child's statements also failed the necessity test as the court had gathered sufficient additional evidence demonstrating the child could testify.

The third child's statements, however, met both criteria and were admitted as trial evidence, as they were more recent, made at a more mature age, and sufficiently documented.

This is a voir dire ruling on the admissibility of hearsay evidence consisting of statements made by a child to a child services worker.

The child was apprehended from parental care and made statements to the worker about discipline in the home.

The applicant society sought to introduce these statements through the worker's testimony using the principled approach to hearsay admissibility, which requires establishing both necessity and threshold reliability.

The court ruled that the statements did not meet the necessity requirement, as the child was capable of testifying and the court had heard sufficient evidence demonstrating the child's ability to communicate and participate in proceedings.

The court found that direct testimony from the child was preferable, particularly given inconsistencies in the child's various statements to different individuals.

This is a voir dire ruling on the admissibility of child hearsay evidence consisting of statements made by two children during an access visit supervised by a Children's Aid Society worker.

The court applied the principled approach to hearsay admissibility, requiring both necessity and threshold reliability.

The court found that the society failed to establish necessity for admitting the children's hearsay statements, as both children were capable of testifying viva voce at trial.

The court also addressed state of mind statements and found that only one statement by one child met the criteria for admission under the state of mind exception to the hearsay rule.