ONCJ 2019

The accused was charged with impaired driving, driving over 80 milligrams of alcohol per 100 millilitres of blood, and driving while suspended.

The defence brought a Charter application seeking exclusion of breath test results, alleging violations of sections 8, 9, and 10(b) of the Charter.

The court found that the officer had reasonable and probable grounds to stop the vehicle and make the breath demand, that the detention was not arbitrary, and that while the right to counsel issue was potentially troubling, the accused failed to exercise appropriate diligence in communicating his preference for his own counsel.

The court found the accused guilty on all counts.

The accused was charged with aggravated assault of Daniel Shaver and assault with a weapon against Tim Brozeau following an incident on June 17, 2016.

The complainants attended the accused's residence to confront him about allegedly slashed tires on a vehicle.

After an initial heated discussion at the apartment door, the parties moved outside where the accused produced a machete.

The accused initially waved the machete at the unarmed complainants, then dropped it.

A struggle ensued over the weapon, during which Mr. Brozeau struck the accused with a shovel.

The accused subsequently chased the retreating complainants and struck Mr. Shaver with the machete while he was on the ground, causing a partial amputation of his hand.

The central issue was whether the accused's actions were justified as self-defence under section 34 of the Criminal Code.

The Attorney General of Ontario sought an order appointing counsel for a seventeen-year-old sexual assault complainant to represent her interests during a section 278.93 Code application hearing concerning evidence of her sexual history.

The complainant wished to exercise her standing and right to legal representation at the evidentiary hearing.

The court considered whether a statutory court possessed the jurisdiction to make such an appointment order.

A 19-year-old first-time offender with no criminal record pleaded guilty to discharging a firearm with intent to endanger life contrary to s. 244(1) of the Criminal Code.

The offender arrived at a confrontation armed with a loaded handgun and fired at a group of men near a vehicle.

He was shot in the arm during the exchange of gunfire.

His bullets struck no one, though innocent bystanders in nearby vehicles were endangered.

The offender subsequently passed the firearm to an associate who fired additional shots.

The court imposed a sentence of five years and six months in custody, with enhanced presentence custody credit of one year to account for a jailhouse beating and gunshot wound suffered while in custody.

The applicant mother and respondent father both brought urgent motions for interim custody of their three-year-old daughter.

The court found urgency due to the toxic communication between the parents and the child's exposure to parental conflict.

The court strongly criticized both parents for surreptitiously recording each other and exposing the child to inappropriate behavior, particularly the father's abusive language and threats of self-harm.

Given the high conflict and the father's alcohol issues, the court ordered interim sole custody to the mother, with the father having alternate weekend and Wednesday evening access subject to strict non-communication and alcohol prohibition terms.

The Crown brought a motion to adjourn a trial scheduled for June 27, 2019, in a careless driving charge under the Highway Traffic Act.

The Crown had previously indicated it would call four witnesses but at trial advised it would only call two witnesses—one police officer and one civilian witness who had not been served with a summons.

The Crown had made limited efforts to contact the civilian witness only within the three weeks prior to trial.

The defence opposed the adjournment, arguing it was ready to proceed and had relied on the Crown's representation regarding the number of witnesses.

The court denied the adjournment motion, finding the Crown had failed to demonstrate reasonable efforts to secure witness attendance and that granting the adjournment would disrespect the resources committed to trial preparation.

The accused was charged with driving while disqualified contrary to section 259(4) of the Criminal Code.

The Crown alleged that the accused was the driver of a Chrysler 300 vehicle observed on Upper Gage Avenue in Hamilton on March 23, 2018.

The accused admitted he was a disqualified driver but denied operating the vehicle, claiming his friend Richard Bound was the driver.

Two police officers testified they observed the accused driving the vehicle, while the accused and his friend testified the friend was driving.

The court found significant credibility issues with the police evidence, including inconsistencies in their testimony, evasiveness during cross-examination, and implausible explanations regarding the vehicle search and decision not to tow it.

The court acquitted the accused, finding reasonable doubt as to who was driving the vehicle.

A paternal aunt sought to be added as a party to a child protection proceeding to pursue permanent custody of the youngest child, who had been placed in her care pursuant to an interim order.

The motion was opposed by all parties, including the child's father.

The court dismissed the motion, finding that while the aunt had provided appropriate care and had a viable plan, adding her as a party was premature, unnecessary to determine the issues, would unduly delay proceedings, and was not in the child's best interests at that stage of the protection application.

The court emphasized that the paramount purpose of the legislation is family reunification and that the aunt's change in position and manner of bringing the motion had created unnecessary conflict.

The City of Toronto appealed sentencing decisions by a Justice of the Peace who had imposed no victim surcharge on fines for provincial offences, relying on the Supreme Court of Canada's decision in R. v. Boudreault.

The appellant sought a ruling that the Justice of the Peace erred in law in declaring that no surcharge would be imposed, arguing that the Provincial Offences Act surcharge operates differently from the Criminal Code surcharge addressed in Boudreault.

The court found that the Justice of the Peace erred in law by failing to provide adequate reasons and by failing to comply with notice requirements under the Courts of Justice Act before raising a constitutional challenge.

Three young persons were charged with assault causing bodily harm in respect of the victim MG.

L.D. was additionally charged with assaulting MG with a weapon, assaulting ZG, and assaulting XG with a weapon.

The Crown alleged that the three defendants participated in a swarming attack on MG that resulted in serious injuries including lacerations requiring staples and stitches, and significant bruising.

The defendants argued self-defence under section 34 of the Criminal Code and disputed their involvement.

The court found that the three defendants were guilty of assault causing bodily harm as equal participants in a common enterprise, but acquitted them on the weapon and other assault charges due to insufficient identification evidence.

The accused was charged with refusing or failing to provide a sample of breath into an approved screening device contrary to ss. 254(2) and 254(5) of the Criminal Code.

The defence brought a Charter application alleging the ASD demand was not made forthwith and that special circumstances existed due to language barriers preventing the accused from understanding the demand and his right to counsel.

The Crown called the investigating officer as its sole evidence.

The defence abandoned the language-based Charter argument prior to submissions.

The court found that the officer formed reasonable suspicion based on erratic driving, admission of alcohol consumption, and detection of alcohol odour on the accused's breath.

The ASD demand was made forthwith after reasonable suspicion was formed.

The court found the accused deliberately failed to provide a proper breath sample despite clear instructions and demonstrated understanding of the officer's directions.

The accused was convicted of wilfully failing to comply with the ASD demand.

The Windsor-Essex Children's Aid Society brought a motion seeking a finding that the subject child (S) is a Metis child under section 90(2) of the Child, Youth and Family Services Act (CYFSA) and that the child has no connection to or engagement with any First Nations, Inuit or Metis community.

The child's father claimed Metis ancestry but did not self-identify as Metis nor identify the child as such.

The mother denied any Indigenous status.

The court found the evidence insufficient to support the Society's motion, noting critical gaps in the affidavit evidence regarding the basis of the father's Metis claim, the source of the relatives' self-identification, and the child's own preferences.

The court adjourned the motion pending better evidence and clarification of the Society's contradictory requests.

A motion was brought by counsel for a 15-year-old youth in a child protection proceeding to strike portions of child protection worker affidavits that referenced the youth's criminal history and police involvement.

The youth's counsel sought to rely on sections 118 and 119 of the Youth Criminal Justice Act to restrict access to youth criminal records.

The child protection agency opposed the motion, arguing it required access to this information for the child protection proceeding.

The court dismissed the motion, finding that the information in the child protection affidavits did not constitute "youth records" as defined by the YCJA, as they were created for the child protection proceeding and were based on the workers' personal knowledge.

Additionally, even if the information were youth records, the child protection agency would be entitled to access under section 119(1)(n) of the YCJA as an agency engaged in the supervision or care of the youth under provincial child welfare legislation.

A family law trial concerning access to two young children and child support obligations.

The father sought expanded access from six hours weekly to overnight access on alternate weekends, while the mother opposed overnight access and sought restrictions on the father's partner's presence during visits.

The court granted a phased expansion of access, initially restricting the father's partner's presence but allowing it to commence in September 2019.

On child support, the court imputed income of $45,000 annually to the father based on his employment history and lifestyle evidence, rejecting his claims of unemployment and finding intentional underemployment.

The court ordered child support retroactive to the date of separation and contributions toward extraordinary extracurricular expenses.

The Electrical Safety Authority sought a pre-sentencing order compelling the defendant to produce personal and business financial documents to assist in determining an appropriate fine.

The defendant had been convicted of operating an electrical contracting business without a valid license under the Electricity Act, 1998.

The court held that while a sentencing court has implied jurisdiction under s. 57(3) of the Provincial Offences Act to compel production of financial documents in exceptional circumstances, the prosecution failed to establish such exceptional circumstances in this case.

The application was dismissed as premature.

The accused was charged with possession of child pornography contrary to Section 163.1(4) of the Criminal Code after child pornography was discovered on his cell phone during a secondary examination at the Prescott Port of Entry.

The accused sought to exclude the evidence pursuant to Section 24(2) of the Charter, arguing that the evidence was obtained in violation of his Section 8 rights.

The court found that while the initial search of the phone was lawful, the continued search after the first image was discovered was conducted solely for the purpose of gathering evidence to support a criminal prosecution, thereby exceeding the officer's statutory authority under the Customs Act.

The court excluded all evidence, finding that admission would bring the administration of justice into disrepute.

The accused was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit following a traffic stop.

The defence raised multiple Charter breaches including: failure to make an ASD demand "forthwith," failure to administer the ASD test before the accused could obtain legal advice, lack of reasonable grounds for the approved instrument demand due to failure to note the ASD calibration date, privacy breach through cell video surveillance, overholding after testing, and inadequate right to counsel advice.

The court rejected all alleged breaches and found the Crown proved the charge beyond a reasonable doubt.

The accused was charged with impaired driving and having a blood alcohol concentration over 80 mg/100 mL of blood after presenting his vehicle for service at a dealership.

The Crown and defence agreed that two issues remained: (1) whether the Crown proved identification of the driver beyond a reasonable doubt, and (2) whether the Crown proved that the Standard Field Sobriety Test demand was based upon reasonable suspicion, particularly regarding the time of driving.

The court found that identification was established through the combined evidence of the Guest Services Manager's in-court identification linked to the arresting officer's confirmation of identity.

The court also found that the SFST demand was objectively reasonable based on circumstantial evidence and reasonable inferences regarding the timing of the driving.

The "Over 80" count was stayed under the rule in R v. Kienapple.

Following conviction on multiple counts arising from a home invasion of a vulnerable victim in September 2014, and guilty pleas to additional offences committed while in custody, the court imposed a global sentence of 120 months (10 years).

The sentencing considered the principle of parity with a co-accused who received 6.5 years, the absence of a criminal record, the defendant's youth at the time of the offences, and the serious nature of the crimes including robbery, forcible confinement, kidnapping, extortion, and assault causing bodily harm.

Additional consecutive sentences were imposed for attempt to obstruct justice (6 months) and aggravated assault at a detention centre (12 months), with a concurrent sentence for obstructing a peace officer (1 month).

The offender was convicted after an eleven-day trial of multiple serious firearm offences arising from an incident on July 31, 2017, including discharging a firearm with intent to endanger, pointing a firearm, and possession of a firearm without a licence.

He also pleaded guilty to breaches of recognizance and probation from 2018.

The court imposed a global sentence of 7 years less 34½ months presentence custody credit, resulting in a net sentence of 61 months, with lifetime firearms prohibitions, DNA orders, and a forfeiture order.

The offender's extensive criminal history, pattern of recidivism, breaches of court orders, and the serious nature of the firearm offences were significant aggravating factors.