ONCJ 2019

The accused pleaded guilty to indecent assault and gross indecency committed against a child victim between 1970 and 1973 when the victim was 10 to 13 years old.

The Crown sought five years imprisonment; defence counsel sought a mid to upper reformatory sentence of 12 months to 2 years less one day.

The court imposed a four-year penitentiary sentence, finding that denunciation and deterrence were the predominant sentencing objectives.

The court rejected the defence position, noting the accused's lengthy criminal history of child sexual abuse, the persistent and invasive nature of the abuse, the profound impact on the victim, and the accused's continued risk to reoffend despite prior convictions and incarceration.

The accused pleaded guilty to two counts of trafficking in fentanyl after selling what he believed was heroin to undercover officers.

The court considered the presence of fentanyl as an aggravating factor but noted the lack of quantitative analysis regarding its concentration.

After applying enhanced credit for pre-sentence custody and harsh lockdown conditions at the Central East Correctional Centre, the accused was sentenced to a further 9 months in custody followed by 2 years of probation.

The accused was charged with assault with a weapon and unlawful confinement following an incident on December 6, 2018, in which he held a knife to his mother's body while confining her in her bedroom.

The accused testified that he was following God's instructions to kill his mother, whom he believed God assured would not be harmed.

A forensic psychiatrist diagnosed the accused with schizophrenia and opined that at the time of the offences, the accused was experiencing psychotic symptoms including command auditory hallucinations and delusions that rendered him incapable of rationally perceiving the nature and quality of his actions and unable to make a rational choice regarding his conduct.

The court found that the accused's religious delusions and hallucinations were symptoms of a major mental disorder and that the accused lacked the capacity to know his acts were morally wrong.

The court found the accused not criminally responsible on account of mental disorder.

The Crown sought permission to proceed with trial using a non-accredited interpreter in Shona for the defendant, who is a native of Zimbabwe.

The defendant was charged with driving with excess alcohol.

The court applied the legal framework requiring the Crown to rebut the presumption of incompetence for non-accredited interpreters on a balance of probabilities.

The proposed interpreter had significant experience including accreditation with the Immigration and Refugee Board, criminal trial experience, and fluency in multiple languages.

The court found the Crown had discharged its burden and permitted the non-accredited interpreter to provide services.

The defendant was charged with sexual assault, sexual interference (two counts), and showing sexually explicit images to a person under age 16, with offences dated between July 18-19, 2017.

The defendant brought a Charter section 11(b) application for a stay of proceedings due to delay.

The Crown proceeded by summary conviction.

The total delay from charge to trial was approximately two years.

The court found that while the defence was unavailable for January trial dates, those dates did not allow reasonable time for defence preparation given the need to retain an expert to analyze the defendant's cell phone.

The court determined that the defence pursuit of expert analysis was legitimate and that the Jordan clock did not stop in January.

All subsequent trial dates fell beyond the presumptive ceiling with no exceptional circumstances.

The court granted the stay of proceedings.

The accused was charged with assault, uttering a threat to cause death, and two counts of breach of probation arising from an incident on April 4, 2018.

The Crown alleged the accused head-butted the complainant and threatened to kill her if she called police.

The accused denied the assault and threat, claiming the complainant was the aggressor during an argument about his Facebook relationship status.

The court found the complainant's evidence unreliable due to material inconsistencies in her 911 call and credibility concerns.

While a physical altercation likely occurred, the court could not find guilt beyond a reasonable doubt on the assault and threat charges.

The accused was acquitted of assault, uttering a threat, and breach of the peace condition, but convicted of the breach of probation charge relating to contact with the complainant.

During a domestic assault trial, the complainant recanted her allegations against her husband.

The Crown brought an application under section 9(2) of the Canada Evidence Act to cross-examine her on a prior inconsistent statement given to police.

The statement had been taken in Punjabi and translated into English by a bilingual police officer who was not a certified interpreter.

The court found that the officer accurately and contemporaneously documented the statement verbatim, and ruled that the Crown had met its onus to prove the statement was reduced to writing.

The defendant was charged with driving with excess alcohol following a traffic stop on January 13, 2018.

A York Regional Police sergeant observed the defendant's vehicle stopped in a live lane of traffic, followed it, and conducted a sobriety check.

The defendant provided a breath sample on an approved screening device (ASD) which registered a "Fail," leading to arrest and a breath demand at the police station.

The defendant's blood alcohol readings were 140 and 130 mgs of alcohol in 100 mls of blood.

The court rejected multiple Charter challenges, including arguments regarding the presumption of identity, the calibration of the breath testing device, reasonable grounds for the ASD demand, and alleged breaches of rights to counsel and protection against unreasonable search and seizure.

The court found the defendant guilty of operating a motor vehicle with excess alcohol.

The accused were charged with offences arising from the discovery of two handguns in a downtown Toronto hotel room.

The Crown sought to admit evidence obtained through an investigative chain that included an initial street-level drug investigation, a warrantless search of a rental car, and a warrantless entry into a hotel room.

The accused challenged the admissibility of the evidence under section 24(2) of the Charter, alleging multiple Charter breaches.

The court found that while there were some Charter violations, they were not sufficiently serious to warrant exclusion of the evidence.

The court admitted the evidence, finding that the officers acted in good faith, the breaches were minimal, and society's interest in prosecuting firearm offences outweighed the Charter violations.

The accused was charged with driving with a blood alcohol concentration exceeding the legal limit following a failed roadside screening test.

The Crown sought to rely on breath test results obtained at a police station.

The trial judge found that the Crown failed to establish the statutory preconditions to the presumption of accuracy under the new Criminal Code provisions, specifically failing to prove that the alcohol standard used in the breath testing instrument was certified by an analyst.

Although the judge found the presumption of identity remained available for transitional cases and that the samples were taken as soon as practicable, the failure to establish the preconditions to the presumption of accuracy was dispositive.

The accused was acquitted.

The Children's Aid Society brought a motion for a parenting capacity assessment under section 98 of the Child, Youth and Family Services Act, 2017.

The central issue was what documentation should be provided to the assessor prior to conducting the assessment.

The father's counsel argued that providing extensive background materials would create confirmatory bias, while the Society contended that such information was necessary for a meaningful assessment.

The court held that while not all affidavit materials need be automatically provided in advance, the assessor must have discretion to request any information deemed necessary to properly answer the assessment questions.

The court ordered that a brief factual summary, discussions with child protection workers, and any further materials requested by the assessor be provided.

A motion to change custody and decision-making authority for two children following an initial order granting sole custody to the father.

The parties had agreed to a shared week-about custodial arrangement but disputed final decision-making authority on health and education matters.

The court found that while the mother was a strong advocate for the children's health needs, the father was better positioned to make educational decisions.

The court awarded final decision-making authority on health matters to the mother and on education matters to the father, while maintaining the shared custody arrangement and imposing structured communication protocols.

The accused was convicted of theft of a restricted handgun and unlicensed possession of a firearm.

The Crown sought an 18-month jail sentence emphasizing denunciation and deterrence for gun crimes.

The defence sought a conditional sentence of 6-7 months, citing personal circumstances and mitigating factors.

The court rejected the conditional sentence, finding that denunciation and deterrence were paramount and that the accused's criminal history, bail violations, and trafficking of the weapon to criminals warranted incarceration.

The court imposed 15 months jail for theft (plus 2 years probation and $1,100 restitution) and 8 months concurrent for unlicensed possession (plus 2 years concurrent probation, DNA order, and 10-year firearms prohibition).

The offender pled guilty to breaching a section 161 order and breach of probation.

The Crown sought 15 months' imprisonment, while the defence sought 6 months.

The court noted the offender's history of breaching court orders shortly after being released from custody.

Emphasizing the need for a more onerous sentence to deter repeated breaches, the court imposed a sentence of 10 months' imprisonment, less credit for pre-sentence custody, with no further probation order.

The accused pleaded guilty to robbery.

The Crown sought 18 months imprisonment; defence counsel sought 6 months with credit for bail conditions.

The court imposed 10 months imprisonment followed by 2 years probation, with ancillary orders including a DNA order, weapons prohibition for 10 years, and a no-contact order with co-accused.

The court balanced aggravating factors (two bank robberies, use of imitation firearm, vulnerable victims) against mitigating factors (youth, guilty plea, remorse, no prior record, family support, educational pursuits).

The accused pleaded guilty to indecent assault on a male (1981-1982), sexual interference (2005-2006), and breach of recognizance (December 22, 2018).

Following sentencing on March 18, 2019, one of the victims requested that the publication ban imposed under section 486.4 of the Criminal Code be lifted with respect to himself and another victim.

The court granted the application, finding that the circumstances making the publication ban mandatory were no longer present, as both adult victims consented, the Crown consented, and the accused took no position.

The court confirmed that a judge other than the one who made the original order has jurisdiction to hear such applications.

The applicant sought to exclude evidence obtained pursuant to a search warrant on the grounds that the Information to Obtain (ITO) was heavily redacted and lacked sufficient grounds to justify the warrant.

The Crown applied for a telewarrant to search three locations based primarily on information from two confidential informants regarding drug trafficking.

The applicant challenged the warrant under sections 8 and 9 of the Charter, arguing insufficient nexus between the alleged criminality and the locations, and lack of currency in the information.

The court found that the heavily redacted ITO, even with limited peel-backs and clarifications, did not contain sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds for the search.

The accused brought a Charter application challenging the constitutionality of Bill C-51, which amended the Criminal Code to establish new procedures for the admissibility of evidence regarding a complainant's prior sexual activity and private records in the possession of the defence in sexual assault proceedings.

The accused argued the legislation violated his rights under sections 7, 11(c), 11(d), and 15 of the Canadian Charter of Rights and Freedoms.

The court rejected all constitutional challenges, finding that the procedural amendments do not infringe the accused's Charter rights and are consistent with the principles established in prior Supreme Court decisions.

An applicant sought judicial review of a firearms officer's refusal to issue a Possession and Acquisition Licence (PAL) under the Firearms Act.

The officer based the refusal on twelve occurrence reports spanning 2004 to 2015, demonstrating a pattern of violent and unpredictable behaviour, despite only one criminal conviction.

The applicant argued the refusal was unreasonable, but the court found the officer's decision was based on a reasonable assessment of the applicant's propensity for violence and lack of judgment in escalating situations to violence.

The court upheld the refusal, finding it was desirable in the interests of public safety that the applicant not possess firearms.

The defendant was convicted of twenty-two offences under the Ontario Fire Code for failing to maintain fire safety standards in a multi-unit residential building.

The offences included creating hazards not allowed in the original building design, failing to maintain interconnected smoke alarms, and failing to maintain fire separations and closures.

The defendant had a significant history of prior convictions for similar regulatory offences across multiple properties.

The court imposed a sentence of twenty-one days incarceration and fines totalling $34,000, balancing the goals of general and specific deterrence, public protection, and rehabilitation against the principle of proportionality.