ONCJ 2019

The accused was charged with six offences under the Criminal Code related to online child exploitation following his arrest at a hotel in Markham.

The sole issue at trial was whether the Crown proved beyond a reasonable doubt that the accused knew or was wilfully blind to the fact that the person he was dealing with was under 16 years of age.

The accused testified that he was confused due to multiple simultaneous conversations, phone technical problems, and message deletions.

The court found the accused's testimony generally not credible but determined that on the whole of the evidence, the accused's explanation that he confused conversations was reasonably possible, leaving a reasonable doubt.

All charges were dismissed.

The offender pleaded guilty to criminal negligence causing death after driving at extreme speeds while impaired by alcohol and drugs, resulting in a fatal head-on collision.

The Crown sought 6 to 8 years imprisonment, while the defence sought 5 years.

The court weighed significant aggravating factors, including the offender's extreme risk-taking and the devastating impact on the victim's family, against mitigating factors such as his youth, guilty plea, and documented mental health issues.

The court sentenced the offender to 5 years in custody, plus an 8-year driving prohibition and a DNA order.

The accused was stopped at a RIDE program, failed a roadside screening test, and was brought to the station for breath tests.

At trial for an 'Over 80' charge, the sole issue was whether the breath tests were taken 'as soon as practicable' under s. 258(1)(c)(ii) of the Criminal Code, given a delay to consult duty counsel.

The court found the police acted reasonably in revisiting the right to counsel at the station after an ambiguous roadside response, and the accused requested to speak to duty counsel.

The Crown proved the tests were taken as soon as practicable, and a finding of guilt was entered.

The accused was charged with having care or control of a vehicle with a blood alcohol concentration above the legal limit contrary to s. 253(1)(b) of the Criminal Code.

The accused occupied the driver's seat, triggering the statutory presumption of care or control.

The court found that the accused successfully rebutted the presumption.

The accused had driven to a park after a domestic argument, consumed alcohol only after arriving at the park, and then called her wife to pick her up rather than driving home.

The court found that the accused's actions demonstrated an intention to avoid driving and that the risk of danger necessary to establish culpable care or control was not present.

The charge was dismissed.

The accused was stopped at a RIDE program and asked to provide a breath sample into an Approved Screening Device.

After failing to provide a suitable sample and claiming he was scared, he was charged with failing to comply with a demand.

At trial, the accused argued he had a reasonable excuse due to an anxiety disorder.

The court rejected his evidence as not credible, finding he was physically able to provide a sample but chose not to out of fear of failing the test.

A finding of guilt was entered.

The Crown sought to qualify a police officer as an expert witness to provide opinion evidence regarding factual characteristics indicative of cocaine trafficking.

The defence objected on the basis that the officer was not properly qualified under the fourth Mohan criterion.

The court found that the Crown had not established that the officer understood her primary duty to the court rather than to the Crown.

The application to present opinion evidence was dismissed.

The charge was subsequently resolved by guilty plea to simple possession of cocaine.

The accused was charged with having care and control of a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1) of the Criminal Code.

The accused brought a motion to exclude breathalyzer test results, arguing that his Charter right to counsel under section 10(b) was violated by police following his arrest.

The court found no breach of either the informational or implementational components of the right to counsel.

The accused was convicted after conceding the facts regarding care and control.

The defendant was charged with depositing snow or ice on a highway contrary to City of Greater Sudbury By-law 2011-219, Road Fouling By-law, section 8(1), with an offence date of November 21, 2018.

The prosecution failed to prove the municipal by-law creating the offence charged, as it tendered only an uncertified photocopy of a by-law dated seven years prior without establishing that it had not been amended or repealed.

Additionally, on the merits, the defendant established a due diligence defence.

The defendant was found not guilty.

The appellant appealed a conviction for careless driving contrary to section 130 of the Highway Traffic Act.

The trial justice found the appellant guilty based on evidence of multiple unsafe lane changes, including approaching another vehicle too closely, suddenly switching lanes, cutting abruptly in front of that vehicle, nearly colliding with a pickup truck, and weaving between lanes.

The appellant raised three grounds of appeal: that there was no evidence of high speed, that the trial justice failed to apply the principles from R v. WD regarding reasonable doubt, and that the court erred in finding the driving lacked reasonable consideration.

The appeal court dismissed all grounds, finding the trial justice properly applied the law and reasonable doubt principles, and that the accepted evidence clearly established a breach of section 130.

The appellant appealed her conviction for failing to stop for an amber light contrary to s. 144(15) of the Highway Traffic Act.

The central issue was whether the Justice of the Peace erred in refusing an adjournment and proceeding with trial where the appellant received disclosure on the trial date.

The appellant had delayed requesting disclosure until five weeks before trial, despite receiving clear instructions in the Notice of Trial and online guide.

The court held down the matter twice on the trial date to allow the appellant to review the disclosure, including officer's notes and in-car camera video.

The appellant agreed to proceed with trial after reviewing the materials.

The court found no error in proceeding and dismissed the appeal.

The appellant was convicted of careless driving contrary to s. 130 of the Highway Traffic Act.

On appeal, the sole issue was whether the Justice of the Peace erred in denying a motion for non-suit at the close of the prosecution case regarding the identification of the driver.

The Crown's case rested entirely on eyewitness testimony from the driver of the vehicle that was struck.

That witness testified he vaguely remembered the other driver and expressed uncertainty in his identification, stating "I think it's her." The Crown conceded the identification evidence was "sketchy." The court found that the identification evidence was so weak that no properly instructed trier of fact could find guilt beyond a reasonable doubt, and the Justice of the Peace erred in not granting the non-suit motion.

The appellant appealed his conviction for disobeying a stop sign contrary to section 136(1) of the Highway Traffic Act.

The appellant claimed he had stopped one to two metres behind the stop line, but the trial Justice of the Peace found, based on officer testimony and in-car camera video evidence, that the appellant had only slowed but did not come to a full stop at the marked line.

The appellate court found the findings of fact were reasonable and supported by the evidence, and dismissed the appeal.

The appellant was convicted at trial of speeding 100 km/h in a 60 km/h zone contrary to section 128 of the Highway Traffic Act.

The officer used a BEE III mobile radar device to measure the appellant's speed.

On appeal, the appellant challenged the conviction on the grounds that the officer failed to follow the device manual, specifically the requirement to use tuning forks for calibration.

The court dismissed the appeal, finding that the officer was qualified to operate the device, the device was properly tested before and after use, and the failure to follow an outdated calibration procedure that no longer applied to the current model of the device did not create a reasonable doubt about the accuracy of the speed measurement.

The appellant was convicted of speeding (130 km/h in a 100 km/h zone) under section 128 of the Highway Traffic Act.

The appellant requested a trial but failed to appear and was convicted in absentia under section 9.1 of the Provincial Offences Act.

On appeal, the appellant challenged the conviction, arguing that the certificate of offence was irregular on its face due to an alleged alteration to the date field (a zero with a line through it).

The court dismissed the appeal, finding that the certificate was complete and regular on its face and provided sufficient notice of the transaction.

The accused brought an application to contest venue, seeking to transfer the proceedings from Newmarket (York Region) to Toronto (Toronto Region) for an alleged hand-to-hand drug transaction and related firearms offence.

The court considered whether it had jurisdiction to hear the application, whether a case management judge should hear it, and what test applies to contested venue applications.

The court held that it had jurisdiction to hear the application and that a case management judge was appropriately placed to do so.

Applying the test under s.599 of the Criminal Code, the court found that the Crown bore the burden of proving on the balance of probabilities that it was expedient to the ends of justice to keep the case in Newmarket.

The court dismissed the application, finding that the presumption of locality favoured York Region, where the offence occurred, and that all relevant witnesses and police were based in York Region.

The accused was charged with operating a vehicle with a blood alcohol level in excess of the legal limit of 80 mgs following a traffic stop initiated by police responding to a report of an intoxicated person at an LCBO store.

The Crown relied on breath test results showing readings of 160 mgs and 150 mgs.

The defence challenged the admissibility of the evidence on three grounds: the applicability of the presumption of identity under section 258(1)(c) to transitional cases following C-46 amendments; whether the breath tests were taken "as soon as practicable" given a 17-minute delay for facilitating the accused's right to counsel; and whether the Crown proved the requirements for the presumption of accuracy under section 320.31(1).

The court found that the presumption of identity continues to apply to transitional cases, that the delay for counsel was reasonable and did not breach the "as soon as practicable" requirement, and that the Crown proved all elements of section 320.31(1).

The accused was convicted.

A costs decision arising from a motion for custody and return of a child.

The applicant (mother) sought custody of five children and the return of her 14-year-old son who had been removed from Toronto to Sudbury by the respondent (father) without consent or court order.

After multiple adjournments and temporary consent orders, the mother was successful on the motion, obtaining custody of all children including the son.

The court awarded costs to the mother on a full recovery basis, finding the father's conduct unreasonable though not rising to bad faith, and that the mother's offer to settle was as good as the final order.

The applicant mother brought an urgent motion without notice for custody of a child born in 2018, seeking a restraining order and police enforcement.

The respondent father opposed the motion.

The court found that the motion should not have been commenced as an urgent motion and that proper case management procedures should have been followed.

However, rather than dismiss the motion, the court treated it as a temporary motion on custody and access.

The court ordered a shared parenting arrangement with the child residing with the mother on alternate weekends and Tuesdays, and with the father for the remaining time.

The court found that both parents were significantly involved in the child's care and that the best interests of the child required continued contact with both parents.

The offender pleaded guilty to possession of child pornography after distributing intimate images of his 16-year-old former girlfriend to her mother and a hockey team administrator out of spite.

The Crown sought 18 months of custody, while the defence requested a conditional sentence.

The court imposed a 12-month conditional sentence followed by 12 months of probation, noting the offender's youth, lack of prior record, remorse, and the situational nature of the offence.

The Crown's request for a section 161 prohibition order was denied as there was no evidence the offender posed a general risk to children.

The accused was charged with impaired care or control of a motor vehicle and care or control with a blood alcohol level exceeding 80 mg/100 mL.

Following a blended voir dire and trial, the court found that the officer administering the approved screening device (ASD) did not have objectively reasonable grounds to believe the device was in proper working order, as he failed to check the calibration and accuracy check dates despite knowing their importance.

This constituted a violation of the accused's section 8 Charter rights.

The court excluded the breath sample evidence under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted of both charges.