ONCJ 2019

The accused was charged with refusing to comply with a demand to provide breath samples contrary to section 254(3)(a) of the Criminal Code.

The Crown called a tow truck operator and two police officers to establish the accused's guilt.

The defence challenged the identification of the accused as the driver of the vehicle.

The court found that the accused was properly identified through driver's license documentation and officer testimony.

The court further found that the accused unequivocally refused to provide a second breath sample as demanded by the qualified technician, without reasonable excuse.

The accused was found guilty.

The defendant was charged with failing to yield from a private driveway under the Highway Traffic Act following a motor vehicle collision.

The defendant attempted to enter a highway through a gap in stopped traffic and collided with a vehicle in the centre lane.

The court found the prosecution established a prima facie case.

The defendant raised a due diligence defence, but the court rejected it due to inconsistencies in her testimony and prior statements regarding her observations before entering the highway.

The defendant was found guilty.

The accused was charged with robbery of a cell phone store.

Following arrest, the accused initially declined counsel but later requested to speak with a specific criminal lawyer.

Police made inadequate efforts to contact the lawyer, providing the accused with erroneous information about the lawyer's availability.

The accused then waived his right to counsel without receiving a meaningful Prosper warning.

The court found a serious breach of the accused's section 10(b) Charter rights and excluded the inculpatory statement under section 24(2) of the Charter.

The accused brought a directed verdict motion arguing that the presumption of accuracy under s. 320.31 of the Criminal Code could not apply because there was no express evidence from an analyst regarding the target value of the alcohol standard used in the calibration check.

The court dismissed the motion, finding that the breath technician's evidence of her expected target value based on her training, combined with the analyst's certificate stating the standard was suitable for use, was sufficient evidence for a trier of fact to apply the presumption.

The accused, an Indigenous woman with a history of trauma, abuse, and substance addiction, was sentenced following guilty pleas to impaired driving causing bodily harm, possession of cocaine, failing to comply with bail conditions, and theft.

The court imposed a blended sentence consisting of 24 days intermittent custody on weekends for impaired driving, a four-month conditional sentence for drug possession, concurrent probation orders, a three-year driving prohibition, a DNA order, and a ten-year firearms prohibition.

The sentencing decision applied Gladue principles, recognizing systemic disadvantages and the offender's efforts toward rehabilitation while balancing denunciation and deterrence.

The Crown sought an indeterminate sentence for the respondent's breach of a Long Term Supervision Order (LTSO) imposed following a dangerous offender designation.

The respondent opposed the application and sought a time-served sentence.

The court rejected the Crown's application for an indeterminate sentence, finding that the respondent's risk to public safety could be managed in the community with appropriate conditions and treatment engagement.

However, the court imposed a custodial sentence of 34 months, accounting for the serious nature of the breach, the respondent's pattern of non-compliance, and his recent positive steps toward rehabilitation.

The accused was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit.

The accused raised four issues: three Charter violations by the arresting officer (failure to form requisite suspicion, failure to make ASD demand forthwith, and failure to inform of right to counsel immediately upon arrest) and one issue regarding identity (whether the Crown proved beyond a reasonable doubt that the accused was the driver).

The court rejected all Charter challenges and found the accused was the driver based on compelling eyewitness identification evidence.

The court convicted the accused.

The defendant was convicted of assault (2x), forcible confinement, and publishing intimate images following a trial.

At sentencing, the Crown sought nine months custody (six months for the intimate images offence and three months consecutive for the remaining charges) plus 18 months probation and ancillary orders.

The defence sought a conditional sentence of no more than five or six months, or alternatively, imprisonment not exceeding five months.

The court imposed a sentence of six months in jail less one day for the publishing intimate images offence, and a 90-day conditional sentence for the assault and forcible confinement offences to be served consecutively to the jail sentence, plus 18 months probation and ancillary orders.

The court found that denunciation and deterrence were paramount given the intimate relationship violence and deliberate, cruel sharing of intimate images as revenge.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood following a single-vehicle rollover on Highway 427.

The Crown proceeded on both counts.

The defence challenged the arrest on reasonable and probable grounds and brought Charter applications alleging violations of sections 7 and 8 regarding video surveillance of the accused urinating in a police cell.

The trial judge found the arrest was lawful and dismissed the Charter applications, finding that although a privacy breach occurred, the police had provided adequate notice and privacy protection measures.

The accused was acquitted of impaired driving but convicted of the over-80 offence.

The accused was arrested for care and control of a motor vehicle while impaired by alcohol and subsequently charged with refusing to provide a breath sample.

The Crown alleged the accused was found asleep behind the wheel of a running vehicle with signs of impairment.

The accused challenged the lawfulness of her arrest on Charter grounds, alleging a breach of her section 10(b) right to counsel.

The trial proceeded on both the Charter application and the substantive charges.

The court found no Charter breach regarding the right to counsel of choice.

On the merits, the court found the accused guilty of refusing to provide a breath sample but acquitted her of the impaired care and control charge, finding insufficient evidence beyond a reasonable doubt despite circumstantial indicators of impairment.

Three defendants applied for orders staying criminal proceedings on the grounds that their right to be tried within a constitutionally tolerable time had been breached.

The applicable ceiling for Ontario Court of Justice cases is 18 months.

The Crown argued that when defence delay periods were subtracted, the total delay did not exceed the ceiling.

The court found that two applicants' delay did not exceed the 18-month threshold after deducting defence delay caused by their decision to change counsel.

For the third applicant, although the delay exceeded the Jordan guidelines by nine days, the court found exceptional circumstances existed that rebutted the presumption of unreasonable delay.

All three applications were dismissed.

The applicant challenged the issuance of a DNA warrant on the grounds that the Information to Obtain contained inaccurate information regarding observations of the applicant engaging in drug trafficking activity and exiting a specific unit.

The court found that two aspects of the ITO should be excised as they were not supported by the original surveillance evidence.

However, the court determined that even with these excisions, there remained sufficient basis to authorize the seizure of the applicant's DNA based on other evidence, including CCTV footage showing the applicant using a fob associated with the unit, observations of the applicant leaving with a suspected drug trafficker, and possession of a key to the unit where a firearm was found.

The application was dismissed.

The defendants brought applications under section 8 of the Canadian Charter of Rights and Freedoms to challenge the lawfulness of search warrants executed on three apartment units.

Thanh Nguyen lacked standing to challenge the search of the Sherway location as he had no reasonable expectation of privacy in a unit he was merely permitted to use as a guest.

Catherine Vu and Kevin Tran challenged the search of the Lakeshore location where Vu was the tenant.

The court found the warrant for the Lakeshore location was issued without reasonable grounds to believe evidence would be found there, as the connection between Tran and the residence was insufficient to establish more than occasional guest status.

The search violated section 8 rights.

However, under the R. v. Grant analysis, the evidence was admitted as the police acted in good faith, the state conduct was not improper, and society's interest in adjudication on the merits outweighed the privacy breach.

The applicant brought a motion seeking to lift an automatic stay of proceedings triggered by the respondent's filing of a divorce application in Superior Court, and for temporary spousal support.

The applicant had previously filed an application for spousal support in Ontario Court of Justice.

The respondent opposed the motion, arguing that the applicant entered the marriage fraudulently to obtain immigration status and lacked clean hands to seek equitable relief.

The court found that the respondent acted in bad faith by filing the divorce application shortly before a scheduled hearing on spousal support, and that the applicant would suffer unreasonable prejudice if the stay remained in place.

The court lifted the stay and awarded temporary spousal support.

The defendant was charged with aggravated assault on Clayton Pye and assault with a weapon on Vladimir Kazbekov.

The defendant claimed she acted in lawful defence of Zachary Heyes during a physical altercation.

The court found that while the defendant's purpose in defending Heyes was clear and her belief that force was being used against him was reasonable, her response was wholly disproportionate to the threat faced.

The defendant used a knife to slash and stab the complainants when they were engaged in unarmed wrestling-style takedowns.

The court found the defendant's conduct was unreasonable in the circumstances, particularly given that no one was attempting to kill Heyes and that alternative means of intervention were available.

The defendant's intoxication from cocaine use was found to be the likely explanation for her over-reaction.

The defendant was found guilty of both charges.

The accused was charged with public nudity under section 174 of the Criminal Code for standing on the steps of a courthouse wearing only a multi-coloured athletic supporter and sneakers as part of a protest regarding a prior police seizure of his medical marijuana.

The Crown proceeded on the theory that the accused was "so clad as to offend against public order." The court found that while the accused intentionally dressed provocatively and positioned himself visibly on the courthouse steps, the Crown failed to prove beyond a reasonable doubt that he was "so clad as to offend against public order." The evidence demonstrated no actual disturbance of the public peace or public order—only some bewildered looks and jokes from passersby.

The accused was acquitted.

A youth was charged with six counts arising from allegations of sexual abuse of a young child over a two-year period when the accused was approximately 15-16 years old and the complainant was 3-5 years old.

The Crown alleged three separate incidents of sexual abuse.

The accused denied all allegations.

The court applied the W.D. framework for assessing credibility and found the accused's evidence vague, internally inconsistent, and self-serving, while finding the complainant's evidence detailed, straightforward, and compelling despite her young age at the time of the incidents and at trial.

The court rejected arguments that the complainant's evidence was unreliable due to lack of detail, inconsistencies regarding anatomical terminology, or the absence of observable injuries.

The court found the Crown proved guilt beyond a reasonable doubt on all charges.

The applicant father brought a motion to change a final consent order that granted the respondent mother sole custody of their child.

The father sought joint custody and equal parenting time, alleging a material change in circumstances based on the child's school attendance, mental health needs, and the mother's failure to follow through with counselling recommendations.

The court found that the father's concerns existed prior to the final order and that the mother had been proactive in addressing the child's needs.

The court concluded there was no material change in circumstances and dismissed the father's motion.

A custody and access trial involving a high-conflict separation between parents of a young child.

The father sought sole custody and limited access for the mother, while the mother sought custody with equal time-sharing.

The court found both parents competent but determined the mother should have custody based on her demonstrated willingness to support the child's relationship with the father, contrasting with the father's initial proposal to relocate the child to New York with minimal maternal contact.

The court ordered alternate weekly time-sharing with the father paying child support and spousal support on a declining scale.

The accused was charged with three counts of sexual assault and one count of interference.

The accused sought production of records held by Family and Children's Services pursuant to section 278.3 of the Criminal Code.

The records contained notes from a social worker indicating concerns about the complainant's credibility, including references to a history of false allegations and questions about whether the complainant had a concerning imagination or was genuinely being repeatedly harmed.

The court determined whether to order production of the records to itself for review under the two-stage Mills procedure.