ONCJ 2019

The accused was charged with operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg% contrary to s. 253(1)(b) of the Criminal Code.

The Crown relied on breath samples obtained via an approved instrument.

Three main legal issues emerged at trial: (1) whether the presumption of identity under s. 258 of the Criminal Code applied following the repeal of that section by Bill C-46; (2) whether the Crown satisfied the requirements of s. 320.31 regarding the presumption of accuracy without producing a certificate of analyst; and (3) whether the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated when police failed to diligently pursue contact with her counsel of choice before offering duty counsel.

The court found that s. 258 remained applicable to legacy charges, that the presumption of accuracy was established through qualified technician testimony, and that while a Charter violation occurred, the breath evidence was admissible under s. 24(2) analysis.

The accused was convicted.

The appellant appealed her conviction under the Building Code Act and sought to have her husband Denis Van Decker appear as her agent on appeal.

The trial Justice of the Peace had barred Van Decker from appearing as agent during the trial due to disruptive conduct and contempt of court.

The appeal court upheld the bar, finding that Van Decker was incompetent to represent the appellant and that his disruptive behavior over three days of trial warranted the exclusion.

The court noted that the appellant was capable of self-representation and that Van Decker had demonstrated a pattern of disruption across multiple proceedings.

The Children's Aid Society of Algoma brought a motion to determine whether a child born in 2018 is a First Nations child and, if so, whether the child identifies with the Batchewana First Nation.

The motion also sought orders to add the Batchewana First Nation as a party respondent and to transfer conduct of the proceeding to Nogdawindamin Family and Community Services.

The court found that the child is a First Nations child based on the father's self-identification as an Aboriginal person with Batchewana First Nation heritage and his maternal grandfather's Aboriginal ancestry.

The court granted the motion, adding Batchewana First Nation as a respondent party and substituting Nogdawindamin Family and Community Services as the applicant.

In this motion to change child support, the father sought to modify the existing support order following a change in custody whereby the child moved to his home full-time in April 2018.

The parties disputed the father's income for 2018 and the mother's income, as well as which special expenses should be shared.

The court determined the father's income at $194,663.61 based on actual T4 income and the mother's income at $44,982.98 after accepting her business expense deductions with appropriate adjustments.

The court exercised discretion to defer the mother's contribution to special expenses until 2019 to avoid an unjustified windfall to the father, given the timing of the custody change relative to his increased income.

A criminal sentencing decision from the Ontario Court of Justice.

The full reasons for judgment are not available at this time.

The defendant was charged with driving a motor vehicle with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code.

Two issues were raised at trial: (1) whether the defendant's Charter rights to counsel under section 10(b) were violated by police conduct, and if so, whether excluding breath test results was an appropriate remedy; and (2) whether the prosecution could rely on the presumption of identity under the now-repealed section 258(1)(c) of the Criminal Code, or whether expert evidence of retrograde extrapolation was required.

The court found no breach of the defendant's right to counsel and held that the old presumption of identity continues to apply to outstanding Over 80 charges commenced after the new law came into force on December 18, 2018.

The defendant was convicted.

The defendant was charged with riding a bicycle in James Gardens, Toronto, where prohibited by municipal by-law.

The central issue was whether signage stating "CAUTION—CYCLISTS DISMOUNT AND WALK BICYCLES OVER THE BRIDGE" constituted a prohibition under Toronto Municipal Code Chapter 608, Section 29(a), or merely a cautionary warning.

The defendant argued the bridge was part of a designated bicycle trail and that the sign was advisory rather than prohibitory.

The court found the defendant guilty, determining that a reasonable person would interpret the signage as a directive to dismount, and that the defendant failed to establish a due diligence defence available under strict liability principles.

The reasons for judgment in this criminal matter are not available at this time.

The case involves charges against Vashishat in the Ontario Court of Justice, with the judgment dated April 12, 2019.

The Ontario Provincial Police applied for a Production Order under s. 487.014 of the Criminal Code in relation to a fraud investigation known as 'Project Gundy'.

The investigation concerned syndicated mortgage investments in Davies developments, where investors were allegedly misled and funds diverted.

The court found reasonable grounds to believe a fraud over $5,000 occurred and that evidence would be found in records held by the court-appointed receiver, KSV Kofman Inc. The application for the Production Order was granted.

The Ontario Provincial Police applied for a Production Order under s. 487.014 of the Criminal Code in relation to a fraud investigation involving syndicated mortgage investments.

The court reviewed the Information to Obtain (ITO) and found reasonable grounds to believe a fraud over $5,000 occurred and that evidence would likely be found in the records of the suspect's accountant.

The court granted the Production Order, noting the strong public interest in investigating potential Ponzi schemes.

The Ontario Provincial Police applied for a production order under s. 487.014 of the Criminal Code in relation to a fraud investigation known as Project Gundy.

The investigation concerned syndicated mortgage investments where multiple development projects were never completed and investors were allegedly misled about conflicts of interest, the use of their funds, and the priority of their claims.

The court found that the statutory prerequisites were met and that it was in the best interests of the administration of justice to issue the order to assist investigators in determining whether unlawful business practices occurred.

The application was granted.

The defendant was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit (over 80).

The Crown relied on breath test results obtained using an approved Intoxilyzer 8000C device.

The defendant challenged the admissibility of the evidence, arguing that the Crown failed to establish the pre-conditions required under the transitional provisions of Bill C-46 amendments to the Criminal Code, specifically that the alcohol standard used in calibration was certified by an analyst.

The court rejected the defendant's argument and found that the Crown had established the presumption of accuracy through the qualified technician's testimony regarding the Certificate of Analyst and the calibration results.

The accused was charged with 19 offences including sexual assault with a weapon, assault, uttering death threats, criminal harassment, unlawful confinement, and related offences.

During trial, the defence sought to introduce excerpts from the complainant's psychologist records under section 278.94 of the Criminal Code.

The court ruled on the admissibility of two excerpts: the first, a prior inconsistent statement regarding the timing of assaults, was admitted as it had significant probative value for impeaching credibility; the second, regarding the absence of mention of a specific assault, was excluded as the defence failed to establish a rational basis for the inference that the omission was relevant to whether the assault occurred.

The defendant was charged with driving with an excess blood alcohol concentration ("over 80").

The defendant challenged the admissibility of breath sampling results under the Charter, claiming violations of sections 8 and 9.

The court found technical breaches but admitted the evidence.

The central issue was whether the prosecution could rely on the presumption of identity under section 258(1)(c) of the Criminal Code after its repeal by An Act to amend the Criminal Code (offences relating to conveyances), which came into force on December 18, 2018.

The court followed R. v. Shaikh and held that the presumption of identity no longer applied to transitional cases.

Without the presumption, the Crown could not prove the defendant's blood alcohol concentration at the time of driving beyond a reasonable doubt, as the defendant had consumed alcohol approximately five minutes before driving.

The defendant was acquitted.

The defendant was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg/100 mL.

At trial, the defendant brought a Charter application alleging violations of sections 8 and 9 of the Canadian Charter of Rights and Freedoms, seeking to exclude breath testing results.

The sole issue was whether the arresting officer had reasonable grounds to rely on the approved screening device (ASD) result.

The officer administered the ASD approximately 14 minutes after the defendant's last known alcohol consumption, rather than the required 15 minutes, due to a mathematical error.

The court found that the officer lacked objectively reasonable grounds for the arrest and that both section 8 and section 9 Charter violations occurred.

However, applying the Grant test under section 24(2) of the Charter, the court admitted the breath sampling evidence, finding the violations minor and the evidence reliable.

The applicant sought leave to amend his motion to change to include a request for custody of the child, with the respondent seeking to transfer the matter to Orillia and increase child support based on the applicant's higher disclosed income.

The court dismissed the applicant's motion to amend, finding no material change in circumstances warranting a custody claim.

The court granted the respondent's motion to transfer the matter to Orillia as the more convenient forum.

The court also increased child support from $446.83 to $540.13 per month based on the applicant's 2017 disclosed income of $58,430.00, effective November 1, 2018.

The respondent brought a motion to change a 2015 consent order, seeking sole custody and to change the child's school from Shelburne to Orangeville.

The applicant opposed and brought a cross-motion for sole custody and supervised access with drug testing.

The central issue was the applicant's proposed move to Milton, Ontario.

The court found that both parties were motivated by acrimony rather than genuine child protection concerns.

The court permitted the move to Milton but maintained the shared residency arrangement and required the applicant to transport the child to school in Orangeville.

The court rejected allegations of drug abuse and violence as tactical responses to the mobility dispute.

The defendant appeared for sentencing on two counts of impaired driving causing bodily harm.

The defendant drove his vehicle into oncoming traffic, striking two vehicles and injuring two individuals.

His blood alcohol concentration was between 155 and 200 mg/100ml.

The Crown sought 12 to 15 months in custody, while the defence proposed 6 to 8 months.

Emphasizing general deterrence and the severe consequences of impaired driving, the court sentenced the defendant to 12 months in custody, followed by two years of probation and a three-year driving prohibition.

The court considered whether section 278.92 of the Criminal Code prohibits defence counsel from putting the contents of a private record to a complainant during cross-examination without first obtaining a court order.

The accused was charged with 19 offences including sexual assault with a weapon, assault, uttering threats, criminal harassment, unlawful confinement, and public mischief.

Defence counsel sought to cross-examine the complainant regarding statements she allegedly made to a health care provider that appeared inconsistent with her trial testimony regarding the timing of alleged incidents.

The Crown objected, arguing that section 278.92 required a court order before any contents of the private record could be put to the complainant.

The court held that an order under section 278.92 is required before defence counsel may put to a witness the contents of a record in the possession of the defendant in which the complainant had a reasonable expectation of privacy.

The accused was charged with aggravated assault for allegedly punching the complainant outside a Tim Hortons in Brantford, causing a non-displaced cranial fracture and requiring hospitalization.

The sole issue at trial was the identity of the assailant.

While surveillance video from inside the establishment clearly showed the accused present, the outside video quality was poor and the Crown's case relied on circumstantial evidence and inferences from clothing descriptions.

The court found that the complainant's identification was unreliable due to intoxication and head injury, and a witness's evidence was contradicted by the video.

The court concluded that while the accused was the most likely perpetrator, the Crown failed to prove identity beyond a reasonable doubt based on the poor quality outside video and generic clothing descriptors.