ONCJ 2020

In a temporary care hearing under the Child and Family Services Act, the court determined whether three children should remain in the care of the Society or be returned to their mother's care.

The central issue was whether the mother had sole charge of the two younger children prior to intervention, or whether charge was shared with the father.

The court found that the mother's poor judgment in exposing the children to a serious drug trafficking situation, combined with her lack of cooperation with the Society's investigation and her provision of false information, established a reasonable basis to believe the children would suffer harm if returned to her care.

A supervision order was found inadequate to mitigate the risks.

The court ordered the oldest child to remain in the Society's care with the maternal grandmother as kin-in-care placement, and the two younger children to remain with their father subject to supervision.

This is a costs decision following a temporary order on a motion for the return of a child to the applicant's home.

The motion also sought orders for temporary custody, child support, alternate weekend access, and school enrollment.

The respondent father was the successful party on the central issues of the child's primary residence and school enrollment.

The applicant mother argued there was divided success and that the respondent's conduct in involving police and Children's Aid Society before communicating with her was unreasonable.

The court found the respondent's conduct was not unreasonable and awarded costs at 60% of the respondent's bill rather than full recovery, considering the nature of the issues and the need for the motion.

The accused was charged with failing to stop and provide name and address after a motor vehicle collision that resulted in bodily harm, contrary to section 320.16(2) of the Criminal Code.

The accused had collided with a cyclist on a Toronto street.

After the collision, the cyclist punched the accused through the car window, injuring him.

The accused drove away without stopping or providing his name and address.

The central issue was whether the accused had a reasonable excuse for failing to stop and provide information, and if so, whether that excuse was a complete defence or whether the accused remained obligated to report the accident to police at a later time.

The accused was charged with injuring an animal contrary to section 445 of the Criminal Code and wilfully causing unnecessary suffering to an animal contrary to section 445.1 of the Criminal Code.

A small dog named Angel was brought to an emergency veterinary clinic with severe injuries including extensive bruising, internal bleeding, and severe head trauma.

The veterinarians concluded the injuries were consistent with multiple repeated blunt force trauma and could not have been caused by a cat attack as the accused claimed.

The accused had exclusive care of the dog while the owner was away.

The court found the accused guilty on both counts based on circumstantial evidence including his opportunity, his demonstrated frustration with the dog, his false explanation of the injuries, and his failure to seek veterinary care.

The accused were charged with numerous Criminal Code and Controlled Drugs and Substances Act offences following a search of their basement dwelling and garage.

The charges arose from evidence obtained during a warrantless home inspection conducted by a child protection worker with police assistance, and a subsequent search warrant based on observations from that initial warrantless entry.

The court found that the warrantless home inspection violated the accused's Charter rights to be free from unreasonable searches and seizures.

The worker lacked statutory authority to conduct a home inspection for investigative purposes, as the Child, Youth, and Family Services Act only authorized warrantless entries for the purpose of removing children in need of protection to a place of safety.

The court rejected the Crown's reliance on the ancillary powers doctrine, finding it does not extend to non-police officers.

The subsequent search warrant was invalid as it relied entirely on evidence obtained from the unlawful warrantless search.

All evidence was excluded under section 24(2) of the Charter, and both accused were acquitted on all charges.

The Crown applied under section 714.2(1) of the Criminal Code for an order permitting the complainant in a sexual assault case to testify by videoconference from Florida, where she was residing with her mother due to an unforeseen health crisis and was currently self-isolating after testing positive for COVID-19.

The respondent opposed the application, arguing that videoconference testimony would violate principles of fundamental justice, including the right to face one's accuser and concerns about the solemnity of proceedings.

The court granted the Crown's application, finding that the respondent failed to demonstrate meaningful prejudice to his fair trial interests and that videoconference evidence is a capable substitute for in-person testimony under the Criminal Code framework.

Application by a family physician for an order committing a 17-year-old youth with a history of traumatic brain injury and complex mental health issues to a secure treatment program at Syl Apps for 180 days.

The youth initially opposed the application but subsequently consented after meeting with the Clinical Director.

The court found that all six statutory criteria under s. 164 of the Child, Youth and Family Services Act were satisfied: the youth had a mental disorder (Oppositional Defiant Disorder, Intermittent Explosive Disorder, likely ADHD, and borderline intellectual functioning); had caused or attempted to cause serious bodily harm within 45 days preceding the application; had made substantial threats of self-harm within the preceding 12 months; the secure treatment program would be effective; appropriate treatment was available at Syl Apps; and no less restrictive method of treatment was appropriate.

The court granted the order for the maximum 180-day commitment period.

The accused pleaded guilty to breaching the "no drugs" condition of his long-term supervision order by testing positive for cocaine.

The court imposed a sentence of 11 months imprisonment, with pre-trial custody credited at 1.5 to 1, leaving 96 days to be served.

The decision provides a comprehensive analysis of sentencing principles for LTSO breaches, emphasizing the balance between denunciation and rehabilitation, and considering the offender's Aboriginal heritage and engagement with cultural practices.

The accused pleaded guilty to breaching the "no drugs" condition of his long-term supervision order by purchasing and using cannabis concentrate obtained on the street.

The court imposed a sentence of ten months, with one day additional custody after crediting 251 days of pre-trial custody at 1.5 to 1.

The decision provides comprehensive guidance on sentencing for breach of long-term supervision orders, emphasizing that rehabilitation remains a relevant sentencing objective and that the severity of a breach depends on all circumstances, including the nature of the condition breached and its relationship to risk management.

The applicant mother sought an order for substitute service of an application for sole custody on the respondent father, who resides in Saudi Arabia.

The applicant sought to serve the respondent by email, citing financial constraints as a legally aided litigant and her inability to hire a process server.

The court dismissed the motion, finding that the applicant failed to satisfy the evidentiary requirements under the Family Law Rules.

The court held that legally aided litigants are not relieved of their obligations to comply with service requirements and that the applicant did not provide detailed evidence of steps taken to serve the respondent or demonstrate that email service would reasonably bring the application to the respondent's attention.

The defendant was charged with driving a commercial motor vehicle on Highway 401 without due care and attention by driving in a manner indicating an intention to drive as close as possible to another vehicle, contrary to section 172(1) of the Highway Traffic Act and Ontario Regulation 455/07.

The Crown presented evidence from three police officers, including aerial surveillance footage showing the defendant's tractor-trailer following another commercial vehicle at dangerously close distances (as little as 3 metres) over approximately 5 kilometres while traveling at 102 km/hr.

The defendant challenged the identity of the driver and argued the Crown failed to prove the requisite intent and that the distance was not "as close as possible." The court found the defendant guilty, holding that the manner of driving indicated the requisite intention and that the Crown had proven all elements beyond a reasonable doubt.

The accused was charged with five offences: assault causing bodily harm, unlawful confinement, and three counts of uttering threats to cause death to his spouse and two children, all occurring between January 2017 and December 2018.

The Crown's case relied primarily on the complainant's testimony that she was assaulted and confined by the accused following a financial dispute, resulting in a fractured clavicle and facial injuries.

The accused claimed the complainant fell down the stairs.

The court found the complainant credible and her evidence corroborated by independent witnesses.

The accused's testimony was found to be internally contradictory and implausible.

The court convicted on counts 1 and 2 (assault and unlawful confinement) but dismissed counts 3, 4, and 5 (threatening death) due to insufficient detail in the evidence.

The appellant appealed his conviction for driving while holding or using a hand-held wireless communication device contrary to section 78.1 of the Highway Traffic Act.

The primary issue was whether the appellant, who was operating a motorcycle and stopped at a red light when observed holding a cell phone, was "driving" within the meaning of the statute.

The appellant also argued there was insufficient evidence because the officer conceded the device could have been a GPS unit.

The appeal was dismissed.

The court held that the prohibition applies continuously from the time a vehicle is put in motion until it is parked in a position where it can be left unattended, including periods when stopped at red lights.

The distinction between motorcycles and automobiles was found to be immaterial.

The accused was charged with an offence arising from an incident involving spitting.

The Crown and defence reached a resolution whereby the accused entered into a 12-month common law peace bond with conditions including no contact with the complainant, a 100-metre distance requirement, and a prohibition on possessing weapons.

The underlying criminal charges were withdrawn upon the accused's acceptance of the peace bond terms.

A young person was tried on charges arising from two separate incidents: a mass shooting at a Subway restaurant in Waterloo on April 19, 2019, where approximately 35 shots were fired into a crowded establishment, and a series of offences committed on May 16, 2019, including dangerous driving, fleeing police, and possession of a loaded firearm with serial number removed.

The Crown's case relied entirely on circumstantial evidence, particularly video surveillance footage, cell phone records, GPS data, and physical evidence recovered from the scene.

The court found the accused guilty on all counts based on overwhelming circumstantial evidence establishing identity as one of the shooters and connecting him to the May 16 incident through a clear chain of evidence.

The accused was charged with dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code.

On April 21, 2018, the accused was operating a 2017 Toyota on the Queen Elizabeth Highway when his vehicle collided with the left centre concrete median, resulting in the death of his passenger.

The Crown relied on evidence of excessive speed (174 km/h in a 100 km/h zone), operation on a gravel shoulder with bald tires, and full acceleration while on the shoulder.

The defence argued the accused was cut off and that evidence of racing was unreliable.

The court found the accused guilty, determining his manner of driving constituted a marked departure from the standard of care expected of a reasonable person in the circumstances.

The Crown sought to adduce expert opinion evidence from a police accident reconstructionist regarding the speed of the defendant's vehicle at the time of impact with a pedestrian in a speeding charge.

The defence challenged admissibility on the grounds that the Searle method of speed calculation constitutes novel scientific evidence requiring special scrutiny, and alternatively, that the method was being used for a novel purpose.

The defence also argued that the cost-benefit analysis favoured exclusion.

The court admitted the evidence, finding that accident reconstruction methodologies are mathematical rather than scientific techniques, that the Searle method is not novel science, and that the probative value of the evidence outweighs any potential harm to the trial process.

The Crown brought an application pursuant to section 601(2) of the Criminal Code to amend counts 1 and 2 at the close of its case.

Count 1 sought to replace the named victim (Special Constable Condie) with a group (Carleton University security personnel) and to include both descriptions of the offence under section 264.1(1)(a) (threat to cause death or bodily harm).

Count 2 sought similar amendments, replacing Special Constable Larochelle with Carleton University security personnel and adding the complete wording of the offence.

The defence objected on grounds of timing and irreparable prejudice.

The court granted the Crown's application, finding that the timing was appropriate under the Criminal Code, that the defence had prior notice, and that no irreparable prejudice would result from the amendments.

The Crown sought to adduce four out-of-court statements made by the complainant (CL), an 86-year-old victim of alleged sexual assault, pursuant to the principled exception to the hearsay rule under R. v. Khelawon.

The complainant was not present at trial.

The Crown argued necessity based on the complainant's anxiety, depression, fear of the accused, and reluctance to leave her apartment.

The defence conceded reliability but challenged necessity.

The court found that the Crown failed to establish necessity on the evidence presented, noting the absence of expert evidence regarding the effects of testifying, the availability of testimonial aids to address the complainant's concerns, and the complainant's prior acceptance of the need to testify.

The application was dismissed.

The accused, a self-represented inmate, brought multiple Charter applications seeking a stay of proceedings on grounds of alleged violations of his rights to privacy, full answer and defence, and a fair trial.

The accused alleged privacy violations arising from exposure of his genitals during medical treatment and use of washroom facilities while under video surveillance at the Ottawa Carleton Detention Centre.

He also alleged that disclosure was not provided in a timely manner and that his incarceration without access to counsel, the internet, or adequate telephone access compromised his ability to prepare his defence.

The court dismissed all applications, finding no Charter breaches that would warrant a stay of proceedings.