ONCJ 2021

The Ministry of Labour charged Ya Ya Foods Corp. with three offences under the Occupational Health and Safety Act following a fatal incident where a worker fell from an elevated platform.

The central issue at trial was whether Ya Ya Foods qualified as a "constructor" under the Act, as the charges were laid against them in that capacity.

Applying the "control test," the court found that the deceased worker, Melvin Joyner, had the most control over the project at the time of the incident, not Ya Ya Foods.

The court noted the lack of a clear constructor designation at the outset and the difficulties of retrospective role assignment.

Consequently, the Ministry failed to prove beyond a reasonable doubt that Ya Ya Foods was the constructor, and all charges were dismissed.

Kyle Byrne pleaded guilty to impaired operation of a motor vehicle causing the death of Karli Chomick, contrary to s.320.14(3) of the Criminal Code of Canada.

The incident involved a high-speed collision while the offender's blood alcohol concentration was more than twice the legal limit.

The court accepted a joint submission for a sentence of five years imprisonment, an eight-year driving prohibition (totaling 13 years), a 10-year weapon prohibition, and a secondary DNA order.

The sentencing emphasized denunciation and deterrence, considering aggravating factors such as high blameworthiness, the victim's death, high BAC, excessive speed, and the offender's initial call to his mother instead of 9-1-1.

Mitigating factors included the guilty plea, first-time offender status, and the offender's serious injuries.

In a sexual assault trial, the Crown applied to admit two out-of-court statements by the complainant (A.M.) as hearsay evidence: a spontaneous utterance to a life skills coach and a videotaped statement to police.

The defence conceded necessity but disputed reliability.

The court applied the principled approach to hearsay, finding both substantive and procedural reliability for the videotaped statement, particularly due to DNA evidence and corroborating video/audio.

The spontaneous utterance was admitted under the res gestae exception, as it was made under the stress of a startling event (learning video evidence was deficient).

Both statements were admitted.

This is an application under section 276 of the Criminal Code to determine the admissibility of evidence regarding a complainant's prior sexual activity in a preliminary inquiry for human trafficking and related sexual services offences.

The court considered whether section 276 applied, given the charges were not explicitly listed sexual offences, and whether the common law Seaboyer regime should apply.

The court adopted the reasoning that section 276 only applies if a listed offence is directly implicated or connected, rejecting the "sexual milieu" test.

It also declined to extend the Seaboyer common law regime to sexual services offences, emphasizing judicial restraint and parliamentary intent.

Consequently, neither section 276 nor Seaboyer applied, and admissibility would be governed by general rules of evidence.

Sean Osborne, a police officer, pleaded guilty to assault committed while on duty.

The assault involved stepping on a restrained young person's head/neck area and twice kicking him in the chest after arrest.

The Crown sought a suspended sentence with 12 months probation, while the Defence sought a discharge.

The court emphasized denunciation and general deterrence, noting that police officers are held to a higher standard due to their position of trust.

Despite significant mitigating factors, including PTSD and extensive community contributions, the court found that a discharge would be contrary to public interest.

A conviction was deemed necessary to convey the seriousness of the offence and breach of public trust.

The court imposed a suspended sentence and 12 months probation with statutory terms.

The accused, a tow truck driver, was charged with assault with a weapon, threatening bodily harm, and dangerous driving following an altercation with another tow truck driver.

The Crown proceeded summarily.

The court found the complainant's evidence credible, supported by video and physical evidence, and rejected the accused's self-defence claim, finding his actions were motivated by vengeance rather than self-protection.

The accused was found guilty of assault with a weapon and threatening bodily harm, but not guilty of dangerous driving as the driving conduct did not meet the criminal threshold.

The mother was found in contempt of prior parenting orders, leading to the father being deprived of access.

The court imposed a $5,000 penalty on the mother and continued a temporary order placing the child in the father's primary care with specific parenting time for the mother.

The court also addressed an urgent motion to change parenting arrangements, finding jurisdiction to make temporary orders in the child's best interests, and requested a section 112 investigation by the Office of the Children's Lawyer.

The child's stated wishes were given little weight due to concerns about independence and potential influence.

Sanveer Singh brought a section 8 Charter application seeking to exclude a firearm and drugs seized during a search warrant execution at his residence, arguing the information to obtain (ITO) lacked reasonable grounds.

The court reviewed the ITO's sufficiency based on the Debot principles (compelling information, credible source, corroboration) and the Garofoli procedure for excising and amplifying the ITO, particularly given the reliance on a confidential informant.

Despite identifying some deficiencies and misleading phrasing in the ITO, the court found that, after excising irrelevant or misleading statements, there remained a sufficient basis for the issuing justice to have granted the warrant.

The application to set aside the search warrant and exclude the evidence was dismissed.

The defendant was charged with impaired operation of a conveyance and having an excess blood alcohol concentration (BAC) within two hours of ceasing to operate a vehicle.

The defendant brought a Charter application alleging violations of sections 8, 9, and 10(b).

The court found no violations of sections 8 and 9, concluding that the police had reasonable grounds for arrest and breath demand.

However, the court found an impermissible delay in providing the defendant's section 10(b) right to counsel, but ultimately decided not to exclude the breath sample results under section 24(2) of the Charter, weighing the minor nature of the breach against society's interest in adjudication on the merits.

On the merits, the court acquitted the defendant of impaired operation but found him guilty of having an excess BAC, rejecting the "bolus drinking" defence under s. 320.14(5) of the Criminal Code due to lack of expert evidence.

The defendant, S.L., was found guilty of possessing child pornography.

Prior to sentencing, S.L. challenged the constitutionality of the mandatory minimum sentence for the offence.

The parties jointly submitted a conditional sentence of 10 months imprisonment.

The court found the mandatory minimum sentence violated s. 12 of the Charter, relying on R. v. John.

Considering the extreme nature of the child pornography, the defendant's first-offender status, low risk of re-offending, and severe medical condition (terminal cancer), the court acceded to the joint submission, imposing a 10-month conditional sentence with strict conditions, including house arrest, curfew, internet prohibitions, and ancillary orders like DNA submission and Sex Offender Registration.

The defendant was charged with assault causing bodily harm and mischief to property following a physical altercation with his common-law partner.

The court heard conflicting evidence from the complainant and the defendant.

Applying the principles from R. v. W.(D.) regarding credibility assessment and reasonable doubt, the judge found the complainant's testimony lacked specific details regarding the mechanics of the alleged assault and phone damage.

Conversely, the defendant's version of events was deemed credible and plausible, indicating he acted in self-defence and that any injuries or property damage were unintentional.

The court concluded that the prosecution had not proven the allegations beyond a reasonable doubt, leading to the defendant's acquittal on all charges.

The defendant, Edward Bobbitt, brought a s. 11(b) Charter application seeking a stay of proceedings due to unreasonable delay in his trial for operating a motor vehicle with an excess blood alcohol concentration.

The total delay from the swearing of the Information to the anticipated trial conclusion was 989 days.

The court applied the Jordan framework, deducting 322 days attributable to the defence (including periods of counsel unavailability and inaction in rescheduling) and 146 days attributable to the COVID-19 pandemic as an exceptional circumstance.

The resulting net institutional delay was 521 days (approximately 17 months and one week), which fell below the 18-month ceiling for the Ontario Court of Justice.

The court found that the defendant had not made a concerted effort to advance the case and protect his s. 11(b) right.

The application was dismissed, and the trial was ordered to proceed.

The defendant was charged with breaching a release order by being outside his residence contrary to a curfew condition.

He brought a Charter application to exclude evidence, alleging breaches of ss. 8, 9, 10(a), and 10(b).

The court heard the Charter application and the trial concurrently.

The Charter application was dismissed, as the court found no Charter violations during the traffic stop and subsequent investigation.

However, the defendant was acquitted at trial because the prosecution failed to prove beyond a reasonable doubt that the female passenger in the vehicle was not one of the defendant's sureties, which was an exception to his curfew condition.

The officer's investigation into the passenger's identity was deemed insufficient to negate this exception.

The defendant was found guilty after trial of possessing an unloaded restricted firearm in a motor vehicle and careless storage of the firearm and ammunition.

The prosecution sought a total of nine months jail (six months for possession counts concurrent, three months for careless storage consecutive), plus probation.

The defendant sought a six-month concurrent conditional sentence.

The court imposed a total sentence of nine months imprisonment (six months concurrent for possession offences, three months consecutive for careless storage of ammunition) and two years probation, along with a lifetime firearms prohibition for restricted/prohibited firearms and a 10-year prohibition for all other firearms.

The court emphasized denunciation and deterrence due to the dangerous nature and unlawful provenance of the firearm, rejecting a conditional sentence despite mitigating factors and the global pandemic.

This application concerned the Royal Canadian Mounted Police's request to extend the detention of items seized from the respondent's residence and bank safety deposit boxes under section 490(2) of the Criminal Code.

The seized items included significant amounts of cash and numerous digital devices.

The respondent opposed the extension, arguing a lack of specificity, necessity, and connection between the seized funds and the alleged crimes.

The court granted the application, finding the continued detention warranted given the complex nature of the international investigation and the estimated time required for digital forensic analysis and tracing of funds.

Douglas DeBoer pleaded guilty to two counts of fraud and one count of trading in securities while subject to a cease trade order under the Securities Act.

The court considered the circumstances of the offence, which involved two fraudulent investment schemes (Hockley Energy and Rocky Point) that defrauded investors of $7.5 million USD, and the offender's personal circumstances.

Emphasizing general deterrence as paramount in regulatory offences, the court found a high degree of moral blameworthiness due to the sophisticated, persistent nature of the fraud and the significant harm to investors.

Despite a guilty plea and no prior criminal record, the court imposed a total sentence of three years' incarceration, noting the central role of the offender and the breach of a prior cease trade order.

The accused was charged with three counts of assault against his estranged common-law wife.

The Crown's case relied primarily on the complainant's testimony, which the court found to be inconsistent and unreliable due to material discrepancies between her trial evidence and prior police statements, as well as her admitted willingness to provide false information to police on previous occasions.

The evidence of child witnesses, introduced via Agreed Statements of Fact, also contradicted the complainant's account regarding one of the alleged assaults.

The court concluded that the complainant demonstrated carelessness with the truth, negatively impacting her credibility.

Consequently, the court found the accused not guilty on all three charges, as the Crown failed to prove guilt beyond a reasonable doubt.

The accused, Diego Doncel, charged with sexual assault, applied under s. 278.3 of the Criminal Code for production of third-party records relating to the complainant, R.W. The application was opposed by the Crown and complainant.

Following a two-stage Mills regime analysis, the court ordered a specific 2010 psychological assessment report from Surrey Place to be disclosed to the defence, finding it relevant to the complainant's capacity to testify and credibility/reliability.

Disclosure was subject to redactions and a non-disclosure condition.

Other requested records from CAMH and Toronto Western Hospital were deemed not relevant or too dated and were not disclosed.

This is a sentencing decision for Jesse King-Norris, who was charged with assault causing bodily harm during a Junior C hockey game, resulting in the victim sustaining a broken jaw.

The Crown sought a conditional jail sentence, while the defence argued for an absolute or conditional discharge, citing mitigating factors and the commonality of fighting in hockey.

The court acknowledged the unique context of hockey violence and the defendant's good character and remorse but denied a discharge due to the severity and foreseeability of the injury and the public interest in deterring serious on-ice assaults.

A suspended sentence with probation and community service was imposed.

The accused, Navindra Balgobin, was charged with impaired operation of a conveyance, operating a conveyance with an excess blood alcohol level, and failing to remain at the scene of an accident following a motor vehicle collision.

The court found beyond a reasonable doubt that the accused was the driver and failed to remain at the scene.

The court also found that the arresting officer had reasonable grounds for arrest and that the breath samples were taken pursuant to a lawful demand, curing an initial defect.

The accused's Charter rights under s. 10(b) regarding re-advisement and counsel of choice were found not to have been violated.

Ultimately, the court found the accused guilty on all three counts.