ONCJ 2021

This temporary motion concerned parenting arrangements for 2.5-year-old twin boys.

The applicant, the paternal grandmother, sought primary residence, while the respondent maternal grandmother sought equal time.

The father is incarcerated and consented to the paternal grandmother caring for the children.

The maternal grandmother had unlawfully removed the children from the paternal grandmother's care.

The court validated irregular service on the maternal grandmother and found her allegations against the paternal grandmother to be untruthful.

Based on the children's best interests, the court ordered the children to remain in the primary care of the paternal grandmother, with the maternal grandmother having supervised contact, emphasizing the importance of maintaining a relationship with the maternal family while warning against future breaches.

The defendant, Wilfredo Hernandez, faced multiple criminal charges, some of which he pled guilty to (dangerous driving, driving while prohibited, evading police) and others proceeded to trial (uttering threats, break and enter, taking a child in contravention of a custody order, threat to cause death to child).

The court assessed witness credibility, including the complainant's attempt to influence another witness.

The defendant was found not guilty of taking a motor vehicle without consent and break and enter a dwelling house.

He was found guilty of uttering threats to the complainant, taking the child in contravention of a custody order, and threatening to cause death to the child.

The court emphasized the intent to deprive the custodial parent of possession of the child.

The accused, Sheldon Wynter, faced multiple drug trafficking and related charges.

A voir dire was held to determine alleged Charter breaches, specifically concerning a strip search (s. 8), right to counsel (s. 10(b)), and misleading evidence at a bail hearing (s. 7 and 11(d)).

The court found the strip search lawful and reasonable, and the initial s. 10(b) breach (due to medical emergency) did not warrant exclusion of evidence.

However, a significant s. 7 and 11(d) breach occurred due to the Crown's failure to disclose corrected drug weight information at the bail hearing, which misled the Justice of the Peace.

Consequently, the evidence of fentanyl and cocaine seized between February 21st and 25th was excluded.

Other charges will proceed to trial.

The accused, Ranveer Singh, was charged with sexual assault.

The complainant's evidence regarding lack of consent and the precise nature of the touching raised credibility and reliability concerns due to inconsistencies between her stated feelings/motives and actions, and contradictory factual accounts.

The accused claimed the complainant consented through her conduct, which he perceived as sexual advances.

The court found that the Crown failed to prove the absence of consent beyond a reasonable doubt, and also failed to disprove the accused's honest but mistaken belief in consent.

The accused was acquitted.

Craig Colton pleaded guilty to multiple drug trafficking and possession offences.

The Crown sought a penitentiary sentence (24-30 months), while the defence sought a conditional sentence.

The court determined Colton was a street-level trafficker, not mid-level, and considered his personal circumstances, including childhood trauma, addiction, and rehabilitation efforts.

The judge concluded that an upper reformatory sentence was fit and that a conditional sentence, with strict conditions including home confinement and electronic monitoring, would adequately achieve sentencing principles of denunciation and deterrence while fostering rehabilitation.

The accused, who suffers from schizophrenia, attacked a co-worker without provocation, striking her repeatedly with a metal brake part.

He was charged with attempted murder.

The matter was converted to a trial on consent, and a finding of guilt was made.

A hearing was then held to determine whether the accused was not criminally responsible on account of mental disorder.

Applying the Supreme Court of Canada's framework in Oommen, the court found that the accused's active psychosis deprived him of the capacity for rational perception and rational choice about the moral wrongfulness of his actions.

The accused was found not criminally responsible.

Moussa Jaber pleaded guilty to multiple drug trafficking and firearms offences, possession of proceeds of crime, and breach of probation.

The Crown sought an 11-year global sentence, while the defence argued for a conditional sentence, citing exceptional rehabilitation.

The court found that while the offender had made significant rehabilitative efforts and was at low risk to reoffend, these did not constitute "exceptional circumstances" sufficient to justify a non-custodial or conditional sentence given the gravity of the offences, particularly the large quantities of fentanyl/heroin, methamphetamine, cannabis, and the presence of two loaded restricted firearms and substantial cash proceeds.

The court emphasized general deterrence and denunciation.

A global sentence of 4 years imprisonment was imposed, with concurrent sentences for other counts, along with a lifetime firearms prohibition and DNA order.

Following a trial where success was divided, the court determined costs.

Neither party was awarded costs for the trial due to divided success and a lack of offers to settle.

However, the respondent was awarded costs on a full indemnity basis for two motions regarding the return of the child.

The court found the applicant acted in bad faith by unilaterally relocating with the child to Nova Scotia on two occasions in contravention of existing court orders and endorsements.

The defendant, R.D., was tried on charges of sexual assault and sexual interference involving his step-granddaughter.

The Crown presented evidence from the complainant, her mother, and step-father.

The defence argued that the complainant's delayed disclosure was influenced by her mother's reprimand and personal history, and that the defendant lacked opportunity.

The court found the defendant and his wife untruthful about the opportunity to commit the offences.

However, the court expressed concerns about the reliability of the complainant's statement due to potential influence from her mother's well-intentioned inquiries and instructions.

Ultimately, the court found that the Crown did not prove guilt beyond a reasonable doubt, and the charges were dismissed.

The accused, Hal Clayton, was arrested for driving with a suspended license, leading to a vehicle search that uncovered controlled substances.

Clayton brought a Charter application alleging violations of his s. 8 (unlawful search) and s. 10(b) (right to counsel) rights.

The court found that the vehicle search was a pretextual search, not genuinely for a driver's license, and thus unlawful.

Additionally, the police violated the accused's right to counsel by delaying advisement of rights and by questioning him after he had requested a lawyer but before he had access to one.

Applying the Grant analysis, the court determined that the serious and cumulative nature of the Charter breaches by multiple officers outweighed society's interest in admitting the evidence.

Consequently, all evidence found during the search was excluded from the trial.

This is a sentencing decision for Ms. Trudeau, who was found guilty of importing nearly 3 kilograms of pure cocaine.

The court considered a joint submission for a four-year penitentiary sentence, less pre-trial custody.

The decision extensively details Ms. Trudeau's personal circumstances, including intergenerational trauma from residential schools, physical and sexual abuse, identity issues, and substance abuse, as presented in her Gladue report.

The court applied Gladue principles, acknowledging these factors as "exceptional or extenuating" circumstances that justified a sentence below the usual range for such an offence, while still emphasizing denunciation and deterrence.

Thomas Stephens was found guilty of multiple offences including possession of a stolen motor vehicle, a loaded antique firearm, and possession for the purpose of trafficking cocaine and methamphetamine.

The court considered the Crown's request for a 12-year sentence and the defence's request for 5 years.

The court also addressed the application of Gladue factors, finding insufficient information to link the offender's asserted Indigenous heritage to his moral culpability or appropriate sentencing procedures.

Applying the totality principle, the court imposed a global sentence of 10 years, reduced to 9.5 years with pre-sentence COVID credit, with specific sentences for each offence, emphasizing denunciation and deterrence for firearms and drug trafficking offences.

The accused, Suhail Alsendi, faced charges of possession of a weapon for a dangerous purpose and carrying a concealed weapon.

The trial included a blended voir dire concerning alleged Charter rights violations (ss. 9 and 10(b)).

The court found that the Crown failed to prove beyond a reasonable doubt that the accused knew the BB gun was a weapon or firearm, or that he intended to use it in a dangerous manner, or that he intended to conceal it.

Consequently, the accused was acquitted on both charges, rendering the Charter remedy discussion moot.

This is a sentencing decision for a second impaired driving conviction.

The accused challenged the constitutionality of the mandatory minimum sentence under section 12 of the Charter and sought the judge's recusal due to alleged bias.

The court dismissed both the recusal motion, finding no reasonable apprehension of bias from prior proceedings or alleged trial errors, and the Charter challenge, determining that the appropriate sentence was equal to or greater than the minimum.

The court imposed a 30-day sentence, a 3-year driving prohibition, and 2 years of probation.

The defendant, Zeeshan Naseer, brought an application to stay proceedings under section 11(b) of the Charter due to unreasonable delay.

The trial dates were set almost 30 months after the charge, exceeding the presumptive ceiling established by R. v. Jordan.

The Crown argued for significant defence delay and exceptional circumstances, including the defence's failure to raise delay concerns and the impact of the COVID-19 pandemic.

The court found that the Crown's arguments did not meet the Jordan test for exceptional circumstances, as the delay was foreseeable and avoidable by the Crown.

The application was granted, and the proceedings were stayed.

Vera Kasotty pleaded guilty to Fraud Over $5000 and Arson, charges arising from an organized crime investigation into staged motor vehicle collisions for insurance fraud.

The Crown sought a jail term of two years less a day, while the defence argued for a conditional sentence of the same duration.

The court considered the principles of general deterrence, denunciation, and rehabilitation.

Despite the seriousness of the offences and their connection to organized crime, the judge found that a conditional sentence could adequately reflect sentencing principles given Kasotty's relative role, remorse, restitution, and lack of prior criminal record.

The Children's Aid Society brought a motion within a child protection proceeding for the production of a psychological assessment of a child and for disclosure of educational records from the school board.

The child and parents opposed the release of the psychological assessment to the Society, citing the child's privacy rights and arguing the assessment was obtained solely for educational advocacy.

The court applied the Wigmore test and section 130 of the Child, Youth and Family Services Act, finding that the records were highly relevant to assessing child protection concerns and that the child's privacy interests did not outweigh the need for disclosure.

The motion was granted, and the records were ordered to be released to the Society.

The defendant, Isaac Kalejaiye, was found guilty after trial of dangerous operation of a conveyance.

This decision outlines the reasons for his sentence.

The court considered aggravating factors, including the intentional nature of his dangerous driving (road rage) which caused significant, lasting injuries to multiple victims, and his extensive criminal and driving record.

Mitigating factors included his mental health issues and proactive steps towards rehabilitation.

The court rejected both the defence's request for an absolute discharge and the Crown's proposed conditional sentence as too lenient, emphasizing denunciation and deterrence.

A period of incarceration and a significant driving prohibition were deemed necessary to reflect the gravity of the offence and the offender's culpability.

The defendant, Robert Crozier, pleaded guilty to possession of cocaine for the purpose of trafficking after an unsuccessful Charter motion to exclude evidence.

The Crown sought a five-year penitentiary sentence, while the defence advocated for a conditional sentence order (CSO) of two years less a day, citing the *Sharma* decision and the defendant's personal circumstances, including health issues.

The court found that the case was not exceptional enough to warrant a CSO, distinguishing it from *R. v. Mori*, and sentenced the defendant to three years in the penitentiary, along with ancillary orders.

Darren Smith, a police officer, was found guilty of forgery and uttering for falsifying destruction waivers for surrendered firearms.

The offences were not for personal gain but to avoid inconvenience.

The court considered mitigating factors, including his PTSD and alcohol abuse, and aggravating factors, primarily the breach of trust as a police officer.

The Crown sought a suspended sentence with community service, while the defence sought an absolute discharge.

The court granted a conditional discharge with 18 months probation and 75 hours of community service, balancing denunciation and deterrence with the offender's rehabilitation and the less serious nature of the specific crimes compared to other police misconduct.