ONCJ 2021

The applicant, charged with aggravated assault and weapons offences, brought an application for a stay of proceedings under s. 11(b) of the Charter due to a total delay of nearly 24 months.

The Crown argued that a six-month deduction should be applied due to the Covid-19 pandemic.

The court found that the primary cause of the delay was the Crown's failure to provide essential disclosure, specifically CCTV footage, for over a year.

The court held that the Crown failed to establish a causal link between the pandemic and the delayed disclosure.

As the delay exceeded the 18-month Jordan ceiling without justification, the application was granted and a stay of proceedings was ordered.

The accused, a bicycle courier, was charged with assault with a weapon, assault causing bodily harm, and mischief under $5,000 following a road rage altercation with a motorist.

After the accused crossed an intersection against a red light and kicked the motorist's car, the motorist exited his vehicle and aggressively confronted the accused.

The accused struck the motorist's raised hand with a bicycle lock and pulled him to the ground.

The court acquitted the accused of mischief due to a lack of evidence that his kick caused the alleged damage.

The court also acquitted the accused of the assault charges, finding that the Crown failed to disprove self-defence under s. 34 of the Criminal Code, as the accused reasonably feared for his safety and his response was proportionate.

The applicant brought an application for a stay of proceedings under section 11(b) of the Charter, citing a total delay of 20.82 months.

The Crown argued that the COVID-19 pandemic, delayed disclosure, and personnel changes constituted exceptional circumstances justifying the delay.

The court rejected these arguments, finding no causal link between the pandemic and the delay, and noting that the Crown and police failed to provide timely disclosure.

The application was granted, and the charges were stayed.

The applicant father brought a Motion to Change a 2017 final order that left his parenting time entirely at the respondent mother's discretion.

The mother conceded a material change in circumstances but sought to maintain highly restrictive, supervised-style access.

The court found the mother lacked insight, unjustifiably restricted the father's access, and failed to foster the child's relationship with him.

Relying on the Office of the Children's Lawyer report and the father's consistent commitment, the court significantly expanded the father's parenting time to include regular overnights and shared holidays, finding it in the child's best interests.

The accused was found guilty of possession of a restricted firearm, possession of a weapon for a purpose dangerous, and being an occupant in a motor vehicle knowing there was a prohibited firearm, following a shootout where he was severely injured.

The Crown sought a further 18 months in custody, while the defence sought a conditional sentence due to the accused's severe injuries, lack of criminal record, and strict compliance with bail conditions for 34 months.

The court emphasized the need for denunciation and deterrence but found that the accused's unique circumstances, including his traumatic background and life-altering injuries, warranted a non-custodial sentence.

The accused was sentenced to a conditional sentence of two years less a day, followed by three years of probation.

The father applied for primary residence and sole decision-making responsibility of the parties' four-year-old child.

The mother, who had primary care until she took the child to Pakistan without notice, sought to have the child returned to her care.

The court found the mother lacked credibility, neglected the child's dental and educational needs, made false allegations of sexual abuse against the father, and failed to address her own mental health issues.

The court granted the father primary residence and sole decision-making responsibility, ordering that the mother's parenting time be supervised.

The mother was also ordered to pay child support based on an imputed income.

The accused, Faysal Adow, brought a Charter application to exclude evidence (drugs) seized following his arrest for impaired care and control and subsequent arrest for possession for the purpose of trafficking.

The court found that the initial arrest for impaired care and control was unlawful due to a lack of reasonable and probable grounds.

Consequently, the subsequent search of the vehicle, which led to the discovery of drugs, was an unreasonable search in violation of section 8 of the Charter.

The court also found violations of section 10(b) of the Charter for delayed provision of rights to counsel.

Applying the s. 24(2) analysis, the court determined that the seriousness of the state conduct and the impact on the accused's Charter-protected interests outweighed society's interest in the adjudication on the merits, leading to the exclusion of the evidence and a finding of not guilty on all counts.

The Crown applied to admit a witness's prior police statement under the 'past recollection recorded' exception to the hearsay rule or, alternatively, under the principled approach to hearsay, arguing for its threshold reliability.

The court dismissed both applications, finding that the witness's memory loss was not genuine for the 'past recollection recorded' exception, and that the statement lacked sufficient procedural and substantive reliability under the principled approach due to issues with its recording, absence of oath/caution, and inconsistencies with other evidence.

The accused, Bryan Babic, brought a Charter application seeking to exclude evidence obtained in alleged violation of sections 8 (unreasonable search and seizure) and 9 (arbitrary detention and unlawful arrest) of the Canadian Charter of Rights and Freedoms.

The application arose from his arrest for robbery and disguise with intent, following police identifying his vehicle as the getaway car from a prior robbery.

The court found that the police had reasonable and probable grounds for the high-risk take-down and arrest, and that the subsequent search of his vehicle's trunk was a lawful search incident to arrest, aimed at discovering evidence of the offence.

Both the section 9 and section 8 applications were dismissed.

The accused, R.M.P., was charged with one count of sexual assault against the complainant, A.M. The trial focused on whether the sexual encounter was consensual and if the accused was aware of any lack of consent.

The court assessed the credibility and reliability of both witnesses, applying the principles from R. v. W.D. and R. v. J.J.R.D. The defence theory that the complainant fabricated the allegation due to feeling disrespected was rejected as inconsistent with the evidence, particularly the complainant's immediate demeanour after the incident.

The court found the complainant's testimony credible and accepted her version of events, concluding that the Crown had proven the allegation beyond a reasonable doubt and found the accused guilty.

The accused was charged with failing to comply with a recognizance after being caught driving past his curfew.

He admitted the breach but argued he had a lawful excuse, claiming he was rushing to assist his pregnant wife with a medical emergency.

The court found the accused's testimony lacked credibility, noting inconsistencies and his failure to call his wife as a witness to corroborate the emergency.

The accused failed to prove the lawful excuse on a balance of probabilities and was found guilty.

The father brought a motion to change to terminate child support for his 24-year-old son, arguing the son was no longer entitled after graduating high school.

The mother opposed and sought retroactive child support and section 7 expenses dating back to 2007, alleging the father failed to disclose significant income increases.

The court found the adult child remained entitled to support due to his ongoing medical conditions and enrollment in a college program.

Applying the D.B.S. and Colucci frameworks, the court awarded $55,000 in retroactive child support and section 7 expenses, finding that the father's failure to disclose his income constituted blameworthy conduct that outweighed the mother's unreasonable delay in bringing the application.

This is a placeholder entry indicating that the full reasons for the decision in R. v. Vialva, 2021 ONCJ 651, were not available at the time of publication.

The accused was charged with sexual assault and committing an indecent act.

The court found the Crown proved the offences beyond a reasonable doubt, relying on the complainant's identification evidence and the arresting officers' observations.

However, the accused was subjected to a strip search at the police station.

The court found the strip search violated the accused's Charter rights, as there were no reasonable and probable grounds to justify it.

Given the systemic failure and high-handed disregard for established law regarding strip searches, the court granted a stay of proceedings as the appropriate remedy.

The accused was tried for breaching a probation order prohibiting him from being near his former mother-in-law.

The complainant alleged she recognized the accused, who was wearing a mask and hat, when he briefly entered the store where she worked.

The court found the Crown failed to prove the accused's identity beyond a reasonable doubt due to the frailties of the recognition evidence.

Furthermore, even if identity was proven, the Crown failed to establish the accused had subjective knowledge he was violating the condition, as it was a chance encounter and he left immediately.

The accused was acquitted.

The accused, charged with sexual assault, brought a pre-trial application requesting that the complainant and her mother be required to remove their masks while testifying.

The defence argued that seeing the witnesses' full faces was essential for assessing credibility and making full answer and defence.

The court dismissed the application, holding that the limited value of facial demeanour in assessing credibility was outweighed by the public health risks of transmitting COVID-19 in a courtroom.

The court noted that other aspects of demeanour, such as body language and tone, remain visible, and that the substance of a witness's evidence is a better guide to reliability.

The accused was charged with criminal harassment by besetting or watching the workplace of his former partner.

Following a dispute over child support, the accused attended the complainant's home and workplace with signs calling her a 'deadbeat mom' and displaying her phone number.

The court found that the accused's conduct constituted 'besetting' under s. 264(2)(c) of the Criminal Code.

The court held that the complainant's fear for her psychological and emotional safety was objectively reasonable given the accused's intent to publicly humiliate her.

The accused was found guilty.

The applicant mother brought a motion to change the respondent father's temporary parenting time from in-person to virtual because he was unvaccinated and not following COVID-19 health protocols.

The court found the father's refusal to vaccinate and his conflict with daycare staff over masking constituted a material change in circumstances affecting the children's physical safety.

The court reduced the father's in-person parenting time to 2.5 hours per week subject to strict masking and vaccination conditions for other adults present, and ordered daily virtual parenting time.

The mother and father both brought motions regarding interim parenting time for their 9-year-old child.

The father was facing criminal charges for sexual offences against two female children, including the child's stepsister, and was subject to bail conditions prohibiting contact with children.

The mother sought to deny the father parenting time, while the father sought supervised and virtual parenting time.

The court found that the father had not disentitled himself to parenting time as he had not been convicted and retained the presumption of innocence.

The court ordered interim supervised parenting time for the father at the Sudbury Supervised Access Centre once a week for up to two hours, and permitted the child to initiate virtual contact twice a week.

The moving party father brought motions for parenting time and reunification therapy after his access to the child was cut off following criminal charges against him, which were later withdrawn.

The responding party mother alleged the father had sexually abused the child, though no charges were laid against him for those allegations.

The court ordered interim supervised access for the father but declined to order reunification therapy on an interim motion, noting the lack of an independent report and specific details for a therapy plan.