ONCJ 2022

At the start of a robbery trial, the Crown brought a Seaboyer application to adduce evidence regarding the complainant's occupation as a sex worker and the sexual service performed prior to the alleged robbery.

The court held that the statutory regime under s. 276 of the Criminal Code did not apply because robbery is not an enumerated offence and the circumstances did not implicate a listed sexual offence.

The court further held that the common law principles from Seaboyer did not require an application in this context, as the ordinary rules of relevance, materiality, and admissibility would sufficiently protect the complainant's privacy and the accused's fair trial rights.

The Crown's application was dismissed as unnecessary.

The defendant was tried on charges of invitation to sexual touching and breach of a prohibition order.

The child complainant alleged she spent the night at the defendant's apartment and he propositioned her the next morning.

The defendant denied she entered his home.

Applying the W.(D.) framework, the court found reasonable doubt regarding the sexual touching charge due to reliability concerns with the complainant's evidence.

However, the court found the defendant guilty of breaching the s. 161 prohibition order, rejecting the argument that the contact was de minimus.

The accused was charged with multiple sexual offences after an undercover police officer posing as a 14-year-old boy on social media applications received sexually explicit communications and images.

The Crown's case on identity was entirely circumstantial, relying on the use of the accused's phone number, his likeness in the images, and his residence.

The court found that while the evidence was cogent, the lack of metadata, the failure to investigate another resident's devices, and the possibility of shared login credentials left a reasonable doubt as to whether the accused was the person communicating with the officer.

The accused was acquitted of all charges.

The defendant, a high school principal charged with offences relating to an alleged hug and kiss of a young person, brought an application for a stay of proceedings under s. 11(b) of the Charter.

The total delay from the swearing of the Information to the anticipated end of trial was 19 months and 20 days.

The court deducted approximately 5 months of delay solely attributable to the COVID-19 pandemic and a brief period of defence delay, resulting in a net delay of 14 months, which is below the 18-month presumptive ceiling for the Ontario Court of Justice.

The court then considered whether the case took markedly longer than it reasonably should have.

Although the court found that the defendant took meaningful steps to expedite the proceedings and criticized the prosecution for a lack of diligence, it ultimately concluded that the 14-month net delay was not inordinate given the serious nature of the charges and the typical intake periods.

The application was dismissed.

The applicants, charged with robbery of a firearm, brought a Charter motion challenging the validity of search warrants executed at their residences.

The police had obtained the warrants based on an Information to Obtain (ITO) that linked the applicants' vehicles to the robbery, but relied on generalized assumptions to conclude that evidence would be found in their homes over two months later.

The court found that the ITO lacked case-specific evidence connecting the residences to the offence, rendering the searches a violation of section 8 of the Charter.

Applying the Grant framework, the court concluded that the serious impact on the applicants' privacy rights and the sloppy police conduct warranted the exclusion of the evidence under section 24(2).

The offender, an Indigenous man, pled guilty to manslaughter after fatally cutting the victim's throat during an altercation over a drug debt.

The victim had initially attacked the offender with a baton while both were under the influence of fentanyl.

The court conducted a detailed Gladue analysis, noting the offender's significant rehabilitative efforts while on bail, including completing treatment programs and reconnecting with his culture.

Emphasizing restorative justice principles, the court sentenced the offender to 22 months of time served and three years of probation.

The case was a trial concerning parenting and child support for the parties' five-year-old daughter.

The applicant mother sought final orders for primary residence, sole decision-making authority, and retroactive child support.

The respondent father sought primary residence with him, sole decision-making (with an exception for religion), shared parenting time, and no ongoing or retroactive child support.

The court found it was in the child's best interests to remain in the mother's primary care with the mother having sole decision-making authority.

The court imputed the father's income due to inadequate financial disclosure and ordered retroactive child support and ongoing support, along with a specific parenting time schedule.

The applicant society sought an order for no further involvement regarding three children previously found in need of protection due to physical abuse by their parents.

The parents supported this, while the maternal grandparents, who cared for the oldest child, sought a supervision order and access to the younger siblings.

The court found that a further order was necessary to protect the children's sibling and extended family relationships, as the parents were unlikely to facilitate access due to religious differences and animosity.

The court ordered 12-month supervision orders placing the oldest child with the grandparents and the younger children with the parents, with specified sibling and grandparent access.

The defendant was charged with speeding in a community safety zone based on evidence from an Automated Speed Enforcement (ASE) system.

The prosecution relied on the certified photographs and the testimony of a Provincial Offences Officer.

The defence called the driver of the vehicle, who testified that he had set the cruise control below the speed limit and provided a credible explanation of his actions.

Applying the W.(D.) framework, the court found that the driver's exculpatory evidence, combined with frailties in the officer's testimony regarding the testing of the ASE system, raised a reasonable doubt.

The defendant was found not guilty and the charge was dismissed.

The defendant was charged with careless driving causing death and bodily harm after her vehicle lost control on Highway 407, crossed the median, and collided with an oncoming vehicle.

The Crown alleged the defendant drove without due care and attention.

The defence argued the accident was caused by the front-seat passenger abruptly pulling the steering wheel during an argument, supported by hearsay statements the passenger made to a third party admitting he 'pulled the wheel'.

The court found the Crown failed to prove careless driving beyond a reasonable doubt, as the passenger interference theory raised a reasonable doubt and no other evidence of erratic driving or mechanical failure was established.

The defendant was acquitted.

The defendant was charged with careless driving causing bodily harm and death after a fatal motor vehicle accident.

During the trial, the defence sought to introduce hearsay statements made by a passenger to an acquaintance, in which the passenger admitted to pulling the steering wheel and causing the accident.

The Crown opposed the admission of the statements.

The court applied the principled approach to hearsay and found that the statements met the threshold for necessity and reliability.

The court ruled the hearsay statements admissible for the truth of their contents.

The applicant mother brought a motion for temporary child and spousal support.

The respondent father, a self-employed bricklayer, claimed a modest income but failed to provide adequate financial disclosure regarding his business dealings, subcontractors, and cash deposits.

The court drew an adverse inference and imputed the father's income at $533,426.74.

Applying the Child Support Guidelines for incomes over $150,000, the court ordered table child support of $4,060 per month.

The court also found the mother entitled to compensatory and non-compensatory spousal support, ordering $5,000 per month on a temporary basis.

A 13-year-old young person pled guilty to unauthorized possession of a prohibited firearm and failing to comply with an undertaking.

The Crown and defence jointly submitted a sentence of time served (130 days) plus probation.

The court rejected the joint submission, finding that a custodial sentence was not legally available under s. 39 of the Youth Criminal Justice Act because the mere possession of the firearm did not constitute a 'violent offence' and the circumstances did not amount to an 'exceptional case'.

The young person was sentenced to 18 months of probation with ancillary orders.

The accused, a police officer, pleaded guilty to breach of trust after using his position to access confidential vehicle registration information for his son.

The son subsequently used this information to commit a home invasion that resulted in a homicide.

The court weighed the paramount sentencing principles of deterrence and denunciation against the accused's guilty plea, lack of prior record, and the fact that he did not foresee the homicide.

The court imposed a 12-month conditional sentence order.

The applicants, charged with various drug trafficking and weapons offences, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging an infringement of their right to be tried within a reasonable time under s. 11(b).

The total delay from the laying of charges to the anticipated end of trial was 915 days.

After deducting defence-caused delay and deliberation time, the net delay was 773 days, exceeding the 18-month presumptive ceiling for provincial court matters.

The Crown argued that the COVID-19 pandemic constituted an exceptional circumstance justifying the delay.

The court rejected this argument, finding that the primary cause of the delay was the Crown's failure to provide timely disclosure, not the pandemic.

As the Crown failed to mitigate the delay or establish exceptional circumstances, the court found a breach of s. 11(b) and stayed the proceedings.

The accused, charged with sexual assault and common assault, brought an application under section 278.94 of the Criminal Code seeking leave to cross-examine the complainant about an alleged consensual sexual encounter that occurred months after the alleged offences.

The accused argued the evidence was relevant to the complainant's credibility and supported his defence that the assault never occurred.

The court dismissed the application, finding that admitting the evidence would violate the myth-based reasoning prohibition in section 276(1) and that the evidence lacked significant probative value to outweigh its prejudicial effect.

The accused was charged with impaired operation of a conveyance after being involved in two motor vehicle collisions and exhibiting erratic driving.

The accused conceded the actus reus of being impaired by a drug but argued he lacked the mens rea, claiming his intoxication was involuntary due to a combination of his prescribed medications and an over-the-counter cold medication.

The court found the accused's evidence lacked credibility and reliability, noting significant inconsistencies and a failure to establish a nexus between the cold medication and his impairment.

The accused failed to rebut the presumption of voluntary intoxication, resulting in a finding of guilt.

The Children's Aid Society brought a motion seeking to terminate a father's access to his child and for restraining orders protecting the child's grandparents and Society staff from the father.

The court dismissed the request for a restraining order in favour of the grandparents due to insufficient evidence of threats.

The court also held that the statutory framework under the Child, Youth and Family Services Act does not permit a restraining order in favour of the Society.

The court declined to terminate the father's access, finding insufficient evidence of harm to the child, but imposed strict conditions on his access, including a requirement that the Society hire a professional supervised access service and that the father communicate with the Society only through its legal counsel.

The applicant, facing drug and firearm charges, brought a Charter application alleging violations of sections 7, 8, 9, and 10(b) during his arrests.

The Crown conceded violations of sections 8 and 9 regarding the "no-knock" entry during the second arrest but argued the delay in access to counsel was reasonable.

The court found that the police's unannounced entry into the applicant's home to execute a Feeney warrant, without judicial authorization for such entry and without exigent circumstances, violated his section 7 and 8 Charter rights.

The court found the delay in access to counsel was not unreasonable in the circumstances of both arrests.

As a remedy for the Charter violations related to the Feeney warrant execution, the court granted a partial stay of proceedings, specifically staying the firearm-related charges, but allowed the drug trafficking charges to proceed.

The applicant, Daveion Brown, sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay, arguing the total delay of 797 days (26 months and 6 days) exceeded the Jordan ceiling.

The Crown contended that defence delay and exceptional circumstances (discrete events, case complexity) justified the delay.

The court found 92 days of defence delay, resulting in a net delay of 705 days (23.2 months), which still exceeded the 18-month presumptive ceiling.

While acknowledging the case's complexity, the court rejected the Crown's arguments for discrete events and found the Crown's prosecution plan, despite a significant conflict-of-interest issue, was not unreasonable in minimizing delay for this complex case.

The application for a stay of proceedings was dismissed.