ONCJ 2023

Eric James Dalton was charged with assault for allegedly pushing the mother of his child, Di Huang.

The Crown called the complainant and arresting officers, while Mr. Dalton represented himself and testified.

The court assessed the credibility and reliability of the witnesses, particularly the complainant's initial reluctance to provide details and inconsistencies, which were accepted as logical reactions within the context of intimate partner violence.

The court found the complainant's evidence credible and reliable, while rejecting the defendant's account as illogical and not credible.

Dalton was found guilty of assault.

This judgment provides supplementary reasons for a not guilty verdict in a criminal trial involving charges of sexual assault and sexual touching.

The court found the complainant's account to be fabricated due to significant inconsistencies, the unlikelihood of the alleged events, and the complainant's documented mental health and behavioral issues.

The decision critically examines the police investigation, concluding it was not impartial or thorough, and highlights how the school board's directive hindered the disclosure of relevant evidence, thereby compromising investigative fairness.

The Applicant, William Daigle, brought a motion to change a previous order regarding parenting time and school placement for the child.

The Respondent, Cheynna Gardner, sought primary parenting time and for the child to attend school in Eagle Lake First Nation.

The court, applying the "best interests of the child" test under the Children's Law Reform Act, considered factors such as stability, relationships with family, cultural upbringing, and proposed educational plans.

The court found that the child had stronger established ties in Sudbury, where the Applicant resides, including connections to paternal family and a familiar daycare/school environment.

Despite the Respondent's arguments for cultural immersion on reserve, the court determined that the Applicant's plan for Sudbury was in the child's best interests, providing stability and existing connections.

The Applicant was granted primary care, and the child was ordered to attend Princess Anne Public School in Sudbury, with a detailed parenting time schedule for the Respondent.

No costs were awarded.

Michael Trevor Samuels was convicted after trial of possession for the purpose of trafficking in cocaine and crystal methamphetamines, and failing to comply with a release order.

The Crown sought a 3 to 3.5 year penitentiary sentence, while the defence sought a time-served disposition, arguing for additional credit due to harsh pre-sentence custody conditions and systemic anti-Black racism.

The court found Samuels to be a commercial trafficker with an extensive criminal record for similar offences, not an addict-trafficker.

The court imposed a total sentence of two years in the penitentiary, followed by a three-year probation order, considering the gravity of the offences, the offender's moral blameworthiness, and the need for denunciation and deterrence, while also acknowledging the harsh pre-sentence custody conditions.

This criminal trial concerned a charge of assault causing bodily harm against the defendant, Shane Springer, arising from an incident on September 20, 2021, involving the complainant, Ricardo Pilgrim.

The court assessed the credibility and reliability of the witnesses, applying the principles from R. v. W.(D.).

The complainant's testimony, detailing significant head injuries caused by the defendant, was accepted as truthful and accurate.

The defendant's testimony, which offered an alternative explanation for the injuries and denied culpability, was rejected as untruthful and unreliable due to inconsistencies and lack of plausibility.

The court found no reasonable doubt regarding the defendant's guilt.

This ruling addresses an application by the prosecution to prematurely end the cross-examination of a complainant (R.C.) in a youth criminal trial involving sexual offences.

R.C., a 19-year-old pregnant witness, experienced severe distress, including suicidal ideation and physical illness, after one hour of cross-examination.

The defence opposed, arguing for the importance of cross-examination to explore potential collusion among complainants.

Applying the Hart test, the court found R.C.'s inability to continue testifying to be a valid reason, accepting her claims of mental and physical distress and potential risk to her pregnancy.

The court determined that the prejudice to the defence's fair trial rights was minimal, given that the issue of collusion had been partially explored and could be further addressed through other witnesses and ameliorative actions.

The application to discontinue R.C.'s cross-examination was granted.

The Young Person, I.M.B., brought an application to sever one count of sexual assault from six other counts involving three stepsisters, arguing prejudice, lack of legal/factual nexus, and an intention to testify solely on the severed count.

The prosecution opposed, citing a legal and factual nexus and the viability of a cross-count similar fact application.

The court, applying the "interests of justice" criteria from R. v. Last, found that while general prejudice and tactical considerations slightly favored severance, the significant viability of a similar fact application and the truth-seeking function of the trial weighed against it.

The application for severance was dismissed.

The defendant, K.R., was charged under s. 162.1(1) of the Criminal Code for knowingly publishing intimate images of the complainant, G.I., without consent.

The images, which depicted G.I.'s genitalia and sexual activity, were posted to military Facebook groups.

The central issue was whether G.I. had a reasonable expectation of privacy in these images at the time of recording and publication, as required by s. 162.1(2)(b) and (c).

The court found that G.I. did not have such an expectation, given his prior widespread distribution of the images on dating sites (Grindr, Scruff) and Pornhub, and his provision of a Facebook password to the defendant.

Applying the contextual assessment from R. v. Jarvis, the court concluded that the Crown failed to prove the privacy element of the offence.

K.R. was found not guilty.

David Kukoly, a former police officer and unregistered massage therapist, pleaded guilty to five counts of sexual assault involving eleven women over three years.

The Crown sought a four-year penitentiary sentence, while the defence argued for a reformatory sentence in the community, citing the defendant's genuine but mistaken belief in consent and the mitigating factor of his guilty plea.

The court considered aggravating factors, including abuse of trust and vulnerability of victims, and mitigating factors, such as the guilty plea, lack of prior record, and risks of incarceration for a former police officer.

The court imposed a conditional sentence of two years less a day, emphasizing denunciation and deterrence through significant deprivation of liberty (house arrest), along with probation, SOIRA registration, DNA order, and a s. 110 order.

The accused, N.J., was charged with sexual assault.

The central issue was consent, assessed through the credibility and reliability of the complainant, J.H., and the accused.

The court rejected the accused's implausible testimony, finding it undermined his credibility.

Despite some minor inconsistencies in the complainant's evidence, her testimony was found to be clear, concise, cogent, logical, and plausible, corroborated by text messages and a nurse practitioner's report.

The court found the Crown proved its case beyond a reasonable doubt and registered a conviction.

This preliminary inquiry concerned charges of aggravated assault and criminal negligence against the accused, Mohamed Belkhier, relating to injuries sustained by a 5-month-old infant.

The inquiry focused solely on the aggravated assault count.

The Crown argued that the accused caused the injuries and failed to report them, suggesting a jury could infer intentional force.

The defence contended there was insufficient evidence for intentional force or objective foresight of harm, asserting the injuries were accidental.

The court reviewed the purpose and function of a preliminary inquiry, particularly the limited weighing of circumstantial evidence.

While the court found no evidence to support the Crown's theory of intentional force beyond conjecture, it determined there was sufficient evidence to infer recklessness in the accused's handling of the infant, which could objectively foreseeably cause bodily harm.

Consequently, the accused was committed to stand trial for aggravated assault.

T.S. was found guilty of sexual assault (s. 271 Criminal Code) following a two-day trial.

The court considered the circumstances of the offence, which involved non-consensual vaginal penetration and a betrayal of trust with a long-standing friend, and the significant impact on the victim.

Mitigating factors included T.S. being a first-time offender, suffering from ADHD and likely other cognitive deficiencies, and having family support.

Aggravating factors were the betrayal of trust and the profound victim impact.

Applying sentencing principles, particularly denunciation and deterrence, and guided by the three-year starting point for forced penetration sexual assaults articulated in R. v. A.J.K., the court imposed a three-year penitentiary sentence, finding no "highly mitigating factor" to warrant a lesser sentence despite T.S.'s cognitive challenges.

Ancillary orders were also made.

Both parents brought motions regarding their two children.

The mother sought a restraining order and no parenting time for the father, citing his erratic and frightening behaviour and mental health concerns.

The father sought unsupervised parenting time.

The court found the father's recent behaviour to be out of control and frightening to the mother and children.

The court granted sole decision-making responsibility and primary residence to the mother, ordered no parenting time for the father, and imposed a restraining order.

The father was also restricted from bringing future motions to change the order without leave and a psychiatrist's letter.

This four-day trial concerned a child protection application brought by the Children's Aid Society of Toronto regarding the child A.E. The Society sought a protection finding and an order placing the child in the care of the paternal grandparents under a supervision order, with access to the father at the agency's discretion.

The father sought the child's return.

The court found the child in need of protection due to the father's mental health, impulsive and risky behavior, and exposure to domestic violence.

The court ordered the child's placement with the paternal grandparents under a 12-month supervision order, with no access to either parent, and issued a restraining order against the father due to his non-compliance with previous orders and chaotic, hostile conduct during the trial.

The accused, M.W., charged with sexual assault and sexual interference, brought an application for a stay of proceedings under s. 11(b) of the Charter due to alleged unreasonable delay.

The total delay from information sworn to anticipated trial end was 1334 days.

The court analyzed various periods of delay, attributing portions to defence conduct (e.g., change of counsel, failure to attend court, late notice of s. 11(b) concerns) and exceptional circumstances (COVID-19 pandemic).

After deducting defence and pandemic-related delays, the net delay was calculated to be 514 days (approximately 16.9 months), which falls below the 18-month presumptive ceiling for provincial court cases established in R. v. Jordan.

The court found the defence failed to demonstrate meaningful steps to expedite proceedings, and therefore dismissed the application for a stay.

The defendant was charged with assault, assault with a weapon (knife), assault by strangling, and threatening to cause death, stemming from two incidents in August and December 2020.

The case involved conflicting testimony between the complainant and the defendant's daughter, as well as inconsistencies between the complainant's testimony and medical records.

Applying the principles of R. v. W(D), the court found the complainant's testimony lacked confidence and the defence evidence raised reasonable doubt.

All charges were dismissed.

Steven Medard pleaded guilty to voyeurism for secretly recording a student nurse in a hospital staff washroom.

Initially minimizing his actions to a probation officer, he later admitted to deliberate, pre-planned conduct.

The court considered a pre-sentence report and a psychological risk assessment.

The Crown sought a custodial sentence of 6-8 months, while the defence sought a 12-month conditional sentence.

The judge imposed a 12-month conditional sentence, with the first six months under house arrest with GPS monitoring, followed by a two-year probation order.

The decision balanced denunciation and deterrence with rehabilitation and restraint, recognizing Medard as a youthful first offender who had taken steps towards rehabilitation.

Tyler Westlin pleaded guilty to assault causing bodily harm.

The victim, a hotel employee, sustained serious facial injuries requiring two surgeries.

The Crown sought a 6-month jail sentence followed by 2 years probation, emphasizing denunciation and deterrence.

The defence sought a 12-month conditional sentence, highlighting the accused's remorse, rehabilitation efforts (anger management, reduced alcohol consumption, mental health support), and a 12-year gap in his criminal record.

The court, balancing sentencing principles including proportionality and restraint, imposed a 12-month conditional sentence with restrictive conditions, finding it could adequately address denunciation and deterrence while supporting the offender's rehabilitation and financial obligations to his children.

Kemar Clarke was charged with criminal harassment by repeatedly following the complainant, M.R., and breaching a probation order.

The court found M.R.'s testimony credible and reliable despite some discrepancies in eyewitness identification.

The court determined that the defendant's conduct constituted "repeatedly following" for criminal harassment purposes and that the defendant knew he was harassing the complainant.

Furthermore, the court found the defendant was the same person named in the prior probation order, and the presumption of judicial regularity applied regarding his knowledge of the probation terms, despite the order not being signed.

The defendant was found guilty on both counts.

Tremar Thorpe pleaded guilty to possession of a loaded and prohibited firearm.

The offence involved pointing the gun at a victim and making racist remarks.

The court considered aggravating factors, including the nature of the firearm, its loaded and defaced state, its accessibility, and the offender's use of it.

Mitigating factors included the offender's youth, early guilty plea, remorse, strong community support, prosocial goals, and time spent on strict bail conditions.

The Crown sought a 3-4 year penitentiary sentence, while the Defence sought a conditional sentence.

The court emphasized deterrence and denunciation as paramount objectives for gun crimes, ultimately imposing a 28-month penitentiary sentence, reduced to 22 months after credit for pre-trial custody and stringent bail conditions, along with a 10-year firearms prohibition and a DNA order.