ONCJ 2023

The young person was charged with sexual assault.

The Crown alleged the young person engaged in non-consensual vaginal intercourse with the complainant while she was incapable of consenting due to marijuana intoxication.

The young person testified that the sexual intercourse occurred on a different day and was consensual.

Applying the W(D) principles, the court found significant inconsistencies in the evidence of the Crown witnesses regarding the events and the effects of the marijuana.

The court concluded the evidence left a reasonable doubt and acquitted the young person.

The accused was charged with aggravated assault after striking the victim in the head with a bottle at a nightclub.

The victim had initiated an unprovoked attack by punching the accused several times.

The accused claimed self-defence.

The court applied the self-defence framework under section 34 of the Criminal Code and found that while the accused was defending himself, his response of swinging a bottle in an overhand motion was disproportional to the threat, as the victim's punches did not injure him or knock him off balance.

The accused was found guilty of aggravated assault.

The respondent father brought a motion seeking to transfer the 8-year-old child from her current English school to a French Immersion program for Grade 4.

The applicant mother opposed the motion, arguing the child had learning challenges and should remain in the Core French program.

The court excluded the mother's expert evidence due to bias and lack of independence.

Applying the best interests of the child test, the court found that the child's academic struggles and the parents' poor communication made a transfer to French Immersion contrary to her best interests.

The motion for school transfer was dismissed, but temporary orders were made to ensure the child's continued exposure to French through summer camps and extra-curricular activities.

The applicant sought to exclude evidence seized during a residential search warrant, arguing a breach of her s. 8 Charter rights.

The warrant was based on an Information to Obtain relying heavily on a confidential informant who alleged purchasing crack cocaine from the applicant.

The court applied the Debot criteria and found the informant's information was credible, compelling, and sufficiently corroborated by police investigation.

The application was dismissed as there was a solid basis for the issuing justice to find reasonable and probable grounds.

The offender pleaded guilty to impaired driving causing bodily harm and failing to remain at the scene of a collision.

While impaired by fentanyl and other drugs, the offender struck a parked car, fled the scene, and subsequently caused a head-on collision while driving 122 km/h in a 50 km/h zone.

The victim suffered life-threatening, life-altering injuries.

The court emphasized denunciation and general deterrence, rejecting a conditional sentence.

The offender was sentenced to a total of 33 months in penitentiary and a 3-year driving prohibition.

The respondent father brought a motion to set aside two final court orders concerning parenting and child support, arguing technological issues prevented his participation and that the applicant mother had agreed to mediation.

He sought leave to file an Answer/Claim, shared parenting, and recalculation of child support.

The court dismissed the motion, finding the father had adequate notice and made an informed choice not to participate, and that his claims lacked sufficient merit.

The accused pled guilty to possessing fentanyl and methamphetamine for the purpose of trafficking, and possessing a loaded prohibited firearm while bound by a weapons prohibition.

The court weighed the devastating impact of fentanyl and gun violence against the accused's guilty plea, lack of prior related record, and harsh pre-trial custody conditions.

The court imposed a total sentence of 11 years incarceration, reduced by 1 year and 9 months for pre-sentence custody and lockdown conditions, resulting in 9 years and 3 months going forward.

The defendant, 961557 Ontario Ltd., operating as "The Crooked Cue," was charged with failing to comply with an emergency order under the Emergency Management and Civil Protection Act for operating an indoor dining area during COVID-19 restrictions.

The prosecution alleged the establishment was not an "outdoor dining area" as required by O. Reg. 263/20.

The court found that the prosecution failed to prove the actus reus beyond a reasonable doubt, primarily because no clear, written regulatory order was established, and the interpretation of "outdoor dining area" by public health officials was subjective, inconsistent, and based on fluid guidelines rather than the regulation's plain wording.

The charge was dismissed.

The defendant, 961557 Ontario Ltd. operating as "The Crooked Cue," brought a s.11(b) Charter motion for a stay of proceedings due to inordinate delay in a Provincial Offences Act charge.

The court calculated the total delay, subtracted periods attributable to defence conduct (including a largely unsuccessful disclosure motion, issues with setting trial dates, failure to perfect the s.11(b) motion, a directed verdict motion, and a motion to take a view), and accounted for COVID-19 as an exceptional circumstance.

The net delay, after deductions, fell below the 18-month presumptive ceiling for provincial court matters.

The defendant failed to demonstrate the remaining delay was unreasonable or that they took meaningful steps to expedite the case.

The motion was dismissed.

The offender, Kevin Gordon, pleaded guilty to possession of fentanyl for the purposes of trafficking.

The court considered aggravating factors, including the dangerous nature of fentanyl and his criminal record, and significant mitigating factors, such as his guilty plea, the fact that his trafficking was driven by addiction rather than greed, and his substantial rehabilitative efforts since his arrest (securing housing, employment, and becoming drug-free).

The Crown sought a three-year sentence, while the defence sought a conditional sentence of two years less a day.

Applying sentencing principles, particularly the emphasis on rehabilitation for addict-traffickers, the court imposed a conditional sentence of two years less a day, followed by 18 months of probation, along with ancillary orders.

The Children's Aid Society of Toronto brought a motion seeking an order to prohibit the respondent mother from making public social media postings related to the society's involvement with her children, the children's fathers, caregivers, and society employees, and to compel the removal of existing posts.

The mother opposed the motion.

The court granted the orders, finding that the mother's postings violated subsection 87(8) of the Child, Youth and Family Services Act, 2017, by identifying children and parties to the proceedings.

The court also relied on its inherent power to control its own process to protect participants from cyberbullying and maintain the integrity of child protection proceedings.

The Catholic Children's Aid Society of Toronto sought extended society care for the child ES, who had been in care for over 26 months.

The mother opposed, seeking return of the child under supervision, while the father supported the society's plan.

The court found a continuing need for protection due to the mother's struggles with finances, housing, employment, mental health, and inconsistent parenting, as well as her lack of insight and litigious behaviour.

The court dismissed the mother's request for return and for a further extension of interim society care, granting extended society care to the society.

The father was designated an access holder, while the mother was designated an access recipient, with both having minimum monthly access.

The Jewish Family and Child Services of Greater Toronto brought a motion to declare the respondent Z.Y. a "special party" under subrule 2(1) of the Family Law Rules and to appoint the Public Guardian and Trustee (PGT) as her representative.

Z.Y., the mother of the subject child, opposed the motion.

The court reviewed the legal framework for determining mental incapacity, including provisions from the Substitute Decisions Act, 1992, and relevant case law.

Based on evidence of Z.Y.'s severe mental health decline, disorganized thinking, and inability to understand the proceedings or appreciate the consequences of her decisions, the court found that Z.Y. met the criteria for a "special party" due to mental incapacity.

The motion was granted, and the PGT was appointed as Z.Y.'s representative to protect her interests and ensure proper presentation of information for the child's best interests.

This ruling addresses the admissibility of five hearsay statements made by the complainant in a criminal trial for aggravated sexual assault and assault.

The court conducted a voir dire to determine if the statements were admissible under the common law res gestae exception or the principled exception to the hearsay rule.

The judge admitted two statements under res gestae, and partially admitted a third under the principled exception (a gesture and statement about location, but not the assertion of assault).

The remaining two statements were deemed inadmissible due to a lack of substantive reliability or because the police notes did not constitute a "statement" of the declarant.

This sentencing decision addresses the appropriate sentence for a 39-year-old man convicted of assault causing bodily harm against his 67-year-old uncle.

The unprovoked attack resulted in significant injuries, including two knocked-out teeth and ongoing anxiety for the victim.

The court considered the Crown's request for a custodial sentence (4-6 months) and the defence's proposal for a conditional sentence.

Despite the seriousness of the offence and the victim's vulnerability, the court imposed an eight-month conditional sentence (four months house arrest), three years probation, restitution, a 10-year weapons prohibition, and a DNA order, emphasizing the offender's lack of prior record, pro-social behaviour, and the principles of restraint and rehabilitation.

Lee Mosley was convicted of four criminal offenses, including pointing a firearm, possessing a weapon contrary to a s. 109 prohibition order, failing to comply with a release order, and unauthorized weapon possession.

The charges stemmed from an incident where Mosley brandished a handgun at two unarmed men attempting to retrieve stolen tires from his property.

The court considered aggravating factors such as the use of a real firearm, the existing prohibition order, and the threat posed to public safety, alongside mitigating factors like the absence of prior firearms convictions and a history of trauma.

The pre-sentence report indicated a lack of insight and remorse.

The court imposed a total sentence of three years imprisonment, emphasizing denunciation and deterrence for firearms offenses, while rejecting the Crown's request for 4.5 years as disproportionate given the specific facts and the accused's record.

Sean Rosenthal, charged with impaired driving, brought multiple motions seeking a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter and a declaration that the Information was a nullity due to breaches of s. 505 and s. 485 of the Criminal Code, arguing violations of his s. 7 and 11(d) Charter rights.

The court dismissed all motions, finding that the net delay was below the Jordan ceiling and that the procedural errors in laying the Information did not invalidate it or result in a loss of jurisdiction over the offence, nor did they constitute Charter violations or an abuse of process.

The applicant (mother) sought parenting orders, child support, and spousal support from the respondent (father) for their 6-year-old daughter.

The father opposed these claims.

Due to the father's repeated non-compliance with court orders, failure to provide financial disclosure, and history of assault and threatening behavior towards the mother, his Answer/Claim was struck.

The court proceeded with the trial, hearing the mother's evidence and the father's submissions.

The court granted the mother sole decision-making responsibility, primary residence, and dispensed with the father's consent for travel and documentation.

Child support was ordered retroactively from July 1, 2021, based on the father's imputed income.

Spousal support was awarded on both compensatory and non-compensatory grounds, with a tiered amount and a fixed duration until December 31, 2029, starting January 1, 2022.

Foster parents moved to be added as parties in a child protection proceeding involving three children who had been in their care for 22 months.

The Sarnia-Lambton Children's Aid Society and the children's parents sought a final order based on a Statement of Agreed Facts, which proposed placing the children in three different kin homes.

The court dismissed the foster parents' motion for full party status, finding they did not qualify as statutory parents and lacked a legal interest for discretionary party status.

However, recognizing their significant role and the need for all relevant evidence, the court granted the foster parents expanded participatory rights, including the ability to file evidence, cross-examine witnesses, and make submissions regarding the children's disposition of care.

The court also declined to issue the final order based on the Statement of Agreed Facts due to concerns about the proposed plan and missing evidence, requiring a focused hearing on disposition.

This decision concerns the sentencing of an Indigenous offender, Evan Buswa, who pleaded guilty to multiple charges including theft, break and enter, and breaches of court orders, primarily involving the theft of donation and tip boxes.

The court considered significant mitigating factors such as the offender's Indigenous heritage, chronic homelessness, mental health challenges (schizophrenia), and substance addiction, applying Gladue principles.

Despite the Crown seeking a one-year jail sentence, the court emphasized the disproportionate impact of incarceration on vulnerable Indigenous individuals and the systemic factors contributing to their over-representation in the criminal justice system.

The judge ultimately imposed a suspended sentence with one year of probation, highlighting that jails are not a solution for issues rooted in poverty, mental health, and addiction.