ONCJ 2024

The applicant, charged with an owner liability red-light camera offence under the Highway Traffic Act, brought a Charter motion alleging a breach of her s. 11(b) right to be tried within a reasonable time.

The respondent argued that s. 11(b) did not apply to such offences or, alternatively, that the delay was reasonable.

The court found that s. 11(b) does apply to these quasi-criminal proceedings, as they possess the indicia of criminal prosecutions and the penalties are penal in nature.

However, upon calculating the delay, the court determined that the net delay, after accounting for defence delay, fell below the 18-month presumptive ceiling established in R. v. Jordan.

Consequently, the applicant's motion was dismissed.

The accused, charged with drug trafficking and possession of proceeds of crime, filed a Charter application challenging the lawfulness of his warrantless arrest and search, which were based on confidential informant (CI) information.

The Crown invoked Step 6 of the Garofoli procedure to allow the court to consider redacted CI information, provided a sufficient judicial summary was disclosed to the defence.

The court assessed the sufficiency of the judicial summary, considering defence concerns regarding the recency of information, the CI's criminal record, the reliability of previous CI information, and the specificity of personal identifying information and modus operandi details.

The court found the updated judicial summary sufficient to enable the accused to challenge the grounds for his arrest while protecting the CI's identity.

The Ministry charged a construction company, its director, and its representative with multiple strict liability offences under the Consumer Protection Act, 2002, following a consumer complaint about an abandoned basement renovation.

The court found that the defendants failed to provide a proper direct agreement, engaged in unfair practices by making false representations about returning to work, and failed to refund the consumer after the agreement was cancelled.

The defendants' due diligence defence, which relied on claims of contracting COVID-19 and government stay-at-home orders, was rejected.

Convictions were entered on all remaining counts.

The defendant, Shem Bent, was found guilty after trial of discharging a firearm with intent to wound, contrary to s. 244(1) of the Criminal Code.

The court determined the firearm was a handgun, triggering a mandatory minimum sentence of 5 years.

The judge considered aggravating factors including the public nature of the offence, the deliberate possession and use of the firearm, and the prevalence of gun crime in the community.

Mitigating factors included the defendant's status as a youthful first offender, his remorse, and the "Duncan credit" for 5 years spent on restrictive bail conditions.

The court rejected the application of "Morris factors" as there was no connection between anti-Black racism and the offence.

A sentence of 5 years and 6 months in jail was imposed, along with a lifetime firearms prohibition, a compulsory DNA order, and a non-communication order with the victims.

Z.A. was charged with failing to comply with a release order condition prohibiting him from being in the presence of anyone under 16 unless in the direct presence of his surety.

The Crown presented evidence of Z.A. being with a young child at a mall.

The defence argued the Crown failed to prove the existence of a valid release order and the absence of a surety.

The court found the release order valid but concluded that the Crown did not disprove the rational possibility of a surety being present, as the burden shifted to the Crown once the defence raised the exception with an air of reality.

Z.A. was acquitted due to reasonable doubt regarding the absence of the surety.

The applicant, Taylor Javer, facing charges of accessing and possession of child pornography, brought an application under s. 8 of the Charter to exclude evidence obtained from electronic devices seized under a search warrant.

The applicant argued that the search was conducted unreasonably due to a lack of detailed police notes, a sweeping search of all images/videos, and the failure to apply a date filter.

The court dismissed the application, finding that while detailed notes are encouraged, their absence did not render the search unreasonable given the officer's credible testimony and the comprehensive LACE report.

The court also found the broad search of images/videos and the lack of a date filter reasonable, citing the nature of child pornography investigations and the unreliability of timestamps.

The defendant was charged under subsection 142(1) of the Highway Traffic Act for an unsafe right turn, resulting in a collision with a cyclist.

The prosecution proved the actus reus of the offence.

The defendant raised the defence of due diligence and reasonable belief in a mistaken set of facts, arguing that factors such as the cyclist's dark clothing, lack of e-bike headlight, insufficient lighting, and the e-bike's speed contributed to his inability to see the cyclist.

The court found that the defendant failed to prove his due diligence or that his belief in a mistaken set of facts was objectively reasonable, emphasizing the heavy onus on drivers to ensure turns are made safely.

A conviction was registered.

This case involved a criminal trial and Charter application where the accused, Omar Houssein-Hassan, challenged police conduct during an investigation into drug trafficking and possession of proceeds of crime.

The court found that police breached the accused's Charter rights under section 8 (unreasonable search) and section 10(b) (right to counsel).

Specifically, the search of a hidden compartment in the vehicle exceeded the permissible scope under the Cannabis Control Act, and there was an unjustified delay in informing the accused of his right to counsel upon arrest.

Applying the R. v. Grant framework, the court excluded the illegally obtained drug evidence under section 24(2) of the Charter.

As the Crown could not prove the possession of illegal drugs without the excluded evidence, both charges against the accused were dismissed.

The applicant, Abdullahi Hashi, brought a Garofoli application challenging the validity of a search warrant.

The application raised three main issues: a facial attack on the warrant's description of a storage locker, a s. 7 Charter claim regarding lost video security footage, and a sub-facial s. 8 Charter claim arguing a lack of reasonable and probable grounds based on the 'three Cs' for confidential informers.

The court dismissed the application, finding the warrant's description adequate, the loss of video footage not due to unacceptable negligence and not prejudicial to the defence, and that the Information to Obtain provided sufficient credible and reliable evidence for the warrant to issue.

The accused, Antony Muchemi, faced a judicial interim release hearing where the Crown sought preventative detention on secondary grounds due to numerous alleged offences and a reverse onus position.

The court considered the accused's background, the nature of the allegations, and the conditions at the Toronto South Detention Centre.

Despite the Crown's concerns, the court found that a preventative detention order was not appropriate, emphasizing the presumption of innocence, the principle of restraint, and the accused's vulnerable circumstances (homelessness, potential mental health issues, and lack of criminal record).

The court determined that a release plan with conditions could reduce the risk to a tolerable level, thereby releasing the accused.

This is a sentencing decision for N.L., who was found guilty of sexual assault and mischief to property against his intimate partner, K.L. The court considered aggravating factors including the intimate partner relationship, breach of trust, the victim's vulnerability due to injury, premeditation evidenced by vile text messages, and the accused's misogynistic attitudes and lack of remorse.

Mitigating factors included the accused's lack of prior record and good work ethic.

The court emphasized denunciation and deterrence, rejecting a conditional sentence due to the high moral culpability and severe, long-lasting harm to the victim.

The judge imposed a custodial sentence, a probation order, a no-contact order, a DNA order, and a weapons prohibition.

The accused, Christopher Milford, challenged the admissibility of his confession and evidence seized under two search warrants, alleging breaches of his Charter rights under sections 8, 10(a), and 10(b).

The court found the first search warrant valid.

However, it determined that Milford's s. 10(b) right to counsel was breached due to an unexplained two-hour delay in facilitating contact with counsel at the police station.

Furthermore, his s. 10(a) and 10(b) rights were breached because police failed to inform him that he was being investigated for new voyeurism charges involving different victims (Patricia and Esther) before his seven-hour interview, which significantly increased his jeopardy.

The court concluded that the confession and the evidence seized under the second warrant (which was largely based on the unconstitutionally obtained confession) must be excluded under s. 24(2) of the Charter due to the serious impact on the accused's Charter-protected interests.

Gurlal Dhillon pleaded guilty to charges of robbery, dangerous driving, and breaching a youth sentence, arising from an armed robbery spree involving multiple vehicle thefts at gunpoint using an imitation firearm.

The court considered aggravating factors including the use of a realistic imitation firearm, the defendant's prior youth sentences, the prevalence of car thefts, and the significant trauma inflicted on victims.

Mitigating factors included an early guilty plea and the defendant's age.

The Crown sought a five-year jail sentence, while the defence proposed three years.

The father brought a motion to enforce a 2013 parenting order, alleging the mother's non-compliance.

The mother argued the children, aged 13 and 15, refused contact due to the father's emotionally abusive and combative conduct, which included involving police, interfering with their activities, and making false allegations.

The court dismissed the father's motion, finding the mother's inability to force contact reasonable given the father's egregious behaviour.

The court also imposed restrictions on the father's future motions to prevent further harassment and misuse of the court system.

The applicant mother sought to retroactively change a child support order and obtain contributions for special and extraordinary expenses (section 7 expenses) for the parties' two children.

The respondent father opposed the motion and claimed undue hardship due to supporting 11 of his 13 children from various relationships.

The court found a material change in circumstances due to the father's significantly increased income and the fact that he was no longer supporting his two eldest children.

While the presumptive date for retroactive support was the date of formal notice (October 13, 2023), the court deviated to January 1, 2022, citing the father's blameworthy conduct in failing to provide financial disclosure and advise of income increases.

The father's undue hardship claim under section 10 of the Child Support Guidelines was partially successful for 2022 and 2024, resulting in reduced table amounts for those years, but not for 2023, as his household's standard of living was not lower than the mother's in that year.

The court ordered the father to pay retroactive child support arrears and contribute to ongoing section 7 childcare expenses.

Lonelle Timothy Price pleaded guilty to three counts of assault.

The court delivered reasons for sentence, considering aggravating factors such as the sexualized nature and persistence of the assaults, targeting of young women, and significant victim impact.

Mitigating factors included the guilty plea, lack of prior criminal record, family support, and diagnosis of schizophrenia and cannabis use disorder, which diminished moral culpability.

The court balanced denunciation and deterrence with rehabilitation and the collateral consequences of deportation for the non-citizen offender.

A DNA order was also considered and granted.

Tyri King-Joseph pleaded guilty to possession of a loaded restricted firearm, a prohibited device (extended magazine), and cocaine for the purpose of trafficking.

Police found these items during a search warrant execution at his residence.

The Crown sought a four-year sentence, while the defence argued for a community sentence, citing the offender's reduced moral culpability due to a history of racism, racial profiling, and personal challenges, exacerbated by the lack of a social context report.

The court considered the aggravating factors, particularly the "toxic combination" of guns and drugs, and the mitigating factors, including the guilty plea, lack of criminal record, and rehabilitation efforts.

The judge imposed a 32-month sentence, reduced to 20 months after a 12-month Downes credit for strict bail conditions and systemic delays in obtaining a social history report.

An 18-month probation, lifetime weapons prohibition, and DNA order were also imposed.

A conditional sentence was deemed inappropriate given the gravity of the offences.

The father brought a motion to change an existing child support order, seeking to terminate his obligation and obtain support from the mother.

The mother responded, seeking a retroactive increase in child support and dismissal of the father's claim for retroactive special expenses (section 7 expenses).

The court found a material change in circumstances due to the father's increased income and his blameworthy conduct in failing to disclose it.

Applying the Colucci framework, the court ordered a retroactive increase in child support payable by the father from January 1, 2020, fixing arrears at $21,668 as of December 31, 2023.

The father's claim for retroactive section 7 expenses was dismissed due to his blameworthy conduct, unilateral actions, and the unreasonableness of the expenses given the mother's financial circumstances.

The father's ongoing child support obligation was terminated, and the mother was ordered to pay temporary child support to the father, with the father's arrears to be set off against these payments.

The mother was also found entitled to her costs.

The applicant sought joint decision-making and shared parenting, along with child and spousal support.

The respondent sought sole decision-making, primary residence, and child support from the applicant, with spousal support based on imputed income for the applicant.

The court found the parties had a high-conflict relationship and that the applicant's choices contributed to instability.

The court granted the respondent sole decision-making and primary residence, with the applicant having regular parenting time.

The court imputed income to the respondent for support purposes due to missed EI benefits but declined to impute income to the applicant due to her immigration status.

Spousal support was ordered payable by the respondent to the applicant, with arrears fixed, and the Spousal Support Advisory Guidelines (SSAG) were adjusted due to the applicant's basic needs and immigration status.