ONCJ 2024

S.T. applied for a stay of proceedings, arguing that his right to be tried within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms had been violated due to delay.

The total delay from the information being sworn to the anticipated end of trial was 955 days (31 months and 12 days).

The Crown argued for 468 days of defence delay, which would bring the net delay below the 18-month presumptive ceiling for the Ontario Court of Justice.

The court attributed 36 days of defence delay for not scheduling a Crown Pre-trial (CPT) earlier despite sufficient initial disclosure, 175 days for not proceeding with a Judicial Pre-trial (JPT) due to missing videotaped disclosure (which the court found was not essential to move the case forward), and 257 days for defence unavailability for earlier trial dates offered by the Crown.

The total defence delay was calculated as 468 days, resulting in a net delay of 487 days (16.01 months), which is below the 18-month presumptive ceiling.

The court found that the defence did not demonstrate a sustained effort to expedite the proceedings.

The application for a stay was dismissed.

Richard Trudeau pleaded guilty to sexual assault.

The Crown sought the maximum jail sentence, while the defence argued for a Conditional Sentence Order (CSO) due to the accused's Indigenous background and cognitive disability.

The court, applying Gladue principles and considering the victim's impact statement and the accused's personal circumstances, including his sincere remorse and commitment to sobriety, determined that an 18-month CSO followed by 24 months probation was appropriate.

The judge emphasized that incarceration would disproportionately harm the Indigenous offender and impede rehabilitation, aligning with the remedial purpose of s. 718.2(e) of the Criminal Code.

The accused, Huynh Nguyen, was charged with dangerous operation of a vehicle causing bodily harm after her minivan rolled forward in a school parking lot, pinning a four-year-old boy.

The court first addressed the admissibility of Ms. Nguyen's police statement, ruling it voluntary and admissible despite defence arguments regarding her right to remain silent and lack of a Vietnamese interpreter during questioning.

The court then considered the charge of dangerous operation, focusing on the mens rea requirement.

Ultimately, the court found that while the incident was a tragic accident, the Crown failed to prove the mens rea of the offence, concluding that Ms. Nguyen's actions amounted to a momentary lapse in attention or carelessness, not criminal conduct.

Ms. Nguyen was found not guilty.

This case involves a motion to change brought by the mother (C.M.R.) seeking to vary existing decision-making and parenting time orders for the parties' child, K.R. The mother initially sought sole decision-making and primary residence, while the father (R.S.C.) sought dismissal of the motion and child support.

By the end of the trial, the mother sought joint decision-making and shared parenting, and the father conceded a material change in circumstances.

The court found a material change due to the child's academic struggles and the mother's improved stability.

The court ordered joint decision-making with the father having the final say in disagreements, and maintained the child's primary residence with the father, with expanded parenting time for the mother.

Child support was ordered from the mother to the father, and section 7 expenses were to be shared equally.

The applicant, Robert Gordon, sought a stay of proceedings for sexual assault under s. 11(b) of the Charter due to a 25-month and 1-day delay.

The Crown requested summary dismissal due to the applicant's late service of application materials.

The court dismissed the application, finding no reasonable explanation for the late filing, prejudice to the Crown, inconsistency with the Rules' objectives, and a promotion of complacency contrary to the principles of R. v. Jordan.

The court also noted that the trial could have been conducted within Jordan guidelines had both parties maintained their initial positions regarding pre-trial motions.

The applicant, Karen Beaudette, sought to set aside an order noting her in default and a subsequent final order from an uncontested trial.

The respondent, Michael James, sought to dismiss the applicant's motion and to prohibit her from bringing further motions without leave until outstanding costs were paid.

The court dismissed the applicant's motion, finding she did not act promptly, failed to provide an adequate explanation for non-compliance with the Family Law Rules, and did not establish an arguable case on the merits.

The court granted the respondent's request to prohibit the applicant from bringing further motions without leave until all outstanding costs orders are paid.

The appellant appealed her conviction for using a cell phone while driving, arguing that the Justice of the Peace reversed the burden of proof and that the verdict was unreasonable.

The court dismissed the appeal, finding that the Justice of the Peace did not err in noting the absence of defence evidence for speculative alternatives, and that the verdict was reasonable given the officer's credible testimony.

This trial concerned motions to change existing parenting orders for a 7-year-old child.

Key disputes included parenting exchange locations and costs, the child's age for international travel with the father, and the mother's request for a restraining order.

The court found a material change in circumstances due to increased father's parenting time and the mother's relocation.

The court maintained supervised exchanges at Access Centres, with the father paying annual costs, and ordered shared costs for private supervision when Access Centres are unavailable.

International travel with the father was permitted when the child turns 8.

The mother's request for a restraining order was dismissed, but strict communication terms via APP-Close were imposed.

This is a costs endorsement following a motion where the applicant (father) sought to increase his parenting time, but the court reduced it due to parenting concerns.

The respondent (mother) was the successful party and sought $8,000 in costs.

The court fixed costs at $5,000, payable in installments, emphasizing the father's unreasonable position on parenting time and the need to deter costly litigation.

The applicant father sought the return of the parties' child to Portugal under the Hague Convention, alleging wrongful removal by the respondent mother.

The child was born in Portugal in 2020 and removed to Canada by the mother in June 2022.

The court found that while the child's habitual residence was Portugal, the father did not have custody rights under Portuguese law that would render the removal wrongful.

Even if the removal were wrongful, the court found two exceptions to mandatory return applied: the father acquiesced to the child remaining in Canada, and there was a grave risk of harm to the child if returned to Portugal due to the father's pattern of coercive and controlling behaviour against the mother.

The father's application was dismissed.

This case involves a police officer, Kevin Arnem, charged with assault causing bodily harm and using a weapon (his K-9 dog, Nitro) in committing the assault, contrary to section 267(b) and 267(a) of the Criminal Code, respectively.

The incident occurred during the arrest of Ramanpreet Singh, who was found in a stolen vehicle.

The central issue was whether the deployment of the K-9 dog was a reasonable use of force under section 25(1) of the Criminal Code.

The court found Mr. Singh's testimony unreliable but relied on video evidence and other police officers' accounts.

Applying a modified objective test, the court concluded that Officer Arnem acted on reasonable grounds and used necessary force given the high-risk nature of the arrest, the suspect's non-compliance, and the limited time to react.

Officer Arnem was found not guilty on both counts.

The applicant, J.A.D., brought an urgent motion for parenting time with the child, L., who is his stepson.

The respondent, J.C. (L.'s mother), had unilaterally terminated all contact between J.A.D. and L. after J.A.D. failed to pick L. up from school on one occasion.

J.C. argued that the motion should be dismissed as it was brought before a case conference and that it was in L.'s best interests to have no contact with J.A.D., citing a "toxic" relationship and alleged abuse.

The court granted leave for the motion to be heard urgently, finding that J.C.'s complete denial of contact imperiled the father-son relationship.

The court found that J.A.D. had "authentically parented" L. for his entire life and that J.C.'s reasons for terminating contact were insufficient and not in L.'s best interests.

An interim order was made restoring J.A.D.'s weekly parenting time, including overnight visits, and imposing communication parameters between the parties.

This decision concerns the costs of a two-day family law trial.

The applicant mother sought costs of $11,769.90, while the respondent father disputed this and sought $13,392.

The court found the mother to be the successful party, as many issues were resolved in her favour or aligned with her initial offers.

The father's conduct, including attempting to raise new claims at trial and making a late, unreasonable offer, was deemed unreasonable.

The court emphasized that costs serve to indemnify successful litigants, encourage settlement, and discourage inappropriate behaviour.

The father was ordered to pay the mother $11,769.90 in costs.

The defendant applied for a stay of proceedings, alleging a violation of their right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay from charge to anticipated end of trial was 26 months and 8 days (800 days).

The court analyzed periods of delay, attributing 161 days to defence delay due to failure to promptly set a trial date and incorrect availability advice.

An additional 193 days of delay were equally apportioned between the defence and the court due to defence counsel's unavailability and the court's inability to offer earlier dates.

After deductions, the net delay was 446 days (approximately 14.6 months), which is well below the Jordan ceiling.

The application for a stay was dismissed as the defence could not demonstrate a sustained effort to expedite proceedings, nor did the case take markedly longer than it should have.

The defendant, Dwight Dube, was charged with impaired driving and over 80.

The defence brought a Charter application alleging violations of sections 7, 8, 9, and 10(b) due to excessive force during arrest and improper implementation of the right to counsel.

The court found that police used excessive force, violating section 7 of the Charter, but found no violation of sections 8, 9, or 10(b).

Applying the Grant test, the court excluded the breath sample evidence and police observations of potential impairment, leading to an acquittal on both charges.

Julianna Fodor was charged with three human trafficking-related offences: exercising control for the purpose of sexual services, advertising sexual services, and receiving material benefit from sexual services.

The trial involved multiple Charter applications, including a defence application to re-open a previous Charter ruling regarding the seizure of a USB device and a new Charter argument concerning standing to challenge the seizure of the victim's bank records.

The court found Ms. Fodor guilty on all three counts, concluding that the Crown proved the essential elements beyond a reasonable doubt.

The court also dismissed a renewed s. 11(b) application for a stay of proceedings, finding that the delay was justified by the case's complexity and attributable in part to defence conduct.

This is a sentencing decision for L.H., who pleaded guilty to sexual assault under s. 271 of the Criminal Code.

The Crown proceeded summarily and sought an 18-month custodial sentence, while the Defence sought an 18-month conditional sentence.

The court considered aggravating factors, including the significant violation of the victim's sexual and physical integrity while she was asleep and the persistence of the assault despite her resistance.

Mitigating factors included the offender's young age, lack of prior criminal record (excluding a conditional discharge for a previous assault), guilty plea, remorse, and strong family support.

The court found that a conditional sentence would not adequately address the principles of denunciation and deterrence given the gravity of the offence and the aggravating circumstances.

An 18-month custodial sentence was imposed, followed by a 2-year probation order and ancillary orders including DNA, a 10-year weapons prohibition, and a 10-year Sex Offender Information Registration Act order.

This endorsement addresses the temporary care and custody of a First Nation child, Z.O., who was removed from M.O.'s care and subsequently placed with his biological father, J.K. The court considered the Child, Youth and Family Services Act, 2017 (CYFSA) and the federal An Act respecting First Nations, Inuit and Metis children, youth and families.

The court emphasized the priority of placement with a biological parent under the federal legislation, finding that Z.O.'s best interests were met by remaining with J.K., given no protection concerns and J.K.'s ability to provide cultural connection.

The "without prejudice" term of a previous interim order placing the child with J.K. was removed.

The accused, Jun-Feng Zhang, brought a motion to stay charges of sexual assault under section 271 of the Criminal Code, alleging a violation of his right to a trial within a reasonable time under section 11(b) of the Charter.

The total delay from charge to anticipated trial completion was 23 months, exceeding the 18-month presumptive ceiling for the Ontario Court of Justice set by *R. v. Jordan*.

The court analyzed the delay, attributing significant portions to defence inaction and miscommunication, ultimately calculating a net delay of 17.5 months, which falls below the *Jordan* ceiling.

Consequently, the application to stay the charges was dismissed.

Nima Tork pleaded guilty to aggravated assault and failing to stop after an accident causing bodily harm.

The Crown sought a 15-month jail sentence, while the defence argued for a conditional sentence.

The court considered the aggravating factors, including the intentional use of a vehicle as a weapon and the significant injuries to the victim, and the mitigating factors, such as the offender's youth, lack of prior record, and guilty plea.

The judge determined that a conditional sentence would not adequately address denunciation and general deterrence, imposing a nine-month period of incarceration for aggravated assault and six months concurrently for failing to stop, followed by two years probation, a DNA order, a 10-year weapons prohibition, and a three-year driving prohibition.