Criminal and Quasi-Criminal Law - ONCJ

This sentencing decision addresses the conviction of David Grant for two counts of uttering death threats and one count of causing a disturbance on a TTC bus, motivated by bias against young Muslim women.

The court found the offences were hate-motivated, emphasizing the aggravating factors of targeting vulnerable victims and the significant emotional harm caused.

The judge imposed a conditional sentence order with house arrest and probation, balancing the offender’s rehabilitative prospects and the need for denunciation and deterrence.

The decision highlights the importance of sentencing that reflects societal values against hate crimes and the rise of such offences in recent years.

Martha Leibowitz was charged with breaching an undertaking condition that prohibited her from having contact with her condominium's property manager except through email.

The incident occurred on November 3, 2023, when she entered the property manager's office.

The Crown presented video evidence and the property manager's testimony.

Despite the defendant's submission that there was no sound recording and that she had to attend in person due to unanswered emails, the court found the Crown proved the breach beyond a reasonable doubt, leading to a finding of guilt.

This criminal trial concerned James Hutchinson, charged with seven offences including assault causing bodily harm, forcible confinement of children, and choking an adult.

The court assessed the credibility and reliability of the witnesses, including the adult complainant and the children via transcribed statements, and the defendant.

The adult complainant's evidence was found unreliable due to alcohol consumption and inconsistencies.

The defendant's evidence was largely accepted as credible.

The court found the defendant guilty of assault causing bodily harm against one child due to excessive force (leaving bruises), three counts of forcible confinement of the children in a cold cellar (deemed excessive discipline), and one count of assault by choking the adult complainant, despite the defendant's claim of attempting to ensure her safety.

The defendant was acquitted of two counts of assault causing bodily harm against the other two children due to insufficient evidence of unreasonable force or injury.

Thomas Stephens was found guilty of multiple offences including possession of a stolen motor vehicle, a loaded antique firearm, and possession for the purpose of trafficking cocaine and methamphetamine.

The court considered the Crown's request for a 12-year sentence and the defence's request for 5 years.

The court also addressed the application of Gladue factors, finding insufficient information to link the offender's asserted Indigenous heritage to his moral culpability or appropriate sentencing procedures.

Applying the totality principle, the court imposed a global sentence of 10 years, reduced to 9.5 years with pre-sentence COVID credit, with specific sentences for each offence, emphasizing denunciation and deterrence for firearms and drug trafficking offences.

The defendant sought to adduce evidence of school rumours from March 2017 in which the complainant allegedly made false allegations of sexual assault against her cousin.

The defendant sought to cross-examine the complainant about her involvement in these rumours to suggest she has a propensity to fabricate sexual allegations.

The Crown opposed the application, arguing that any questions about the rumours would constitute other sexual activity evidence under section 276 of the Criminal Code and would require compliance with the statutory regime.

The court found that questions about the rumours and the complainant's involvement were inextricably linked to communications of a sexual nature and therefore triggered section 276 protections.

The court dismissed the application, finding that the evidence lacked significant probative value and was substantially outweighed by prejudicial effect.

The defendant was charged with driving while holding a hand-held wireless communication device contrary to section 78.1(1) of the Highway Traffic Act.

The Crown alleged the defendant was holding a cell phone to his ear while driving through a tunnel.

The defendant testified he was holding a wireless speaker device that had fallen from its dashboard mount and was not actively using a cell phone at the time of the alleged offence.

The court found a reasonable doubt regarding whether the defendant was actually talking on a cell phone based on the officer's observations and lack of direct evidence of a cell phone.

However, the court determined that the wireless speaker device itself constitutes a wireless communication device under the broad interpretation of the legislation.

The defendant was found guilty of holding a wireless communication device while driving, as the device was not securely mounted as required by regulation and the defendant failed to demonstrate due diligence by picking it up while driving rather than waiting to safely pull over.

Three young persons were charged with assault causing bodily harm in respect of the victim MG.

L.D. was additionally charged with assaulting MG with a weapon, assaulting ZG, and assaulting XG with a weapon.

The Crown alleged that the three defendants participated in a swarming attack on MG that resulted in serious injuries including lacerations requiring staples and stitches, and significant bruising.

The defendants argued self-defence under section 34 of the Criminal Code and disputed their involvement.

The court found that the three defendants were guilty of assault causing bodily harm as equal participants in a common enterprise, but acquitted them on the weapon and other assault charges due to insufficient identification evidence.

A police officer with 23 years of service pleaded guilty to theft over $5,000, breach of trust by a public officer, careless storage of firearms and ammunition, and possession of methamphetamine and oxycodone.

The offences occurred during the execution of his duties when he stole approximately $11,500 from an undercover operation and possessed various controlled substances at his residence and police locker.

The court imposed a sentence of 21 months in custody, with the theft and breach of trust charges receiving 17 months concurrent, firearm and ammunition charges receiving 6 months concurrent, methamphetamine possession receiving 9 months concurrent, and oxycodone possession receiving 4 months consecutive.

The court also imposed a 10-year firearms prohibition and ordered a DNA sample.

The respondent was convicted of importing approximately 1,976 grams of cocaine into Canada on December 1, 2015, concealed in four containers (Metamucil, curry spice, and psyllium fibre powder) in her personal belongings upon return from Jamaica.

The Crown sought a penitentiary sentence of six to eight years, while the defence sought three to five years.

The court imposed a sentence of six years' incarceration at the low end of the established range for multi-kilogram cocaine importation, along with a mandatory lifetime weapons prohibition and a DNA order.

The court considered the respondent's personal circumstances, community support, and pro-social conduct since arrest as mitigating factors, but found these did not warrant a departure below the applicable sentencing range given the serious nature of multi-kilogram drug importation.

The accused was charged with "Over 80" (operating a motor vehicle with a blood alcohol concentration in excess of the legal limit).

The sole issue was whether the accused's Charter rights under s. 10(b) (right to counsel) were breached.

The accused requested to speak with her lawyer of choice, Karl Toews.

Police made six attempts to contact him over 45 minutes during business hours but were unsuccessful.

Police offered the accused the option of contacting another lawyer or duty counsel, which she declined.

The court found no breach of s. 10(b) rights because the accused failed to exercise reasonable diligence in exercising her right to counsel by declining the offer of free legal aid duty counsel.

The court distinguished the case from precedents where accused persons had been found to be duly diligent.

The accused was convicted.

The defendant was charged with possessing child pornography found on three devices: a desktop computer, an iPad, and a laptop computer, all seized on March 11, 2015.

A total of 1,288 images and 196 videos constituting child pornography were located across the devices.

The Crown's case relied entirely on circumstantial evidence and the assertion that the defendant was the only person with access to the devices.

The trial judge found that the Crown failed to prove beyond a reasonable doubt that the defendant possessed the child pornography, as multiple other individuals had access to the devices and the investigating officer failed to investigate alternative suspects.

The charge was dismissed.

The defendant was charged with possession of cocaine contrary to the Controlled Drugs and Substances Act.

The trial was brief, with the Crown calling one police officer who testified that he found a small bag containing cocaine in the defendant's front pants pocket during a search at a GO Train station.

The defendant, self-represented, did not testify, cross-examine the officer, or present evidence.

The court found the defendant guilty, rejecting his unsworn statement that he was unaware of the cocaine in his pocket, finding the inference of knowledge irresistible based on common sense and the circumstances.

The court conducted a voir dire to determine whether statements made by the accused to the breath technician during breath testing were voluntary.

The Crown bore the burden of proving voluntariness beyond a reasonable doubt.

Although there was no coercion, oppression, threats, inducements, or promises, the court found that the breath technician failed to provide a primary caution before asking questions and engaged in trickery to induce statements.

The technician asked the accused to jump on a scale, which is not part of the breath testing procedure, and falsely represented that information about the collision was needed for an insurance report.

The court excluded all statements made to the breath technician as involuntary.

The accused brought a Dawson Application seeking leave to cross-examine the affiant and sub-affiant (two police officers) on a search warrant at the preliminary inquiry.

The accused argued that cross-examination was necessary to enable full answer and defence and to explore the sufficiency of the warrant for potential Charter breach arguments.

The Crown did not intend to call these officers as part of their case.

The court dismissed the application, holding that the preliminary inquiry's primary purpose is to determine whether sufficient evidence exists to commit the accused to trial, not to serve as a discovery mechanism for Charter-related issues.

The court found that while the defence has broad latitude to cross-examine Crown witnesses, the scope of witnesses the defence may call is limited to matters relevant to the inquiry itself.

The accused was charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code.

The Crown alleged that printed materials containing child pornography, found in a drawer in the defendant's home, were in the defendant's possession.

The defendant denied knowledge of or possession of the materials and suggested that a family member, specifically his grandson Matthew Butwick, had printed and planted the materials to implicate him.

The trial judge found the Crown had proven beyond a reasonable doubt that the defendant possessed the child pornography and had printed the materials himself, rejecting the defendant's implausible alternative explanation.

The defendant was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit of 80 mg per 100 mL of blood.

The Crown relied on breath test readings of 158 and 163 mg per 100 mL.

The defendant challenged the reliability of the test results, arguing that her gastroesophageal reflux disorder (GERD) caused mouth alcohol that artificially elevated the readings.

The court found that the defendant failed to rebut the statutory presumptions of accuracy and identity of the breath test results.

The evidence did not establish that the approved instrument malfunctioned or was operated improperly.

The defendant was found guilty as charged.

The accused brought a section 24(2) application to exclude breath testing evidence following a finding that the police violated his Charter right to counsel of choice.

The police followed standard institutional procedures that systematically channeled the accused to consult with on-call duty counsel rather than facilitating access to private counsel of choice as requested.

The court applied the Grant framework, balancing the seriousness of the Charter-infringing state conduct, the impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits.

The court found that the systemic nature of the violation, the importance of the right to counsel of choice, and the need to maintain public confidence in the administration of justice outweighed society's interest in prosecuting the drinking and driving charge.

The breath test evidence was excluded and the charge dismissed.

The defendant was charged with speeding 104 km/h in a posted 90 kph zone contrary to s. 128 of the Highway Traffic Act.

The incident occurred on March 7, 2013.

The defendant brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings due to a violation of the right to be tried within a reasonable time under s. 11(b) of the Charter.

The Crown took no position on the application.

The court found that the total delay of 12 months and 14 days from the date of the offence to the trial date was unreasonable, consisting of an excessive 6-month intake period to schedule the trial and a further 5-month delay from the Notice of Trial to the actual trial date.

The court determined that a reasonable neutral intake period for a Part 1 proceeding should be 30 to 45 days.

The defendant also demonstrated actual prejudice due to the delay.

The application was granted and a stay of proceedings was ordered.

The defendant was charged with operating a motor vehicle with an excessive blood alcohol concentration after failing a roadside screening test.

The defendant's BAC readings were more than twice the legal limit.

The defence argued that the arresting officer's seven-minute delay in making the approved screening device demand violated the defendant's Charter section 8 rights to be secure against unreasonable search and seizure.

The court found that the delay did breach the "forthwith" requirement under section 254(2) of the Criminal Code, rendering the searches and seizures unreasonable.

However, applying the section 24(2) analysis from R. v. Grant, the court determined that the evidence should be admitted as the balance of factors favoured admission.

The defendant was convicted.

The defendant was charged with four Highway Traffic Act offences arising from an incident on March 21, 2011: speeding 105 km/h in a posted 60 km/h zone, failing to stop for a police officer and willfully continuing to avoid police during pursuit, failing to signal a lane change, and failing to surrender a vehicle permit.

The defendant raised a mental disorder defence based on a diagnosis of bipolar disorder.

The court found the defendant guilty of speeding, failing to stop for a police officer, and failing to surrender a permit.

The court acquitted the defendant of failing to signal a lane change due to insufficient evidence of the actus reus.

While the mental disorder defence was not established on a balance of probabilities, the court found reasonable doubt regarding whether the defendant willfully continued to avoid police, thereby excluding the enhanced penalty provisions under section 216(3).