Criminal and Quasi-Criminal Law - ONCJ

This criminal trial concerned charges of sexual assault and sexual interference against the accused, involving his young daughter.

The alleged incidents occurred in 2017, with disclosure made approximately five years later.

The defence challenged the complainant's credibility, citing the delay in disclosure and a potential motive to fabricate linked to family court proceedings.

The court found the complainant credible and reliable, dismissing the defence's challenges.

The accused's denials were rejected due to inconsistencies with his prior guilty plea for corrupting a child, which was admitted as similar fact evidence.

The court convicted the accused on two of the four alleged incidents (sexual assault and sexual interference for the second and fourth incidents), finding the elements proven beyond a reasonable doubt, while acquitting on the other two due to insufficient reliability or certainty regarding specific details.

The Crown applied to admit extrinsic evidence of the respondent's prior discreditable conduct for a similar fact purpose in a sexual offence trial.

The respondent was charged with sexual assault and sexual interference against his young daughter.

The extrinsic evidence related to a prior guilty plea for corrupting a child, where the respondent was found masturbating near the sleeping complainant.

The court found that the probative value of the extrinsic evidence, demonstrating a situation-specific propensity for sexual activity near the complainant in her bedroom while she slept, outweighed its prejudicial effect, given the strong similarities in circumstances and temporal proximity.

The application was granted with limitations on the scope of evidence.

The accused, Ever Antonio Diaz, was charged with impaired driving and having over 80 mg of alcohol in 100 ml of blood.

The defence conceded the over 80 charge if breath samples were not excluded due to Charter violations, and contested the impaired charge.

The court found serious breaches of the accused's Charter rights under sections 8, 9, and 10(b), particularly concerning the immediacy of the right to counsel and the police's failure to facilitate access to counsel.

The breath samples were excluded under s. 24(2) of the Charter.

Regarding the impaired driving charge, the court found the video evidence and other observations insufficient to prove impairment beyond a reasonable doubt.

Consequently, the accused was acquitted on both counts.

Malcom Lee was charged with impaired operation of a motor vehicle and operating with a blood alcohol level over 80 mg.

The defence filed Charter applications, primarily alleging breaches of section 10(b) rights regarding access to counsel.

The court found no breach of the informational or implementational components of the right to counsel, or if there was a minor breach, the evidence would still be admissible under s. 24(2) of the Charter.

The court found the Crown proved beyond a reasonable doubt that the accused committed both offences based on observations of impairment, the unexplained collision, and breath readings.

The defendant, Michael Bascoe, was convicted after trial of simple assault and assault involving choking, suffocation, or strangulation against his intimate partner.

The assaults were prolonged, unprovoked, and involved choking to the point of brief unconsciousness, occurring while the victim was pregnant.

The Crown sought a 10-month jail sentence, while the defence requested a 12-month conditional sentence, citing the significant impact of incarceration on the defendant's two young children, whose mother was recently diagnosed with stage 3 ovarian cancer and could no longer care for them full-time.

The court, considering the principles of denunciation and deterrence in domestic violence cases and the recent amendments expanding the availability of conditional sentences, balanced the seriousness of the offence with the collateral consequences on the defendant's family.

The court imposed a one-year conditional sentence, followed by one year of probation, a DNA order, and a five-year section 110 order, finding it a fit and appropriate sentence given all circumstances.

The defendant, Hacar Khesro-Mohamed-Rasheed, was charged with assault causing bodily harm following an altercation with the complainant, Mohamad Sulyman.

The incident occurred at Sulyman's apartment, involving a woman who was present.

The defendant claimed self-defence, asserting he acted in response to Sulyman slapping him and attempting to choke him.

The court found that while Sulyman initiated the physical contact with a slap, Rasheed's subsequent and prolonged assault, involving multiple punches that caused significant injuries, was not a reasonable or proportionate response and exceeded the bounds of self-defence.

The court largely accepted Sulyman's account of the events and rejected Rasheed's testimony regarding the extent of the force used against him and his response.

Rasheed was found guilty of assault causing bodily harm.

M.K., a young person, was charged with sexual assault, touching for a sexual purpose, and inviting touching for a sexual purpose, involving the complainant C.B. The court heard evidence from the complainant, his sister, and M.K. and her mother.

The court found the complainant's evidence to be inconsistent and implausible, particularly when contrasted with his sister's testimony.

Applying the W.(D.) framework, the court believed M.K.'s denial of the allegations.

Consequently, M.K. was found not guilty on all counts.

The accused, Aurèle Guindon, faced eleven counts of sexual exploitation, sexual interference, and sexual assault involving three adolescent boys he employed for property maintenance.

The court found the accused guilty on seven counts of sexual exploitation involving two complainants (D.M. and Z.M.), while acquitting him on four counts related to a third complainant (B.M.) due to concerns about witness testimony tainting.

The central issue was credibility, with the court finding the testimony of D.M. and Z.M. credible and reliable, and rejecting the accused's denials.

The court applied the factors for determining a position of trust or authority under section 153 of the Criminal Code, concluding that such a relationship existed and that the accused's actions were for a sexual purpose.

The accused was charged with failing to comply with a breath demand.

The defense argued for Charter breaches and that the Crown failed to prove an unequivocal refusal.

The court found that the police provided misleading information regarding the consequences of refusal, leading the accused to believe he would have another opportunity to provide a sample at the station.

The court also criticized the lack of detailed notes by the officer regarding the alleged refusal.

Ultimately, the Crown failed to prove the mens rea element of the offence beyond a reasonable doubt, and the accused was found not guilty.

The accused, Nikolas Morello, was charged with assault against his intimate partner, Megan Charette.

The case involved conflicting testimonies, issues of credibility, and video evidence.

The court found Ms. Charette's testimony to be inconsistent and manipulative, raising serious doubts about her credibility.

While the video showed some physical contact, the court could not ascertain the accused's intent with the required certainty.

The defence of property argument was also briefly addressed, with the court emphasizing caution in applying it in intimate partner violence contexts.

The accused was found not guilty due to reasonable doubt.

This case concerns a criminal harassment trial where the accused, Gregory Potter, was charged with repeatedly communicating with the complainant, Dr. Michael Bartucci, over an eight-year period, culminating in threatening voicemails.

The communications escalated from romantic overtures to defamatory and frightening allegations, causing the complainant to fear for his safety.

The court addressed whether two voicemails on a single day constituted "repeated communication" under the Criminal Code, considering the extensive history between the parties.

The court found that the Crown proved the actus reus and mens rea of the offence, but reserved a final verdict pending submissions on the issue of Not Criminally Responsible (NCR).

The defendant, Hamed Nadi, was charged with refusing to provide a breath sample after a Mandatory Alcohol Screening (MAS) demand.

The defence argued the demand was invalid due to a 6-minute delay and incorrect information provided by the officer regarding the consequences of refusal versus failing the test.

The court found the 6-minute delay reasonable for administrative tasks and training, and that the officer's incomplete information about consequences did not taint the demand, as the defendant's refusal was unequivocal and occurred both before and after the information was given.

The defendant was found guilty.

The defendant, William Leahy, was charged with operating a motor vehicle while his ability was impaired by a drug.

He was found passed out in the driver's seat of his vehicle with the engine running.

The court addressed whether the defendant rebutted the statutory presumption of care or control under s. 320.35 of the Criminal Code, and if so, whether the Crown proved de facto care or control by demonstrating a realistic risk of danger.

The court found that the defendant rebutted the presumption, distinguishing prior case law (Hatfield and Miller) by emphasizing that the impaired occupancy of the driver's seat did not begin with an intention to set the vehicle in motion.

The court also found no realistic risk that the defendant would change his mind and drive or unintentionally set the vehicle in motion.

Consequently, the defendant was found not guilty.

The defendant, charged with possession of cocaine and heroin mixed with Fentanyl for the purpose of trafficking, brought a Charter application to exclude evidence.

The court found that the arresting officer lacked credible grounds for the vehicle search, leading to a breach of the defendant's section 8 Charter rights.

Additionally, the defendant's section 10(b) right to counsel was breached due to a significant delay in facilitating access to a lawyer and the officer's repeated elicitation of incriminating information after the right was invoked.

Applying the R. v. Grant test, the court concluded that all physical evidence (drugs) and utterances made by the defendant should be excluded from the trial.

This sentencing decision concerns Andrew Wyvill, convicted of sexual interference with a 14-year-old complainant who was highly intoxicated and often unconscious.

The court detailed three instances of sexual violation and the profound physical and psychological impact on the victim and her family.

While acknowledging the offender's guilty plea and community support, the court found numerous aggravating factors, including the victim's extreme vulnerability, the repeated nature of the assaults, the offender's lack of understanding of consent, and his continued denial of guilt.

The Crown sought a custodial sentence of 2 years less one day, while the defence proposed a conditional sentence.

Applying the principles of denunciation and deterrence, and guided by recent Supreme Court of Canada jurisprudence emphasizing increased sentences for child sexual abuse, the court rejected the defence's submission as "inappropriate and palpably offensive" and imposed a sentence of 30 months custody, along with a DNA order, a 10-year s. 109 order, and a 20-year SOIRA order.

During a Zoom preliminary inquiry for two accused charged with first-degree murder, a screen capture of one accused was taken and uploaded to social media, violating section 136 of the Courts of Justice Act.

The court suspended the observer portion of the Zoom proceedings to prevent further violations, emphasizing the seriousness of such acts and the potential for witness intimidation.

To uphold the open court principle, arrangements were made for public observation in a physical courtroom with limited capacity due to COVID-19 protocols and police supervision, while the main proceedings continued virtually.

The court addressed an ex parte communication from an unrepresented accused who objected to the pre-trial process and requested a further judicial pre-trial meeting.

The accused had failed to attend the Trial Co-ordinator's office following a judicial pre-trial conference and subsequently sent an unsigned letter to the court raising procedural objections.

The court rejected the accused's objections, finding the pre-trial process was properly conducted and that trial dates could be set.

The court reminded the accused that ex parte communications with the judge are prohibited and that all future communications must occur in open court on the record.

The accused pleaded guilty to gross indecency relating to events from 1978 to 1987 and sexual assault relating to an offence that occurred from 2006 to 2009.

The offences involved the sexual abuse of two child complainants over extended periods.

The court imposed a sentence of 34 months imprisonment based on a joint submission, along with ancillary orders including lifetime sex offender registration, lifetime prohibition from contact with persons under 16, and lifetime firearms prohibition.

The accused was charged with driving while disqualified.

A Charter application was brought alleging violations of section 9 (arbitrary detention) and section 10(b) (right to counsel).

The court found no section 9 breach, as the initial stop was justified by reasonable suspicion based on the officer's observation of evasive driving and information about a prohibited driver.

However, a clear section 10(b) breach was established and conceded by the Crown, as the accused was detained and questioned for approximately 30 minutes without being advised of his rights to counsel.

The court found the evidence obtained prior to the breach was not tainted by the subsequent violation, as the connection was too tenuous.

The accused was convicted of driving while disqualified.

A sentence reduction was imposed as a remedy for the Charter violation.

The applicant was charged with operating a motor vehicle while impaired by alcohol and exceeding the legal blood alcohol limit.

At trial, the defence brought a motion to quash the information on the grounds that it was a nullity.

The defence argued that because the applicant had been arrested and released on a Promise to Appear, a summons could not be issued under section 507 of the Criminal Code.

The defence further contended that the proper procedure should have been section 507.1, which was not followed, rendering the information statutorily deemed never to have been laid.

The Crown argued that the phrase "has already been arrested" refers to someone held in custody, not merely arrested and released, and that any procedural defect was cured by the applicant's subsequent attornment to the court's jurisdiction.

The court dismissed the motion to quash.