Criminal and Quasi-Criminal Law - ONCJ

The defendant was convicted after trial of assaulting his wife, breaching an undertaking by communicating with her, and distributing an intimate video of his wife without consent.

The court imposed a global sentence of 14 months in custody followed by three years of probation.

The sentencing decision provides comprehensive analysis of the principles applicable to distributing intimate images without consent, including a detailed framework of aggravating and mitigating factors.

The court found the conduct to be at the higher end of the seriousness spectrum due to the domestic context, premeditated nature, targeted dissemination to family members, identifiability of the victim, and the profound impact on the victim and her family.

The defendant, a caregiver, was charged with theft and forgery related to an elderly veteran's finances and a vehicle purchase.

The Crown alleged a pattern of ATM withdrawals from the complainant's account matching deposits into the defendant's, and a falsified vehicle purchase agreement.

The court found the defendant guilty of theft for a specific withdrawal made on the day the complainant died, as posthumous consent was impossible.

However, the court found reasonable doubt regarding consent for prior withdrawals.

For the forgery charge, the court found the incorrect address on the vehicle contract was not a "material particular" and that the Crown failed to prove intent to induce action, leading to an acquittal on that count.

The applicant, Ernest Gyamfy, brought a Section 11(b) Charter application seeking a stay of proceedings due to unreasonable delay.

The total delay from charge to anticipated end of trial was 701 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court deducted 59 days for defence delay related to retaining counsel but found no other defence delay.

The Crown argued for deductions based on Covid-19 and case complexity as exceptional circumstances.

The court found that Covid-19 did not cause any actual delay in this specific case, nor was the case particularly complex.

The court also noted that the Crown could have remedied the delay caused by the co-accused's inaction by severing the accused.

As the Crown failed to rebut the presumption of unreasonable delay, the court found a breach of the applicant's Section 11(b) rights and stayed the charges.

N.M., a young person, pleaded guilty to second-degree murder of his foster father.

The Crown sought an adult sentence, arguing N.M. had sufficient maturity and that a youth sentence would be insufficient for accountability.

The court considered N.M.'s disadvantaged background, emotional development issues, and the cumulative pressures he faced, including racism and family dysfunction.

The judge found that the Crown failed to rebut the presumption of diminished moral blameworthiness and that a youth sentence could hold N.M. accountable.

N.M. was sentenced to a youth sentence of seven years, comprising three-and-a-half years in custody and three-and-a-half years under conditional supervision, with no credit for pre-sentence custody.

The accused, a self-represented inmate, brought multiple Charter applications seeking a stay of proceedings on grounds of alleged violations of his rights to privacy, full answer and defence, and a fair trial.

The accused alleged privacy violations arising from exposure of his genitals during medical treatment and use of washroom facilities while under video surveillance at the Ottawa Carleton Detention Centre.

He also alleged that disclosure was not provided in a timely manner and that his incarceration without access to counsel, the internet, or adequate telephone access compromised his ability to prepare his defence.

The court dismissed all applications, finding no Charter breaches that would warrant a stay of proceedings.

The accused was found highly intoxicated in the driver's seat of his vehicle at a shopping plaza.

He was arrested for impaired driving and care or control of a motor vehicle.

The Crown proved that the accused's blood alcohol concentration was between 220 and 316 mgs/100ml.

The defence raised Charter breaches regarding the adequacy of the reasons for arrest and challenged whether the accused was in care or control of the vehicle, arguing there was an alternate plan for pickup.

The court found no Charter breaches and determined the accused was in care or control of the vehicle.

The accused was convicted on both counts, with the Over 80 count stayed.

The accused pleaded guilty to four serious offences: making child pornography, possessing child pornography, sexual assault, and counselling a person under 16 to touch her with an object.

The offences involved her very young son and were discovered through international cooperation between American and Canadian authorities.

The Crown sought a long-term offender designation and a sentence of six to eight years.

The defence sought a five-year sentence with no long-term offender order.

The court imposed a six-year sentence (apportioned as 3.5 years for sexual assault concurrent with 3.5 years for invitation to sexual touching, 2.5 years consecutive for making child pornography, and 2 years concurrent for possession of child pornography) and declined to impose a long-term offender designation, finding the accused posed a low risk of reoffending based on psychiatric evidence.

The accused was charged with breach of probation for failing to attend and actively participate in the Partner Assault Response (PAR) program as directed.

The Crown sought to introduce copies of business records (sign-in sheets, attendance sheets, and a client agreement) generated by the PAR program through the testimony of the program's case coordinator.

The court ruled that the documents were inadmissible because they failed to meet the requirements for admission under both the Canada Evidence Act and the common law.

The copies were not properly authenticated, entries appeared on the copies that did not exist on the originals, and the person testifying did not make the copies or participate in the redaction process.

The applicant sought leave to cross-examine the affiant and sub-affiant regarding an Information to Obtain a search warrant for his residence.

The search warrant, issued on October 20, 2016, led to the seizure of eight computer devices and the discovery of child pornography.

The applicant was charged with possession of child pornography and accessing child pornography.

The applicant argued that the ITO lacked information about the investigative process linking the computer user at a suspected IP address to the possession of child pornography, and that cross-examination was necessary to remedy these informational shortcomings.

The Crown opposed the application, arguing that the applicant had not demonstrated that cross-examination would elicit testimony tending to discredit a pre-condition to the warrant's authorization.

The court refused leave to cross-examine, finding that the applicant had not established an evidentiary basis for the proposed cross-examination and that the areas sought were too broad and speculative.

The accused was charged with two offences: care and control of a motor vehicle while impaired by alcohol, and care and control of a motor vehicle with excess blood alcohol concentration.

The Crown proved that the accused was asleep in a running vehicle in a live lane of traffic at an intersection, with the engine running and headlights on.

The accused exhibited signs of impairment including disorientation, unsteady gait, and alcohol on his breath.

The Crown also relied on breath sample analysis showing a blood alcohol concentration exceeding the legal limit.

The defence challenged the reliability of the breath testing results based on a 22 mg% variance between two samples without a third sample being taken.

The court found the accused guilty of both offences and stayed the impaired count pursuant to the Kienapple principle.

The accused was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit and impaired operation of a motor vehicle.

The accused brought a motion alleging that his right to trial within a reasonable period of time under s.11(b) of the Charter of Rights and Freedoms had been infringed, seeking a stay of proceedings.

The total delay was approximately 14.5 months from the date of the alleged offence.

The court applied the new framework established in R. v. Jordan and found that while the delay fell below the presumptive ceiling of 18 months for provincial court cases, the defence had not met its onus of demonstrating that the delay was markedly unreasonable.

The motion was dismissed.

A 16-year-old youth pled guilty to dangerous driving causing death while street racing.

The offender was driving his mother's car at approximately 130 km/h in a 60 km/h zone while racing another vehicle when he struck and killed an 18-year-old cyclist.

The court imposed a sentence of 7 months open custody followed by 3.5 months community supervision and one year probation, for a total of 10.5 months custody.

The sentence included 100 hours of community service, with a significant portion to be spent speaking at schools about the dangers of street racing, and a 5-year driving prohibition.

The court applied principles of accountability and denunciation while recognizing the offender's youth, remorse, and rehabilitation potential.

A youth was convicted of multiple offences arising from events in 2013 involving the recruitment and exploitation of a 14-year-old girl for sexual services in Toronto.

The offences included attempt to procure, exercise control, living off avails of a person under 18, perjury, intimidation, obstruction of a peace officer, and failure to comply with orders.

The court imposed an adult sentence of four years imprisonment, with 306 days remaining after credit for pre-sentence custody calculated at 1.5:1.

The court also imposed three years of probation with conditions including counseling, education/employment requirements, no contact with the victim, and a 10-year weapons prohibition.

The defendant was stopped, detained, and searched by Durham Regional Police while walking near the courthouse.

Police claimed they believed he resembled a wanted person (Tyrone Hylton) and that he attempted to flee and destroy evidence.

The defendant was found in possession of 7 grams of crack cocaine.

The defendant challenged the detention and search as arbitrary and unreasonable.

The court found that police lacked reasonable and probable grounds for either the detention or search, as the resemblance between the defendant and the wanted person was superficial and based primarily on race.

The court also rejected the police evidence that the defendant attempted to flee or swallow drugs.

Finding violations of sections 8 and 9 of the Canadian Charter of Rights and Freedoms, the court applied the section 24(2) analysis and excluded the evidence, resulting in acquittal.

The Crown appealed a decision by a Justice of the Peace who granted a stay of a careless driving charge under section 11(b) of the Canadian Charter of Rights and Freedoms due to delay in bringing the matter to trial.

The appeal was conducted as a review under section 136 of the Provincial Offences Act.

The court found that the delay of approximately 12-13 months from the notice of intention to appear to trial completion significantly exceeded the guidelines established in R. v. Morin.

The Crown's argument that the defence was not ready for trial because it did not request disclosure until June 24, 2014 was rejected.

The court found that the inferred prejudice from such delay outweighed any societal interest in prosecution of the highway traffic offence, and the appeal was dismissed.

The accused was charged with accessing child pornography.

The Crown sought to introduce purchase orders and invoices found on the defendant's account at AZOV Films (a website selling child pornography) as evidence of the offence.

The central issue was whether these electronic documents were admissible for the truth of their contents.

The Crown argued admissibility under section 31 of the Canada Evidence Act or as admissions against interest.

The defence argued that section 30 of the Canada Evidence Act applied and had not been complied with.

The court held that section 31 addresses only authentication and the best evidence rule, not hearsay exceptions.

Section 30 applies to business records and was not complied with.

The documents were also not admissible as admissions because the accused was not in possession of the computer housing the records and there was insufficient evidence he created them.

The Crown conceded it could not establish admissibility and requested a finding of not guilty, which was granted.

The accused was charged with having care or control of a motor vehicle while impaired by alcohol and while having more than 80 milligrams of alcohol in 100 millilitres of blood.

The accused was found asleep in the driver's seat of his Volvo truck tractor with the engine running at his residence.

The Crown conceded that the accused had rebutted the statutory presumption of care or control.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused posed a realistic risk of danger in the particular circumstances, considering that he was already home, had been in the truck for 10-15 minutes without attempting to drive it, the truck had a sleeping compartment, and he had easier means of leaving if that were his intention.

Both charges were dismissed.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood.

The Crown relied on two breath test results taken at 11:10 p.m. (146 mg/100 mL) and 11:38 p.m. (144 mg/100 mL).

The defence challenged the admissibility of the second test, arguing it was not administered as soon as practicable as required by the Criminal Code.

The court found that the 28-minute interval between tests, with 13 minutes unexplained beyond the mandatory 15-minute minimum, breached the statutory requirement.

The Crown failed to discharge its burden of proving the test was taken as soon as practicable, and the accused was acquitted.

The accused was charged with impaired driving and driving with a blood alcohol concentration over 80 mg/100 mL.

The Crown withdrew the impaired charge at trial.

The central issue was whether the Crown established that the arresting officer gave a demand under section 254(3) of the Criminal Code at the roadside.

The court found that the Crown failed to establish on a balance of probabilities that such a demand was made.

Without proof of the demand, the Crown could not rely on the statutory presumption in section 258(1)(c) to establish the accused's blood alcohol concentration at the time of driving.

The accused was acquitted.

The accused was charged with operating a motor vehicle after consuming alcohol in excess of the legal limit.

The defence brought a Charter application alleging breaches of sections 8, 9, and 10(b) of the Charter, and sought exclusion of evidence under section 24(2).

The central issue was whether the police provided the accused with a reasonable opportunity to consult with his counsel of choice.

The court found that the officer told the accused the breath samples would be taken regardless of whether his chosen lawyer called back, and that the accused had no choice but to speak to duty counsel.

The court found this constituted a serious breach of section 10(b) of the Charter and excluded the blood-alcohol readings, resulting in an acquittal.