Criminal and Quasi-Criminal Law - ONCJ

The offender was convicted of impaired operation of a conveyance and operation with blood alcohol concentration over 80 mg%.

The Crown sought a custodial sentence of 45 to 60 days, an 18-month driving prohibition, and two years probation.

The defence sought an elevated fine, an 18-month driving prohibition, and probation if necessary.

The court imposed a two-month conditional sentence order with home confinement for the first month, an 18-month driving prohibition, and no probation order.

The court balanced the seriousness of the offence—involving extremely high blood alcohol levels (310 and 290 mg%), running a red light, and significant property damage—against the offender's first-time status, demonstrated rehabilitation through residential treatment and sustained sobriety, strong family support, and low risk of reoffending.

This sentencing decision addresses the appropriate sentence for Tracey VanHartsKamp, who pled guilty to assault and uttering death threats motivated by racial bias against a vulnerable immigrant woman and her child on public transit.

The court carefully balances aggravating factors including hate motivation, the presence of a child victim, and the public transit context, with mitigating factors rooted in the offender’s Indigenous background, intergenerational trauma, FASD diagnosis, and progress on a healing path.

The judge imposes a conditional sentence order to allow continued access to culturally appropriate rehabilitation programs, emphasizing restorative justice principles in sentencing Indigenous offenders.

The Ontario Court of Justice allowed the City of Toronto's appeal of judicial stays of proceedings against Henry Shein Canada and Lisa Lee-Tucker for red light camera infractions.

The stays were originally granted due to violations of s. 11(b) of the Charter (right to a trial within a reasonable time) and common law abuse of process because the cases exceeded the 18-month presumptive ceiling established in R. v. Jordan.

The Court found that the trial judge erred by initiating the stays sua sponte without proper notice to the prosecution, violating the procedural requirements under s. 109 of the Courts of Justice Act.

The decision clarifies that stays for delay under s. 11(b) require notice and that trial judges must exercise caution when bringing motions on their own initiative, especially in unrepresented accused cases under the Provincial Offences Act.

This decision addresses the sentencing of Kaitlyn Braun, who committed multiple offences involving deception of doulas by falsely claiming pregnancy and sexual assault, resulting in emotional and financial harm to victims.

After an initial conditional sentence order (CSO) was breached by new offences, the court considered a joint submission to terminate the CSO and impose a consecutive global three-year jail sentence.

The court carefully applied the public interest test for joint submissions, balancing the offender’s diagnosed mental health issues, the gravity and nature of the offences, and the impact on victims.

The decision highlights the court’s discretion in handling breaches of CSOs and the importance of structured treatment programs like Dialectical Behaviour Therapy (DBT) in sentencing.

This decision addresses the sexual assault allegations against Trung Pham, who was accused of non-consensual sexual touching during a body hair removal service at his hair salon.

The court carefully analyzed the credibility and reliability of the complainant J.N. and the accused, focusing on the issue of consent.

While the complainant testified to unwanted touching, the court found reasonable doubt regarding consent due to inconsistencies and the complainant’s conduct, including leaving a tip.

The accused’s denial was not believed, but the Crown failed to prove lack of consent beyond a reasonable doubt, resulting in dismissal of the charge.

This decision addresses the issue of reasonable and probable grounds (RPG) for arrest and demand in a drug-impaired driving case.

The court found that Officer Accursi had both subjective and objectively reasonable grounds to arrest Dalton Powell based on observations corroborated by a civilian witness and body camera footage.

The accused's Charter s. 8 and s. 9 rights were found not to be violated, including an overholding claim where the accused was detained for approximately six hours after the initial arrest.

The court also found the Crown proved impairment beyond a reasonable doubt based on officer observations, Drug Recognition Expert (DRE) testing, and urinalysis results.

The accused, Paul Greenberg, was charged with dangerous operation of a motor vehicle after a collision on the Don Valley Parkway.

The Crown relied on dash-camera footage and police testimony, while the accused testified in his defence, claiming he was driving marginally above the speed limit and was cut off by another vehicle.

The court rejected the accused's characterization of his speed and driving, finding that he drove at an excessive speed, repeatedly overtook vehicles by changing lanes, and failed to adjust his driving despite the presence of another speeding vehicle.

The court concluded that his driving constituted a marked departure from the standard of a reasonably prudent driver and endangered the public, leading to a conviction.

John Nanibush, an Indigenous man facing multiple Criminal Code and CDSA charges, including weapon and drug offences, and with a history of non-compliance with court orders, applied for judicial interim release.

The Crown sought his detention, citing secondary ground concerns.

The court, acknowledging the reverse onus, considered Mr. Nanibush's traumatic background, Indigenous identity (Gladue principles), and the inhumane conditions at the Toronto South Detention Centre (TSDC).

The judge found that the proposed community support plan, including culturally appropriate programming and mental health/addiction support, adequately addressed the secondary ground concerns, and released Mr. Nanibush on his own recognizance without a surety.

This is a sentencing decision for an individual who pleaded guilty to three counts of unprovoked assault on strangers in downtown Toronto.

The court considered numerous aggravating factors, including the unprovoked nature of the attacks, the violation of release terms, the prevalence of stranger attacks in Toronto, and the defendant's extensive criminal record with a history of violence and non-compliance.

Mitigating factors were minimal, primarily the defendant's guilty plea.

Despite the defendant's self-reported schizophrenia and reluctance to seek treatment, the court emphasized deterrence, denunciation, and separation from society.

The court imposed a sentence of 12 months, with 5 months of additional custody after accounting for pre-trial custody, followed by a 3-year probation order with specific conditions aimed at public safety and monitoring.

Andrew Allen was charged with impaired driving and unlawfully refusing to provide a breath sample.

He brought a Charter application under s. 24(2) to exclude evidence, alleging breaches of his s. 9 (arbitrary detention due to wrongful arrest on a warrant and arbitrary confinement in a cell) and s. 10(b) (right to counsel) Charter rights.

The court found that the initial arrest on a warrant was without reasonable grounds and the subsequent confinement in a cell, driven by OPP policy rather than individualized assessment, constituted arbitrary detention, both breaching s. 9.

The failure to immediately inform him of his right to counsel upon arrest was a s. 10(b) breach.

Applying the Grant test, the court determined that the breaches were serious and had a significant impact on the accused's Charter-protected interests.

Despite society's interest in the adjudication of the case on its merits, the admission of the impugned evidence would bring the administration of justice into disrepute.

The applicant, charged with impaired driving causing bodily harm, sought to exclude blood analysis results and medical records obtained via search warrant and production order.

The applicant argued insufficient grounds for the authorizations and an unreasonable manner of search, specifically that the police tested for drugs (THC) when the warrant only specified alcohol.

The court found the authorizations facially valid and the manner of search reasonable, given the broad interpretation of "evidence with respect to the commission of an offence" under the Criminal Code and the specific provisions for testing blood in driving offences.

The application to exclude evidence was dismissed.

The accused, Adriel Cyrus, was convicted of two sexual assaults.

The Crown brought a dangerous offender application seeking an indeterminate sentence.

The court found that Cyrus met all three statutory pathways for dangerous offender designation under the Criminal Code, based on his extensive criminal history, escalating violence, intractable psychiatric disorders (antisocial personality disorder, schizophrenia, cannabis use disorder), and poor prognosis for treatment.

The court concluded that an indeterminate sentence was the only adequate measure to protect the public, rejecting the defence's argument for a fixed sentence with a long-term supervision order.

The Crown sought to admit four statements from a deceased witness (J.T.) at a preliminary hearing under s. 540(7) of the Criminal Code.

The court applied the "prima facie air of reliability" test to determine admissibility.

It found the portions of J.T.'s statements related to the kidnapping credible and trustworthy due to corroborating evidence, despite procedural deficiencies in statement-taking.

However, the portions related to drug possession and the identification of "Z" were deemed unreliable and were excised, as J.T.'s account was inconsistent and self-serving regarding her involvement with drugs.

The court affirmed its power to excise unreliable portions of a statement.

The defendant was charged with having a blood alcohol concentration exceeding 80 mg within two hours of operating a conveyance.

The defendant brought a Charter application alleging violations of sections 8, 9, and 10(b) of the Charter, seeking exclusion of breath samples and statements.

The court found no violation of the "immediately" requirement for the ASD demand and no residual mouth alcohol issue.

However, a s. 10(b) Charter violation was found due to a 7-minute delay in providing rights to counsel after arrest.

Applying the Grant factors, the court determined that the breath sample evidence and statements should not be excluded.

The Crown proved the charge beyond a reasonable doubt, finding the defendant's BAC was at least 160 mg.

The accused was charged with six counts: possession of child pornography (s. 163.1(4)), accessing child pornography (s. 163.1(4.1)), breach of undertaking conditions, and voyeurism (s. 162(1)(c)).

The Crown proved that the accused possessed and accessed child pornography on two seized cellphones through forensic analysis demonstrating the accused's exclusive use of the devices, intentional downloading and accessing of images from a specific website, and knowledge of the material's nature.

The accused was also found guilty of surreptitiously recording a child at a shopping mall food court for a sexual purpose, breaching her reasonable expectation of privacy.

The court rejected the defence arguments regarding data integrity, accidental downloading, and the definition of child pornography.

The Crown applied for a ruling on the admissibility of opinion evidence from a probation officer regarding the identification of an unknown male recorded on home surveillance video from a residence proximate to where a break-in and sexual assault allegedly occurred.

The court conducted a voir dire to determine admissibility under the "prior acquaintance/better position" test established in Leaney.

The probation officer had supervised the accused on multiple occasions and observed his physical appearance, gait, clothing, and other characteristics.

The court found the evidence admissible, as the witness had sufficient familiarity with the accused and was in a better position than the court to identify similarities between the accused and the person in the video.

The witness testified only to consistencies and similarities, not to a positive identification.

The defendant was charged with importing opium, possession for the purpose of trafficking in opium, and conspiracy to commit both offences.

The defendant brought a section 11(b) Charter application alleging unreasonable delay in trial.

The total delay from arrest to scheduled trial was 20.5 months, exceeding the presumptive ceiling established in R v Jordan.

The court found no defence delay attributable to the defendant and rejected the Crown's arguments regarding exceptional circumstances and transitional exceptions.

The court concluded that the delay, particularly the Crown's failure to prioritize the case and complete disclosure in a timely manner, constituted a breach of the defendant's right to trial within a reasonable time.

The proceedings were stayed.

The accused was convicted of driving with an excess amount of alcohol in his blood contrary to s. 253(1)(b) of the Criminal Code.

At trial, the accused alleged Charter violations and sought a stay of proceedings or exclusion of evidence.

The court found no s. 8 or 10(b) violation but determined that the accused's s. 9 Charter rights were violated when he was unjustifiably held at the police station for approximately four hours and twenty minutes after the investigation was completed.

The court declined to grant a stay or exclude evidence but considered whether a sentence reduction below the statutory minimum was an appropriate remedy for the Charter breach.

The Crown prosecuted two defendants for assault on a bar patron.

The incident occurred inside the Less Than Level bar in Oakville on March 16, 2013.

The defendants were charged with assault contrary to section 266 of the Criminal Code, with one defendant also charged with breach of probation.

The Crown relied on testimony from two sober witnesses: the bouncer and the bar manager, who observed the defendants repeatedly kicking the victim while he lay defenseless on the ground.

The defendants presented no evidence.

The court found both defendants guilty of assault and one guilty of breach of probation based on the credible testimony of the sober witnesses.

The accused was charged with impaired driving and driving with a blood alcohol level in excess of the legal limit.

The Crown relied on breath test readings and a toxicologist's report calculating the accused's blood alcohol concentration at the time of operation.

The defence presented evidence focused on bolus drinking, establishing that the accused consumed a large quantity of alcohol shortly before driving, within approximately 15 minutes of the stop.

The Crown failed to prove the foundational assumption in the toxicologist's report that there was no consumption of large quantities of alcohol within 15 minutes prior to the incident.

The court found insufficient evidence to prove impairment beyond a reasonable doubt and dismissed both counts.