Human Rights - ONCJ

The accused was charged with theft from Walmart and possession of heroin and methamphetamine.

A loss prevention officer lawfully arrested the accused under s. 494 of the Criminal Code after observing him leave the store with unpaid merchandise.

Police arrived approximately five hours later.

The court found that the loss prevention officer was not acting as a state agent and therefore the Charter did not apply to his conduct.

However, the court found that the arresting police officer breached the accused's s. 10(b) Charter rights by: (1) unreasonably delaying informing the accused of his right to counsel by approximately 15-33 minutes; and (2) failing to take adequate steps to ensure the accused understood his rights despite an apparent language barrier.

The court excluded the drug evidence under s. 24(2) of the Charter, finding that the seriousness of the state misconduct and impact on the accused's Charter-protected interests outweighed society's interest in an adjudication on the merits.

The accused was convicted of theft but acquitted of both drug possession charges.

The defendant was charged with driving a motor vehicle with excess alcohol following a collision investigation in the early morning hours of December 20, 2017.

The defendant challenged the admissibility of the Intoxilyzer breath test results, alleging violations of his Charter rights under sections 7, 8, 9, and 10.

The trial judge found that the defendant's section 10(b) rights to counsel were breached because the arresting officer failed to provide the rights to counsel in a language the defendant could understand, particularly the right to counsel of choice.

Although the defendant had some English proficiency, he clearly experienced significant difficulty understanding the informational component of his rights.

The officer was aware of the language barrier but did not take adequate steps to address it, such as using available translation services.

The trial judge noted the contrast with the breath technician, who proactively arranged for interpretation services.

The trial judge also found it significant that the defendant twice requested to speak to his brother, which the officers did not follow up on, potentially indicating an attempt to exercise his right to counsel.

Applying the test from R. v. Grant, the trial judge excluded the breath test results and the defendant's utterances to the breath technician, resulting in an acquittal.

The applicant sought an ex parte application for fine extension following a sentencing imposed on November 13, 2018, which included a $1,600 fine and a $480 Victim Fine Surcharge.

On December 14, 2018, the Supreme Court of Canada declared the victim fine surcharge provisions of the Criminal Code unconstitutional and invalid.

The court found that the mandatory victim surcharge violated section 12 of the Canadian Charter of Rights and Freedoms not only when imposed but each time it was enforced.

The court vacated the $480 Victim Fine Surcharge and addressed time to pay the remaining fine.

The accused was charged with an Over 80 offence following a RIDE program stop.

The accused alleged that the arresting officer steered him towards duty counsel after arrest, thereby breaching his constitutionally guaranteed right to counsel of choice.

The Crown conceded that steering occurred but argued it did not constitute a breach.

The court found that the officer's imprecise and careless communications misled the accused about the scope of his right to counsel of choice.

The officer failed to provide reasonable opportunities to contact alternative counsel and failed to adequately respond to the accused's expressed dissatisfaction with duty counsel.

The court found a breach of section 10(b) of the Charter and excluded the breath test evidence, resulting in an acquittal.

The defendant was charged with care or control of a motor vehicle while over 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.

The defendant challenged the admissibility of breath test results on three grounds: (1) breach of section 10(b) Charter rights to counsel; (2) failure to comply with the "as soon as practicable" requirement under section 258(1)(c) of the Criminal Code; and (3) loss of the presumption of accuracy under section 320.31(1).

The court found a breach of the right to counsel but admitted the evidence under section 24(2) of the Charter.

The court found the breath samples were taken as soon as practicable despite a 14-minute delay at the police station.

The court found the breath test results admissible at common law and reliable, and convicted the defendant.

The defendant was charged with possession of cocaine and fentanyl for the purpose of trafficking, simple possession of hydromorphone, and possession of proceeds of crime following a search warrant execution at an apartment.

The court found that the search warrant lacked sufficient grounds for issuance due to the Crown's failure to disclose the confidential informant tearaway (Appendix E) and inadequate corroborating surveillance.

Although the defendant lacked standing to challenge the apartment search, the court found his arrest and personal search unlawful under section 8 of the Charter.

The evidence seized from the defendant's person was excluded under section 24(2) of the Charter, resulting in insufficient evidence to proceed on the trafficking and proceeds of crime charges.

The simple possession charge also failed due to insufficient evidence of the defendant's knowledge and control.

The accused was charged with "Over 80" following a traffic stop for speeding on Highway 7 in Markham.

The defence challenged whether the Approved Screening Device (ASD) test was administered "forthwith" as required by section 254(2) of the Criminal Code, arguing that the investigating officer's delay in making the demand while conferring with a colleague breached the accused's Charter rights.

The court found that the approximately three-minute-and-thirty-seven-second delay was not a breach of the "forthwith" requirement, or alternatively, if it was a breach, it was trivial and should not result in exclusion of the evidence under section 24(2) of the Charter.

The accused was found guilty.

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 defendant was charged with driving while disqualified contrary to section 259(4) of the Criminal Code and breach of recognizance contrary to section 145(3) of the Code following a traffic stop.

The defendant challenged the stop as an arbitrary detention in violation of sections 9 and 10 of the Canadian Charter of Rights and Freedoms.

The court found that the police lawfully stopped the vehicle based on a citizen complaint regarding solicitation at a liquor store, and that the defendant was not detained in the constitutional sense prior to arrest.

The court found no Charter breaches and convicted the defendant on both counts.

The defendant was charged with driving with excess alcohol.

The primary issue was whether the defendant's Charter rights under section 10(b) were breached when police conducted the investigation and breath demand in English without providing a Vietnamese interpreter.

The defendant argued that his limited English proficiency prevented him from fully understanding and exercising his rights to counsel.

The court examined the defendant's actual comprehension of his rights through video evidence and testimony, considering factors including his ability to communicate in English, his responsiveness to police directions, his ability to ask questions, and his demonstrated understanding of his rights to counsel.

The court found no breach of section 10(b) rights and convicted the defendant of operating a motor vehicle with a blood alcohol level exceeding the legal limit.

The accused was charged with impaired care and control of an automobile and over 80 while having care and control of an automobile arising from an incident on February 16, 2018.

The Crown alleged the accused was observed driving erratically on Highway 401 during rush hour, leading to a traffic stop where the officer observed signs of impairment including the odour of alcohol, dilated pupils, and bloodshot eyes.

The accused was arrested and provided with Duty Counsel at the station.

The accused subsequently requested to call his own lawyer, which request was denied by the breath technician.

The court found no breach of Charter section 10(b) rights based on the accused's concession that he had no issue with the advice given by Duty Counsel, despite his discomfort speaking with a stranger.

The breath test readings were 152 and 149.

The court found the accused guilty of over 80 but not guilty of impaired driving, finding the indicia of impairment minimal and insufficient to prove impairment beyond a reasonable doubt.

The accused was sentenced to a $1,000 fine with one year to pay and a one-year driving prohibition.

The defendant was charged with driving with excess blood alcohol (over 80 mg per 100 ml of blood).

A police officer conducting a RIDE program sobriety check stopped the defendant's vehicle and, after smelling alcohol, demanded an approved screening device (ASD) test.

The defendant failed the test and was arrested.

At the police station, Intoxilyzer tests revealed blood alcohol levels of 230 mg and 220 mg.

The defendant challenged the admissibility of the breath samples under the Charter, arguing the officer lacked reasonable suspicion.

The defendant also challenged the Crown's ability to rely on the presumption of identity and the accuracy of the Intoxilyzer tests.

The court dismissed all challenges and found the defendant guilty.

The defendant was charged with sexual assault, sexual interference (two counts), and showing sexually explicit images to a person under age 16, with offences dated between July 18-19, 2017.

The defendant brought a Charter section 11(b) application for a stay of proceedings due to delay.

The Crown proceeded by summary conviction.

The total delay from charge to trial was approximately two years.

The court found that while the defence was unavailable for January trial dates, those dates did not allow reasonable time for defence preparation given the need to retain an expert to analyze the defendant's cell phone.

The court determined that the defence pursuit of expert analysis was legitimate and that the Jordan clock did not stop in January.

All subsequent trial dates fell beyond the presumptive ceiling with no exceptional circumstances.

The court granted the stay of proceedings.

The accused was convicted of unlawful possession of a loaded restricted firearm, possession of proceeds of crime, and possession of fentanyl and cocaine for the purpose of trafficking following a search warrant execution.

Although a Charter breach was established, evidence was admitted under s. 24(2).

The Crown sought six years incarceration and argued gang membership as an aggravating factor.

The court rejected the gang membership finding due to insufficient evidence and unreliable police synopses and occurrence reports.

The court imposed a global sentence of four years less three months as remedy for the Charter breach, with the firearm offense receiving two years nine months and one year consecutive for fentanyl trafficking.

The accused was charged with operating a vehicle with a blood alcohol level in excess of the legal limit of 80 mgs following a traffic stop initiated by police responding to a report of an intoxicated person at an LCBO store.

The Crown relied on breath test results showing readings of 160 mgs and 150 mgs.

The defence challenged the admissibility of the evidence on three grounds: the applicability of the presumption of identity under section 258(1)(c) to transitional cases following C-46 amendments; whether the breath tests were taken "as soon as practicable" given a 17-minute delay for facilitating the accused's right to counsel; and whether the Crown proved the requirements for the presumption of accuracy under section 320.31(1).

The court found that the presumption of identity continues to apply to transitional cases, that the delay for counsel was reasonable and did not breach the "as soon as practicable" requirement, and that the Crown proved all elements of section 320.31(1).

The accused was convicted.

The defendant was charged with two offences under the Workplace Safety and Insurance Act, 1997: wilfully failing to inform the Board of a material change in circumstances and knowingly making a false or misleading statement in connection with a benefits claim.

The trial proceeded over multiple dates spanning from October 2016 to February 2019.

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

The court applied the Jordan framework and found that while the total delay exceeded the presumptive ceiling of 18 months, certain delays were attributable to defence conduct and waiver, and an exceptional circumstance existed in the form of a discrete event (a pending Ontario Court of Appeal decision on a related matter involving the interpretation of the mens rea element of the offence).

After accounting for these factors, the remaining delay still exceeded the ceiling, and the court granted a stay of proceedings.

Three defendants applied for orders staying criminal proceedings on the grounds that their right to be tried within a constitutionally tolerable time had been breached.

The applicable ceiling for Ontario Court of Justice cases is 18 months.

The Crown argued that when defence delay periods were subtracted, the total delay did not exceed the ceiling.

The court found that two applicants' delay did not exceed the 18-month threshold after deducting defence delay caused by their decision to change counsel.

For the third applicant, although the delay exceeded the Jordan guidelines by nine days, the court found exceptional circumstances existed that rebutted the presumption of unreasonable delay.

All three applications were dismissed.

Three appellants appealed dismissals of their Charter section 11(b) applications for stays of proceedings based on unreasonable delay in Part I Provincial Offences Act prosecutions.

The central issue was whether the 18-month presumptive ceiling established in R. v. Jordan applies to Part I offences or whether a lower ceiling should apply given the simplicity of such proceedings.

The court held that the 18-month ceiling applies to all provincial court matters, including Part I offences.

The court also addressed the test for demonstrating unreasonable delay below the ceiling, the requirement for meaningful steps to expedite proceedings, and the circumstances in which summary dismissal of frivolous applications is appropriate.

The accused was charged with operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg% contrary to s. 253(1)(b) of the Criminal Code.

The Crown relied on breath samples obtained via an approved instrument.

Three main legal issues emerged at trial: (1) whether the presumption of identity under s. 258 of the Criminal Code applied following the repeal of that section by Bill C-46; (2) whether the Crown satisfied the requirements of s. 320.31 regarding the presumption of accuracy without producing a certificate of analyst; and (3) whether the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated when police failed to diligently pursue contact with her counsel of choice before offering duty counsel.

The court found that s. 258 remained applicable to legacy charges, that the presumption of accuracy was established through qualified technician testimony, and that while a Charter violation occurred, the breath evidence was admissible under s. 24(2) analysis.

The accused was convicted.

The defendant was charged with impaired driving and "Over 80" following a police investigation on September 5, 2016.

The defendant applied for Charter relief alleging multiple breaches.

The court found breaches of section 10(b) of the Charter (right to counsel), arbitrary detention due to misapplication of reverse onus provisions, strip searches as a consequence of arbitrary detention, and non-consensual medical injection at a correctional facility.

The court granted a stay of proceedings pursuant to section 24(1) of the Charter, finding that the cumulative effect of these breaches was so serious that proceeding with the trial would harm the integrity of the justice system.