Human Rights - ONCJ

The defendant, 1692038 Ontario Ltd. (Dino’s No Frills), was charged under the City of Toronto Municipal Code for refusing to permit a person with a service animal to remain in their food premises.

The service animal, Odin, was not wearing a visual identifier.

The court focused on whether documentation confirming the need for a service animal was provided by the complainant.

Due to inconsistencies in witness testimony regarding the provision of this documentation, the court applied the R. v. W.(D.) credibility analysis and found that the prosecution failed to prove beyond a reasonable doubt that the required documentation was not provided.

Consequently, the charge was dismissed.

The defendant, Peter De Pinto, brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings for unreasonable delay in his trial for three driving-related offences.

The total delay from the laying of the information to the last scheduled trial date was 42 months.

The court applied the R. v. Jordan framework, calculating defence waivers and defence-caused delay, which amounted to 22.8 months.

This resulted in a net delay of 19.2 months, exceeding the 18-month presumptive ceiling.

The court then considered whether the sudden death of the original trial judge constituted an exceptional circumstance.

It found that the judge's death was an unforeseen and unavoidable exceptional circumstance, and that the justice system had reasonably mitigated its impact.

A deduction of 6.65 months was made for this exceptional circumstance, bringing the remaining delay to 12.55 months, which is below the presumptive ceiling.

The application was dismissed, and the trial was ordered to proceed.

The defendant applied for a stay of proceedings, alleging a violation of their right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay from charge to anticipated end of trial was 26 months and 8 days (800 days).

The court analyzed periods of delay, attributing 161 days to defence delay due to failure to promptly set a trial date and incorrect availability advice.

An additional 193 days of delay were equally apportioned between the defence and the court due to defence counsel's unavailability and the court's inability to offer earlier dates.

After deductions, the net delay was 446 days (approximately 14.6 months), which is well below the Jordan ceiling.

The application for a stay was dismissed as the defence could not demonstrate a sustained effort to expedite proceedings, nor did the case take markedly longer than it should have.

The accused, Daniel Bogdanic, was charged with "Over 80" under the Criminal Code.

He alleged two breaches of his s. 10(b) Charter right to counsel: first, that the arresting officer, Sgt. Brett Moore, failed to advise him of his rights "without delay" by prioritizing note-taking and other non-urgent matters; and second, that Sgt. Moore failed to ensure he understood his right to counsel of choice.

The court found that the "without delay" requirement was breached due to the officer's erroneous understanding and prioritization of other tasks, which was deemed a serious and potentially systemic violation.

However, the court found no breach regarding the understanding of the right to counsel, as the accused had understood his options but chose to defer.

Applying the s. 24(2) Grant test, the court concluded that admitting the breath samples, despite their reliability and importance to the Crown's case, would bring the administration of justice into disrepute given the seriousness and systemic nature of the Charter breach and its moderate impact on the accused's interests.

Consequently, the breath samples were excluded, leading to a finding of not guilty.

The defendant, Christopher Judge, was charged with multiple Criminal Code offenses including assaulting a peace officer, failing to stop at the scene of an accident, failing to stop while pursued by police, and dangerous operation of a conveyance, following an incident involving a drug complaint, police chase, physical altercation, and vehicle collisions.

The defendant brought Charter motions alleging arbitrary detention (s. 9) and excessive force (s. 7).

The court dismissed the Charter motions, finding the investigative detention justified and the force used by the officer necessary given the defendant's resistance.

The court found the defendant guilty on all five remaining charges, rejecting his testimony as incredible and unreliable.

The defendant, Astrit Shkurta, brought an application under s. 11(b) of the Charter of Rights and Freedoms for a stay of charges due to unreasonable delay.

The court applied the R. v. Jordan framework, calculating the total delay as 802 days.

After subtracting 286 days attributed to defence delay (including delays in Crown Pretrial Hearing (CPT) and Judicial Pretrial Hearing (JPT) scheduling, and lack of contact between the defendant and counsel), the net delay was found to be 516 days (16.96 months).

As this net delay was below the 18-month presumptive ceiling for the Ontario Court of Justice, the court found no s. 11(b) breach and dismissed the application.

The court also noted no evidence that the COVID-19 pandemic contributed to the delay in this specific case.

The accused, B.D., charged with sexual assault and sexual interference, brought an application for a stay of proceedings under s. 11(b) of the Charter due to alleged unreasonable delay.

The total anticipated delay from information to trial end was 793 days (approximately 26 months).

The court applied the Jordan framework, deducting periods of defence delay and delay due to exceptional circumstances (COVID-19 related administrative delay).

The court found 267 days of defence delay and 14 days of exceptional circumstances delay, resulting in a net delay of 512 days (approximately 17 months), which is below the 18-month presumptive ceiling for the Ontario Court of Justice.

The application was dismissed as the defence failed to establish that the delay was markedly longer than it reasonably should have been or that they took sustained efforts to expedite proceedings.

The accused, Joseph Thibodeau, was charged with refusing to provide a breath sample.

He brought a Charter application alleging breaches of sections 8, 9, and 10(b).

The court found that police officers trespassed on the accused's private property, exceeding their implied license, thereby violating his section 8 and 9 Charter rights.

The court also found a section 10(b) violation due to delayed notification of rights to counsel and failure to facilitate access to counsel of choice.

Although the officers had reasonable suspicion for the ASD demand, the grounds were obtained through an unlawful search.

Consequently, the ASD demand was invalid, entitling the accused to refuse.

The court concluded that the evidence obtained in violation of the Charter should be excluded under section 24(2), leading to an acquittal.

The defendant, Brett Hicks, was charged with alcohol-impaired driving and refusing to provide a breath sample.

The court found the Crown failed to prove impairment beyond a reasonable doubt.

The breath demand was deemed unlawful because the officer failed to observe the required 15-minute waiting period for mouth alcohol dissipation, rendering the ASD result unreliable.

The court also found a breach of the defendant's s.10(b) Charter right to counsel, as police made only token efforts to contact his counsel of choice and failed to inform him of his right to wait, which rendered his refusal provisional.

Furthermore, the police's degrading treatment of the defendant in the holding cell, specifically denying him toilet paper and observing him use his mask, constituted an unreasonable search and seizure under s.8 of the Charter.

Consequently, the defendant was acquitted on both criminal charges, and related provincial offences were proven but stayed due to the s.8 Charter infringement.

Ashton Gray was charged with mischief and assault police.

She admitted to the offences but sought a stay of proceedings, alleging a breach of her section 7 Charter rights due to excessive police force during her arrest and subsequent detention at the hospital.

The court found that while the initial arrest force was reasonable, Officer Paulini used unnecessary and excessive force at the hospital, motivated by anger, while Ms. Gray was handcuffed, strapped to a stretcher, and suffering from a mental health crisis.

This conduct constituted a breach of Ms. Gray's section 7 Charter rights.

Applying the R. v. Babos test, the court determined that a stay of proceedings was the appropriate and only adequate remedy to dissociate the justice system from the egregious police misconduct, outweighing society's interest in a trial on the merits.

The accused, Mikhail Koralov, faced charges of impaired driving and having a blood alcohol concentration exceeding 80 mg within two hours of operating a conveyance.

He brought several Charter applications alleging violations of sections 7, 8, 9, and 10(b).

The court found multiple Charter breaches, including delayed and insufficient communication of the right to counsel, denial of access to counsel from the police car, unreasonable handcuffing at the police division, and failure to obtain breath samples as soon as practicable.

Applying the Grant test under s. 24(2) of the Charter, the court determined that the seriousness and impact of the breaches outweighed society's interest in the evidence's admission, leading to the exclusion of the breath sample readings and the dismissal of the blood alcohol charge.

The accused, Di’on Jahil Wong, brought an application alleging breaches of his Charter rights under sections 8 (unreasonable search) and 10(b) (right to counsel).

The court found that police delayed facilitating access to counsel without justification and conducted an unreasonable strip search without sufficient grounds, relying solely on the nature of the drug trafficking charge.

The court dismissed the s. 10(a) breach claim and found the pat-down search reasonable.

As a remedy for the s. 8 and s. 10(b) breaches, the court ordered a stay of all charges against the accused, emphasizing the need to denounce police misconduct and preserve the integrity of the justice system, particularly given the invasive and humiliating nature of the unjustified strip search.

The accused, Sethuraman Sarvanantharajah, was charged with impaired operation and operation over the legal limit after striking a parked car.

The court addressed several issues, including the time of driving, proof of impairment, reasonable grounds for arrest, and alleged breaches of Charter rights under sections 8, 9, and 10(b).

The court found that the Crown proved the time of driving and impairment beyond a reasonable doubt, and that the arresting officer had reasonable grounds.

Furthermore, the court determined there was no unreasonable delay in contacting counsel and that the police were not obligated to provide detailed grounds for arrest to counsel during the initial consultation, as such information could be obtained from the client or through disclosure.

The accused was found guilty of both charges, with a conditional stay on the impaired driving charge.

The accused, Pengxiang Wang, was charged with impaired care and control of a motor vehicle and having over 80 mg of alcohol in his blood.

The defence challenged the admissibility of evidence, alleging breaches of Charter rights under ss. 8, 9, 10(a), and 10(b), primarily related to arbitrary detention, unlawful search and seizure, and delays in informing him of rights and providing access to counsel in Mandarin.

The court found no Charter breaches, determining that police had reasonable grounds for detention and arrest, and that Mr. Wang understood his rights despite a language barrier, with officers taking reasonable steps to provide a Mandarin interpreter and access to duty counsel without delay.

Consequently, the evidence was admitted, and the accused was found guilty on both counts.

The defence brought an application challenging the facial validity of a tracking warrant and multiple search warrants, alleging a breach of the Applicant's Section 8 Charter rights and seeking exclusion of seized evidence under Section 24(2).

In the alternative, the Applicant sought leave to cross-examine the affiant.

The court dismissed the application challenging the warrants' facial validity, finding that the Information to Obtain (ITO) provided sufficient credible and reliable evidence for the issuing justice to find reasonable and probable grounds.

The court applied the R. v. Debot factors for assessing confidential informant information, concluding the information was credible, compelling, and sufficiently corroborated.

While the warrants were upheld, the court granted leave to cross-examine the affiant on several specific areas, applying the R. v. Garofoli test, to ensure the Applicant could make full answer and defence.

The accused, Jason Kovacevic, charged with operating a conveyance while impaired by a drug, was self-represented.

During the trial, the court initiated a voir dire regarding a potential breach of the accused's s. 10(b) Charter right to counsel.

The arresting officer could not recall if he offered counsel of choice or if the accused requested a specific lawyer, and appeared to lack understanding of his informational and implementational duties regarding the right to counsel.

The court found that the officer failed to comply with his Charter obligations, resulting in a breach of the accused's right to counsel.

The court deferred the s. 24(2) analysis regarding the exclusion of evidence until all evidence was heard.

This decision addresses an ex parte application for a restraining order under s. 4 of the Prevention of and Remedies for Human Trafficking Act, 2017, seeking to compel the respondent to stay away from the victim and destroy intimate images.

The court, noting this was the first such application in the Oshawa courthouse, provided reasons for its decision.

Despite finding the applicant's evidence compelling for an ex parte order, the application was deficient in form, particularly regarding publication bans and service details.

The court granted an interim 30-day restraining order instead of the requested 3-year order, allowing the applicant to rectify deficiencies and the respondent an opportunity to participate after service.

This ruling addresses a Section 8 Charter application by the accused, Paul Spencer, seeking to exclude evidence obtained from a search warrant for his apartment unit.

The warrant was based on police surveillance conducted without permission in the common areas (hallways, stairwells) of his apartment building and exterior observations of his balcony.

The court found that Mr. Spencer had a reasonable expectation of privacy in the common areas of his building, especially near his unit, and that the police's surreptitious entry and surveillance constituted a warrantless search, violating his Section 8 rights.

Applying the R. v. Grant analysis, the court determined that the seriousness of the breach, the significant impact on the accused's privacy, and the need to maintain the repute of the justice system outweighed society's interest in admitting the evidence.

Consequently, all evidence obtained from the search of the accused's residence was excluded.

The defendant, Jun Liu, was tried for driving with a blood alcohol concentration over the legal limit.

While the commission of the offence was conceded, several Charter violations were submitted.

The court found no violations of s.8 (unreasonable search and seizure regarding screening test reliability) or s.10(a) (right to be informed of reasons for arrest).

The court also found no violation of the right to be immediately informed of counsel under s.10(b).

However, the court determined that the police seriously violated Mr. Liu's s.10(b) right to counsel of choice by failing to facilitate consultation with his identified counsel and by not ensuring a meaningful consultation, especially given a language barrier.

Applying the Grant factors, the court concluded that the breath samples, though reliable and critical to the Crown's case, must be excluded under s.24(2) of the Charter to maintain confidence in the justice system.

Consequently, the charge was dismissed.

The accused, Jacob Olmstead, brought a pre-trial application challenging a search warrant for his residence, alleging a violation of his s. 8 Charter right against unreasonable search and seizure, and seeking the exclusion of evidence.

The challenge was based on claims that the warrant was overbroad, the Information to Obtain (ITO) lacked sufficient basis, and the affiant made material misrepresentations and omissions.

The court dismissed the application, finding that the ITO, despite being imperfectly written, provided a sufficient and reasonable basis for the warrant's issuance, and that the alleged flaws did not undermine the reasonable grounds.