Human Rights - ONCJ

The accused was charged with driving while impaired by a drug following a traffic stop on Highway 118.

The Crown alleged the accused's ability to drive was impaired by a central nervous system depressant based on poor driving observations, a failed roadside sobriety test, and a Drug Recognition Expert evaluation.

The accused's urine tested positive for Olanzapine, an anti-psychotic medication.

The court found multiple Charter breaches: the accused was not promptly informed of his right to counsel following arrest, the Drug Recognition Expert evaluation demand was not made as soon as practicable, and the accused was arbitrarily detained after the investigation was completed.

The court excluded the evidence of the Drug Recognition Expert evaluation and urine analysis under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted.

This is a ruling on a Charter application under subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms.

The corporate defendants challenged whether their right to be tried within a reasonable time had been infringed.

The court applied the Jordan framework and determined that the trial delay exceeded the 18-month presumptive ceiling for provincial court cases.

The court found that while certain discrete exceptional events could be deducted from the total delay, the remaining delay still exceeded the ceiling and could not be justified by the complexity of the case.

Accordingly, the charges against all corporate defendants were stayed.

The accused brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that her right to trial within a reasonable time had been violated.

The accused was charged with offences including trafficking in a Schedule II substance and firearm-related offences arising from a search warrant executed in March 2017.

The total delay from the swearing of the Information to the anticipated end of trial was 714 days (approximately 23 months and 12 days).

Applying the Jordan framework, the court calculated net delay of 600 days (20 months) after deducting defence delay.

The court found no exceptional circumstances, as the case was not particularly complex and there were no discrete events beyond the change of counsel.

The court granted the stay of proceedings.

The accused was charged with operating a motor vehicle with a blood alcohol content over the legal limit after moving her car from one friend's driveway to another.

The court found two Charter breaches: (1) the roadside screening demand was not made "forthwith" as required by statute, as the investigating officer deliberately delayed making the demand to provide training to a junior officer; and (2) the accused's use of the toilet in her cell was videotaped without a valid waiver of her privacy rights, despite the police offering a privacy sheet that the accused was unaware of.

The court excluded the breath sample evidence as a remedy under section 24(2) of the Charter, finding that the long-term interests of justice favoured exclusion despite the seriousness of impaired driving offences.

The appellants were charged with selling tobacco to a person under 19 years of age contrary to the Smoke-Free Ontario Act.

Both entered guilty pleas at their first appearance without legal representation.

On appeal, the appellants challenged the validity of their guilty pleas, arguing that the plea inquiry was inadequate, that language barriers compromised their understanding, and that the court failed to inform them of their right to trial or to assist them in obtaining representation.

The court found that the guilty pleas should be quashed because the defendant did not accept the facts underpinning the conviction, and because the plea inquiry was insufficiently detailed given the unsophisticated nature of provincial offences court participants.

The accused was convicted at trial of five offences arising from his attempt to purchase sexual services from two 14-year-old girls.

Following conviction, the accused applied to reopen the case, arguing that late disclosure and failure to disclose certain documents deprived him of the ability to make full answer and defence.

Specifically, the defence contended that disclosure related to a second production order was not adequately provided, which may have prevented a Charter challenge to the admissibility of evidence obtained from that order.

The Crown argued that disclosure was provided in a timely manner and that the defence had notice of the availability of further disclosure.

The court dismissed the application to reopen, finding that the rigorous test for reopening after verdict had not been met.

The accused was charged with impaired driving and possession of cocaine following a minor motor vehicle collision in Waterloo.

The Crown alleged the accused's ability to operate a motor vehicle was impaired by alcohol and/or drugs.

The defence challenged the lawfulness of the arrest and the reliability of the drug recognition evaluation.

The court found the arrest was lawful based on reasonable and probable grounds.

However, the Crown failed to prove impairment beyond a reasonable doubt, resulting in acquittal on the impaired driving charge.

The court found the accused guilty of possession of cocaine, rejecting his testimony that he was unaware of the drug in borrowed sweatpants.

Following a finding of a section 8 Charter breach in a prior decision (R. v. Muhammad, 2018 ONCJ 468), the court addressed whether evidence seized pursuant to a defective search warrant should be admitted or excluded under section 24(2) of the Charter.

The affiant's Information to Obtain contained misstatements regarding surveillance that had not been conducted and omissions regarding the accused's lack of criminal record, despite references to a "lengthy criminal past" involving weapons.

The court applied the Grant test, examining the seriousness of the breach, the impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits.

The court concluded that while the breach was serious, it did not rise to the level of egregious conduct, and the reliable evidence (drugs and firearm) was necessary for trial.

The evidence was admitted.

The defendant was charged with care or control of a motor vehicle while impaired by alcohol and while his blood alcohol level exceeded the legal limit, following a single-vehicle accident on January 21, 2017.

The defendant challenged the arrest and breath demand on Charter grounds, arguing violations of sections 7, 8, 9, and 10, and sought exclusion of evidence or a stay of proceedings.

The defendant also argued the Crown failed to prove he was the driver, that the breath samples were not taken as soon as practicable, and that the statutory presumptions did not apply due to uncertainty about the time of the accident.

The court found the defendant guilty, rejecting all Charter challenges and finding that the officer had reasonable and probable grounds to arrest and that the breath demand was lawful.

The accused brought a section 11(b) Charter application challenging delay in the criminal proceedings.

The charges were laid on October 30, 2016, with trial dates set for January 29-31, 2018.

The trial did not complete on the third day, and the continuation date was set for May 7, 2018, which was eight days beyond the 18-month presumptive ceiling established in R. v. Jordan.

The court dismissed the application, finding that the delay attributable to defence counsel's unavailability constituted defence delay under the Jordan framework, and that the additional time required for trial testimony constituted an exceptional circumstance due to good faith underestimation of trial time by experienced counsel and the trial judge.

The accused was charged with three counts of breach of probation for allegedly contacting his wife and children in violation of probation orders.

The first allegation occurred on July 7, 2014, but the information was not sworn until July 21, 2017.

The accused was arrested on March 11, 2017.

The accused brought a section 11(b) Charter motion arguing his right to be tried within a reasonable time had been violated.

The court dismissed the motion, finding that while the total delay exceeded the Jordan presumptive ceiling of 18 months, the pre-arrest delay qualified as a discrete event attributable to exceptional circumstances, as the police acted with reasonable diligence in attempting to locate the accused.

Additionally, the accused's failure to appear at trial demonstrated he was not genuinely exercising his 11(b) rights.

The applicant sought exclusion of breath sample evidence on the basis of alleged violations of his Charter rights under sections 7, 8, 9, and 10(b).

The applicant was charged with having an excess blood alcohol concentration while driving after crashing into a tractor trailer on Highway 401.

The court found that while the applicant's section 7 and 8/9 Charter arguments failed, the applicant's section 10(b) right to counsel was violated.

Specifically, the police failed to facilitate the applicant's request to contact a police officer friend who could assist in locating counsel, and the police provided an incomplete explanation of the right to counsel.

The court excluded the breath sample evidence under section 24(2) of the Charter.

The defendant was charged with driving while impaired and with a blood alcohol concentration exceeding 80 mg/100 ml following a motor vehicle collision.

The Crown sought to rely on breath sample results obtained following an Approved Screening Device (ASD) demand.

The defence challenged the validity of the ASD demand, arguing the officer lacked proper grounds and that the officer's failure to activate his in-car camera system breached the Charter.

The court found the officer's testimony regarding grounds for the demand was unreliable, established a breach of section 8 of the Charter, and excluded the breath results under section 24(2).

Both charges were dismissed.

The accused was charged with driving with more than the legal limit of alcohol in his blood.

The defence challenged the validity of the traffic stop and the roadside screening demand, alleging arbitrary detention and breaches of Charter sections 7, 8, and 9.

The court conducted a Charter voir dire and found that the officer had reasonable grounds to stop the vehicle based on a suspected Highway Traffic Act section 168 violation (improper use of highbeams).

The court further found that the officer had reasonable suspicion to demand a roadside breath sample based on the detected odour of alcohol on the driver's breath.

The Charter application was dismissed, the breath sample evidence was admitted, and the accused was convicted.

The defendant was arrested at a RIDE checkpoint after failing a roadside approved screening device test.

He was charged with driving with excess blood alcohol (over 80).

The defendant raised two Charter issues: (1) whether the officer's failure to ask when he last drank affected the reliability of the ASD test and reasonable grounds for arrest; and (2) whether a four-minute delay between arrest and being informed of the right to counsel breached s. 10(b).

On the trial proper, the defendant argued the Crown failed to prove the Intoxilyzer tests were administered as soon as practicable.

The court found the officer did ask about the last drink, establishing reasonable grounds.

Although there was a minor breach of s. 10(b)'s immediacy requirement, the evidence was not excluded under s. 24(2) after applying the Grant test.

The court found the tests were conducted as soon as practicable and the defendant was convicted.

The defendant was charged with driving with excess blood alcohol (over 80 operation) following a roadside stop on the Don Valley Parkway.

The Crown relied on breath test results from both an Approved Screening Device (ASD) administered at the roadside and an approved instrument administered at Traffic Services.

The defendant challenged the lawfulness of the stop and the timing of both breath tests, alleging Charter violations under sections 8, 9, and 10(b).

The trial judge found that the officer had reasonable grounds to suspect the defendant had consumed alcohol, that the ASD test was administered "forthwith" despite a nine-minute delay in obtaining the device, and that the approved instrument test was administered "as soon as practicable" in compliance with the Criminal Code.

The defendant was found guilty.

The accused was charged with operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood.

The trial involved a blended hearing on Charter applications.

The court found two breaches of the accused's Charter rights: a section 8 breach arising from videotaping of the accused using the toilet in the police cell without adequate pixelation, and a section 9 breach arising from arbitrary detention for approximately four and a half hours after breath samples were obtained.

The court excluded the breath readings under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The charge was dismissed.

The accused brought a section 11(b) application seeking a stay of proceedings for breach of the right to trial within a reasonable time on a charge of operating a motor vehicle with more than the legal amount of alcohol in his blood.

The parties agreed that the net delay was less than 18 months, placing the case within the presumptively reasonable delay threshold established in R. v. Jordan.

The court applied the transitional framework from Jordan, considering whether the accused took meaningful steps to expedite proceedings and whether the case took markedly longer than it reasonably should have.

The court found that after deducting neutral delay periods (intake period, preparation time, defence counsel unavailability, and post-adjournment defence delay), the Crown delay was approximately 8.6 months, well within Morin guidelines.

The application was dismissed.

The court addressed a constitutional challenge to the victim surcharge provision in the Criminal Code.

The Crown argued that a prior declaration of unconstitutionality made by the judge in R. v. Michael was not available to be applied in the present case unless a new Charter application was brought.

The judge rejected the Crown's position and held that provincial court judges have the power to issue declarations of invalidity under s.52 of the Constitution Act, and that such declarations have persuasive precedential value in subsequent cases.

The judge concluded that the victim surcharge was unconstitutional as cruel and unusual punishment and declined to impose it.

The applicant brought a motion for a stay of proceedings under s. 11(b) and s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging that the delay in bringing his criminal harassment trial violated his right to be tried within a reasonable time.

The total delay from charge to trial was approximately 14 months.

The court applied the Morin framework, examining the length of delay, waiver, reasons for delay (including inherent time requirements, actions of the accused, actions of the Crown, and institutional delay), and prejudice.

The court found that while the total delay exceeded the 8-10 month guideline, much of the delay was attributable to the applicant's own actions, including his failure to obtain necessary transcripts for a certiorari application and his failure to comply with court rules.

The motion was dismissed.