Human Rights - ONCJ

The applicant was charged with impaired driving and refusing to provide a breath sample.

He brought an application for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been infringed.

The court applied the Jordan framework and found that while the net delay exceeded the 18-month presumptive ceiling, the Crown successfully rebutted the presumption by establishing exceptional circumstances related to the COVID-19 pandemic.

The court also found that the applicant failed to demonstrate meaningful and sustained efforts to expedite the proceedings and that the case did not take markedly longer than it reasonably should have.

The application was dismissed.

The accused was charged with sexual assaults of two men and sought a stay of charges based on Charter violations (sections 7, 8, and 15) challenging the constitutionality of police authority to publish media releases identifying the accused and detailing accusations, as well as on grounds of lost evidence due to police negligence.

The court ruled that the determination of whether the Crown proved the allegations beyond a reasonable doubt would precede consideration of the constitutional challenge and lost evidence issues.

The defendant brought applications for a stay of proceedings based on violations of Charter rights.

The primary application was under Section 11(b) of the Charter of Rights and Freedoms, alleging denial of the right to trial within a reasonable time.

The defendant also brought applications under Section 7 of the Charter and Section 35 of the Provincial Offences Act regarding disclosure.

The court found that the applicable delay was 21 months and 21 days, exceeding the 18-month ceiling for Ontario Court of Justice proceedings.

The court determined the case was not particularly complex and that the Crown failed to remedy disclosure issues.

A stay of proceedings was granted.

The applicant sought to delay setting trial dates scheduled for December 2020 to allow time to prepare a motion to stay proceedings based on unreasonable delay under section 11(b) of the Charter of Rights and Freedoms.

The applicant had only recently obtained Legal Aid approval for the motion.

The court dismissed the application, finding that the applicant had failed to act diligently in bringing the motion earlier despite the judge raising the issue of delay on multiple occasions throughout the proceedings.

The court emphasized that all participants in the justice system must strive to prevent delay rather than react to it, as directed by the Supreme Court of Canada in R. v. Jordan and R. v. Cody.

The accused was charged with careless storage of a firearm contrary to s.86(1) of the Criminal Code and contravening storage regulations under s.86(2) of the Criminal Code.

The Crown proceeded by summary conviction.

The accused raised multiple Charter arguments alleging violations of ss. 7, 8, and 9, including claims of unlawful search and seizure, arbitrary detention, and abuse of process.

The court found a technical s.8 Charter violation regarding the failure to file a timely Report to a Justice for detention of the seized firearm, but determined the evidence should not be excluded under s.24(2).

The court found the accused guilty of the regulatory offence under s.86(2) but acquitted on the criminal careless storage charge under s.86(1), finding the Crown had not proven a marked departure from the standard of care of a reasonably prudent person.

The defendant was charged with impaired driving and driving with a blood-alcohol level of 80 milligrams or greater following a motor vehicle stop at a roadblock in Caledon, Ontario.

The defendant challenged the admissibility of breath test results on Charter grounds, alleging a breach of his right to counsel.

The court found that the defendant was properly advised of his right to counsel both at the roadside and at the police station, and that any implementation issues were not communicated to police or were resolved to the defendant's satisfaction.

The court rejected the defendant's credibility as unreliable and found him guilty on both counts, staying the over-80 charge pursuant to the Kienapple principle.

The accused was charged with "Over 80" following a RIDE stop in Mississauga where he registered a fail on an approved screening device.

At trial, the Crown sought to rely on breath samples showing readings of 130 and 120 mg/100mL.

The defence raised three Charter arguments: (1) that the Crown failed to establish the concentration of the alcohol standard solution for the presumption of accuracy under s. 320.31 of the Criminal Code; (2) that the accused's right to counsel under s. 10(b) was breached by failing to facilitate his request to contact a friend to obtain his lawyer of choice and by "funnelling" him toward duty counsel; and (3) that the accused's right to be free from arbitrary detention under s. 9 was breached by being held for approximately two hours after the breath tests without a timely assessment of his suitability for release.

The court found breaches of s. 10(b) and s. 9, and excluded the breath evidence under s. 24(2) of the Charter, resulting in dismissal of the charge.

The applicant was arrested for impaired operation after police discovered him apparently asleep behind the wheel of his father's car at a traffic light.

The applicant sought exclusion of breath sample results and police observations under section 24(2) of the Canadian Charter of Rights and Freedoms, alleging violation of his section 10(b) right to counsel.

The Crown conceded a section 10(b) Charter violation during the voir dire, specifically that police failed to establish they contacted the applicant's chosen counsel.

The court found the violation was moderately serious but ultimately admitted the breath sample evidence, finding that exclusion would undermine confidence in the justice system despite the Charter breach.

The accused was charged with possession for the purpose of trafficking in cocaine (2 counts), possession of marijuana, failure to comply with recognizance – curfew condition, and failure to comply with recognizance – possession of drugs.

The accused was self-represented at trial after multiple counsel withdrew or were removed.

The Crown's case relied on surveillance evidence, the discovery of a kilogram brick of cocaine in the vehicle and four baggies of cocaine on the accused's person, and expert evidence regarding drug trafficking.

The court addressed multiple Charter issues including searches incident to arrest, right to counsel, and change in jeopardy.

The court found all searches lawful, no Charter breaches, and convicted the accused on all counts based on circumstantial evidence establishing knowledge and control of the cocaine.

The defendant was charged with possession of cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act after cocaine was discovered in her purse during a mandatory security search at her high school prom.

The defendant challenged the search as violating her s. 8 Charter right to freedom from unreasonable search and seizure.

The court found that although the search was mandatory and without individualized reasonable grounds, it was reasonable in all the circumstances given the school's duty to ensure student safety at an organized school event.

The court distinguished the case from more intrusive searches and held that students have a diminished expectation of privacy in the school setting.

The defendant's Charter application was denied and a finding of guilt was entered.

The accused was charged with six counts of refusing to comply with a boundary condition of a probation order contrary to s. 733.1(1) of the Criminal Code, and one count of failing to attend court on September 26, 2016, contrary to s. 145(2)(a) of the Criminal Code.

The Crown proceeded summarily on all counts.

The matter proceeded as a blended Charter application and trial.

The accused raised Charter arguments under ss. 7, 8, 9, and 11(d), arguing violations of his rights.

The court found one s. 9 violation but dismissed the Charter application, finding no basis for exclusion of evidence or stay of proceedings.

On the trial proper, the court found the accused guilty on all seven counts after determining that the Crown had proven all essential elements beyond a reasonable doubt, including the requisite mens rea for each offence.

The defendant brought a section 8 Charter application challenging the police seizure of his vehicle's Event Data Recorder (EDR) without prior judicial authorization or consent following a serious motor vehicle collision.

The Crown alleged dangerous operation of a motor vehicle causing bodily harm based on speed data extracted from the EDR.

The court found that the defendant had a reasonable expectation of privacy in the EDR and its contents, and that the warrantless seizure and extraction of the data constituted an unreasonable search and seizure in violation of section 8 of the Charter.

The court excluded the evidence under section 24(2), finding that the police acted in bad faith by deliberately ignoring established Ontario jurisprudence requiring either a search warrant or owner consent before accessing an EDR.

The accused brought an application for leave to cross-examine the affiant of an Information to Obtain (ITO) for a search warrant.

The accused challenged the issuance of the warrant under section 8 of the Charter, asserting insufficient credible and reliable evidence.

The court applied the test from R. v. Garofoli and R. v. Pires; R. v. Lising, denying leave to cross-examine on all proposed areas.

The court found no evidentiary foundation showing the affiant knew or ought to have known that information in the ITO was false or misleading, and that proposed cross-examination would not assist in determining whether the warrant could have issued.

The defendant pleaded guilty to conspiracy to traffic in marijuana and trafficking in marijuana under 3 kilograms.

An Agreed Statement of Facts was entered that did not specify the quantity of marijuana involved in the conspiracy.

The Crown subsequently sought to lead evidence at sentencing to establish that the quantity exceeded 3 kilograms.

The court found that the Crown and defence had entered into an implicit agreement that sentencing would be based solely on the facts in the Agreed Statement of Facts.

The Crown's application to call further evidence was dismissed.

The defendant then brought a section 11(b) Charter application alleging breach of the right to be sentenced within a reasonable time.

The court found that the net sentencing delay of 10 months exceeded the 5-month presumptive ceiling established in R. v. Charley, and that no exceptional circumstances justified the delay.

The court granted a stay of proceedings as the remedy for the breach, while preserving the finding of guilt.

The accused was charged with impaired care or control of a motor vehicle and refusing to provide a breath sample after police responded to a noise complaint at her residence.

The accused was found sitting in the driver's seat of a van in her driveway with the keys in the ignition and beer cans in the centre console.

The trial judge found that while the accused was in the driver's seat and had consumed alcohol, the prosecution failed to establish beyond a reasonable doubt that she was impaired or that there was a realistic risk of danger.

The judge also found that the breath demand was not made in unequivocal terms and therefore did not constitute a valid demand.

The accused was acquitted on both charges.

The applicant sought to establish standing to challenge the admissibility of a loaded handgun, ammunition, and drugs seized from a wooden fence during execution of a search warrant at his residence.

The applicant argued he had a reasonable expectation of privacy in the fence and its contents.

The Crown contended there was no reasonable expectation of privacy in a shared fence accessible from the neighbor's property.

The court found that the applicant established standing by demonstrating a reasonable expectation of privacy in the fence, albeit at the lower end of the spectrum, as the fence was part of the curtilage of the residence and the items were not abandoned.

The defendant was charged with impaired driving and driving with excess alcohol following a December 6, 2018 incident where a civilian witness observed erratic driving on Highway 403 and called 911.

Police attended at an ice arena parking lot where the defendant was located.

The defendant failed a roadside screening device test and was arrested.

Breath samples revealed readings of 340 and 330 milligrams of alcohol per 100 millilitres of blood.

The defendant brought Charter applications challenging the lawfulness of the detention, the timing of the ASD demand, the provision of rights to counsel, and the reasonableness of grounds for arrest.

The court rejected all Charter arguments and found the defendant guilty of both offences.

The accused was charged with impaired care or control of a motor vehicle and refusing to provide a breath sample following a single-vehicle collision on Highway 401.

The Crown established that the accused was the driver of the damaged vehicle through circumstantial evidence, including possession of car keys, proximity to the vehicle, and flight from the scene.

The court found the accused guilty of both charges.

The court rejected Charter arguments regarding sections 8, 9, and 10(b), finding that the 13-minute delay in informing the accused of his right to counsel was a technical breach with no serious impact.

The court also rejected the defence argument that the accused's subsequent offer to provide a breath sample after being charged negated the refusal offence, finding the offer was not genuine and the officer was justified in declining it.

The accused was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 mL of blood.

The defence brought Charter applications alleging breaches of sections 8, 9, and 10(b) of the Charter.

The trial judge dismissed all Charter applications and found the breath samples admissible and reliable.

The court found the officer had reasonable suspicion to make the approved screening device demand, the officer's misstatement regarding calibration did not undermine reasonable and probable grounds for arrest, there was no realistic opportunity to consult counsel before the ASD arrived, and the breath samples were taken as soon as practicable.

The defendant was charged with impaired operation and drive over 80 mgs following a motor vehicle accident.

The defence raised two Charter issues: (1) whether the defendant's section 10(b) right to counsel was violated when police offered duty counsel in Mandarin rather than permitting the defendant to use his cell phone to search for a lawyer of his choice; and (2) whether the arrest and approved instrument demand violated sections 8 and 9 Charter rights due to lack of reasonable and probable grounds.

The court found no Charter breaches.

The defendant's primary concern was obtaining legal advice in Mandarin, which was satisfied by duty counsel.

The officer had reasonable and probable grounds based on the serious accident, evidence of alcohol consumption, and observable signs of impairment.

The defendant was convicted of both offences.