Paul K. Burstein

This decision addresses the charge of sexual assault against a sleep technician, Sardar Hoque, who was accused of inappropriately touching a patient, Ms Y., during an overnight sleep study.

The court carefully analyzed whether the touching was sexual in nature and whether consent was present.

The judge found that while the touching of the patient's upper torso to place probes was not objectively sexual and fell within the scope of implied consent, the touching of the patient's upper inner thigh was objectively sexual in nature, lacked consent, and was done with recklessness or wilful blindness to the absence of consent.

The accused was found guilty of sexual assault based on the unlawful touching of the inner thigh.

The appellant, Harvey Colin Quinlan, appealed a sentence of a $40,000 fine and 12 months probation for violating s. 8(1) of the Building Code Act by commencing construction without a permit.

The appellate court found the original sentence demonstrably unfit and based on errors in principle, as it fell outside the established jurisprudential range of $500-$5000 for similar first offences.

The court emphasized the importance of considering mitigating factors, such as the appellant's self-reporting, efforts to mitigate harm by hiring an engineer, and pro-social motive (providing low-cost housing for vulnerable seniors), which the trial judge had largely ignored.

The appeal was allowed, and the fine was reduced to $2,000, while the probation term remained.

The case concerns the sentencing of Timothy Hill, a 37-year-old Mohawk man, for possessing a loaded handgun (s. 95 Criminal Code) and careless storage (s. 86 Criminal Code).

The Crown sought 2 years imprisonment, while the defence argued for a conditional sentence given Mr. Hill's Indigenous heritage and significant pre-sentence house arrest.

The court emphasized the need for proportionality in sentencing, considering the gravity of the offence and the offender's responsibility, particularly in light of Gladue principles and the over-incarceration of Indigenous peoples.

The judge granted a conditional sentence of 2 years less a day, followed by 3 years probation, recognizing the mitigating factors of Mr. Hill's Indigenous background and the impact of his house arrest.

This ex parte application by the Durham Regional Police Service sought a general warrant under s. 487.01 of the Criminal Code and an assistance order under s. 487.02 of the Criminal Code.

The application aimed to compel a third-party online cryptocurrency exchange to facilitate the recovery of suspected proceeds of crime for victim compensation in a fraud investigation.

The court dismissed the application, finding that a general warrant was not appropriate as other provisions, specifically a restraint order under s. 462.33 of the Criminal Code, could have authorized the procedure.

The court also held that the general warrant provision is intended for obtaining information, not for seizing property for future compensation, and that the proposed procedure would constitute an abuse of process.

The court emphasized the need for Parliament to address legislative gaps concerning cryptocurrency crimes.

Samson Ram was charged with assault against his spouse, Tina Ram.

He admitted to applying force but claimed implied consent, arguing the incident was a "consensual fight" initiated by the complainant, and that no bodily harm was caused.

The court examined the common law doctrine of "consensual fight" as established in R. v. Jobidon and R. v. Paice, specifically questioning its applicability and scope in the context of domestic violence.

Considering the unique policy concerns of domestic violence, the court adopted a narrower interpretation, holding that intentional application of force "capable of causing an injury that is more than trivial" vitiates consent in domestic altercations.

The court found that the force used by Mr. Ram, repeatedly slamming his spouse on the floor, was capable of causing more than trivial injury and was intended to cause bodily harm, thus vitiating any implied consent.

Alternatively, the force exceeded the reasonable scope of any implied consent.

Mr. Ram was found guilty of assault.

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.

The accused was charged with sexual assault.

The complainant alleged that the accused sexually assaulted her in a laundry room.

The accused denied the allegations.

The Crown presented the complainant's testimony, corroborating evidence from her supervisor, and forensic DNA evidence (accused's DNA in saliva on the complainant's bra).

The defence argued inadequate police investigation, a motive to fabricate, and contamination of DNA evidence.

The court rejected the defence's arguments, finding the complainant's testimony credible and reliable, particularly due to the corroborating DNA evidence.

The court found the accused guilty beyond a reasonable doubt.

Marshall Davidson was charged with impaired driving.

His defence argued that breath test evidence should be excluded due to Charter violations.

The court found that police violated Davidson's s. 8 Charter rights by unlawfully entering his family home without valid consent and his s. 10(b) rights by delaying the right to counsel and making an invalid roadside screening demand.

Applying the Grant factors, the court determined that the seriousness of the police misconduct, particularly the officer's reckless disregard for Charter obligations and the significant impact on Davidson's privacy, outweighed society's interest in admitting the evidence.

Consequently, the breath test results were excluded, and Davidson was found not guilty.

The accused challenged the admissibility of cell phone evidence, including videos and images, on the basis of a Section 8 Charter violation (unreasonable search and seizure).

The court found that all four accused had standing to bring the challenge.

While the Information to Obtain (ITO) the search warrant for the cell phones was facially insufficient, the court considered additional information from an earlier search warrant (Appendix D) during the Section 24(2) Charter exclusion analysis.

The court determined that the Section 8 violation, though present, was not very serious, and while it had a significant impact on privacy interests, the societal interest in adjudicating the case on its merits, particularly given the reliable and important nature of the evidence (videos depicting illegal handgun possession), outweighed the breach.

Consequently, the application to exclude the evidence was dismissed.

The accused, Dwayne Hopkins, was charged with drug possession and possession for the purpose of trafficking following a traffic stop.

He sought to exclude evidence, arguing that his ss. 8, 9, and 10(b) Charter rights were violated by a pretextual arrest for a Highway Traffic Act offence.

The court found that the police officer used the HTA arrest as a ruse to facilitate a criminal drug investigation and search, thereby violating the accused's s. 8 and s. 9 rights.

Additionally, the officer violated s. 10(b) by failing to inform the accused of his right to counsel when the investigation shifted to drugs.

Applying the Grant test, the court excluded the drugs found on the accused's person due to the significant privacy violation but admitted the drugs found in the vehicle, noting a lesser expectation of privacy and the likelihood of inevitable discovery.

Ultimately, the Crown failed to prove beyond a reasonable doubt that the accused had knowledge of the contents of a backpack found in the vehicle, leading to an acquittal on all charges.

The accused pleaded guilty to robbery and possession for the purpose of trafficking arising from a home invasion.

At sentencing, the court conducted an evidentiary hearing to determine whether police used excessive force during the accused's arrest.

The court found that the police used more force than was necessary to effect the arrest, causing serious bodily harm to the accused.

The court reduced the sentence from 7.5 years to 5.5 years (44 months net after pre-sentence custody credit) to account for the excessive use of force, the racialized context of the arrest, and the failure of police to ensure medical attention.

The defendant was arrested based on the odour of burnt marijuana detected by police during a traffic stop.

Following the arrest, police conducted a strip search at the roadside without proper grounds or informational requirements, and delayed informing the defendant of his right to counsel for approximately 50 minutes.

The defendant was charged with possession of controlled drugs for trafficking, assault with intent to resist arrest, administering a noxious substance, and failing to comply with probation.

The court found multiple Charter violations including an unlawful arrest, unreasonable delay in providing s. 10(b) rights, and an improperly conducted strip search.

All evidence was excluded under s. 24(2) of the Charter, resulting in acquittals on all charges.

The accused was charged with operating a vehicle with blood alcohol concentration exceeding the legal limit (over 80 mgs) and distracted driving contrary to the Highway Traffic Act.

The central issue was whether the police violated the accused's Charter section 10(b) rights regarding the right to counsel.

The court found that the police failed to comply with their informational and implementational obligations under section 10(b) by misleading the accused about his right to choose counsel and failing to provide access to a telephone and telephone book.

The court excluded the breath test evidence as a remedy under section 24(2), finding the violation was serious and had significant impact on the accused's Charter rights.

The over 80 charge was dismissed.

The accused was found guilty of the distracted driving charge.

The defendant was found guilty of two counts of possessing a Schedule I substance for the purposes of trafficking under the Controlled Drugs and Substances Act: one count for fentanyl and one count for heroin.

Both convictions arose from a single criminal act involving possession of a brown substance containing a mixture of heroin, fentanyl, and methamphetamine.

The Crown conceded that the Kienapple principle applied, requiring that only one conviction be registered.

The court determined that the heroin conviction should proceed and the fentanyl conviction should be conditionally stayed, as the defendant's moral culpability was fully reflected in the heroin conviction, which matched his actual knowledge and intent.

The accused was charged with care or control of a motor vehicle while impaired by alcohol and care or control while blood-alcohol content exceeded 80 mg per 100 ml of blood.

The accused was found sleeping in the driver's seat of his vehicle after it had drifted onto a curb and struck a hydro box.

The Crown relied on breath test results showing BAC of 100 and 90.

The court acquitted on both counts, finding that the Crown failed to prove beyond a reasonable doubt that impairment was caused by alcohol rather than exhaustion, and that the breath test evidence was inadmissible due to a serious Charter violation of the accused's right to counsel of choice.