Paul F. Monahan

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 defendant, Michael Bascoe, was convicted after trial of simple assault and assault involving choking, suffocation, or strangulation against his intimate partner.

The assaults were prolonged, unprovoked, and involved choking to the point of brief unconsciousness, occurring while the victim was pregnant.

The Crown sought a 10-month jail sentence, while the defence requested a 12-month conditional sentence, citing the significant impact of incarceration on the defendant's two young children, whose mother was recently diagnosed with stage 3 ovarian cancer and could no longer care for them full-time.

The court, considering the principles of denunciation and deterrence in domestic violence cases and the recent amendments expanding the availability of conditional sentences, balanced the seriousness of the offence with the collateral consequences on the defendant's family.

The court imposed a one-year conditional sentence, followed by one year of probation, a DNA order, and a five-year section 110 order, finding it a fit and appropriate sentence given all circumstances.

The defendant, Brian Tcheong, pleaded guilty to one count of possession of child pornography.

The court considered the appropriate sentence, weighing aggravating factors such as the size and vile nature of the child pornography collection (350 images, 14 videos, Level 4 depravity) and the duration of accessing such material (almost 5 years).

Mitigating factors included the guilty plea, lack of criminal record, consistent employment, strong family support, demonstrated insight, and significant upfront counselling (26 sessions).

The court also considered the defendant's mental health issues, including mild intellectual disability, autism spectrum features, and hoarding tendencies, as contributing factors to his actions.

The Crown sought 15 months institutional custody, while the defence argued for a conditional sentence order (CSO) due to the defendant's mental health.

The court rejected the CSO, emphasizing that conditional sentences for child pornography are only appropriate in exceptional cases and that a CSO would not adequately address the principles of denunciation and deterrence.

The court imposed an 8-month institutional custody sentence, followed by three years probation with counselling, and other ancillary orders.

The defendant pleaded guilty to one count of voyeurism contrary to section 162(1) of the Criminal Code, involving his 9-10 year old son.

The court considered aggravating factors including the victim's age, the significant breach of trust by a parent, and the location of the offence (the victim's bedroom).

Mitigating factors included an early guilty plea, no prior criminal record, and the defendant seeking professional counselling and psychiatric assessment, which indicated a very low risk of reoffending despite a diagnosis of pedohebephelic disorder.

The court emphasized the principles of deterrence and denunciation for the breach of trust, concluding that a conditional discharge or suspended sentence would be inappropriate.

A 60-day conditional sentence followed by 12 months probation was imposed, with specific conditions regarding house arrest, curfew, and contact with the victim and other minors.

A youth offender (I.A.) was convicted of sexual assault.

The court considered sentencing principles under the Youth Criminal Justice Act (YCJA), including diminished moral blameworthiness, rehabilitation, and proportionality.

The Crown sought a nine-month custody and supervision order, while the defence sought probation or a deferred custody order.

The court determined that a deferred custody order was unavailable because the sexual assault caused serious bodily harm, including psychological harm, to the complainant.

Reviewing case law on youth sexual assault sentencing, the court found that a probation order alone would not be proportionate or adequately address rehabilitation, reintegration, specific deterrence, and denunciation.

The court imposed a custody and supervision order of 225 days (150 days open custody, 75 days supervision), followed by 12 months probation, a DNA order, and a no-weapons order.

The defendant, Robert Cairney, was charged with "over 79" contrary to section 320.14(1)(b) of the Criminal Code.

The defence brought a Charter application alleging breaches of sections 8, 9, and 10(b) of the Charter, seeking a stay or exclusion of breath readings.

The court found no section 8 violation regarding the immediacy of the ASD demand or residual mouth alcohol.

However, it found a minor section 10(b) breach due to a 3-5 minute delay in providing rights to counsel and a section 9 breach due to an approximate two-hour overholding caused by paperwork delays.

Despite these breaches, the court declined to stay the charges under section 24(1) or exclude the breath samples under section 24(2), finding the breaches to be of low seriousness and low impact, and that admission of evidence would not bring the administration of justice into disrepute.

The defendant was found guilty.

The defendant, Kamal Jandu, was charged with operating a motor vehicle with an excessive blood-alcohol concentration.

The trial focused on an alleged section 10(b) Charter violation regarding the right to counsel.

The defendant claimed she was misled by police when told she could not call her husband, whom she intended to ask for a lawyer.

The court found no Charter breach, ruling that the detainee has an obligation to explicitly state the purpose of contacting a third party for legal counsel.

Since the defendant failed to communicate this, the police were not obligated to facilitate contact with her husband for that purpose.

Consequently, the Charter application was dismissed, and a conviction was entered.

The defendant was charged with impaired operation and over 80 contrary to the Criminal Code.

The defence brought a Charter application alleging breaches of sections 10(a) and 10(b), seeking exclusion of breath samples and police observations under section 24(2).

The court found minor breaches of both sections: a 45-second delay in informing the defendant of the reason for detention (s. 10(a)) and a six-minute delay in providing rights to counsel (s. 10(b)).

Applying the Grant test, the court determined that the breaches were of low to moderate seriousness and had low impact on the defendant's Charter rights, while society's interest in adjudication on the merits favored admission of the reliable evidence.

Consequently, no evidence was excluded.

The court also found that the Crown proved the technical requirements for breath samples under sections 258(1)(c)(iii) and 320.31(1)(a) of the Code.

The defendant was convicted on both impaired operation and over 80 charges.

This is a mid-trial ruling on the admissibility of evidence in a criminal trial for impaired operation and over 80.

The court addressed two issues: the admissibility of a Certificate of Analyst and a printout from an approved instrument.

The court ruled that the Certificate of Analyst could not be marked as an exhibit due to the Crown's failure to provide prior notice as required by s. 320.32(2) of the Criminal Code, though its content could still be introduced through viva voce evidence.

Conversely, the court found that a printout from an approved instrument, even if produced by an external printer, was admissible as an exhibit under s. 320.33 of the Criminal Code, provided it was certified by a qualified technician.

The defendant, Jay Singh Toor, brought an application for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay in his impaired driving case.

The defence argued the delay from arrest (May 16, 2020) to the anticipated end of trial (January 19-21, 2022) exceeded the 18-month presumptive ceiling established in R. v. Jordan.

The Crown contended that the s. 11(b) clock began when the information was sworn (September 7, 2020) and that there was defence-caused delay.

The court, following R. v. Kalanj, confirmed that the s. 11(b) clock starts when the information is sworn.

After deducting defence delay (approximately 7.5 weeks), the net delay was calculated to be under 15 months, falling below the 18-month ceiling.

The court also considered the COVID-19 pandemic as an exceptional circumstance impacting court operations.

The application for a stay of proceedings was dismissed, as the delay was not found to be markedly longer than it reasonably should have been, especially given the pandemic context, and no s. 7 Charter violation was established.

Adhinath Sankar pleaded guilty to failing to remain at the scene of an accident knowing or being reckless that it resulted in the death of Dianna Manan, contrary to s. 320.16(3) of the Criminal Code.

The 16-year-old victim fell from Sankar's moving vehicle and was left incapacitated in a live lane of traffic, subsequently dying from her injuries.

The Crown sought 15-18 months imprisonment, while the defence sought 90 days.

The court considered aggravating factors, including the victim's vulnerability, the shocking nature of leaving her in traffic, and the devastating impact on her family, balanced against mitigating factors such as the guilty plea, lack of prior record, youth, and good rehabilitation prospects.

The judge sentenced Sankar to 8 months imprisonment, less 3 days pre-sentence custody, 18 months probation with counselling and community service, a two-year driving prohibition, and a DNA order.

The accused was arrested and released on an undertaking with a first appearance date.

On the appearance date, no information had been laid before the court.

Over six months later, an information was sworn and a summons issued.

The accused brought an application to dismiss the proceeding for want of prosecution under s. 485 of the Criminal Code.

The court held that jurisdiction over the person was lost when the Crown failed to lay an information before the return date on the undertaking.

Because the Crown failed to issue a summons or warrant within three months of the loss of jurisdiction, the proceeding was deemed dismissed for want of prosecution under s. 485(3).

The defendant was charged with having a blood alcohol concentration exceeding 80 mg within two hours of operating a conveyance.

The defendant brought a Charter application alleging violations of sections 8, 9, and 10(b) of the Charter, seeking exclusion of breath samples and statements.

The court found no violation of the "immediately" requirement for the ASD demand and no residual mouth alcohol issue.

However, a s. 10(b) Charter violation was found due to a 7-minute delay in providing rights to counsel after arrest.

Applying the Grant factors, the court determined that the breath sample evidence and statements should not be excluded.

The Crown proved the charge beyond a reasonable doubt, finding the defendant's BAC was at least 160 mg.

The accused, charged with possession of a loaded restricted firearm, brought an application for a stay of proceedings under s. 11(b) of the Charter.

The anticipated delay to the end of trial was 19 months and 13 days, exceeding the 18-month presumptive ceiling.

The Crown argued the delay was justified by the case's complexity and the COVID-19 pandemic.

The court rejected these arguments, finding the case was not particularly complex and the Crown failed to prove the pandemic caused the delay above the ceiling.

After deducting 20 days for a discrete event, the net delay was 18 months and 25 days.

The application was granted and a stay of proceedings was entered.

The defendant pleaded guilty to leaving the scene of an accident contrary to section 252(1.1) of the Criminal Code and public mischief contrary to section 140(1)(c).

The defendant struck and killed a pedestrian on November 30, 2018, and fled the scene without rendering assistance.

He subsequently fabricated an elaborate false narrative to police, claiming his vehicle had been stolen, and sustained these lies for months while police expended significant resources investigating.

The court imposed consecutive sentences of 6 months less a day on the failure to remain conviction and 3 months on the public mischief conviction, along with probation, community service, a DNA order, and a driving prohibition.

The court carefully considered collateral immigration consequences in arriving at the sentence.

The Crown brought a dangerous offender application following the defendant's conviction for two counts of aggravated assault, two counts of weapons dangerous, and one count of breach of recognizance.

The defendant attacked two victims with a knife in an unprovoked manner, causing serious injuries that could have been fatal.

The court found the defendant met the criteria for dangerous offender designation under section 753(1)(a)(ii) based on a pattern of persistent aggressive behaviour showing substantial indifference to consequences.

Despite evidence that the defendant's schizoaffective disorder and polysubstance use disorder were theoretically treatable, the court concluded his violent conduct was intractable due to his consistent failure to seek and follow psychiatric treatment, lack of insight into his illness, and resistance to treatment.

The court imposed an indeterminate sentence, finding that neither a determinate sentence nor a determinate sentence with a long-term supervision order would adequately protect the public.

The accused pleaded guilty to possession of a prohibited or restricted weapon contrary to section 95(1) of the Criminal Code.

The central issue was whether the plea and sentencing could proceed by audioconference rather than in person or by video.

The accused had been in custody since March 2019 and wished to plead guilty expeditiously.

The court ruled that both subsection 650(2)(b) and section 715.23 of the Criminal Code provided authority for the plea to proceed by audioconference, distinguishing the case from R. v. Candelaria on the basis that the accused was represented by counsel and had expressly waived his right to appear in person or by video.

The accused was a passenger in a vehicle stopped by police.

The officer questioned the accused, who provided a false name and date of birth, and subsequently attempted to leave the scene before being arrested at gunpoint.

The court found that the accused was arbitrarily detained and subjected to unreasonable search and seizure, and that his rights to counsel and to be informed of the reasons for his arrest were violated.

Applying the Grant framework, the court excluded the evidence of the false name and the accused's recognizance status under section 24(2) of the Charter, resulting in acquittals on charges of obstructing a peace officer and breaching a recognizance.

The appellant was convicted of speeding 78 km/h in a 50 km/h zone.

He appealed, arguing the trial justice lacked impartiality and erred in rejecting his defence of necessity based on a medical condition that caused an urgent need to urinate.

The appeal court dismissed the appeal, finding no evidence of bias.

The court held that the defence of necessity did not apply because the possibility of soiling oneself does not constitute imminent peril or danger, and the appellant had reasonable legal alternatives, such as stopping at a nearby gas station or wearing adult diapers.

The Crown brought a dangerous offender application against the offender, who pled guilty to two counts of robbery.

The court reviewed the offender's criminal history and psychiatric evidence regarding his risk of violent recidivism.

The court dismissed the dangerous offender application, finding the Crown failed to prove beyond a reasonable doubt a high likelihood of violent recidivism.

However, the court found that the offender met the criteria for a long-term offender designation, as there was a substantial risk of violent reoffending and a reasonable possibility of eventual control of the risk in the community.