Paul K. Burstein

The accused, the sole caregiver for her autistic son, was charged with administering a noxious substance after allegedly giving him an overdose of his anti-seizure medication.

The court held a voir dire to determine the admissibility of her incriminating statements to paramedics and hospital staff.

The court excluded statements made to one paramedic in the back of an ambulance, finding they were involuntary and obtained in a coercive context violating section 7 of the Charter, but admitted statements made to another paramedic and a nurse.

Based on the admissible statements, the court found the accused intended to administer an overdose but had reasonable doubt as to whether she actually succeeded due to her own impaired state.

The accused was found guilty of the lesser included offence of attempting to administer a noxious substance.

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.

The applicant sought a review of the Chief Firearms Officer's decision to revoke his firearms licence following his guilty plea to harassing telecommunications against his former intimate partner.

At the sentencing hearing for those charges, the judge granted a conditional discharge and explicitly declined to impose a firearms prohibition, finding no public safety risk based on psychological evidence.

The CFO subsequently revoked the licence based on the same underlying facts, without reviewing the sentencing transcript or the psychological reports.

The reviewing judge found that while issue estoppel did not strictly apply to sentencing determinations, it was an abuse of process for the Crown and CFO to relitigate the identical public safety issue that had already been decided in the applicant's favour.

The revocation was cancelled.

Following a family gathering, the accused was charged with sexual assault and sexual exploitation arising from sexual touching involving a 16-year-old relative.

The trial judge accepted that the accused touched the complainant's leg and breasts, but was not satisfied beyond a reasonable doubt that the Crown had proven lack of subjective consent to that touching or that the more serious alleged penile contact occurred.

Applying the position-of-trust analysis under s. 153, the court held that the longstanding familial dynamic, the complainant's perception of the accused as an older-brother figure, and the trust reposed in him by the family established the requisite prohibited relationship.

The accused was acquitted of sexual assault and convicted of sexual exploitation.

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.

The accused pleaded guilty to assault causing bodily harm and awaited an in-person sentencing hearing where the Crown would seek a custodial sentence.

The accused was unvaccinated against COVID-19.

The court considered whether to impose a bail condition requiring the accused to receive a COVID-19 vaccine to mitigate the risk of transmission in the courtroom and correctional facilities.

The court held that while a vaccination mandate could be constitutionally justifiable, a 14-day strict house arrest and testing quarantine prior to the sentencing hearing was an equally effective and less intrusive alternative under section 515(4)(h) of the Criminal Code.

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 was charged with being unlawfully in a dwelling house, unlawful confinement, and criminal harassment following an incident on August 30, 2019, when he entered the complainant's home without permission.

The Crown's case relied primarily on the complainant's testimony about the entry and subsequent events inside the home, as well as prior communications between the parties.

The court found that the complainant's credibility was significantly undermined by a material inconsistency regarding whether her ex-husband, a former police officer, was present at her home when police responded to her 9-1-1 call.

The court determined that the complainant had deliberately misled the court about this fact, which raised concerns about a possible scheme to influence the police investigation.

As a result, the court found it unsafe to rely on the complainant's testimony regarding the entry and events inside the home.

Additionally, regarding the criminal harassment charge, the court found that while the accused's communications were unwanted and annoying, they did not rise to the level of criminal harassment as they did not cause the complainant to reasonably fear for her safety.

The accused was acquitted of all three charges.

The defendant was convicted of sexual interference contrary to section 151 of the Criminal Code for sexually abusing his young stepdaughter over a three-year period beginning when she was 10 years old.

The Crown and defence jointly recommended a sentence of 5 years imprisonment.

The court considered whether this joint recommendation constituted a "joint submission" entitled to deference under R. v. Anthony-Cook, and whether a delayed parole eligibility order under section 743.6 should be imposed in light of the Supreme Court's decision in R. v. Friesen emphasizing deterrence and denunciation in child sexual abuse cases.

The court found the joint recommendation was not a true joint submission because the defendant maintained a not guilty plea and attempted to advance a fraudulent mental health defence.

The court imposed 4 years and 8 months imprisonment (5 years less 4 months pre-sentence custody credit) with delayed parole eligibility until half the sentence was served, along with ancillary orders including a 10-year section 161 prohibition order and a 20-year SOIRA order.

The defendant was charged with impaired driving, refusing to provide a breath sample, dangerous operation of a motor vehicle, and failing to appear in court.

The Crown's case on identity was circumstantial.

The defendant claimed he was a passenger and that another occupant, Jesse Abroquah, was driving.

The court found the defendant was the driver based on eyewitness evidence from a passing motorist who observed the vehicle's trajectory and the occupants' emergence from the vehicle.

The defendant's roadside statement that Abroquah was driving was rejected as a deliberate lie.

The court found the defendant's ability to drive was impaired by alcohol, his driving constituted dangerous operation, he intentionally refused the breath demand, and he knowingly failed to appear in court.

The defendant's Charter application regarding alleged failure to provide a change of clothing was dismissed.

The defendant was found guilty on all four counts.

The accused was charged with robbery at gunpoint, pointing a firearm, using an imitation firearm during the commission of an offence, theft of a motor vehicle, driving while prohibited, failing to comply with bail, and possessing weapons and ammunition while prohibited.

The Crown's case relied primarily on the complainant's identification of the accused as the person who robbed him at gunpoint on a rural road.

The defence raised an alibi defence, arguing the accused was at a pharmacy during the relevant time.

The trial judge found the alibi evidence incredible and rejected it, drawing adverse inferences from the late disclosure and the accused's failure to testify.

However, the judge found reasonable doubt regarding who actually drove the stolen vehicle away from the scene, noting evidence suggesting the complainant's female companion may have been the driver.

The judge acquitted on the robbery and firearm charges but convicted on the driving-related offences.

The judge also dismissed a Charter application regarding lost security video footage, finding no actual prejudice to the defence.

The accused sought to re-elect his mode of trial from provincial court to superior court after his originally scheduled provincial court trial was adjourned on the first day due to counsel's withdrawal.

The central issue was whether the "day first appointed for the trial" under s. 561(2) of the Criminal Code had passed, thereby extinguishing the accused's statutory right to re-elect.

The court held that despite no substantive trial activity occurring on the scheduled date, the day constituted the "day first appointed for the trial" because the trial had become an established reality with both parties ready to proceed.

The application was dismissed.

A young Indigenous woman pleaded guilty to impaired driving with a blood alcohol concentration almost three times the legal limit.

The mandatory minimum sentence under s. 255(1) of the Criminal Code precluded consideration of a discharge under s. 730.

The court found that the mandatory minimum sentence violated s. 12 of the Charter as it would result in a grossly disproportionate punishment—specifically, the imposition of a criminal record—for a young Aboriginal first offender with strong rehabilitative potential and genuine efforts to address her alcohol addiction.

The court declined to apply the unconstitutional provision and granted a conditional discharge subject to probation conditions including a one-year driving prohibition.