Paul Kelly

This sentencing decision addresses the appropriate sentence for Tracey VanHartsKamp, who pled guilty to assault and uttering death threats motivated by racial bias against a vulnerable immigrant woman and her child on public transit.

The court carefully balances aggravating factors including hate motivation, the presence of a child victim, and the public transit context, with mitigating factors rooted in the offender’s Indigenous background, intergenerational trauma, FASD diagnosis, and progress on a healing path.

The judge imposes a conditional sentence order to allow continued access to culturally appropriate rehabilitation programs, emphasizing restorative justice principles in sentencing Indigenous offenders.

Christopher Mitchell pleaded guilty to second-degree murder for the shooting death of John Wheeler.

The sentencing was adjourned to allow for the preparation of records and a psychological report.

At the sentencing hearing, the Crown and defence jointly recommended a parole ineligibility period of 18 years.

The court reviewed the circumstances of the offence, the impact on the victim’s family, and the background and mental health of Mr. Mitchell.

The court accepted the joint submission, imposing a life sentence with 18 years of parole ineligibility, a lifetime weapons prohibition, and a DNA order.

Emron Constantine applied for a stay of proceedings based on an alleged violation of his s.11(b) Charter right to a trial within a reasonable time, as the total delay exceeded the 30-month presumptive ceiling set by R. v. Jordan.

The court found a total delay of 1689 days.

After deducting 210 days for COVID-19 related delays and 400 days for defence delay, the net delay was 1079 days (approximately 35.9 months), which still exceeded the 30-month ceiling.

The court determined that a significant portion of the delay (236 days) was due to a lack of judicial resources and judicial unavailability, which was not an exceptional circumstance attributable to the Crown or defence.

The application for a stay of proceedings was granted, and the charges were stayed.

The accused, R.K.T., was found guilty of voyeurism, possession of child pornography, making child pornography, and distributing child pornography involving his younger step-sister.

The offences occurred between 2015 and 2019.

The court considered aggravating factors such as the breach of trust, the victim's age (under 18 for some recordings), and the widespread distribution of the images, and mitigating factors including the accused's lack of prior criminal record and potential for rehabilitation.

The Crown sought a total sentence of seven years imprisonment, while the defence sought 30 months.

The court imposed a global sentence of 5.5 years imprisonment, along with ancillary orders including a DNA order, a lifetime prohibition from being around children, and a 20-year Sex Offender Information Registration Act order.

The accused, Chundi Deng, applied for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay from charge to anticipated trial end was 655 days, exceeding the 18-month (547-day) presumptive ceiling for the Ontario Court of Justice set by R. v. Jordan.

The court deducted 21 days for defence delay in retaining counsel.

The Crown argued for further deductions for defence delay and COVID-19 related exceptional circumstances.

The court rejected the Crown's argument for additional defence delay, finding the defence actions legitimate.

However, the court recognized the systemic impact of the COVID-19 pandemic as an exceptional circumstance, deducting 29 days for trial scheduling delays and a further 40 days as a realistic estimate of the pandemic's impact on trial scheduling in the Scarborough Courthouse.

Despite these deductions, the net delay remained 565 days, still exceeding the Jordan ceiling.

The court found the overall delay unreasonable and granted a stay of proceedings.

The accused brought two pre-trial motions alleging Charter violations.

The first motion alleged a violation of the right to trial within a reasonable time under s. 11(b).

The court dismissed this motion, finding that after deducting defence delay and discrete exceptional circumstances (including the COVID-19 pandemic and legislative changes to preliminary inquiries), the net delay was below the 30-month ceiling.

The second motion sought to exclude a loaded firearm under s. 24(2) due to admitted violations of ss. 7 and 10(b) during the accused's arrest.

The court dismissed this motion, concluding that the firearm was discovered independently by a civilian witness and was not obtained in a manner that infringed the accused's rights, and that its admission would not bring the administration of justice into disrepute.

Aruran Suthakaran was found guilty of second-degree murder.

The court considered the nature of the offence, the circumstances surrounding its commission (gun violence in a public place with transferred intent), the offender's character (no prior record, strong family support), and jury recommendations (10 years parole ineligibility).

Despite the jury's recommendation, the court imposed a 12-year period of parole ineligibility, emphasizing the need for denunciation and deterrence for gun-related crimes, while acknowledging the offender's strong rehabilitation prospects.

A lifetime weapons prohibition and mandatory DNA order were also imposed.

The Crown sought a ruling on the voluntariness of statements made by the accused, Suthakaran, during a videotaped in-custody interview, intending to use them for cross-examination if he testified.

The defence argued the statements were involuntary due to oppressive circumstances during the interview.

The court found that despite the police's persistence and the accused's emotional state and repeated requests to end the interview, the circumstances did not amount to oppression.

The statements were deemed voluntary and admissible.

The accused were jointly charged with offences arising from a gunpoint robbery at a Husky truck stop on Highway 401 near London, Ontario, and a subsequent attempted break-in and stabbing at a car wash near Warden Avenue in Scarborough, Toronto.

The Crown proved beyond a reasonable doubt that the accused committed the London robbery and the Toronto attempted break-in and assault.

However, the Crown failed to establish the motive for the Toronto incidents as robbery, and therefore the accused were acquitted of the joint robbery charge relating to the car wash owner.

The accused were convicted on most counts but acquitted of the Toronto robbery charge.

The defendant, Diego Alcaraz, was charged with aggravated assault and assault with a weapon after stabbing his boyfriend, David Valencia, during a domestic dispute.

The central issue at trial was whether Alcaraz acted in self-defence.

The court considered the conflicting testimonies of Alcaraz and Valencia, Alcaraz's immediate 911 calls, and a toxicology report for Valencia.

The court found Alcaraz's account of Valencia's escalating jealousy and physical aggression more plausible, supported by Valencia's own admissions and the consistency of Alcaraz's statements with the physical evidence.

Ultimately, the Crown failed to prove beyond a reasonable doubt that Alcaraz did not have reasonable grounds to believe force was being used against him or that he did not stab Valencia for self-protection.

Alcaraz was acquitted of both charges.

The offender pleaded guilty to impaired driving, dangerous operation causing bodily harm, and breach of probation after striking a motorcycle from behind, causing severe, life-altering injuries to the passenger and serious injuries to the driver.

The offender was highly intoxicated and fell on the injured passenger at the scene.

The court emphasized denunciation and deterrence, noting an upward trend in sentences for impaired driving causing bodily harm.

The offender was sentenced to a total of four years and three months before credit, resulting in two years less a day in custody, followed by three years of probation and a five-year driving prohibition.

The accused was charged with Operation Impaired and Blow Over 80 following a traffic stop for erratic driving.

The accused challenged the lawfulness of the investigation, alleging violations of his Charter rights under sections 7, 8, 9, 10(a), and 10(b).

The court found that the roadside screening demand was made forthwith and that the accused was adequately informed of the reasons for his detention.

However, the court found that the strip search was unnecessary and violated the accused's Charter rights under sections 7 and 8.

Applying the Grant analysis, the court excluded the breath test results due to the seriousness of the Charter violations.

The Blow Over 80 charge was dismissed.

The accused was convicted of Operation Impaired based on evidence of erratic driving, impairment indicators, and impaired judgment.

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

The Crown sought to rely on breath sample analysis from an approved instrument.

The accused challenged the admissibility of the evidence on Charter grounds, arguing violations of sections 8 and 9 regarding the roadside screening demand, the reliability of the screening device results, the detention in the police cruiser, and the timing of the breath samples.

The court found no Charter violations and admitted the evidence, finding the accused guilty as charged.

At a preliminary inquiry, the accused bus driver was charged with dangerous driving causing death and failing to stop after an accident with intent to escape civil or criminal liability, following the death of a 14-year-old passenger struck by his bus at the intersection of Finch Avenue East and Neilson Road in Toronto on December 19, 2014.

The Crown sought committal to trial.

The court found that the evidence did not establish a marked departure from the standard of care required for dangerous driving, and there was no evidence the accused was aware of the accident.

The accused was discharged and not committed to trial.

The accused was charged with impaired care or control and care or control over 80 after police found him sleeping in the driver's seat of his vehicle with a blood alcohol level exceeding the legal limit.

The Crown alleged the defendant had care or control of the vehicle.

The defendant testified he entered the vehicle to sleep following an argument with his wife and had no intention to drive.

The court found the defendant had rebutted the presumption of care or control and dismissed the charges, finding the risk of danger was speculative rather than realistic.

The accused pleaded guilty to possessing child pornography.

The Crown sought a sentence of 6-9 months imprisonment followed by 3 years probation.

The defence sought an intermittent sentence.

The court imposed a 90-day intermittent sentence followed by 3 years probation with ancillary orders.

The court balanced the serious nature of the offence and the need for denunciation and deterrence against significant mitigating factors including the accused's early guilty plea, genuine remorse, commitment to counselling, family support, and low risk to re-offend as assessed by a forensic psychiatrist.