Paul F. Monahan

The defendant was charged with refusing to comply with a breath demand under section 320.15(1) of the Criminal Code.

The trial involved a directed verdict application and a Charter application alleging violations under sections 7, 8, 9, 10(a), and 10(b).

The court found that while the directed verdict application was dismissed, the defendant's refusal to provide a breath sample was provisional only, pending access to counsel.

The police failed to meet the reasonable diligence standard by denying the defendant's repeated requests for access to the internet to find private counsel.

The court found no actus reus for the refusal offence and acquitted the defendant.

The appellant, David Kawal, appealed his convictions for attempt murder, robbery with a restricted or prohibited weapon, and kidnapping with a restricted or prohibited weapon.

The Court of Appeal for Ontario dismissed all grounds of appeal, finding the jury verdicts reasonable and the trial judge’s instructions proper.

The court found no merit in arguments regarding the reasonableness of the verdicts, the instructions on circumstantial evidence, eyewitness identification, or the elements of the offences.

The sentence appeal was previously abandoned.

The Court of Appeal for Ontario dismissed Gerrard De Souza’s appeal from convictions for indecent assault and sexual assault.

The appellant raised three grounds of appeal, all relating to the trial judge’s assessment of credibility and reliability.

The Court found no error in the trial judge’s approach, holding that her findings were grounded in the evidence and not in stereotypes or improper reasoning.

The Court also found no error in the trial judge’s handling of inconsistencies in the complainant’s evidence or in her rejection of the defence theory of motive to fabricate.

The conviction appeal was dismissed.

The Ontario Court of Justice considered whether a section 10(b) Charter breach occurred when police allowed the accused to speak to a paralegal instead of a lawyer after arrest for impaired driving and over 80 mg alcohol in blood.

The court found a breach because a paralegal is not authorized to provide legal advice in impaired driving cases, and police should have known this.

Despite the breach, applying the three-part Grant test, the court declined to exclude the breath sample evidence, finding the breach was of moderate seriousness, the impact on the accused’s rights was moderate, and society’s interest in reliable evidence favored inclusion.

The accused was found guilty on the over 80 mg charge.

The Ontario Court of Justice considered a section 11(b) Charter application for a stay of proceedings due to delay in the trial of A.H., charged with multiple offences including sexual assault.

The court analyzed the total delay from charge to trial, the defence delay, and the impact of multiple earlier trial dates offered and declined by the defence at the Backlog Reduction Court.

Applying the Supreme Court of Canada’s Jordan framework and recent case law on defence delay apportionment, the court apportioned delay fairly between the Crown and defence, ultimately finding the net delay just under the 18-month presumptive ceiling.

Despite this, the court granted a stay, finding the defence had taken meaningful steps to expedite the proceedings and that the case took markedly longer than it reasonably should have.

The Ontario Court of Justice dismissed the defendant Robert Montet’s Charter application alleging violations of sections 7, 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms in relation to breath sample evidence obtained following a roadside Approved Screening Device (ASD) failure.

The Court found no breach of section 7 regarding alleged failure to provide fresh clothing, no section 8 violation as the warrantless breath demands were reasonable, no section 9 violation for alleged arbitrary detention despite a 6.5-hour hold post-breath sample, and no section 10(b) violation for delays in providing rights to counsel.

The breath sample evidence was admitted, resulting in a finding of guilt for driving with blood alcohol content over 80 mg per 100 mL under section 320.14(1)(b) of the Criminal Code.

The defendant was charged with failing or refusing to comply with an Approved Screening Device (ASD) demand under the Criminal Code.

The trial focused on whether the Crown proved beyond a reasonable doubt that the defendant failed or refused to provide the required breath sample.

The court found that the 37-second period given to the defendant to provide a sample, under challenging conditions (rain, night, highway, recent accident, language barrier, new officer), was insufficient.

Furthermore, the lack of audio on police dash cam video and inadequate officer notes created a vacuum of evidence regarding the defendant's statements during the critical period.

The court was not satisfied that the defendant explicitly refused or failed to comply.

The defendant was acquitted.

The defendant, Ghassan Kullab, a Lyft driver, was found guilty of sexual assault.

This decision outlines the reasons for his sentence.

The court considered aggravating factors including the victim's vulnerability and the breach of trust by Kullab as a ride-share driver.

Mitigating factors included his lack of criminal record and mental health issues.

The court also addressed potential collateral immigration consequences, noting that a sentence of six months or more would remove his appeal rights for deportation.

After reviewing similar cases, the court imposed a sentence of six months less a day in institutional custody, followed by two years probation and other ancillary orders, concluding that a conditional sentence was not appropriate given the breach of trust.

The respondent, Meththa Fernando, appealed her conviction for failing to comply with an order under Section 58 of the Quarantine Act, specifically for refusing a random COVID-19 nasal swab test upon arrival at Pearson Airport.

The court found that Section 14(1) of the Quarantine Act prohibits screening technology that involves the entry of an instrument or foreign body into a traveller's body.

The nasal swab was deemed an "instrument" or "foreign body," and its insertion into the nasal cavity was considered an entry into the body.

Therefore, the screening officer's demand for the test was unlawful, rendering Ms. Fernando's refusal lawful.

The appeal was allowed, the conviction was reversed, and a finding of not guilty was entered.

The defendant was charged with impaired driving and operating a motor vehicle with over 80 mg of alcohol in 100 mL of blood.

The defence brought a Charter application alleging violations of sections 8 (unreasonable search/seizure) and 10(b) (right to counsel).

The court found that the arresting officer had reasonable and probable grounds for arrest, dismissing the section 8 claim.

Regarding section 10(b), the court determined there were no special circumstances requiring an interpreter, as the defendant demonstrated sufficient English comprehension and understood his rights.

The Charter application was dismissed, and the defendant was found guilty of both impaired driving and over 80 charges.

The defendant, Dwight Dube, was charged with impaired driving and over 80.

The defence brought a Charter application alleging violations of sections 7, 8, 9, and 10(b) due to excessive force during arrest and improper implementation of the right to counsel.

The court found that police used excessive force, violating section 7 of the Charter, but found no violation of sections 8, 9, or 10(b).

Applying the Grant test, the court excluded the breath sample evidence and police observations of potential impairment, leading to an acquittal on both charges.

The defendant applied for a stay of proceedings, alleging a violation of their right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay from charge to anticipated end of trial was 26 months and 8 days (800 days).

The court analyzed periods of delay, attributing 161 days to defence delay due to failure to promptly set a trial date and incorrect availability advice.

An additional 193 days of delay were equally apportioned between the defence and the court due to defence counsel's unavailability and the court's inability to offer earlier dates.

After deductions, the net delay was 446 days (approximately 14.6 months), which is well below the Jordan ceiling.

The application for a stay was dismissed as the defence could not demonstrate a sustained effort to expedite proceedings, nor did the case take markedly longer than it should have.

The defendant brought an application for a stay of proceedings under section 11(b) of the Charter due to unreasonable delay.

The total delay from the information being sworn (October 10, 2021) to the anticipated end of trial (April 18, 2024) was 922 days.

The court deducted 43 days for defence delay in scheduling a JPT and 14 days as an exceptional circumstance for trial scheduling due to the pandemic.

The court found no further defence delay for failing to proactively assert s. 11(b) rights, as the Crown had twice declined to prioritize the case.

Despite potential Covid-19 deductions, the net delay of 807 days (26.5 months) remained well above the 18-month Jordan ceiling for the Ontario Court of Justice.

A stay of proceedings was granted.

The accused, M.W., 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 delay from information sworn to anticipated trial end was 1334 days.

The court analyzed various periods of delay, attributing portions to defence conduct (e.g., change of counsel, failure to attend court, late notice of s. 11(b) concerns) and exceptional circumstances (COVID-19 pandemic).

After deducting defence and pandemic-related delays, the net delay was calculated to be 514 days (approximately 16.9 months), which falls below the 18-month presumptive ceiling for provincial court cases established in R. v. Jordan.

The court found the defence failed to demonstrate meaningful steps to expedite proceedings, and therefore dismissed the application for a stay.

This is a sentencing decision for Chandramattie Dave and Ravindra Dave, who pleaded guilty to trading in securities while prohibited by an Ontario Securities Commission (OSC) order, contrary to s. 122(1)(c) of the Securities Act.

Both defendants were subject to market bans.

The OSC sought a fine and probation, while the defendants sought a suspended sentence and probation.

The court considered the defendants' impecunious state, poor health, diminished moral blameworthiness due to reliance on incorrect legal advice, lack of investor loss, and guilty pleas.

Applying regulatory sentencing principles, the court imposed a suspended sentence with two years probation for each defendant, including the forfeiture of $2,250 to the OSC, but declined to impose a fine due to the defendants' inability to pay.

The accused, Wilton Williams, pleaded guilty to possession for the purpose of trafficking in fentanyl.

The Crown sought a three-year penitentiary sentence, while the defence requested a conditional sentence of two years less a day.

The court considered aggravating factors, including the quantity of fentanyl and cocaine, and numerous mitigating factors, such as the offender's lack of criminal record, youthfulness, remorse, significant rehabilitative efforts (obtaining welding qualifications), strong family support, and the impact of anti-Black racism on his life choices.

The court emphasized that deterrence and denunciation are primary objectives in fentanyl trafficking cases, but rehabilitation remains important, especially when social context evidence is presented.

The court found that a conditional sentence would be consistent with sentencing principles, promoting rehabilitation without endangering community safety, and would be more effective than institutional custody in ensuring the offender remains on a positive path.

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.