Sarah Elizabeth MacDonald

The Court of Appeal for Ontario granted leave to appeal on three issues arising from the acquittal of Luis Benevides, a worker charged under the Occupational Health and Safety Act after a workplace accident.

The case addresses the proper application of the directed verdict test, the determination of worker responsibility under the Act, and the use of private business contracts in defining statutory obligations.

The court declined to grant leave on the issue of whether the trial justice erred by considering due diligence and foreseeability at the directed verdict stage.

The accused, Anden Alexander, applied under section 24(2) of the Charter to exclude firearm evidence, alleging that his initial traffic stop was the result of racial profiling and constituted arbitrary detention.

He further argued that his subsequent arrest for flight from police and the warrantless searches of his person and vehicle were unlawful.

The Ontario Superior Court of Justice found that the police officers had valid Highway Traffic Act grounds for the stop based on database searches conducted prior to the detention.

Consequently, the court held that there was no racial profiling or arbitrary detention, the subsequent arrest and searches were lawful, and the application to exclude the evidence was dismissed.

This is an appeal from a conviction for three counts of careless driving causing bodily harm and the dismissal of an application for a stay of proceedings under section 11(b) of the Charter of Rights and Freedoms.

The appellant challenged the admissibility of a roadside statement, the trial judge's finding of guilt and sufficiency of reasons, and the ruling on unreasonable delay due to the COVID-19 pandemic, including a request to admit fresh evidence.

The court dismissed the appeal, finding no error in law, no unreasonable verdict, and no miscarriage of justice regarding the voluntariness of the statement, the conviction, or the 11(b) application.

In a judge-alone criminal trial involving allegations of repeated sexual abuse of a child by a person in a position of trust, the court admitted the complainant's prior video-recorded police statements under s. 715.1 of the Criminal Code and considered evidence of alleged grooming through pornography and electronic messaging.

The court reviewed the law concerning delayed disclosure by child complainants and the proper assessment of children's evidence, but found significant credibility and reliability concerns in the complainant's testimony, including inconsistencies, memory failures, admitted dishonesty in other contexts, and possible motive to fabricate.

The court also found the supporting evidence from the complainant's mother to be speculative in important respects and concluded that the forensic DNA evidence did not materially confirm the allegations.

Reasonable doubt remained on all six counts, and the accused was acquitted.

The accused sought an adjournment of a sexual offence trial to pursue disclosure of police records concerning a separate allegation made by the complainant against a third party during the same timeframe.

The court considered the governing discretion over adjournments, the defence right to make full answer and defence, the likely need for additional ss. 276 and 278 applications, and the effect of further delay on a young complainant in a pandemic-delayed proceeding.

The court found the defence had long-standing notice of the third-party allegation and had not acted diligently.

Balancing the accused's interests against complainant impact and the public interest in timely trial management, the court held that granting the adjournment would risk a miscarriage of justice and dismissed the application.

The accused, Andrew Lawson, brought a s. 11(b) Charter application for a stay of proceedings due to unreasonable delay, exceeding the 18-month Jordan ceiling.

The total delay was 19 months and 23 days.

The court found that the delay was primarily due to late disclosure, but attributed a significant portion of this delay (approximately 4 months) to the unforeseen impact of the COVID-19 pandemic on Crown disclosure processes, which constituted a discrete exceptional circumstance.

After subtracting this period, the net delay fell below the Jordan ceiling, and the application was dismissed.

The accused, R.A.-M., was found guilty of sexual interference and sexual assault of a 15-year-old victim.

The sexual assault charge was stayed under the Kienapple principle.

The court considered sentencing principles for child sexual abuse, emphasizing denunciation and deterrence, and the impact of the Supreme Court's decision in Friesen.

Despite the persistence of the acts, the court viewed them as being at the lower end of intrusiveness.

Considering the accused's good character, employment, and family support, an intermittent sentence was deemed appropriate.

The accused was sentenced to 90 days intermittent, 2 years probation, SOIRA registration for 15 years, a s. 161.1(b) order, and a DNA sample order.

The Attorney General of Ontario (AGO) sought costs of $3,500 after successfully obtaining a forfeiture order for $32,125 CAD.

The interested party, James Wright, opposed the costs, arguing that the forfeiture was a sufficient windfall for the AGO and that his limited means should preclude a costs award.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure and s. 131(1) of the Courts of Justice Act, found that while impecuniosity is a factor, it does not automatically relieve a party of costs, especially given the modest amount sought and the AGO's prior offer to settle.

The court awarded the AGO $3,500 in costs.

The Attorney General of Ontario sought a forfeiture order under the Civil Remedies Act, 2001, for $32,125 CAD seized from an individual, alleging it represented proceeds and/or an instrument of unlawful activity, specifically drug trafficking.

The individual opposed, claiming the money was accumulated savings for a truck purchase.

The court applied the two-stage test for forfeiture, finding that the applicant established reasonable grounds on a balance of probabilities that the currency was linked to unlawful activity.

The individual's explanation for the cash was deemed not credible due to inconsistencies and circumstantial evidence.

The application for forfeiture was granted.

The Attorney General of Ontario sought forfeiture of $10,000.00 in Canadian currency seized by police, alleging it was proceeds or an instrument of illegal activity under the Civil Remedies Act.

The application was opposed by an interested party, Samir Abdel-Gadir, who claimed ownership of the funds and provided an explanation for their origin.

The court found the interested party's explanation unreliable, noting inconsistencies, lack of corroboration, and the presence of other items associated with illegal activities.

The court concluded that the Attorney General had satisfied its burden of proof on a balance of probabilities and ordered the forfeiture of the funds.

No costs were awarded to the Attorney General due to a lack of direct authority to award costs against a non-party opposing forfeiture.

Enrique Kachuka brought a motion under ss. 8 and 24(2) of the Charter to exclude seized currency as evidence in a forfeiture application by the Attorney General of Ontario under the Civil Remedies Act.

Kachuka argued that the Information to Obtain (ITO) for the search warrants of his vehicle and apartment was legally insufficient, leading to an unreasonable search and seizure in breach of s. 8 of the Charter.

He also contended that police breached his s. 8 rights by submitting a report of seized items past the statutory deadline and with technical errors.

The court found that the issuing Justice of the Peace had reasonable grounds to issue the search warrants, as police surveillance and corroborated confidential informant information established a sufficient nexus between observed drug transactions and Kachuka's apartment.

The court also determined that the reporting delays and errors did not constitute a meaningful infringement of s. 8 rights, as there was no residual privacy interest in the seized cash.

The motion to exclude evidence was dismissed, and the forfeiture application was to proceed.

The Attorney General brought motions for a preservation order under the Civil Remedies Act, 2001 regarding $7,950.05 seized from an individual during a traffic stop and a subsequent search warrant execution, and for an order dispensing with service on that individual.

The court found that the Attorney General had made diligent but unsuccessful efforts to locate and serve the individual, making service impractical, and that dispensing with service was in the interests of justice.

The court also found reasonable grounds to believe the currency was the proceeds or an instrument of drug trafficking, and granted the preservation order, leaving any potential Charter issues regarding the continued detention of the funds to be decided at the forfeiture hearing.

The accused pleaded guilty to assault causing bodily harm to his three-year-old son, who sustained a non-displaced spiral fracture of the left arm.

The Crown sought 90 days intermittent imprisonment; defence sought a conditional discharge, suspended sentence, or conditional sentence.

The court imposed a conditional sentence of six months in the community followed by two years probation, with strict conditions including home confinement for the first three months, anger management programming, and restrictions on contact with the victim.

The court balanced the serious nature of the offence and the need for denunciation and general deterrence against the offender's lack of prior record, genuine remorse, mental health challenges, and rehabilitative potential.

The defendant was convicted of Operation Over 80 following a collision with a motorcyclist at Highway 401 and Kennedy Road in Scarborough.

The victim suffered catastrophic injuries including brain damage, vision impairment, and ongoing physical and psychological trauma.

The court found the defendant's impaired driving contributed to the collision despite the Crown proceeding on a lesser charge that excluded causation.

The defendant was sentenced to 30 days imprisonment served intermittently on weekends, with 12 months probation and no enhanced driving prohibition.

The accused was charged with Operation Impaired and Operation Over 80 following a motor vehicle collision at Highway 401 and Kennedy Road in Scarborough.

The Crown alleged the accused struck and seriously injured a civilian while his blood alcohol concentration was over the legal limit.

The accused raised multiple Charter issues including claims regarding statutorily compelled statements, detention and timely access to counsel, language comprehension difficulties, and lost evidence.

The court found the accused guilty on both counts after addressing the Charter applications and determining that the breath test evidence was admissible.