Stephen Menzies

This is a sentencing decision following a conviction for sexual assault involving forced intercourse.

The court considered aggravating factors, including the victim's repeated protests, the lack of a condom, and significant psychological harm, against mitigating factors such as the offender's lack of a prior criminal record, youth at the time of the offence, and family support.

The Crown sought 4-5 years, while the defence sought a conditional or reformatory sentence.

The court emphasized denunciation and deterrence as primary sentencing objectives for serious sexual assaults, particularly those involving forced penetration, and rejected the defence's argument for a unique circumstance.

A sentence of 3.5 years in the penitentiary was imposed, along with ancillary orders.

The defendant was charged with sexual assault.

The complainant testified that she did not consent to sexual intercourse, cried, and repeatedly said no.

The defendant claimed the complainant consented and initiated the activity.

The court found the defendant's testimony unreliable due to numerous material contradictions with his police statement, where he admitted to fabricating details.

Conversely, the court found the complainant's evidence cogent, detailed, and compelling, dismissing defence arguments regarding minor inconsistencies as insignificant.

The court concluded that the Crown proved beyond a reasonable doubt that the complainant did not consent and that the defendant knew or was reckless/wilfully blind to the absence of consent.

The defendant was found guilty.

The accused pleaded guilty to making child pornography available after uploading an image containing 30 thumbnails of child abuse to a public website.

A search of his residence revealed a moderate collection of child pornography.

The accused, a youthful first offender with a low risk of reoffending, sought a conditional sentence.

The court emphasized denunciation and general deterrence for offences involving the abuse of children, sentencing the accused to 10 months' incarceration followed by 18 months' probation and ancillary orders.

The appellant appealed her summary conviction for driving with a blood alcohol level over 80mg.

She argued the trial judge erred in finding sufficient grounds for the roadside test, accepting the breathalyzer results despite an unreliable breath technician, and finding the delay caused by a forced consultation with duty counsel was reasonable.

The Superior Court of Justice dismissed the first two grounds but found the trial judge erred in law by failing to consider whether the police acted reasonably in requiring the appellant to consult with duty counsel after she had waived her right to counsel.

The conviction was set aside and a new trial ordered.

The Crown appealed a Summary Conviction Appeal Judge's decision that allowed the respondent's appeal from conviction for impaired care or control of a motor vehicle under section 258(1)(a) of the Criminal Code.

The respondent was found passed out in the driver's seat of a running vehicle with the engine on and seatbelt fastened.

He had consumed significant alcohol and provided breath samples showing readings of 210 and 200 milligrams of alcohol per 100 millilitres of blood.

The trial judge rejected the respondent's evidence that he had no intention to drive.

The Court of Appeal found that the Summary Conviction Appeal Judge erred in characterizing the trial judge's findings as palpable and overriding errors and restored the original convictions.

The appellant appealed his conviction for driving 'over 80'.

At trial, the evidence showed a 33-minute unexplained gap between the conclusion of the appellant's call to duty counsel and the taking of his first breath sample.

The trial judge held this gap did not defeat the 'as soon as practicable' requirement under s. 258(1)(c)(ii) of the Criminal Code.

On appeal, the Superior Court found that because there was no evidence or judicial findings explaining the 33-minute delay—which constituted one-third of the total time from the traffic stop to the first sample—the Crown failed to prove the police acted reasonably and promptly.

The appeal was allowed and an acquittal entered.

The appellant appealed his summary conviction for operating a motor vehicle with a blood alcohol concentration over 80mg/100ml.

He argued that the trial judge erred in dismissing his Charter applications under ss. 8, 9, and 10(b).

The Summary Conviction Appeal Court found that the trial judge erred in concluding the officer had reasonable suspicion to make the roadside breath demand, resulting in a s. 8 breach.

However, the court upheld the trial judge's findings that the formal breath demand at the station was valid and that the appellant's ambiguous response to the right to counsel did not constitute an invocation of that right.

Applying the Grant framework, the court concluded that the breath test evidence should not be excluded under s. 24(2) despite the s. 8 breach.

The appeal was dismissed.

The Appellant, Jeff McClennan, appealed his convictions for Impaired Driving and Over Eighty Care and Control.

The appeal was based on the trial judge's alleged palpable and overriding errors in findings of fact and credibility regarding the "realistic risk of danger" element of care and control.

The Superior Court of Justice found that the trial judge made significant factual errors by misstating evidence and taking the Appellant's testimony out of context, which directly impacted the determination of realistic risk.

The appeal was allowed, the conviction overturned, and a re-trial ordered.

The applicant, charged with drug trafficking, brought a section 8 Charter application to exclude evidence seized pursuant to a search warrant.

The applicant argued that the police fabricated the existence of a confidential informant or the information provided, and that the information was absurd and uncorroborated.

The court dismissed the application, finding that the information provided by the confidential informant was compelling, credible, and strongly corroborated by police investigation, providing a sufficient basis for the issuing judge to grant the warrant.

The accused brought an application to stay charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime, alleging a breach of his s. 11(b) Charter right to be tried within a reasonable time.

The total delay was 39 months, breaching the 30-month ceiling established in Jordan.

The court calculated the net delay at 34 months after deducting 5 months of defence delay.

Because this was a transitional case, the court applied the transitional exceptional circumstances doctrine, finding that the parties reasonably relied on the previous Morin framework and that the delay would not have warranted a stay under Morin.

The application was dismissed.

The defendant applied for exclusion of breath sample evidence pursuant to Charter sections 8, 9, and 24(2), alleging that the arresting officer lacked reasonable grounds to arrest her or demand breath samples under section 254(3) of the Criminal Code.

The defendant was charged with impaired care or control of a motor vehicle and care or control with excessive blood alcohol concentration.

The court found that the officer had objectively reasonable grounds based on the totality of circumstances, including the defendant's operation of a vehicle without lights, delay in stopping, improper stopping position, apparent attempt to mask breath odor through smoking, failure to produce documents promptly, provision of irrelevant documents, odor of alcohol on breath, failure to recite the alphabet accurately, and alteration of her account regarding alcohol consumption.

The Charter application was dismissed.

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

The sole issue at trial was whether Intoxilyzer breath test results should be excluded under s. 24(2) of the Charter due to an alleged breach of the right to counsel under s. 10(b).

The trial judge found that although the appellant initially indicated a desire to speak with counsel, she later waived that right after being informed that duty counsel was available and that testing could wait.

On appeal, the court held that the trial judge’s credibility findings regarding the police officer’s testimony were reasonably open to him and that the waiver was clear, informed, and unequivocal.

The court also found that the informational requirements from R. v. Prosper were substantially satisfied.

No reviewable error was established.

The appellant appealed summary conviction findings of guilt for impaired operation of a motor vehicle and operating with excess blood alcohol.

He argued the trial judge erred in finding the arresting officer had reasonable and probable grounds to arrest, misapprehended the evidence, and improperly assessed credibility in rejecting his testimony about the implementation of his right to counsel under s. 10(b) of the Charter.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and did not misstate the evidence regarding observations of impairment.

The trial judge’s credibility findings were entitled to deference and disclosed no palpable or overriding error.

The evidence, including observations of impairment and intoxilyzer readings, supported the conviction beyond a reasonable doubt.

The appellant appealed his conviction for driving with excess blood alcohol, arguing the trial judge erred in rejecting his 'straddle evidence' and reversing the burden of proof.

The appellant had consumed a large amount of alcohol shortly before driving (bolus drinking) and provided a toxicologist's report suggesting his blood alcohol level might have been below the legal limit at the time of driving.

The Superior Court of Justice dismissed the appeal, finding the trial judge correctly applied Supreme Court of Canada jurisprudence, which holds that general elimination rates rarely defeat the presumption of identity under section 258(1) of the Criminal Code.

The applicant appealed a summary conviction for having care and control of a motor vehicle while his blood alcohol concentration exceeded the legal limit, contrary to s. 253 of the Criminal Code.

He argued that the trial resulted in a miscarriage of justice and that the evidence did not establish care and control or an intention to operate the vehicle.

The appeal court held that the trial judge made supported credibility findings and had an evidentiary basis to accept the police officer’s testimony that the accused was seated in the driver’s seat with the key in the ignition and the engine running.

Applying the realistic risk of danger test from R. v. Boudreault, the court found no error in the trial judge’s conclusion.

The appeal was dismissed.

The appellant appealed convictions for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the verdicts were unsupported by the evidence and that the trial judge erred in credibility findings, the application of the W.(D.) test, and the dismissal of a Charter application under ss. 10(b) and 24(2).

The appellant also argued that the absence of video recording equipment in the police breath room should have led to adverse inferences against the Crown’s evidence.

The appeal court held that the trial judge made no palpable or overriding errors of fact and correctly applied the relevant burdens and standards of proof.

The court found that credibility findings and the assessment of the absence of video evidence were matters within the trial judge’s discretion and entitled to deference.

The convictions were supported by the evidence, and no miscarriage of justice was established.

The appellant appealed his conviction, arguing the trial judge failed to consider his evidence and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding the trial judge accepted the appellant's evidence about the ten-second episode but concluded that by deliberately showing off and squealing his tires, the appellant left himself too little time to correct his accidental acceleration.

The findings were open to the trial judge on the record.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood on June 19, 2010.

The defence challenged the validity of the approved screening device demand under section 8 of the Charter and sought exclusion of the breath test results under section 24(2).

The defence also argued that evidence of late consumption of alcohol (bolus drinking) immediately before the RIDE stop raised a reasonable doubt regarding the accused's blood alcohol concentration at the time of driving.

The court found the officer had reasonable suspicion to make the demand and dismissed the Charter application.

On the trial issue, the court accepted the accused's evidence regarding his consumption pattern but found that "straddle evidence" (evidence showing blood alcohol concentration could have been either above or below the legal limit) was insufficient to rebut the statutory presumption of identity under section 258(1)(d.1) of the Criminal Code.

The accused was convicted.

The Registrar of the Alcohol and Gaming Commission of Ontario issued Notices of Proposal to suspend the respondent's liquor licence for alleged violations of the Liquor Licence Act.

The parties submitted an Agreed Statement of Facts admitting that patrons rolled and smoked marijuana on the licensed patio, breaching subsection 45(2) of Ontario Regulation 719/90.

The Board accepted the Joint Submission on Disposition and ordered a 17-day suspension of the liquor licence.

The respondent, an accounting manager, pleaded guilty to fraud and theft after stealing $286,636 and defrauding his employer of $1.9 million to participate in a Nigerian mail scam.

The trial judge imposed a conditional sentence of two years less a day.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, holding that a penitentiary sentence in the range of three to five years was required given the large-scale fraud, breach of trust, and devastating impact on the employer.

Giving credit for the 9.5 months already served under strict conditions, the Court varied the sentence to two years less a day in custody.