Vivian Elisa Gallegos

The Crown appealed a summary conviction acquittal for an "over 80" impaired driving charge.

The trial judge had excluded the breathalyzer readings under s. 24(2) of the Charter after finding a s. 10(b) breach because police did not let the respondent call his sister before the test.

The summary conviction appeal judge allowed the appeal, holding that the right to counsel does not extend to non-lawyers unless the detainee specifically requests to call them to locate a lawyer.

Since the respondent did not state this purpose, no implementational duty was triggered.

A new trial was ordered.

The respondent was charged with assaulting a police officer and appeared for a bail hearing before a Justice of the Peace.

During the hearing, the respondent exhibited signs of mental illness and disruptive behaviour.

Without notice to the Crown or hearing submissions, the Justice of the Peace stayed the charge, citing the respondent's mental health and the interests of justice.

The Crown brought an application for certiorari to quash the decision.

The Superior Court of Justice granted the application, finding that the Justice of the Peace lacked jurisdiction to stay the proceedings and breached natural justice by failing to hear from the Crown.

The stay was set aside, and the matter was remitted for a bail hearing before a different judicial officer.

The offender was convicted of sexual assault, sexual interference, and invitation to sexual touching against his daughter, who was between the ages of nine and 14 during the offences.

The offender absconded prior to the sentencing hearing.

Applying the principles from Friesen, the court prioritized denunciation and deterrence given the extreme breach of trust and the vulnerability of the child.

The court sentenced the offender in absentia to eight years' imprisonment concurrent on each count, along with mandatory weapons prohibitions, a DNA order, and a SOIRA order.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching of his daughter.

The complainant testified that the accused engaged in repeated sexual contact with her between 2018 and 2023, beginning when she was nine years old.

The accused denied all allegations.

The trial judge found the accused guilty on all counts after assessing the credibility of both witnesses.

The judge rejected the accused's evidence as deliberately misleading regarding his work schedule and the timing of an apology message.

The judge accepted the complainant's evidence as credible and reliable, finding her account plausible and consistent on salient matters.

The Ontario Court of Justice sentenced Ross Flight for accessing and possessing child pornography, following his guilty plea.

The case involved over 3,000 unique images and 27 videos, including highly exploitative and gruesome material depicting children ranging from nudity to sadistic abuse.

The court considered aggravating factors such as the volume and nature of the material and Flight’s role as both consumer and uploader.

Mitigating factors included Flight’s advanced age (82), serious health issues, lack of prior record, and demonstrated remorse and insight.

The court imposed a 15-month custodial sentence, a 10-year s. 161 order, a 20-year SOIRA order (rejecting the Crown’s request for a lifetime SOIRA), and a DNA order.

The decision carefully balanced denunciation and deterrence with Flight’s personal circumstances, relying heavily on recent appellate guidance on sentencing for child pornography offences.

Oladele Olafimihan pleaded guilty to sexual assault under s. 271 of the Criminal Code.

The court delivered a sentence of 4 years in penitentiary, minus pre-sentence custody, along with ancillary orders for DNA sample, lifetime weapons prohibition, and 20-year SOIRA registration.

The sentencing considered aggravating factors such as stalking, threats, and victim vulnerability, and mitigating factors including the offender's lack of criminal record, strong family support, self-help initiatives, and a significant guilty plea.

The court accepted the joint submission from the Crown and Defence, finding it proportionate and not bringing the administration of justice into disrepute, while also acknowledging the serious collateral consequences of deportation.

The defendant was charged with multiple offences against the complainant, his intimate partner, including assault with a weapon, assault causing bodily harm, assault, pointing a firearm, and uttering threats, as well as breaches of probation.

The Crown sought to admit similar fact evidence across counts, which was dismissed due to lack of similarity between incidents.

The court assessed the complainant's credibility and reliability, noting vagueness, inconsistencies, and a potential motive to fabricate due to the relationship's end and financial difficulties.

Ultimately, the court found that the Crown failed to prove any of the alleged offences beyond a reasonable doubt, leading to the defendant's acquittal on all counts.

The Crown sought to admit a video-recorded statement made by the accused, Jennifer Sacobie, to police.

The defence argued the statement was involuntary and obtained in violation of Sacobie's s. 10(b) Charter right to counsel.

The court found that while the statement was voluntary, the police had seriously breached Sacobie's Charter rights by failing to inform her of her right to counsel upon detention and by continuing to question her despite her repeated requests for a lawyer.

The court further found that no "fresh start" occurred to sever the link between the Charter breach and the subsequent statement.

Applying the Grant factors, the court concluded that admitting the statement would bring the administration of justice into disrepute, and therefore excluded it.

This criminal trial concerned a charge of sexual assault where the accused ejaculated on the complainant's back without her explicit consent, following consensual sexual activity.

The complainant alleged a condition of consent was constant condom use, which the accused denied hearing, believing his actions were consensual based on a general "everything else was fine" agreement.

The court found both the complainant and the accused credible, leading to a reasonable doubt regarding the explicit condom condition.

The central legal issue was whether the accused's honest but mistaken belief in communicated consent constituted a valid defence, specifically whether he took reasonable steps to ascertain consent under section 273.2(b) of the Criminal Code.

The court concluded that the accused's prior conversation about boundaries, where condom use was not explicitly forbidden in his account, amounted to reasonable steps.

It was determined that the act of masturbating and ejaculating on the back was not a fundamentally distinct sexual act requiring new consent.

Consequently, the accused was found not guilty.

The accused, Islamunddin Attayee, was charged with assaulting his spouse and an intervening member of the public.

The primary issue at trial was the identity of the assailant, as the spouse was uncooperative.

The court found the in-dock identification by witnesses insufficient to prove identity beyond a reasonable doubt, citing the need for caution as per R. v. Hibbert.

Additionally, the court noted disturbing surreptitious communications between a testifying police officer and the officer in charge during the Zoom trial, which undermined the fairness of the process and led to the accused being left without counsel.

The Crown's inaction in investigating these communications was criticized, emphasizing the Crown's heightened duty of fairness and disclosure as per R. v. Ahluwalia.

The accused was acquitted of all charges.

Christopher Navas pleaded guilty to failing to comply with a release order.

The Crown sought a conditional discharge with probation and a DNA order, while the defence argued for an absolute discharge and opposed the DNA order.

The court granted an absolute discharge, finding that Mr. Navas's offending behaviour was linked to significant mental health challenges and that he had made exemplary progress in rehabilitation, rendering a probation order unnecessary and a longer record retention period disproportionate.

The court also declined to impose a DNA order, considering the minor nature of the breach, the offender's lack of prior criminal record, and his rehabilitation efforts.

This ruling addresses a Leaney application by the Crown to admit a police officer's opinion evidence regarding the identity of the accused from surveillance video footage.

The court applied the "prior acquaintance/better position" test, finding the officer sufficiently familiar with one accused (Siddiqui) to offer an opinion.

The application was granted for high-quality video footage from a school portable but denied for poor-quality video from the East York Town Centre, emphasizing that video quality is a crucial factor for admissibility of recognition evidence.

This criminal trial addressed charges of impaired operation of a motor vehicle and operating a motor vehicle with over 80 mg of alcohol.

The defendant was involved in an accident after driving the wrong way on a one-way street.

The court found insufficient evidence to prove impaired operation beyond a reasonable doubt, noting the lack of clear indicia of impairment beyond the driving error itself.

Regarding the defendant's Charter Section 10(b) right to counsel, the court found no breach, determining that the defendant's waiver of her right to counsel at the police station was clear and unequivocal, even after being reminded of her initial assertion of the right.

Consequently, the defendant was acquitted of impaired operation but convicted of operating a motor vehicle with more than 80 mg of alcohol.

The accused, D.B., was charged with multiple counts of sexual assault, robbery, and other offenses involving two complainants, L.G. and E.H., on a single indictment.

D.B. applied to sever the charges relating to L.G. from those relating to E.H. and also sought to admit evidence under s. 276 of the Criminal Code regarding L.G.'s past willing sexual services for drug debts.

The court granted the severance application, finding insufficient factual nexus between the incidents and a significant risk of propensity reasoning by the jury.

It also determined that the Crown's similar fact evidence application was unlikely to succeed.

The s. 276 application was dismissed, as the proposed evidence was deemed inadmissible under s. 276(1) and (2) of the Criminal Code, serving no purpose other than to support an inference of past consent, which is prohibited.

The defendant was charged with operating a motor vehicle while impaired by a drug.

The Crown and defence conceded the actus reus—that the defendant was operating a motor vehicle and was impaired.

The central issue was whether the Crown proved the mens rea of the offence.

The defendant claimed he mistakenly consumed alprazolam (Xanax) believing it was citalopram, a medication he had been prescribed for anxiety, and therefore lacked the intent to consume an intoxicant.

The court found that the defendant's urine sample contained alprazolam and carboxy THC (a cannabis metabolite), which aligned with the drug recognition expert's assessment.

The court applied the presumption under s. 320.31(6) and found no evidence to the contrary.

The court rejected the defendant's involuntary intoxication defence, finding that he was aware of his impairment before and during driving, and chose to continue operating his vehicle despite knowing it was dangerous.

The defendant was convicted.

The accused pleaded guilty to one breach of a recognizance and one breach of probation.

The breaches involved violating court orders to stay away from the victim, Monique Fortin, whom he had previously assaulted on two separate occasions.

The court imposed a six-month conditional sentence followed by two years' probation, along with a section 109 weapons prohibition order for 10 years and a DNA order.

The sentence balanced the serious aggravating factors, including multiple breaches and a pattern of domestic violence, against mitigating factors such as the guilty plea, recent rehabilitation efforts, and stable employment.

The accused was charged with impaired care or control.

The Crown's case relied on blood test results obtained at a hospital without the accused's consent.

The defence sought to exclude the blood results based on alleged Charter breaches, including unlawful detention, delayed right to counsel, and failure to facilitate the accused's request to contact counsel.

The court found that while the initial order to exit the vehicle was lawful under the Waterfield test (justified to protect life), there were Charter breaches regarding the right to counsel.

The court excluded the blood evidence under section 24(2) of the Charter, finding that the impact on the accused's Charter-protected interests was significant, particularly given the accused's vulnerability and explicit request for counsel that was not facilitated.

The accused was charged with 'Over 80' and impaired driving after his truck collided with a pole.

The trial judge found that the arresting officer lacked reasonable and probable grounds to arrest the accused for impaired driving due to the officer's unreliable and contradictory evidence, resulting in a breach of section 8 of the Charter.

The court also found a breach of section 10(b) because the police refused to allow the accused to call his lawyer at the roadside despite having his phone and the opportunity to do so.

Applying the Grant framework, the court excluded the breath sample evidence under section 24(2).

Without the breath readings, and finding the toxicologist's report insufficient, the court concluded the Crown failed to prove impairment beyond a reasonable doubt and dismissed all charges.

The defendant was charged with impaired driving and failing to comply with a demand to provide breath samples.

The Crown alleged that the defendant rear-ended another vehicle while impaired by alcohol and subsequently refused to provide suitable breath samples at the police station.

The defence challenged the lawfulness of the approved screening device demand, the timing of the arrest, and the validity of the approved instrument demand.

The court found that the officer had reasonable and probable grounds to arrest for impaired driving, that the ASD demand was lawful, and that any Charter breaches were technical in nature and should not result in exclusion of evidence.

The defendant was found guilty of both charges.

The accused pleaded guilty to attempting to break and enter a dwelling house with intent to commit an indictable offence and theft under five thousand dollars.

The Crown sought a global sentence of twelve months less pre-sentence detention credited at 1.5 to 1, followed by three years probation.

The defence sought time served plus two years probation, emphasizing the accused's difficult personal history as a Kurdish Convention refugee and the minimal nature of the offences.

The court imposed a sentence of time served plus one day in gaol on the attempt charge, with fifteen days concurrent on the theft charge, followed by three years concurrent probation.

The court considered collateral consequences under immigration law but found no risk of deportation given the accused's protected status as a Convention refugee.