Zenia Sethna

Sentencing of a first offender convicted at trial of aggravated assault, assault with a weapon, uttering a threat to cause death, and possession of a weapon for a dangerous purpose.

The accused attacked his sister's husband with a box cutter knife in the family home, inflicting deep cuts requiring 70 stitches, and also cut his own father who intervened.

The accused absconded and was sentenced in absentia after his counsel was removed from the record.

The court found the stated intent to kill was a significant aggravating factor beyond the mere utterance of a death threat.

While acknowledging the Crown's proposed range of 3.5 to 4 years was below what the circumstances warranted, the court imposed a global sentence of 4 years' custody, with ancillary orders including DNA, a firearms prohibition, a no-contact order, and restitution of $26,338.

The court granted the Crown's application under s. 475 of the Criminal Code, found the accused had absconded, and held it was necessary in the interests of justice to proceed with sentencing in absentia.

The court relied on the prolonged failure to appear, unsuccessful efforts to locate the accused, victim-impact timing concerns, and the public interest in timely sentencing for serious violence.

This decision addresses deficiencies in the defence final submissions in a criminal trial for Aggravated Assault.

The court found multiple errors in the defence's case citations, including fictitious cases, unrelated civil cases, and incorrect pinpoint references.

The judge ordered the defence counsel to personally prepare a new set of submissions with strict guidelines to ensure accuracy, proper numbering, and prohibition on the use of generative AI for legal research.

The ruling emphasizes the importance of reliable and precise legal submissions even when the case primarily turns on factual disputes.

This decision addresses the interpretation of "pursuit" under section 320.17 of the Criminal Code concerning flight from police.

The accused, Samuel Dumfeh, was charged after fleeing from police following a sobriety check.

The defence argued no pursuit occurred as police did not engage in a formal chase.

The court relied on recent Ontario Court of Justice authority to hold that pursuit is a continuous act beginning when emergency lights are activated and continuing until the driver is free to leave, including the obligation to remain stopped.

The court rejected the defence’s narrow interpretation and dismissed the directed verdict motion, finding sufficient evidence of flight from police.

The accused was charged with child luring under s. 172.1(1) of the Criminal Code, specifically communicating electronically with a person he believed was under 18 for sexual services.

The Crown presented evidence of messages where the accused confirmed he was "okay" with the purported sex worker being 14 years old, and circumstantial evidence of his conduct leading up to a planned meeting.

The defence argued lack of specific intent, claiming the accused believed he was investigating a scam or robbery, and that his historical actions of reporting human trafficking should create reasonable doubt.

Applying the R. v. W.(D) test, the court found the accused's exculpatory evidence illogical, far-fetched, and inconsistent with the totality of the circumstantial evidence.

The court concluded that the Crown had proven the essential elements of the offence beyond a reasonable doubt, and the accused was found guilty.

The Crown brought an application for a ruling on the admissibility of "Textnow" messages as evidence in a child luring trial.

The messages were exchanged between a police detective and the accused's phone.

The court considered the authentication of electronic documents under the Canada Evidence Act, specifically sections 31.1, 31.2, and 31.3.

Based on direct testimony from the detective and compelling circumstantial evidence, the court found the messages to be relevant and authentic, satisfying the low threshold for admissibility.

The application was allowed, and the messages were deemed admissible for trial.

The accused, Giacomo Fiorillo, brought an application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under section 11(b).

The court applied the framework from R. v. Jordan, calculating the total delay from the information being sworn to the application hearing (817 days or 26.9 months).

The court deducted 531 days (17.5 months) as defence delay, including explicit waivers and adjournments clearly requested by the defence or due to the accused's non-attendance.

The net delay was 286 days (9.4 months), which is well below the 18-month presumptive ceiling for the Ontario Court of Justice.

The Crown's request for a COVID-19 related deduction was denied at this stage.

The application for a stay of proceedings was dismissed.

This criminal trial concerned Philip Zivkovic, charged with failing or refusing to comply with a breath demand under section 320.15(1) of the Criminal Code.

The Crown alleged that the defendant wilfully refused to provide a sample after being found asleep at the wheel of his vehicle.

The defendant argued that his refusal was not unequivocal due to confusion regarding his right to counsel and the consequences of non-compliance, exacerbated by conflicting information from police officers and his anxiety.

The court, applying the "single transaction test," found that the defendant's immediate change in demeanor and genuine offer to provide a sample upon arrest, coupled with the continued availability of the screening device, raised a reasonable doubt as to whether his refusal was unequivocal.

Consequently, the defendant was found not guilty.

The accused, Ryan Schuster, was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol level over 80 mg.

The defence alleged breaches of the accused's Charter rights under sections 9 and 10(b), and sought exclusion of breath readings.

The court summarily dismissed the section 9 breach allegation due to non-compliance with the Criminal Rules of the Ontario Court of Justice regarding factual pleading.

The court found no breaches of section 10(b), ruling that police were not obligated to advise the accused he could wait for specific counsel before speaking with duty counsel, nor were they required to re-offer counsel options after he expressed dissatisfaction with duty counsel, given the reasonable steps taken by the police.

Even if a breach occurred, the court stated it would not exclude the evidence under section 24(2) of the Charter.

On the impaired operation charge, the court found the Crown proved impairment beyond a reasonable doubt based on the totality of circumstantial evidence, including driving behaviour, physical indicia, and belligerent conduct.