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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Defences

MISTAKE

Accused relied on mistake of age defence

Accused, who was 40-year-old male, picked up complainants, who were two teenaged girls who were hitchhiking. One girl was 14 and one-half years old and other girl was 15 and one-half years old. Complainants expressed interest in engaging in sexual activities and accused drove to parents’ home where they had sexual intercourse. Complainants could not consent to sexual acts but trial judge allowed accused to rely on mistake of age defence and acquitted accused. Crown appealed acquittal. Appeal dismissed. There was no basis for appellate intervention with judge’s holding that accused took all reasonable steps to ascertain complainants’ ages. Furthermore, reasonable person would have been satisfied that complainants were over 16, just as complainants intended, without need for further inquiry.
R. v. Chapman (Apr. 28, 2016, Ont. C.A., E.A. Cronk J.A., M. Tulloch J.A., and K. van Rensburg J.A., CA C60515) 130 W.C.B. (2d) 403.


Motor Vehicles

Dangerous driving

Accused was repeatedly informed of dangerousness of driving

Accused drove vehicle with three passengers and got into race with another vehicle. Accused’s vehicle spun out of control and crashed. S, who was front seat passenger in accused’s car, was ejected from car and suffered serious injuries. Just prior to accident S asked accused twice to slow down but accused refused to comply. Accused was charged with three counts of dangerous driving causing bodily harm. Accused was convicted of dangerous driving related to S but was acquitted regarding other two passengers. Accused appealed conviction. Appeal dismissed. There was sufficient evidence to prove that accused’s driving was cause of S’ injuries. Even though other driver was acquitted of dangerous driving verdicts were not inconsistent. Case against accused was stronger because only accused was being repeatedly informed of dangerousness of driving.
R. v. Siddiqui (May. 13, 2016, Ont. C.A., Gloria Epstein J.A., S.E. Pepall J.A., and K.M. van Rensburg J.A., CA C60692) 130 W.C.B. (2d) 364.


Procedure

Procedure

Appeal had no practical consequences for estate of accused

Accused was convicted of speeding. Accused died after leave to appeal was granted. Motion was made for order substituting personal representative or other person as appellant for deceased on appeal from conviction. Appeal abated and judgement below stayed. Assuming, without deciding, that court had jurisdiction, it was declined. Appeal concerned traffic ticket carrying fine of $95. Appeal had no practical consequences for estate of accused. Issue was not evasive of judicial review, given vast number of traffic tickets issued annually in province. Appeal involved interpretation of form prescribed by regulation. Decision in this matter would have province-wide implications for validity of convictions under Part I of Provincial Offences Act (Ont.). Without better factual record it would not be in interests of justice to hear appeal.
R. v. Hicks (Apr. 21, 2016, Ont. C.A., G.R. Strathy C.J.O., E.E. Gillese J.A., and G. Pardu J.A., CA M45895 (C59588)) 129 W.C.B. (2d) 531.

Appeal

Fresh evidence

Accused failed to meet requirements for admission of fresh evidence

Accused was convicted of two counts each of sexual interference and invitation to sexual touching and one count each of sexual exploitation, sexual assault (stayed via Kienapple), and possession of child pornography. Convictions related to accused’s step-granddaughter. Accused appealed his convictions and on appeal sought to adduce fresh expert evidence in relation to colour of his pubic hair, indicating that it was brown and had not been dyed. Application dismissed. Accused failed to meet requirements for admission of fresh evidence. Evidence could have been adduced at trial with due diligence, it did not bear upon decisive or potentially decisive issue at trial, and although it was credible, taken with other evidence, it could not reasonably be expected to have affected result. Although complainant’s evidence concerning colour of accused’s pubic hair was inconsistent, trial judge acknowledged and addressed that inconsistency, and there was ample evidence to support accused’s convictions.
R. v. F. (A.) (Apr. 12, 2016, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and Grant Huscroft J.A., CA C58002) 129 W.C.B. (2d) 647.

Charter of Rights

Arbitrary detention or imprisonment

Cumulative effect of officer’s observations amounted to reasonable and probable grounds

Accused was convicted of possession of 48 pounds of marijuana for purpose of trafficking. Accused was driver of vehicle that was pulled over by police officer on highway. In cardboard box in cargo area of vehicle, police located several bags of packaged marijuana. Genesis of traffic stop was report from another police officer about unsafe driving and observations by arresting officer who followed vehicle for several kilometers. Both occupants seemed nervous. Accused kept looking back towards two large black suitcases in rear of vehicle. There were several cell phones on console. Officer detected strong smell of raw marijuana from vehicle. As he walked by vehicle to return to his cruiser, officer noticed cardboard box with Ziploc bags protruding from it containing material of shape and size of marijuana. Officer returned to vehicle driven by accused and arrested accused and her passenger. Accused was convicted of possession of marijuana for purposes of trafficking. Accused appealed her conviction. Appeal dismissed. Traffic stop and demand for documentation was fully justified under s. 216(1) of Highway Traffic Act (Ont.). Trial judge made no error in concluding that investigating officer had reasonable and probable grounds to arrest accused for possession of marijuana. Cumulative effect of officer’s observations amounted to reasonable and probable grounds to arrest accused. It followed that search of vehicle incident to lawful arrest and carried out in reasonable manner was constitutionally valid.
R. v. Pham (Apr. 7, 2016, Ont. C.A., David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A., CA C59824) 129 W.C.B. (2d) 325.


Appeal

Sentence appeal

Total sentence imposed was not unreasonable

Upon conviction for series of firearms offences accused was sentenced to total of eight years imprisonment, less credit of one year for presentence custody and strict bail conditions. Accused was found to have fired several shots from high powered rifle into home of complainant. Accused submitted that trial judge erred in imposing consecutive sentences on count 3 (mischief by willfully damaging dwelling house by discharging firearm into dwelling house and endangering life) and count 1 (intimidating justice system participant in order to impede her in performance of her duties), submitting that same conduct gave rise to both charges and provided factual basis for both convictions and that sentences should have been concurrent. Accused appealed his sentence. With exception of victim surcharge issue appeal dismissed. Trial judge had discretion to impose consecutive sentences on two charges. Whether consecutive or concurrent sentences were to be imposed, totality of sentences imposed was what ultimately mattered. No doubt sentence imposed on charge of intimidating justice system participant (three years) would have been much higher but for concerns over totality of sentences imposed in light of accused’s age and absence of any prior significant criminal involvement. Total sentence imposed was not unreasonable. Although trial judge waived victim fine surcharges, order imposing surcharges was signed by clerk of court. Crown agreed that this order must be quashed.
R. v. Abbasi (Mar. 18, 2016, Ont. C.A., Doherty J.A., Janet Simmons J.A., and K.M. van Rensburg J.A., CA C60162) Decision at 118 W.C.B. (2d) 216 was affirmed. 129 W.C.B. (2d) 411.
Appeal allowed and sentence requested by Crown at trial imposed
Accused was sentenced to effective sentence of 16 months after he pleaded guilty to number of driving offences and possession of stolen property. Crown asked for five months, in addition to seven months pre-trial custody. Trial judge imposed further nine months so that accused could attend Ontario Correctional Institute (“OCI)”, where minimum of nine months was required for admission. Accused then was rejected from OCI. Accused appealed sentence. Appeal allowed; sentence set aside and sentence of five months, in addition to seven months of pre-trial custody, imposed. Despite accused’s lengthy and serious record, he showed genuine remorse before trial judge and court, and was sincere in his desire to straighten out. In light of fact that trial judge imposed sentence four months higher than Crown requested in order to help accused get treatment at OCI, which never materialized, appeal should be allowed and sentence requested by Crown at trial imposed.
R. v. Horgan (Apr. 4, 2016, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and S.E. Pepall J.A., CA C61747) 129 W.C.B. (2d) 308.


Charter of Rights

Right to counsel

Police officer failed to satisfy his obligations respecting right to counsel

Crown asked court to grant leave to appeal on basis that it raised important questions about detainee’s obligation of diligence in s. 10(b) Charter application. Leave to appeal denied. On findings of trial judge, ratified by summary conviction appeal judge, police officer failed to satisfy his obligations to afford accused not only reasonable opportunity to contact counsel of his choice but also to facilitate that contact. In light of those failings, it was unsurprising that trial judge accepted accused’s evidence that he felt he had no choice but to speak with duty counsel. Accordingly, this matter did not meet R.R. test and leave was denied.
R. v. Vernon (Mar. 14, 2016, Ont. C.A., Feldman J.A., Gillese J.A., and Huscroft J.A., CA C60937) Leave to appeal decision at 124 W.C.B. (2d) 241 was refused. 129 W.C.B. (2d) 110.


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