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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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Time element

Demand for alcohol screening device sample was made forthwith

Accused was convicted of driving “over 80.” Accused applied for leave to appeal summary conviction appeal decision upholding his conviction, arguing that trial judge erred in finding that arresting officer’s demand that accused provide sample of breath into alcohol screening device (“ASD”) was made “forthwith”, as required by s. 254(2)(b) of Criminal Code and submitted that 13-minute delay in obtaining ASD coupled with his roadside detention triggered his right to be provided with s. 10(b) caution. Leave to appeal denied. Principles of law relating to whether ASD sample has been taken “forthwith” are well established and do not warrant any restatement. Application of these principles to facts of this case had no significance to administration of justice beyond four corners of this case. No error was found in summary conviction appeal judge’s conclusion that trial judge considered and applied relevant factors in determining that there was no realistic opportunity for accused to consult with counsel during 13-minute delay. Evidence supported arresting officer’s assumption that nearby officer would deliver ASD shortly.
R. v. Rienguette (June 8, 2016, Ont. C.A., G.R. Strathy C.J.O., S.E. Pepall J.A., and C.W. Hourigan J.A., CA C61121) Leave to appeal decision at 124 W.C.B. (2d) 379 was refused. 131 W.C.B. (2d) 325.



Self-defence only available if actions were reasonable in circumstances

Two accused, boyfriend and girlfriend, had their appeals heard together. Boyfriend was convicted of robbery, possession of weapon for purpose dangerous to public peace and three counts of breaching probation orders in connection with his involvement in drug transaction (aggravated assault charge stayed via Kienapple). Boyfriend testified that when complainant leaned into car, stabbed his girlfriend and tried to engage handbrake, he wrestled knife away and stabbed complainant in effort to defend his girlfriend. Trial judge rejected this evidence for several reasons, all of which were available to him on evidence. Further, trial judge made findings of fact in relation to essential elements of aggravated assault and found that boyfriend unabashedly admitted to stabbing complainant eight times and also found that complainant was wounded as result. Appeal dismissed; under s. 686(3)(b) of Criminal Code, court had power to substitute verdict that should have been found by trial judge, so court quashed conviction for robbery, lifted stay and entered conviction on aggravated assault charge. Defence is only available if actions of accused were reasonable in circumstances; force could not be excessive. Accused submitted that trial judge erred in concluding that he had time to extricate himself, and get out of car. Even if trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. Trial judge concluded that, even if accused’s evidence was accepted in its entirety, once he wrestled knife from complainant, stabbing him eight times was disproportionate to threat he posed. Accused’s conduct went far beyond what could be considered reasonable or necessary. No error was seen in trial judge’s consideration of this defence.
R. v. Breton (June 1, 2016, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C58374) Decision at 109 W.C.B. (2d) 88 was reversed. 131 W.C.B. (2d) 395.

Charter of Rights

Right to interpreter

Onus is upon claimant of right seeking not to testify in language of judicial proceeding

At outset of criminal trial, court was advised that Punjabi interpreter would be required for complainant. Punjabi interpreter was provided for complainant without specific inquiries being made about why complainant could not be accommodated in one of Canada’s official languages. As trial progressed, it became evident that complainant understood, and was able to communicate in, English. Parties made submissions about appropriate remedy. Mistrial declared and re-trial ordered. Four factors contributed to mistrial decision. First, trial testimony had only consumed about three and one-half hours. Second, complainant did not visibly experience discomfort while testifying. Third, complainant indicated preparedness to investigating officer to return to testify in English. Fourth, with trial very much about credibility of principal witnesses, interpretation filter materially interfered with trier of fact’s ability to make credibility determinations. Appropriate remedy was for complainant to testify again in English with help of stand-by interpreter if required. Needs assessment ought to have been conducted at outset of trial respecting complainant testifying through interpreter. Section 14 of Canadian Charter of Rights and Freedoms presumes that witness will testify in one of Canada’s official languages absent showing that witness does not understand or speak language of trial proceedings. Onus is upon claimant of right seeking not to testify in language of judicial proceeding.
R. v. Singh (June 3, 2016, Ont. S.C.J., Hill J., Brampton CRIMJ(P) 609/14) 131 W.C.B. (2d) 317.


Proof of offence

Discreditable conduct evidence was relevant to motive

Either residence’s owner or accused started fire in hole in basement stairway wall of owner’s 150-year old farmhouse. Accused and complainant, in romantic relationship at time, were only people at house that day. Crown alleged accused started fire at issue to avoid having to disclose to complainant that she did not have closing funds she claimed she had for property parties were supposed to buy together. That, in turn, would have risked exposing accused’s lies about her marriage, money she claimed to be receiving from her husband’s death and sale of their matrimonial home. Accused appealed her conviction for arson, arguing that trial judge reversed burden of proof, improperly allowed discreditable conduct evidence, and misapprehended evidence. Appeal dismissed. Discreditable conduct evidence was relevant to motive and properly admitted. Trial judge did not reverse burden of proof and impugned statements reflected he was responsive to defence arguments. While complainant had opportunity to set garage fire, trial judge rejected only apparent motive he would have had to start that fire: namely, to collect home insurance. That finding was based on accepting complainant’s evidence that he would not have benefitted from insurance claim, and was entitled to deference. Accused had motive to set house fire as trial judge found and even on her evidence, accused had about two to three minutes of opportunity to start garage fire. Trial judge found that accused was not credible witness on central issues of case such that misapprehension of impugned evidence would not have played central role in trial judge’s reasoning process resulting in conviction.
R. v. Bos (June 7, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C56169) Decision at 103 W.C.B. (2d) 242 was affirmed. 131 W.C.B. (2d) 223.


Demand for breath (blood) sample

There was no breach of s. 8 of Charter in breath sample demand

Accused was charged with impaired driving offences, stemming from car accident which injured three occupants of another vehicle. Other charges were stayed or dismissed, leaving three counts of impaired driving causing bodily harm. Accused was convicted at trial of these charges. Accused claimed that statements he made to police at scene should not have been admitted as evidence. Accused claimed he was compelled to make statements before being able to consult with counsel. Accused claimed that no proper breath sample demand was made, and that breath sample results should not be admitted. Accused appealed from conviction on this basis. Appeal dismissed. Accused was under no reasonable belief at time of statement that he was compelled to report accident. Accused was not told by officer he had to make statement. Accused did not apply at trial to exclude statements under applicable sections of Canadian Charter of Rights and Freedoms. This ground of appeal failed as result. Third officer inadvertently failed to read breath sample demand to accused at scene. Demand was only made after technician reminded officer of need to do so, at police station. Technician’s demand for breath sample was based on reasonably formed grounds, and was done within three-hour time limit from offence. As technician had no prior notice of what had taken place, demand was made as soon as practicable. There was no breach of s. 8 of Charter in demand that was made.
R. v. Guenter (July 19, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA C55574) 131 W.C.B. (2d) 129.


Sentence appeal

Trial judge’s determination of credit for pre-trial custody was entitled to deference

Accused was engaged with his son in criminal joint venture that involved large amount of cocaine and was arrested pursuant to major police operation. While on judicial interim release, accused was arrested and charged with new offences and was detained in custody on new charges and charges currently before court for total of 608 days. Accused was convicted of trafficking in cocaine. At sentencing hearing, accused brought application that s. 719(3.1) of Criminal Code violated s. 7 of Canadian Charter of Rights and Freedoms. Accused’s Charter application was granted; accused was sentenced to 5.5 years’ imprisonment, less credit of 730 days. Portion of s. 719(3.1) of Code that removed ability to determine credit for pre-sentence custody violated s. 7 of Charter and was of no force and effect in this proceeding only. Accused was given some credit for his pre-sentence custody as he might have lost eligibility for early release and parole, but not at rate of 1.5-to-1. Accused had extensive criminal record, he did not avail himself of any available programs while in remand, and he was sanctioned for violent assault on another prisoner while in jail. Accused was given 730 days’ credit for pre-sentence credit, which was approximately 1.2 days’ credit for each day of pre-sentence custody. Accused appealed. Appeal dismissed. While sentence was clearly at high end of range, there was no error in principle. Trial judge considered circumstances of accused including his very lengthy criminal record and aggravating fact that offence was committed with his son. Trial judge’s determination of credit for pre-trial custody was entitled to deference.
R. v. Jupiter (June 1, 2016, Ont. C.A., J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A., CA C61092) Decision at 123 W.C.B. (2d) 287 was affirmed. 131 W.C.B. (2d) 185.

Charter of Rights

Right to be informed of specific offence

There was no breach of accused’s s. 10(a) Charter rights

Accused was seen leaving premises in vehicle prior to tactical unit entering premises to execute search warrant and was followed. Vehicle was stopped and police went ahead with high risk takedown. Accused was arrested for firearms related offences and detained in rear of police cruiser. Accused made two utterances while in police car. Handgun was found in premises. Accused was charged with various offences related to unlawful possession of handgun and with possession of marijuana. Accused challenged voluntariness of statements and sought declaration that his Canadian Charter of Rights and Freedoms ss. 9, 10(a) and (b) rights were violated at time of his arrest. Accused applied for exclusion of evidence. Application dismissed. Accused understood charges he was facing sufficiently to propose deal whereby he would protect his girlfriend and avoid potential for other criminal activity to be discovered during search. Accused indicated his intention to speak with lawyer. Information provided by officers was sufficient to meet requirements of s. 10(a) of Charter. There was no breach of accused’s s. 10(a) Charter rights. 

R. v. Lacroix (May 6, 2016, Ont. S.C.J., Marc Labrosse J., 11A-8440) 131 W.C.B. (2d) 32.
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