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Ontario Court of Justice Recent Decisions

• 2026-10-13 R. v. A.B., 2026 ONCJ 599 (CanLII)
  Key Words: Criminal and statutory offences — Sentencing — Sexual assault — What is a fit and proportionate custodial sentence for sexual assault involving forced penetration — Range for sexual assault involving forced penetration stated as 3-5 years in the penitentiary — Digital penetration and penile-vaginal penetration without consent — Sentence of three and one-half years’ imprisonment imposed<br />Criminal and statutory offences — Sentencing — Collateral consequences — Whether family separation consequences and health concerns justify moving below the applicable penitentiary range — Hardship to wife, children, mother considered — Anxiety, depression, panic attacks and heart attack assessed with limited mitigating weight — No highly mitigating circumstances found — Penitentiary sentence maintained<br />Criminal and statutory offences — Ancillary orders — SOIRA order — Whether the offender rebutted s. 490.012(3) Criminal Code presumption favouring registration under the Sex Offender Information Registration Act — No exception established for no connection or gross disproportion — Eldon framework applied and burden on offender — SOIRA order made for 20 years<br />Criminal and statutory offences — Sentencing — Aggravating and mitigating factors — How aggravating and mitigating circumstances affect proportionality and parity — Exploitation of trust and workplace setting treated as aggravating — Profound and enduring victim impact recognised under s. 718.2(a)(iii.1) Criminal Code — Denunciation and deterrence emphasised — Sentence fixed within range
• 2026-10-13 R. v. Khoja, 2026 ONCJ 602 (CanLII)
  Key Words: Criminal and statutory offences — Trial — Sexual assault charge — Non-publication order — Charge of sexually assaulting the complainant — Trial proceeded with complainant, friend, toxicologist, and accused evidence — Rule of fairness in criminal trial addressed — Reasons on motion released — Motion determined<br />Evidence — Witnesses — Browne v. Dunn — Cross-examination fairness — Whether the Defence breached Browne v. Dunn by not putting contradictory evidence — Evidence at Bar Karma and waking up not put to complainant — Fairness to witness and trier of fact emphasised — Breach found in part — Breach found<br />Procedure — Trial management — Remedies for Browne v. Dunn breach — Whether to recall complainant, draw adverse inference, or allow rebuttal evidence — Recall and adverse inference declined as peripheral and unfit at this time — Crown may request to call rebuttal evidence at end of defence case — Submissions to be heard on application — Remedy deferred<br />Evidence — Witness memory — Scope of Browne v. Dunn — Whether rule breached regarding sexual activity during period of no memory — Complainant testified to no memory of events between leaving bar and waking — Putting detailed bedroom evidence viewed as futile — No breach found on sexual activity evidence — No breach found
• 2026-10-13 R. v. Venugopal, 2026 ONCJ 600 (CanLII)
  Key Words: Criminal and statutory offences — Impaired driving — Trials — Impaired driving and “over 80” charges — Breath samples and police observations ruled inadmissible — Proof beyond a reasonable doubt assessed on remaining circumstantial evidence — R. v. Villaroman applied to alternative innocent explanations — Charges dismissed<br />Rights and freedoms — Charter — ss. 8 and 9 — Approved screening device demand — Whether ASD breath demand was unlawful when police lacked an ASD — R. v. Breault applied and breach conceded — R. v. Zacharias used to exclude post-breach observations from grounds analysis — Arrest assessed under R. v. Storrey and upheld — s. 9 breach found for arbitrary prolonged handcuffing<br />Rights and freedoms — Charter — ss. 10(a) and 10(b) — Right to counsel — Whether police informed and facilitated access to counsel without delay — Failure to read rights on initial detention found — Delay to duty counsel call found unreasonable under R. v. Taylor and R. v. Rover — Standard TPS s. 10(b) recitation found not Charter compliant — Charter breaches found<br />Rights and freedoms — Charter remedies — s. 24(2) — Exclusion of evidence — Whether admission of breath samples and police observations would bring administration of justice into disrepute — R. v. Grant and R. v. Tim applied — Seriousness of breaches and impact on detainee’s interests favoured exclusion — Reliable evidence and merits favoured admission — Evidence excluded<br />Criminal and statutory offences — Impaired driving — Reasonable doubt — Whether remaining evidence proved impairment after exclusion rulings — Police observations after exit from vehicle treated as inadmissible where arising from officer requests or commands — Crown left with bad driving, smell of alcohol, glossy and dilated pupils, odd behaviour — Proof not established beyond a reasonable doubt — Charges dismissed
• 2026-10-13 R. v. Kumar, 2026 ONCJ 601 (CanLII)
  Key Words: Criminal and statutory offences — Sentencing — Minimum fines — Provincial Offences Act, s. 59(2) and Compulsory Automobile Insurance Act, s. 2(1)(a) — Whether exceptional circumstances justified relief from the mandatory minimum fine — Statutory criteria of “unduly oppressive” and “interests of justice” applied — Deterrence in public welfare legislation emphasised — Sentence appeal dismissed<br />Criminal and statutory offences — Sentencing — Exceptional circumstances — Financial hardship asserted by full-time student with no income or assets — Whether personal and financial circumstances met the “extreme level” for “unduly oppressive” — Difficulty obtaining preferred employment and licence suspension considered — Unawareness of lapsed insurance found immaterial — Relief under Provincial Offences Act, s. 59(2) refused — Sentence appeal dismissed<br />Evidence — Appeal — Fresh evidence — Schedule 3 materials and submissions received on consent — Whether evidence not before the trial court could be considered without a formal motion — Preferable practice of a formal motion noted — Limited purpose of sentence appeal identified — Additional personal and financial information admitted and considered — Admission confirmed<br />Criminal and statutory offences — Appeals — Appellate intervention — Whether the sentence imposed was demonstrably unfit or involved error warranting intervention — R. v. Friesen cited on standard of intervention — Statutory minimum fine constrained sentencing discretion — Absent fresh evidence, no interference warranted — Sentence upheld — Sentence appeal dismissed
• 2026-10-13 A.S. v. E.N., 2026 ONCJ 603 (CanLII)
  Key Words: Family — Parenting orders — Decision-making responsibility — Best interests of the child — Whether material change warranted varying parenting terms — Sole decision-making responsibility and incidents granted to mother — Defined supervised parenting time ordered through supervised access centre — Father’s right to obtain information about child maintained — Parenting order varied<br />Family — Restraining orders — Contact and communication — Children’s Law Reform Act, s. 28 — Whether reasonable grounds to fear for safety established — Temporary restraining order found situational and not supported on final record — Contact and communication boundaries imposed, including non-attendance at school and medical appointments — No authority to make restraining or contact orders for adult child — Restraining order dismissed and temporary order terminated<br />Family — Child support — Retroactive variation — Colucci v. Colucci, 2021 SCC 24 — Whether father’s income materially changed and effective notice given — Presumptive start date identified, then fairness-based departure applied — Income imputed based on deliberate under-employment and disclosure concerns — Table child support varied retroactively and prospectively — Child support increased<br />Family — Support — Section 7 expenses and credits — Federal Child Support Guidelines, s. 7 — Whether claimed expenses were necessary, reasonable, and affordable — Monthly contribution to section 7 expenses ordered despite inability to pay proportionate share — Credits for purported direct payments refused for lack of proof and consultation — Arrears payment schedule set with acceleration on default — Credits limited to payments in enforcement records