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The Ontario Court of Appeal upheld convictions for intimidation and criminal harassment, but set aside the breach-of-undertaking conviction on count four and ordered a new trial on that count.
Because the sentencing judge ultimately imposed the exact sentence proposed by the Crown and gave appropriate presentence custody credit, and reasonably weighed the relevant factors including the appellant's record and the seriousness of the assault, there was no error in principle and the sentence of 18 months is fit and must be upheld.
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Because the Crown failed to prove beyond a reasonable doubt that the accused communicated with the complainant — the central element of the offence — and the accused's testimony could not be rejected, the accused was acquitted.
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The Court upheld the sentence because the sentencing judge correctly applied sentencing principles, gave proper weight to denunciation and deterrence, identified relevant aggravating factors (including prior robbery convictions and that the appellant was on release), properly applied the jump principle given the pattern of reoffending, reasonably assessed rehabilitative prospects as low, and the resulting four-year sentence was fit.
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Because no information was sworn before the appellant's first court appearance on May 31, 2021, the court lost jurisdiction over the person and the alleged offences and the undertaking ceased to have effect; accordingly the Crown failed to prove an essential element of breach of undertaking and the convictions on June 17, 2021 could not stand.
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Where the statutory elements of s.320.27(2) were objectively satisfied (lawful traffic stop, observed operation of a vehicle, officer in possession of an approved screening device), the ASD demand was lawful under that subsection even though the officer subjectively believed she was relying on s.320.27(1)(b); no s.8 breach arose on these facts, the informal roadside s.10(b) advice followed by a prompt verbatim reading at the detachment satisfied the informational duty, the ASD and subsequent breath samples were admissible under s.24(2), and the Crown proved the s.320.14(1)(b) over‑80 mg offen…
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Because Mr. Menkes was a named defendant with clear personal and financial interests in the outcome, his concurrent role as counsel for the Borrower Defendants created a conflict that posed a substantial risk of a compromised trial process; that conflict could not be waived to the extent necessary to protect the integrity of the proceedings and no reasonable alternative existed, therefore the court exercised its inherent jurisdiction and removed him as counsel of record for the Borrower Defendants.
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The Court concluded that the appellant's limited restitution payments did not justify reducing the custodial sentence and that the three-month sentence for breach, rendered concurrent, was not excessive; however the trial judge erred in calculating the restitution and fine amounts, which the Court corrected to $77,795.00 each, and allowed the appeal only to adjust those monetary orders.
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The court accepted the tenants' credible testimony that the accused spoke to them from his truck about towing their vehicle, thereby contacting them in breach of the no contact undertaking; lawful excuse and de minimis defences were rejected as inapplicable, and the accused was convicted under s.145(4)(a) of the Criminal Code.
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Court found offences involving children serious but not at the highest end of the spectrum; balanced aggravating factors (abuse of trust, victim vulnerability, number of offences) against mitigation (addiction, head injury, guilty pleas, remorse, extensive remand and participation in assessment/treatment). Imposed fines for adult solicitation counts per mandatory minimums, imposed six months for the 17‑year‑old luring offence (reduced from 11 months by Duncan credit), and two years concurrent plus six months concurrent for offences against the 15‑year‑old to be served consecutive to the six‑m…
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