Aisha Khan

This decision addresses a section 11(b) application concerning the right to a trial within a reasonable time.

The court analyzed the total delay from the information being sworn to the scheduled trial end, considering defence delay, COVID-related backlog, and a discrete event involving the cancellation of remote testimony arrangements by the Newcastle Crown Court in the UK.

The judge found that while the total delay exceeded the presumptive ceiling established in R v Jordan, after subtracting defence delay and the discrete event delay, the remaining delay was below the ceiling and not unreasonable given the case complexity.

The application to stay the proceedings was dismissed.

This criminal trial concerned two counts of sexual assault and two counts of gross indecency against the accused, Steven Wolfer, involving a complainant who was 10-12 years old at the time of the alleged incidents in the mid-1980s.

The complainant testified about two separate incidents of manual fondling: one during a babysitting occasion and another during a sleepover at the accused's home.

The accused denied all allegations.

While the court found the complainant to be a credible witness and believed his account, it identified several frailties in the evidence, particularly regarding the sleepover incident, such as the unlikelihood of parental approval for the sleepover and the presence of other adults.

Despite the complainant's persuasive testimony, the court concluded that the Crown failed to prove the allegations beyond a reasonable doubt, leading to the dismissal of all charges.

This decision addresses two applications for a stay of proceedings under section 11(b) of the Charter for unreasonable delay, brought by two co-accused charged with sexual assault.

The court determined that the 18-month presumptive ceiling for provincial court matters applied, rather than the 30-month ceiling for cases with a preliminary inquiry, because the scheduled preliminary inquiry was not completed due to the Crown withdrawing preliminary inquiry-eligible counts and consenting to re-election to the Ontario Court of Justice.

The court found that the Crown's tactical decision not to seek an 11(b) waiver at the time of re-election was significant.

After calculating the total delay and deducting periods attributable to defence counsel unavailability and a specific period of COVID-19 related backlog (92 days for trial scheduling and judicial pre-trial scheduling), the net delay for both accused exceeded the 18-month ceiling (19.75 months for one, 20 months for the other).

Consequently, the court ordered a stay of proceedings for both accused.

Brandon MacKinnon pleaded guilty to multiple sexual offences against four victims, including sexual interference, extortion, sexual assault (x2), possession of child pornography, and voyeurism.

The offences involved a prolonged illegal sexual relationship with a 15-year-old, forced anal intercourse, criminal harassment, extortion using secretly recorded intimate images, sexual assault of an unconscious woman (videorecorded), voyeurism against twin sisters, and possession of 500 child pornography images.

The court considered aggravating factors such as the sexual violence against a child, the surreptitious creation and distribution of child pornography, and the videorecording of a sexual assault against an incapacitated victim.

Mitigating factors included an early guilty plea, a forensic risk assessment indicating positive rehabilitative prospects, and community support.

The court imposed a global sentence of 7.5 years, reduced by 9 months for time spent on strict house arrest bail, resulting in a total of 6 years and 9 months to be served.

Sentences for child sexual offences and sexual assault were concurrent, while the child pornography offence was consecutive.

The accused young persons, C.C. and V.F., faced charges including sexual assault and gang sexual assault.

At the close of the Crown's case, they brought a directed verdict application, arguing insufficient identification evidence.

The court, applying the Shephard test, found that while similarity of names provided some circumstantial evidence of identity, it was insufficient to satisfy the burden of proof beyond a reasonable doubt without further corroborating evidence.

Consequently, the motion for a directed verdict was granted, and both accused were found not guilty on all counts.

The court also noted other factors that would have made a conviction unsafe, including potential motives to fabricate by complainants and inconsistencies in their testimony.

The Respondent (Mother) sought full recovery costs after an eight-day trial, arguing the Applicant (Father) engaged in vexatious and bad faith conduct, and that her offers to settle were more favourable than the trial outcome.

The Applicant conceded the Respondent was entitled to costs but disputed the quantum and denied bad faith.

The court found the Applicant's conduct unreasonable but not amounting to bad faith under Rule 24(8) of the Family Law Rules, thus not triggering full recovery costs.

However, considering the Applicant's unreasonable behaviour, disregard for court orders, and delays caused, the court awarded the Respondent $70,000 in costs, a significant amount but less than sought, balancing proportionality and the importance of the issues.

The applicant, Liping Liu, brought a motion seeking to amend her Notice of Application to substitute the Estate of Alphons Guigues as applicant (with her as Estate Trustee), to add the deceased's siblings and niece as respondents, and to strike or set a new timetable for the respondent's counter-application.

The background involved a dispute over the deceased's handwritten will, which left a condominium to the Coptic Church, and Ms. Liu's standing to contest it, as well as her potential dependency claim.

The court applied Rules 1.04 and 26.01 of the Rules of Civil Procedure, emphasizing the principles of just, expeditious, and proportionate determination.

The court found no prejudice to the respondent in allowing the amendments, noting that the deceased's siblings and niece had an interest and should be made parties.

The court also found that Ms. Liu had a statutory right under section 29 of the Estates Act to apply as Executor and Trustee of the Estate without a will for the portion of the estate not dealing with the condominium.

The motion to amend was allowed, new parties were ordered to be served, and a timetable was set for compliance with a previous order.

The trial addressed decision-making authority and parenting time for two children of the relationship, and child support for one child from the Mother's previous relationship.

The court granted the Mother sole decision-making authority and primary care of the children, finding that the Father's actions, including involving children in adult conflict and demonstrating a lack of insight into his detrimental behaviour, rendered shared parenting unworkable and contrary to the children's best interests.

The Father was ordered to pay child support for both the children of the relationship and the Mother's non-biological child.

A restraining order against the Father was continued due to concerns for the Mother's psychological safety.

The applicant, Mohamed Mohamed, sought a stay of proceedings under ss. 11(b) and 24(1) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial end was 26 months and 12 days.

The defence conceded 3.5 months of delay.

The court found the Crown's failure to disclose the Information to Obtain (ITO) for 17.5 months was the primary cause of delay, as it was integral disclosure necessary for the defence to prepare.

The Crown's request for a blanket 4-month deduction for COVID-19 backlog was denied due to lack of evidentiary support demonstrating a causal link and mitigation efforts.

The net delay of approximately 23 months exceeded the 18-month Jordan ceiling for provincial court matters.

The application for a stay of proceedings was granted.

The accused, Sethuraman Sarvanantharajah, was charged with impaired operation and operation over the legal limit after striking a parked car.

The court addressed several issues, including the time of driving, proof of impairment, reasonable grounds for arrest, and alleged breaches of Charter rights under sections 8, 9, and 10(b).

The court found that the Crown proved the time of driving and impairment beyond a reasonable doubt, and that the arresting officer had reasonable grounds.

Furthermore, the court determined there was no unreasonable delay in contacting counsel and that the police were not obligated to provide detailed grounds for arrest to counsel during the initial consultation, as such information could be obtained from the client or through disclosure.

The accused was found guilty of both charges, with a conditional stay on the impaired driving charge.

This ruling addresses the scope of preliminary inquiries following the amendments introduced by Bill C-75 to the Criminal Code.

The defendants, jointly charged with numerous counts, including offences punishable by 14 years' imprisonment or more and those punishable by less, sought a preliminary inquiry for all charges.

The Crown argued that preliminary inquiry jurisdiction is now limited to offences carrying a maximum penalty of 14 years or more.

The court, aligning with previous decisions in R. v. Davis and R. v. M.R., held that preliminary inquiries are restricted to charges attracting a potential sentence of 14 years' imprisonment or more, even when grouped with less serious charges arising from the same transaction.

The court clarified that while questions about less serious charges might be permitted if closely linked to the serious ones, the court lacks jurisdiction to conduct a preliminary inquiry or order a discharge for offences punishable by less than 14 years.

Wawanesa Mutual Insurance Company and Wahaj Ahmed brought a motion to compel Romaiya Ahmed, Shi Shang, and Jian Yang to deliver full and final releases following a settlement agreement to dismiss claims against Wawanesa and Wahaj on a 'without costs' basis.

The court found that the delivery of a full and final release is an implied term of settlement unless otherwise agreed, and no such agreement was made.

The court granted the motion, ordering the delivery of the releases.