Alexander D. Kurke

The Crown applied to admit excerpts from a prior costs endorsement by Justice M.A. Penny as evidence in a criminal trial against John D’Souza and Peter D’Gama, who were accused of using a fake judgment bearing Justice Penny's forged signature.

The application sought to use the endorsement under the principled exception to the hearsay rule, arguing necessity (judges are not compellable) and reliability.

The court found Justice Penny not compellable to testify due to judicial immunity, as his potential testimony was inextricably intertwined with his judicial function.

The application was allowed in part, admitting factual statements from the endorsement that met threshold reliability and were not overly prejudicial, while excluding passages that reflected Justice Penny's judicial views, opinions, or reasoning, to prevent undue prejudice to the accused.

The municipality appealed a Small Claims Court judgment finding it liable in negligence for $3,026.48 in damages caused to the respondents' vehicle by a pothole.

The trial judge accepted the respondents' viva voce evidence that no warning flasher was present at the time of the accident, rejecting the municipality's reliance on business records suggesting otherwise.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings, confirming the municipality breached its duty to warn, and holding that the trial judge's reasons were sufficient.

On a bail review under s. 520 of the Criminal Code, the applicant sought release from a detention order arising from multiple allegations of domestic assault, sexual assault, child sexual offences, mischief, and breach of recognizance.

The court accepted that there had been material change and legal error in the earlier tertiary-ground analysis, but independently concluded that detention remained justified on both the secondary and tertiary grounds.

The proposed release plan, centred on treatment and rotating sureties residing at the applicant's properties, was found inadequately enforceable and insufficient to manage risks of reoffending, witness interference, and non-compliance.

Applying the substantial likelihood standard and the St-Cloud tertiary-ground framework, the court held that release would undermine public safety and confidence in the administration of justice.

The appellant appealed his conviction for 'Over 80'.

At trial, the judge found that police breached the appellant's s. 8 Charter rights by conducting an unlawful search of his vehicle under the Liquor License Act, but admitted the breath samples under s. 24(2).

On appeal, the court found the trial judge erred in principle by failing to properly balance the Grant factors and by treating the reliability of breath samples as determinative.

The appeal court conducted a fresh s. 24(2) analysis, finding the breach was moderately serious and had a significant impact on the appellant's privacy interests, as the evidence was not otherwise discoverable.

The breath samples were excluded, the conviction quashed, and an acquittal entered.

The Crown applied to introduce evidence of the accused's discreditable conduct, specifically images from a tablet and Instagram posts, at his jury trial for charges including procuring, recruiting, and exploiting D.M. for sexual services, sexual assault, and possession.

The court considered the admissibility of this evidence, applying the legal principles regarding extrinsic misconduct and balancing probative value against prejudicial effect.

The court found that most of the evidence, including images of money and posts associating prostitution with financial gain and violence, was relevant to the accused's state of mind, motivation, and intent regarding the pimping charges, and corroborated the complainant's account.

The court dismissed the argument that humorous intent negated probative value and ruled that the probative value outweighed the prejudice, which could be mitigated by jury instructions.

The Crown applied to introduce expert opinion evidence and discreditable conduct evidence at the accused's trial for human trafficking and prostitution-related offences.

The court admitted the expert evidence of a police detective regarding the prostitution subculture, finding it necessary to assist the jury in understanding the complainant's behaviour.

However, the court excluded evidence of the accused's prior convictions for similar offences, finding the prejudicial effect outweighed the probative value due to a lack of distinctive similarities.

The court delivered a mixed ruling on the admissibility of various pictures and social media posts found on the accused's devices, admitting those directly relevant to the charges while excluding those that merely suggested a bad character.

The Crown sought a voluntariness ruling regarding an exculpatory video interview conducted with the accused following his arrest for sexual offences against his step-son.

The accused argued the statement was involuntary due to drug intoxication, a public arrest, an improper strip search, and police inducements.

The court applied the confessions rule and found that, despite the accused's complaints about the arrest and search, he possessed an operating mind and was not deprived of his ability to choose whether to speak.

The statement was ruled voluntary and admissible.

The applicant, Trevor William Zachary, sought certiorari to quash a fraud charge (Count 2) on an 18-count indictment following a preliminary inquiry.

He argued the preliminary inquiry judge erred by committing him to trial without evidence of deceit, falsehood, or other fraudulent means, failing to properly test the evidence against the elements of fraud, and not considering all relevant evidence.

The Superior Court found that the preliminary inquiry judge did not commit jurisdictional error.

It determined there was sufficient evidence to establish the actus reus and mens rea of fraud under the "other fraudulent means" category, specifically that the applicant, as a City employee, used his position to book ice time for himself at reduced or zero rates, thereby depriving the City of revenue or putting its economic interests at risk.

The application for certiorari was dismissed.

The Children's Aid Society (CAS) appealed a motion judge's decision denying summary judgment for Crown wardship of a child, A.G. The child was apprehended after parents C.G. and D.S. left her at the hospital with a friend, G., under a private custody agreement, having concealed the pregnancy from the CAS.

The appeal court found the motion judge erred in deeming G.'s party status and the custody agreement's validity as triable issues.

The court declared the private custody agreement a nullity, as it was designed to circumvent the CAS's statutory duty to protect children.

Consequently, the child was found to be in need of protection due to the parents' unavailability and failure to make adequate provision for her care.

The appeal was allowed, and the case was remitted for an expedited trial on disposition, but the request for immediate Crown wardship without access was denied.

The appellant appealed a decision of the Assessment Review Board regarding the assessment of a commercial office building.

The Board had reduced the property's current value to achieve equity with similar lands in the vicinity pursuant to s. 44(3)(b) of the Assessment Act.

The Divisional Court determined that the appropriate standard of review for the Board's interpretation of its home statute is reasonableness, departing from older jurisprudence that applied correctness.

The Court found the Board's methodology and interpretation were reasonable given the evidence presented, and dismissed the appeal.

The appellant appealed a summary judgment decision granting Crown wardship of his child, J.F., to the Children's Aid Society (CAS) with no access.

The child, J.F., had high special needs and required stability.

The appellant had no involvement in the child's life for years and was uncooperative with the CAS.

The motion judge found no triable issues regarding wardship and placement with the maternal grandparents, who required CAS supports.

The appeal court upheld the motion judge's decision, finding no error in the application of summary judgment principles or the determination of the child's best interests, even though Crown wardship is a last resort.

The accused, Daved James Nadon, pleaded guilty to eight counts, including two counts of pointing a firearm, uttering a threat to cause death, forcible confinement, possessing a loaded prohibited firearm, attempted murder with a firearm, breach of probation, and possessing a firearm contrary to prohibition.

The court considered aggravating factors such as the use of a prohibited firearm, threats, and the permanent debilitating injuries suffered by the victim, as well as mitigating factors including a guilty plea, remorse, youth, and participation in rehabilitation programs.

The Crown sought a sentence of nine to twelve years, while the defence proposed seven to eleven years.

The court imposed a total sentence of 7 years and 7 months imprisonment after accounting for 2 years and 5 months of pre-sentence custody, along with ancillary orders for a lifetime firearms prohibition, DNA sampling, and a non-communication order.

The court awarded costs to the plaintiff, Dan McCabe, following a trial where McCabe was found to be substantially more successful than the defendant, Finn Way General Contractor.

The plaintiff was awarded $49,451.44, while the defendant received just over $500 on its counterclaim.

The court considered the purposes of costs awards, the complexity of the issues, the parties' settlement offers, and the conduct of the litigation, including the defendant's unreasonable position in not seeking resolution.

Despite some protraction of proceedings by plaintiff's counsel, the defendant's lack of interest in settlement warranted a costs award.

A fair and reasonable award was fixed at $75,000 on a partial indemnity basis.

The accused pleaded guilty to trafficking cocaine.

The court considered a joint submission on sentencing, which included a further two years less one day incarceration (resulting in an effective five-year sentence with pre-trial custody credit), a ten-year firearms prohibition, and a DNA order.

The primary dispute was the Crown's application for a fine in lieu of forfeiture under s. 462.37 of the Criminal Code, for the $64,850 received by the accused from an agent in four drug transactions.

The defence argued the fine should be less, as the accused was merely brokering and did not retain the full amount.

The court, relying on the broad definition of "property" in s. 2 of the Criminal Code and Supreme Court jurisprudence, ruled that possession and control of the money, even if transferred to a supplier, was sufficient to impose the full fine.

A fine of $64,850 was imposed, with five years to pay.

The tenant appealed a Landlord and Tenant Board order terminating his tenancy because his dog caused or contributed to the landlord's severe allergic reaction.

The tenant argued the Board breached procedural fairness, exhibited bias, misapprehended evidence, and made an unreasonable decision.

The Divisional Court dismissed the appeal, finding the Board's procedures were fair, there was no reasonable apprehension of bias, and the evidence supported the finding that the dog exacerbated the landlord's asthma.

The appellant mother appealed a trial judge's order making her three children Crown wards, with no access for the purpose of adoption.

She argued the Children's Aid Society failed to provide a proper written Plan of Care, the trial judge failed to consider returning the children under supervision, and the trial judge erred in denying access.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or error of law.

The trial judge properly considered the Plans of Care, correctly concluded that a supervision order would not work, and reasonably found that access would not be beneficial and would impair adoption opportunities.

The plaintiffs, Magenta Capital Corporation and Magenta Mortgage Investment Limited Partnership, brought a motion for summary judgment against the defendant mortgagor for liquidated damages of $160,467.51, possession of the mortgaged property, and dismissal of the defendant's claim and counterclaim.

The defendant had defaulted on a construction mortgage and alleged that the plaintiffs were negligent in relying on an inaccurate appraisal and failing to provide roll-over financing.

The court granted summary judgment to the plaintiffs, finding no genuine issue requiring a trial.

The court held that the plaintiffs did not breach the contract or make negligent misrepresentations, and further found that the defendant's claims were statute-barred under the Limitations Act, 2002.

The accused was charged with sexual interference and sexual assault of his young son.

The Crown's case relied primarily on the testimony of the child, who disclosed the alleged abuse to his mother.

The trial judge found the child believable but noted significant reliability concerns, including a lack of detail and a tendency to guess or make up answers.

Although the judge did not believe the accused's denials and suspected he had committed the offences, the reliability issues with the child's evidence left the court with a reasonable doubt.

The charges were dismissed.

Following the dismissal of an appeal regarding the removal of animals under the OSPCA Act, the successful respondent sought partial indemnity costs of $46,561.99.

The court considered the factors under Rule 57.01 and section 131 of the Courts of Justice Act, balancing the respondent's success against the appellant's self-represented status and the financial burden of the maintenance fees.

The court fixed costs at $25,000 inclusive of disbursements and HST.

The applicant, facing drug trafficking charges, brought a Garofoli application alleging a violation of section 8 of the Charter and seeking to quash a wiretap authorization.

The applicant argued that the Information to Obtain (ITO) lacked reasonable and probable grounds, and that police were grossly negligent or deliberately misleading in their presentation of a police agent's reliability and information.

The court reviewed the ITO, excising inappropriate material and amplifying it with evidence from the hearing.

The court found that the police agent was not a confidential informant at the time the ITO was considered, and his information, corroborated by other sources, provided sufficient grounds for the authorization.

The court concluded there was no police misconduct or gross negligence, and the ITO was facially valid.

The application was dismissed.