Alexander D. Kurke

The appellant appealed her conviction for operating a conveyance with blood alcohol exceeding the legal limit, contrary to s. 320.14(1)(b) of the Criminal Code.

She argued that the trial judge erred in finding no breach of her s. 8 Charter right arising from video surveillance of cell toilets during her detention, relying on the principles in R. v. Mok.

The appeal court found that police took reasonable steps to mitigate the privacy intrusion by informing the appellant of the surveillance, offering privacy gowns and blankets, and posting signage.

The court held the application judge did not reverse the burden of proof and correctly found no s. 8 breach.

The appeal was dismissed.

A student brought an action against her university alleging negligence, breach of contract, and deceit arising from alleged unfairness in grading and maladministration of two courses and her grade appeals.

The student sought recovery of course costs, punitive damages, deletion of grades, and injunctive relief for policy changes.

The university moved to strike the statement of claim on grounds that the court lacked jurisdiction over academic decision-making, the claim disclosed no reasonable cause of action, and the claims were statute-barred.

The court granted the motion and struck the claim without leave to amend, finding that the claims were simply indirect attempts to appeal academic decisions and failed to plead the necessary elements of the alleged torts or breach of contract.

The decision addresses the admissibility of utterances made by the accused, M.D., to police at the time of his arrest, in the context of a 7-count indictment involving intimate partner violence and firearms offences.

The court considers whether the statements were voluntary and whether the accused’s Charter rights to counsel and silence were breached.

After reviewing the evidence and credibility of the witnesses, the court finds that the accused was properly informed of his rights, that his statements were voluntary, and that there was no improper inducement, oppression, or police trickery.

The accused’s Charter application is dismissed, and the utterances are ruled admissible.

The applicant, Chad Rolling, sought a stay of proceedings on the basis that his right to be tried within a reasonable time under section 11(b) of the Charter was breached.

The court found that, after deducting periods of delay attributable to the defence, the net delay did not exceed the 30-month ceiling established in R. v. Jordan.

The application was dismissed.

This case involves two applications for dependant support under the Succession Law Reform Act and an application to collapse testamentary trusts.

The deceased, John Anthony Czerkas, died leaving two Wills.

His common-law spouse, Louann Culbert, and his daughter, Laura-Lea Czerkas, each sought dependant support.

Laura-Lea also sought to collapse the trusts established for her benefit in the Wills.

The court found Louann Culbert to be a dependant and granted her significant lump-sum support of $925,000, finding that the deceased had not made adequate provision for her.

The court found Laura-Lea Czerkas to be a dependant but dismissed her application for additional dependant support, concluding that the deceased had adequately provided for her in his Wills through substantial trusts.

However, the court granted Laura-Lea's request to collapse the testamentary trusts, allowing her immediate access to the funds based on the rule in Saunders v. Vautier.

The accused, Donovan McEwan, was charged with five offences: sexual assault, communicate with a person under 18 to facilitate an offence, obtain the sexual services of a person under 18, procuring, and possession of child pornography.

A sixth charge, forcible confinement, was withdrawn.

The court found the complainant's testimony credible despite inconsistencies, attributing them to drug addiction and trauma.

The court found a power imbalance due to the complainant's drug dependency on the accused, negating consent for sexual acts.

The accused was convicted of sexual assault, internet luring, obtaining sexual services of a person under 18, and possession of child pornography.

He was acquitted of procuring due to insufficient evidence that he caused or induced the complainant to offer sexual services for another.

This decision addresses a Stage 2 application under sections 276 and 278.93 of the Criminal Code regarding the admissibility of a complainant's prior sexual activity in a sexual assault and forcible confinement trial.

The accused sought to adduce evidence of a prior sexual encounter ("October incident") and the complainant's "comfort" level with the accused.

The Crown also sought to adduce evidence about a "FaceTime interlude" where the accused allegedly threatened to expose the complainant.

The court granted the Crown's application for the FaceTime interlude, allowing general contours but prohibiting details.

The accused's application regarding the "October incident" and "comfort" was dismissed, finding its probative value slight and substantially outweighed by the danger of prejudice and the risk of encouraging "twin myth" reasoning, which links prior sexual activity to consent or credibility.

The applicant sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial date exceeded the 30-month Jordan ceiling for Superior Court matters.

The Crown argued that the delay was due to exceptional circumstances, including the COVID-19 pandemic and the co-accused's need for new counsel, which necessitated an adjournment.

The applicant had opposed the adjournment and offered to proceed if severed from the co-accused.

The court found that the net delay exceeded the ceiling and that the Crown failed to rebut the presumption of unreasonableness.

While acknowledging the impact of COVID-19 and the importance of joint prosecutions, the court determined that the Crown had a duty to sever the applicant's trial when the joint prosecution compromised his s. 11(b) rights and unreasonably extended the prejudice he was suffering.

The Crown's failure to sever was deemed a failure to take reasonable steps to avoid the delay.

Consequently, the court found a breach of the applicant's s. 11(b) right and ordered a stay of proceedings.

The applicant sought a bail review after being detained on secondary and tertiary grounds for serious charges including attempted murder and numerous firearm offences.

The applicant argued for release based on an improved bail plan incorporating an ankle bracelet and the health risks posed by the COVID-19 pandemic in custody.

The court found that neither the ankle bracelet nor the general risks of COVID-19 constituted a material change in circumstances sufficient to overcome the significant public safety and confidence in justice concerns, especially given the sureties' prior inability to control the applicant.

The application for bail review was dismissed.

The applicant sought a bail review after being detained on primary, secondary, and tertiary grounds for multiple charges including assault, sexual assault, and breach of probation.

The applicant argued the Justice of the Peace erred in rejecting the initial surety and that new circumstances, including a revised release plan with a second surety, ankle bracelet monitoring, and the COVID-19 pandemic, warranted release.

The court dismissed the application, finding no error in the initial surety rejection and that the new plan, despite the pandemic, did not sufficiently address the flight risk, likelihood of re-offending, or maintain confidence in the administration of justice.

The accused was charged on a five-count indictment with three allegations of sexual assault, a charge of assault causing bodily harm, and another charge of simple assault against the complainant, his former track athlete and later wife.

The court applied the W.(D.) test for credibility and reliability, noting the significant time lapse since the incidents.

The court dismissed two sexual assault counts (Counts 1 and 5) due to insufficient detail and conflicting accounts, which raised reasonable doubt.

However, the court found the accused guilty beyond a reasonable doubt on one count of sexual assault (Count 2) related to an incident at a hotel when the complainant was 16, rejecting the accused's evasive testimony.

The court also found the accused guilty on one count of assault causing bodily harm (Count 4) for pushing the complainant down stairs, causing her hand to go through glass, and on one count of assault (Count 3) for twice forcing her naked out of their apartment in winter conditions.

The court emphasized the accused's manipulative and controlling behavior throughout the marriage as corroborative evidence of his animus.

The appellant appealed his conviction for operating a motor vehicle with over 80 mgs of alcohol in 100 mls of blood ("Over 80"), asserting breaches of his ss. 8 and 10(b) Charter rights and insufficient trial judge reasons.

The court dismissed the appeal, finding no breach of the section 8 Charter right regarding the "forthwith" Approved Screening Device (ASD) demand, and either no breach or only a technical breach of the section 10(b) right to counsel, which would not warrant exclusion of evidence under s. 24(2).

The court also found the trial judge's reasons sufficient regarding reasonable and probable grounds for arrest, "as soon as practicable" breath testing, and the destruction of dash-pad notes.

The third party, Her Majesty the Queen in Right of Ontario, represented by the Ministry of Natural Resources and Forestry (MNR), brought a motion for summary judgment to dismiss a third-party claim by the defendant, 2065943 Ontario Ltd. The defendant's claim alleged negligence against the MNR related to signage and property maintenance in a provincial park, following an incident where the plaintiff was injured.

The MNR argued that the claim was one of occupiers' liability, requiring notice within ten days under the Proceedings Against the Crown Act (PACA), which the defendant failed to provide.

The court found that the defendant's claim was indeed an occupiers' liability claim, subject to the strict 10-day notice period, and that the defendant's arguments regarding discoverability, negligence vs. occupiers' liability, and lack of prejudice to the Crown were unpersuasive.

The motion for summary judgment was granted, and the third-party claim against the MNR was dismissed.

The accused was charged with child luring and making child pornography involving his 13-year-old daughter.

The daughter took photographs of herself in a bra and panties, which she sent to her father, allegedly at his suggestion for modelling work.

The court found that the photographs, while inappropriate, did not meet the legal definition of child pornography as they lacked a dominant characteristic of sexual purpose or intent to cause sexual stimulation.

Regarding the child luring charge, the court found the accused's conduct selfish and underhanded in encouraging his daughter to take and send photos and to conceal these communications from her mother.

However, the Crown failed to prove beyond a reasonable doubt that the accused's purpose was to facilitate the making of child pornography or that he repeatedly pressured her via telecommunication.

Consequently, the accused was found not guilty on both counts.

The applicants sought to quash subpoenas issued by the respondent, Laura Pinkerton, for her criminal trial on a charge of forcible entry.

Pinkerton intended to call witnesses to support her claim of entitlement to the property, arguing a long-standing conspiracy to divest her of it.

The court found that a person's entitlement to property is immaterial to a forcible entry charge under Section 72(1.1) of the Criminal Code, which focuses on preserving public peace and actual peaceable possession.

Furthermore, the evidence sought would constitute an impermissible collateral attack on prior court orders establishing possession.

As the proposed witnesses could not provide material evidence, the Justice of the Peace exceeded jurisdiction in issuing the subpoenas.

The subpoenas were quashed.

The accused, G.D., was charged with two counts of sexual assault against two teenage male complainants, PT and WV, occurring between 1997 and 2001.

The Crown sought to admit evidence from each count as similar act evidence for the other.

The court found both complainants credible and reliable, despite their substance abuse and the passage of time, noting specific details and corroboration from other witnesses and the accused's own testimony.

The accused's denials were found evasive, self-serving, and unbelievable.

The court granted the Crown's application for similar act evidence, finding a distinctive pattern of conduct.

The judge concluded that the Crown proved the essential elements of sexual assault beyond a reasonable doubt for both counts, leading to findings of guilt.

Reginald Berard, charged with second-degree murder, brought an application to adduce evidence at trial regarding three alternate suspects: Ronald Couillard, Philippe Charbonneau, and Stanley Beaudry.

The court reviewed the principles for admitting alternate suspect evidence, emphasizing the need for relevance, sufficient probative value, and a concrete connection between the third party and the crime, beyond mere conjecture.

The application was dismissed for Stanley Beaudry and Ronald Couillard due to insufficient connection and/or the prejudicial effect of the evidence substantially outweighing its probative value.

However, the application was allowed for Philippe Charbonneau, as his unexplained knowledge of the stabbing death and conflicting statements provided a sufficient connection to warrant exploration at trial.

The appellant, FNX Mining Company Inc., appealed an order from a building inspector requiring building permits for a generator structure and several trailers at its mine site.

The generator, providing standby power, was remotely operated and not designed for human occupancy, though maintenance staff entered periodically when it was off.

The trailers served as offices, lunchrooms, and first aid stations, were movable but secured for periods with utilities attached.

The court, applying a reasonableness standard, found the generator was not a "building" under the Building Code Act, 1992, as its transient occupancy and regulation by other safety regimes made the building permit requirement unreasonable.

However, the trailers, being secured for periods with utilities and used for regular human occupancy, were deemed "buildings" requiring permits.

The appeal was allowed in part.

The accused, Jasvir Singh, was convicted of dangerous operation of a tractor-trailer causing the death of Gary Messenger.

The court considered aggravating factors, including the deliberate risky driving, the use of a large commercial vehicle, and the lack of genuine remorse despite expressions of sorrow.

Mitigating factors included the accused's lack of criminal record, youth, pro-social conduct, and family support.

The Crown sought four years incarceration and a seven-year driving prohibition, while the defence proposed 12-18 months custody and a 12-month prohibition.

The court imposed a sentence of three years incarceration, a five-year driving prohibition, a ten-year firearms prohibition, and a DNA order, emphasizing denunciation and general deterrence.

The accused was charged with sexual assault.

The complainant alleged the accused touched her breasts and vagina while she was passed out after a night of heavy drinking.

The accused denied the contact.

The court found the complainant credible but unreliable due to her intoxication and contradictions from other witnesses regarding key details like sleeping arrangements and interactions.

DNA evidence on the complainant's bra matched the accused, but the defense proposed an innocent transfer through profuse slobbering during repeated social interactions over the drunken weekend.

While finding the innocent transfer implausible, the court could not definitively rule it out, leading to reasonable doubt.

The charge was dismissed.