Alexander D. Kurke

The accused, Delores Harper, was charged with theft of a house trailer, mischief to the trailer, and possession of property obtained by crime.

The Crown alleged she pretended to buy the trailer, then removed it, cut its tow tongue, and placed it on her property.

The accused claimed she honestly purchased the trailer from a Crown witness who misrepresented himself as the owner.

The court rejected the accused's testimony, finding her evidence incredible and inconsistent, partly due to a criminal record for dishonesty.

The court found the accused guilty of theft (value not exceeding $5000), mischief (value not exceeding $5000), and possession of property obtained by crime (value not exceeding $5000).

The possession charge was conditionally stayed under the Kienapple principle.

The defendant moved to amend his Statement of Defence to assert that the plaintiff was an excluded driver under his insurance policy, rendering his vehicle uninsured at the time of the accident, and thus barring recovery under s. 267.6(1) of the Insurance Act and s. 2(1) of the Compulsory Automobile Insurance Act.

The plaintiff opposed, claiming irremediable prejudice due to expired limitation periods for claims against the former vehicle owner, insurance broker, or insurer, and arguing estoppel.

The court found no irremediable prejudice, deeming any prejudice self-created, and rejected the estoppel argument, granting leave to amend the Statement of Defence.

The moving party, Shu He Huang, sought leave to appeal an order from Justice Todd L. Archibald that appointed the Public Guardian and Trustee as her litigation guardian, following a finding that she was a person under a disability due to mental incapacity.

The court denied leave to appeal, finding that the moving party failed to satisfy either branch of the strict two-part test for leave under Rule 62.02(4).

Specifically, there were no conflicting decisions on a matter of principle, and the proposed appeal did not involve matters of general public importance beyond the immediate parties' interests.

Furthermore, the court found no reason to doubt the correctness of the motions judge's original order, addressing and dismissing each of the moving party's six grounds of appeal, which included challenges to the medical proof of incapacity, the order for capacity assessment, the allocation of assessment costs, the admissibility of the assessment report, the fairness of the assessment conditions, and the basis for appointing the Public Guardian and Trustee.

Following a trial where the jury found no negligence or liability against the defendants, the defendant Cedar Fair Entertainment Company sought costs.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and Cedar Fair's Rule 49 offer to settle.

Despite Cedar Fair's complete success at trial, the court applied the principle of proportionality, finding the requested costs disproportionate to the case's complexity and the amount reasonably at issue.

A global costs award of $45,000, all-inclusive, was made in favour of Cedar Fair, to be paid by the plaintiffs.

The applicants, charged with murder, sought to change the trial venue from Gore Bay to Sudbury, citing pre-trial publicity, a small potential jury pool, and logistical inconveniences.

The court dismissed the application, finding that the applicants failed to demonstrate, on a balance of probabilities, that a fair trial could not be achieved in Gore Bay despite the alleged prejudice, which could be mitigated by jury selection safeguards.

The court also noted the potential for the application to cause undue delay and ordered two jury panels to be summoned for jury selection.

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 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 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 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.