Anne E. London-Weinstein

This endorsement addresses a motion regarding parenting time between Kristen McElroy (mother) and Ryan Andrew Spence (father) for their six-year-old child, Bryson McElroy.

The court reviews the parties’ parenting history, the mother’s unilateral changes to the father’s access, and allegations of substance abuse.

The court finds no evidence to justify supervised parenting time for the father and restores his regular access, emphasizing the child’s best interests and the need for cooperative co-parenting.

The court also orders the father to pay outstanding child support directly to the mother and provides directions for resolving costs.

The court considered whether police had reasonable and probable grounds to arrest Hassan Ozeir for drug trafficking and possession of proceeds of crime.

The court found that police lacked such grounds, as their observations of Ozeir were consistent with benign behaviour and did not match the pattern of drug trafficking described by tipsters or observed in relation to his brother, Yousef Ozeir.

The court concluded that the arrest and subsequent search violated sections 8 and 9 of the Charter.

The evidence was excluded under section 24(2) due to the seriousness of the Charter breach and misleading police testimony.

The court allowed the appeal of Erwin Blanco’s conviction for sexual assault, finding that the trial judge’s reasons were insufficient regarding the complainant’s state of mind and the issue of consent.

The trial judge failed to reconcile conflicting evidence about whether the complainant consented to the sexual activity, particularly her statements that she thought the activity “felt nice” and that she was “very tired.” The court also found that the trial judge did not properly address whether any consent was vitiated by abuse of a position of trust or authority under section 273.1(2)(c) of the Criminal Code.

As a result, a new trial was ordered.

The Applicant, Althea Reyes, sought certiorari in aid of prohibition to challenge a trial judge's decisions regarding disclosure and the introduction of her prior criminal record.

The Crown moved for summary dismissal of Reyes' application.

The court found that the alleged errors by the trial judge were not jurisdictional in nature, but rather discretionary matters within the trial judge's purview (e.g., length of adjournment for disclosure review, recall of witnesses, abuse of process, or mistrial applications).

The court emphasized that extraordinary remedies like certiorari are reserved for jurisdictional errors, not mere alleged errors reviewable on appeal.

Consequently, the court summarily dismissed Reyes' application, finding it manifestly frivolous as it was "obviously doomed to fail."

The appellant appealed a sentencing decision for carrying a concealed weapon, arguing the trial judge erred by sentencing him as if he committed a "use" offence rather than a "possession" offence, and by overstating the seriousness of the offence.

The appellant sought a conditional discharge.

The appeal court found no error in principle, stating the trial judge properly considered all circumstances, including the potential for harm, and that a conditional discharge would be contrary to the public interest.

The appeal was dismissed.

The Applicant sought $150,000 in interim costs but was unsuccessful.

The Respondent then sought costs for that unsuccessful motion.

The court exercised its discretion to defer the determination of costs for the motion to the trial judge.

The decision was based on the lack of a final determination of substantive issues, the narrow scope of the interim costs motion, and a concern that an immediate costs order might impair the Applicant's ability to finance and prepare for trial, particularly regarding expert evidence on the Respondent's financial affairs.

This motion for directions concerned the estate of Paula Vout, deceased, with the Applicant seeking a determination of funds improperly diverted by the Respondent and whether certain transfers were gifts.

The Respondent, the deceased's daughter and named Estate Trustee, had failed to probate the will, account for assets, or comply with previous court orders.

The court found that joint assets remaining at death ($157,000) were owed to the Estate.

Further, $205,000 in "Real Estate Advances" claimed by the Respondent as gifts were determined to be subject to a resulting trust in favour of the Estate, as the Respondent failed to provide corroborating evidence to rebut the presumption of gift.

The court allowed a deduction of $70,000 for legitimate healthcare and property maintenance expenses incurred by the deceased.

The total amount found owing to the Estate was $453,000.

The court clarified that the Estate Trustee, not the Applicant, was responsible for collecting these funds.

Costs were reserved for further submissions.

The Applicant sought an interim disbursement costs order of $150,000 to fund financial experts and counsel for an upcoming trial, arguing the Respondent had significant income.

The Respondent claimed financial destitution due to the commercial real estate market downturn.

The court dismissed the Applicant's motion, finding she failed to provide sufficient evidence of her inability to fund the litigation from other sources (e.g., family loans) and lacked a detailed breakdown of future costs, as opposed to past expenses.

The court emphasized that interim cost awards are discretionary, limited to exceptional cases, and require clear demonstration of necessity and reasonableness for future litigation expenses.

This judgment concerns a murder trial where the accused, Brandon Lamoureux, was charged with the fatal stabbing of Gilbert Rumleskie.

The central issue was the identification of the stabber, with conflicting and unreliable witness testimonies from Jordan Plumb and Ashley Dombroskie, and circumstantial evidence including grainy surveillance video and DNA analysis.

The court meticulously assessed the credibility of all witnesses, noting significant inconsistencies and admitted lies from the Crown's key witnesses.

Despite evidence of animus and prior threats by the accused towards the victim, the court found a reasonable doubt as to whether the accused or Jordan Plumb, whose knife was the murder weapon and bore his DNA, inflicted the fatal wound.

The court emphasized that circumstantial evidence must be rationally inconsistent with any other conclusion than guilt, and that reasonable inferences consistent with innocence can arise from a lack of evidence.

Ultimately, the court found the Crown had not proven guilt beyond a reasonable doubt.

The defence brought a motion for disclosure of emails exchanged between Crown counsel, asserting their relevance to a potential abuse of process application.

The accused had been convicted of second-degree murder.

The emails concerned prior disclosure of third-party suspect material to an alternate suspect (I.A.) who testified for the defence, which contradicted the Crown's cross-examination suggesting I.A. had no legitimate basis for his knowledge.

The court found the emails were subject to litigation privilege, which had not expired due to I.A.'s pending appeal.

After reviewing the emails, the court found no evidence of Crown misconduct, bad faith, or improper motives that would warrant disclosure under the "misconduct" exception to privilege.

The motion for disclosure was dismissed, but the emails were sealed for appellate review given the court's mistaken belief about its post-verdict jurisdiction for an abuse of process application in a jury trial, and concerns regarding unusual juror conduct.

In a second-degree murder trial, the Crown sought to admit after-the-fact conduct evidence to establish the accused's state of mind regarding the defences of provocation and defence of another person.

The court ruled that while such evidence is generally admissible if relevant to state of mind, the specific conduct of the accused (jogging with a cup, smoking, changing hairstyle, leaving the scene) was too equivocal to support an inference about his state of mind at the time of the shooting.

Consequently, the evidence was deemed inadmissible for determining culpability or state of mind for murder, but remained admissible for the purpose of identifying the shooter.

This ruling addresses the admissibility of discreditable conduct evidence in a second-degree murder trial.

The Crown sought to introduce various pieces of evidence, including the accused's prior firearm possession, drug trafficking, and involvement in other incidents.

Initially, the court excluded most of this evidence, finding its prejudicial effect outweighed its probative value, particularly due to the risk of propensity-based reasoning.

However, the evidentiary landscape shifted when a defence witness indicated they would testify as the shooter.

This change rendered some previously excluded evidence, such as the accused's drug possession for trafficking and being shot, admissible as it became highly probative to rebut the defence's theory and establish the accused's motive to carry a firearm.

The court emphasized the dynamic nature of relevance and the balancing act between probative value and prejudicial effect, ultimately exercising its discretion to exclude certain evidence to ensure trial fairness and manageability.

This ruling addresses whether the defence of "defence of another person" had an air of reality in a second-degree murder trial, meaning it should be put to the jury.

The accused, Donald Musselman, was charged with the murder of Markland Campbell.

The Crown argued against the air of reality, citing the accused's denial of being the shooter and potential inconsistency with a provocation defence.

The court found that despite the accused's denial, there was sufficient circumstantial evidence and reasonable inferences to support the three elements of self-defence (reasonable belief of threat, defensive purpose, reasonable response) to meet the evidential burden for an air of reality.

The judge emphasized resolving doubts in favour of leaving the defence to the jury and that inconsistent defences can both have an air of reality.

The accused, charged with second-degree murder, sought to have the defence of provocation put to the jury.

The court first addressed the constitutionality of the July 2015 amendment to s. 232(2) of the Criminal Code, concurring with R. v. Mujber that the requirement of an indictable offence punishable by five or more years imprisonment violated s. 7 of the Charter and was of no force and effect.

The court then assessed whether there was an air of reality to the provocation defence, considering the four elements: wrongful act or insult, sufficiency to deprive an ordinary person of self-control, the accused acting in response, and acting suddenly before passion cooled.

Despite the accused denying being the shooter, the court found that, taking the defence evidence at its highest, a jury could reasonably infer the elements of provocation, including a wrongful act (brandishing a weapon at a friend) and a sudden reaction, influenced by the accused's recent shooting injury and age.

The defence of provocation was therefore left with the jury.

This ruling addresses the admissibility and scope of use for intercepted communications in a second-degree murder trial.

The accused, Donald Musselman, and a third-party witness, I.A., both testified that I.A. was the shooter.

The Crown sought to introduce intercepts to rebut this defence, arguing they undermined I.A.'s claim and suggested Musselman directed I.A. to falsely assume responsibility.

The court conducted a probative-prejudicial balancing analysis for numerous intercepts, admitting some for impeachment purposes only, while excluding others due to their highly prejudicial nature, including references to extrinsic criminal conduct and a criminal lifestyle.

The judge declined to admit the intercepts for the truth of their contents as admissions, exercising judicial discretion to ensure overall trial fairness and prevent propensity-based reasoning, given the volume of discreditable conduct evidence.

Donald Musselman was charged with second-degree murder.

The Crown sought to introduce wiretap intercepts as part of its case-in-chief to prove identification and rebut an alternate suspect defence.

The court ruled that the intercepts, while probative, carried significant risks of moral and reasoning prejudice if introduced early, especially given their content (extrinsic criminal behaviour, gang discussions, etc.) and the uncertainty of defence witnesses testifying.

The court initially denied their introduction as part of the Crown's case but allowed their use for cross-examination if the defence called I.A. or Musselman to testify that I.A. was the shooter, as this would crystallize their probative value.

The accused, charged with second-degree murder, brought a Corbett application to exclude certain prior convictions (unauthorized possession of a firearm and assault) from being used for credibility purposes during his testimony.

The court granted the application, finding that these convictions had limited probative value on credibility and posed a significant risk of propensity reasoning by the jury, outweighing their probative value.

The court noted that other convictions (failure to comply and possession for trafficking) and evidence of involvement in the drug subculture would still be admissible, preventing a distorted picture of the accused.

This ruling addresses the Crown's application to admit evidence of discreditable conduct against the respondent, who is charged with second-degree murder.

The court admitted evidence of specific threats involving a knife made by the respondent to the deceased shortly before the killing, and a prior incident where the respondent brandished a knife and stabbed a motel room wall in the deceased's presence.

However, the court declined to admit evidence of the respondent's prior convictions for weapon possession, robbery (involving knife brandishing), and assault with a weapon, finding their prejudicial effect outweighed their probative value, particularly on the central issue of who possessed the murder weapon.

His Majesty the King brought an application for certiorari and mandamus to challenge a trial judge's declaration of a mistrial in a domestic violence case.

The respondent argued against the remedies and raised a reasonable apprehension of bias.

The court found that the trial judge's intemperate and disparaging remarks towards counsel and the respondent created an appearance of unfairness and a reasonable apprehension of bias, thereby rebutting the presumption of judicial impartiality.

Consequently, the court declined to remit the matter back to the original trial judge for further consideration.

This trial decision addresses parenting and child support for a four-year-old child born from a brief, high-conflict relationship.

The Mother sought primary decision-making and residence, while the Father sought equal shared parenting and a parallel parenting regime.

The court dismissed the Father's allegations of sexual assault against the Mother due to insufficient evidence.

The court determined that the child's primary residence would remain with the Mother, citing the child's stable environment and the impracticality of the Father's proposed school arrangements.

Decision-making was split, with the Mother having final say on health and education, and the Father on extracurricular activities, both requiring consultation.

The Father's parenting time was gradually increased, and child support was ordered based on the Father's income and imputed income for the Mother.