Catherine D. Aitken

The court tried an accused on multiple counts of sexual assault, sexual interference, and invitation to sexual touching arising from sexual activity with a 15-year-old cousin during the summer of 2012.

Applying the W.(D.) framework, the court found the complainant credible and reliable despite some confusion in chronology and terminology, and rejected the accused's evidence as evasive and implausible.

The court held that consent was legally irrelevant by virtue of s. 150.1 of the Criminal Code and found the sexual acts proven beyond a reasonable doubt on each count.

Findings of guilt were entered on all counts.

In a judge-alone criminal trial involving alleged sexual offences against a young complainant, the Crown sought admission of prior alleged misconduct involving another young female as similar fact evidence.

Applying the governing similar fact evidence framework, the court found substantial connectedness between the two relationships, including the complainants' vulnerability, the accused's position as a trusted older male, secrecy, grooming-like communications, and risky sexualized conduct.

The court held that the probative value on actus reus and the plausibility of a sexualized relationship outweighed the limited moral and reasoning prejudice in a judge-alone proceeding.

The application was granted and the similar fact evidence was admitted.

The accused was found guilty of sexual assault and sexual exploitation against his daughter.

The offences occurred when the victim was a teenager and involved inappropriate touching and measuring.

The court considered the accused's low risk of reoffending, lack of criminal record, and the historical nature of the offences, balanced against the significant breach of trust and psychological harm to the victim.

The court imposed a global conditional sentence of two years less a day, along with SOIRA registration, a DNA order, and a weapons prohibition.

The applicants, unit owners at Carleton Condominium Corporation No. 111, sought a declaration that a proposed rule defining 'single family residence' and its grandfathering provisions were unreasonable and inconsistent with the condominium's declaration.

They also sought an oppression remedy against the board and a declaration that the board president breached his duties as a director.

The court found the ten-year grandfathering provision for existing owners to be unreasonable and inconsistent with the declaration, invalidating the rule.

The court dismissed the oppression claim against the board but found that the board president breached his standard of care as a director by actively undermining the board's efforts to enforce the declaration and acting in bad faith.

The applicant union sought judicial review of an interest arbitration award that established a new job classification system and wage grid for the bargaining unit.

The union argued the panel's adoption of the employer's proposed wage grid violated s. 11(6) of the Canadian Human Rights Act by reducing male wages to achieve pay equity, and failed to apply the replication principle.

The Divisional Court dismissed the application, finding the panel's decision was reasonable.

The panel was tasked with creating a completely new classification system, not correcting an existing one, and reasonably concluded that s. 11(6) did not apply or was not breached.

The panel also reasonably applied the replication principle by considering objective market forces and economic realities.

The Ottawa Police Services applied for judicial review of a decision by the Ontario Civilian Police Commission, which had reinstated a police officer previously dismissed for unsatisfactory work performance.

The Commission had found that the police service failed to strictly follow its established procedures under O. Reg. 268/10 before initiating the complaint.

The Divisional Court (majority) held that the Commission's strict interpretation of the regulation was unreasonable, finding that the police service's extensive ad hoc efforts to assist the officer substantially complied with the statutory requirements.

The application for judicial review was granted, the Commission's decision was set aside, and the matter was remitted.

The applicant union sought judicial review of an arbitrator's decision regarding the calculation of seniority for On Call Relief Employees who become route-holding Rural and Suburban Mail Carriers.

The arbitrator found that, based on the collective agreement, seniority does not accrue during the period an employee works as an On Call Relief Employee.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, finding that it gave meaning to all relevant provisions of the collective agreement without modifying them.

The application for judicial review was dismissed, with one judge dissenting.

In this pre-trial criminal ruling, the court considered whether a detained accused's videotaped police statement in a sexual offence prosecution was voluntary and whether police questioning breached the accused's right to remain silent under s. 7 of the Charter.

Applying the common law confessions rule and the right-to-silence analysis, the court held that the accused had been properly cautioned, had consulted counsel, understood his rights, and retained an operating mind throughout the interview.

The court found that the interrogating officer's persistence, tone, and tactical questioning did not amount to threats, oppression, or trickery sufficient to overbear the accused's will.

The statement was ruled voluntary and no Charter breach was established.

The moving party (Third Party) brought a motion to set aside an order of a single judge of the Divisional Court, which had quashed its appeal from a Master's interlocutory orders regarding the procedure for a trade secrets protection motion.

The Divisional Court dismissed the motion, finding the Master's orders were interlocutory and properly appealable only to a judge of the Superior Court.

The court also dismissed the moving party's requests to vary the order to permit examination of opposing counsel and to delete portions of the judge's endorsement, characterizing the moving party's conduct as an abuse of process.

The responding party's cross-motion was granted in part, requiring the moving party to obtain leave before bringing further procedural motions.

Full indemnity costs were awarded against the moving party.

The tenants appealed a decision of the Landlord and Tenant Board regarding the landlord's responsibility to maintain an elevator under s. 20 of the Residential Tenancies Act.

The Divisional Court applied a reasonableness standard of review, finding that the Board was entitled to construe its home statute to consider the landlord's actions in the circumstances.

Finding no error of law, the court dismissed the appeal.

During a murder retrial, the defence sought a jury instruction alleging the Crown breached the rule in Browne v. Dunn by failing to cross‑examine the accused on several key aspects of his testimony.

The court reviewed the rule governing fairness in cross‑examination and the circumstances in which a failure to challenge a witness’s evidence may require remedial instructions.

Considering the trial context, the prior disclosure of the Crown’s theory, and the cross‑examination that did occur, the court held that no significant Browne v. Dunn breach by the Crown had occurred.

The accused had full opportunity to address the Crown’s theory during testimony and was not ambushed.

The requested jury instruction was therefore refused.

Following a jury conviction for sexual interference involving a 12‑year‑old complainant, the court proceeded to sentence after staying a sexual assault conviction pursuant to the Kienapple principle.

The offence involved a brief incident in which the accused sexually touched and kissed a child while alone in a residence.

The court considered denunciation and general deterrence as primary sentencing objectives for sexual offences against children, while also weighing rehabilitation due to the offender’s youth, impulsivity issues, and low assessed risk of recidivism.

Aggravating factors included the complainant’s age, the power imbalance between the adult offender and the child, and the psychological impact on the complainant.

The accused was sentenced to six months’ incarceration followed by two years’ probation with multiple conditions, along with ancillary orders including a s. 161 prohibition, DNA order, SOIRA registration, and weapons prohibition.

The accused was sentenced following jury convictions for assault causing bodily harm and two counts of forcible confinement, along with a guilty plea to assault.

The offences arose from a vigilante-style attack in which the accused and several associates forcibly removed two individuals from a nightclub and violently assaulted them in an alley after suspecting them of vandalizing a vehicle.

The assault resulted in severe and permanent injuries, including a traumatic brain injury and significant psychological disorders.

The court emphasized denunciation and general deterrence given the planned, group-based nature of the revenge attack and the profound harm to the victim.

After weighing aggravating and mitigating factors, the court imposed a global custodial sentence of three and a half years.

The accused was charged with sexual interference, sexual assault, and multiple counts of sexual exploitation arising from conduct toward his teenage daughter.

The court assessed credibility under the framework in R. v. W. (D.) and considered whether touching and related conduct occurred for a sexual purpose within the meaning of the Criminal Code.

The evidence established that the accused measured the complainant’s breasts and body, conducted a breast examination, purchased sexual devices for her, repeatedly encouraged her to use them, and briefly touched her vaginal area with a vibrator while demonstrating its use.

The court concluded that these acts occurred within a relationship of trust and authority and constituted sexual exploitation and sexual assault.

The accused was acquitted of sexual interference because the Crown failed to prove the complainant was under 14 at the time of the touching.

The plaintiff employee brought a motion for summary judgment seeking determination of the reasonable notice period following termination without cause.

The employer had provided two weeks’ pay pursuant to a termination clause that both parties agreed was unenforceable.

Applying the Bardal factors, the court considered the employee’s age, short service of approximately 51 weeks, technical qualifications, management-level responsibilities, and mitigation efforts.

The court also evaluated the availability of comparable employment within the regional IT labour market.

Balancing these factors, the court determined that a reasonable notice period was four months and granted summary judgment for the employee.

The insured brought a motion for partial summary judgment seeking a declaration that her action for statutory accident benefits was not statute-barred under s. 281.1 of the Insurance Act.

The insurer had terminated income replacement benefits following insurer examinations but failed to comply with mandatory procedural requirements under ss. 37 and 42 of the Statutory Accident Benefits Schedule, including failing to request a new disability certificate and failing to provide examination reports to the health practitioner who completed the disability certificate.

The court held these provisions were mandatory and that the insurer’s non-compliance meant the termination of benefits was not properly effected.

Because a proper refusal had not been given, the limitation period under s. 281.1(1) of the Insurance Act had not been triggered.

The court granted partial summary judgment declaring the action was commenced within the limitation period.

The Children's Aid Society sought a finding that two children were in need of protection and an order placing them in the care of their mother and her spouse.

The father sought to have the children returned to his care.

The court found the children in need of protection due to exposure to domestic violence, drug trafficking, weapons, and parental alienation by the father.

The court granted joint custody to the mother and her spouse, with no access to the father, finding that the father's anti-social behaviour and refusal to follow court orders posed a significant risk of emotional and physical harm to the children.

Following a jury verdict finding the accused guilty of assault causing bodily harm and forcible seizure, and a guilty plea to a further assault charge, the Crown applied under s. 523(1)(b)(ii) of the Criminal Code to revoke the accused’s bail pending sentencing.

The court considered the seriousness of the violent offences, the significant and permanent injuries suffered by the victim, and the prospect of a substantial custodial sentence.

The court also reviewed the accused’s prior criminal record, outstanding charges for a similar group assault while on recognizance, and concerns about the adequacy of a proposed surety.

While primary grounds for detention were minimal, the court held that secondary and particularly tertiary grounds justified detention to protect the public and maintain confidence in the administration of justice.

During a criminal jury trial, the court addressed whether defence counsel could use visual aids such as cartoons, stick-figure diagrams, and graphical illustrations during closing submissions.

The trial judge ruled that visual depictions created by counsel that were not admitted through witness testimony risked misleading the jury and effectively amounted to counsel giving evidence.

The court also rejected a proposed visual continuum illustrating the standard of proof beyond a reasonable doubt, relying on Supreme Court of Canada authority cautioning against analogies or illustrative scales for that standard.

The judge held that such materials could distort the fact‑finding process and improperly represent the evidence.

Defence counsel was therefore prohibited from using the proposed visual aids during closing address.

During a criminal jury trial, the accused brought a motion for a mistrial alleging a reasonable apprehension of judicial bias arising from various rulings and trial management decisions.

The motion relied on the judge’s handling of a juror scheduling issue, evidentiary rulings including a voluntariness voir dire and past recollection recorded, and discussions concerning possible modes of participation following the close of the Crown’s case.

The court applied the test for reasonable apprehension of bias from Committee for Justice and Liberty v. Canada (National Energy Board) and R. v. R.D.S. The court held that disagreements with rulings or expressions of difficulty understanding counsel’s arguments do not establish bias and that the judge’s conduct reflected ordinary trial management obligations.

The motion for a mistrial was dismissed.