C. McKinnon

The appellant, a taxi driver, appealed his conviction and 30-day sentence for sexual assault of a passenger.

He argued the trial judge provided insufficient reasons regarding the complainant's reliability and improperly considered his race and religion during sentencing.

The Superior Court of Justice dismissed the conviction appeal, finding the trial judge's reasons were sufficient and clearly addressed the reliability of the complainant's evidence.

However, the sentence appeal was allowed, as the trial judge's repeated references to the appellant's ethnicity and religion breached his Charter right to equal treatment.

The sentence was vacated and a new sentencing hearing was ordered.

Following a trial regarding adverse possession where the respondents were completely successful, the parties made written submissions on costs.

The respondents sought substantial indemnity costs based on offers to settle, while the applicants argued the case was novel and no costs should be awarded.

The court rejected the applicants' argument, finding the case was a classic adverse possession dispute.

The court awarded the respondents partial indemnity costs fixed at $53,605.26, inclusive of disbursements and HST.

The Children's Aid Society sought an order for Crown wardship for three children.

The mother and the two fathers of the children opposed the application, seeking to have the children returned to their care.

The court found that the children were in need of protection due to the parents' significant mental health issues, substance abuse, and inability to provide a stable environment.

The mother was physically disabled and insisted on caring for one of the fathers, who suffered from severe mental illness and required constant supervision.

The other father had a history of substance abuse and an unstable lifestyle.

The court concluded that the parents' plans of care were unworkable and that it was in the best interests of the children to be made Crown wards for the purpose of adoption, with some transitional access and potential openness agreements.

The 63-year-old accused, a first-time offender, was convicted of five counts of sexual assault against five female victims.

The accused held himself out as a healer and touched the victims inappropriately under the guise of providing treatment.

Psychiatric assessment revealed the accused suffered from a delusional disorder regarding his healing abilities and lacked insight or remorse.

The court emphasized the extreme breach of trust and the need for deterrence and rehabilitation, sentencing the accused to 14 months in a provincial reformatory followed by three years of probation to facilitate ongoing psychiatric treatment.

The accused was charged with multiple aggravated assaults involving a hammer.

Police officers recognized the accused from a police broadcast containing video and still photos of a suspect.

The officers detained the accused for investigative purposes and, after confirming his identity against the broadcast photos, arrested him.

The accused challenged the legality of the arrest, arguing the officers lacked reasonable and probable grounds.

The court found the officers had both subjective and objective grounds to arrest the accused, acting in good faith based on the broadcast and their observations.

The arrest was ruled lawful.

The Crown appealed the accused's acquittals on charges of impaired driving and driving over 80.

The trial judge had excluded the breathalyzer evidence under s. 24(2) of the Charter, finding that the arresting officer lacked reasonable and probable grounds and failed to make the breath demand as soon as practicable.

The Superior Court of Justice allowed the appeal, holding that the trial judge erred in law by requiring the facts to be exclusively consistent with alcohol impairment to form reasonable grounds, and misapprehended the evidence regarding the timeline of the breath demand.

A new trial was ordered.

The Crown applied to admit similar fact evidence across multiple counts of sexual assault allegedly committed by an unlicensed therapist against several patients during treatment sessions.

The defence argued the alleged acts were insufficiently similar and raised the possibility of collusion among complainants.

Applying the governing principles from appellate jurisprudence on similar fact evidence, the court assessed the similarities, differences, and the risk of prejudice, as well as whether an air of reality existed regarding collusion.

The court found sufficient similarities among three complainants’ accounts involving inappropriate touching of breasts and vaginal areas during therapy sessions and unusual post‑contact behaviour to render coincidence improbable.

While an air of reality to possible collusion existed due to community connections, the Crown established on a balance of probabilities that no improper collusion occurred.

Similar fact evidence from three complainants was admitted, while the evidence of two others was excluded due to insufficient similarity.

The Crown brought a bail review under ss. 520–521 of the Criminal Code seeking to overturn a justice of the peace’s order releasing the accused on numerous fraud-related charges.

The reviewing judge found legal errors in the justice’s application of the tertiary ground under s. 515(10)(c), including reliance on a purported prohibition against pre-trial punishment and the imposition of a “maximum force” threshold not found in the legislation or jurisprudence.

Considering the seriousness and escalating nature of the alleged offences, including robbery and possession of a loaded restricted firearm after repeated breaches of release conditions, the court concluded the earlier decision was both legally erroneous and clearly inappropriate.

The release order was set aside and detention ordered to maintain confidence in the administration of justice.

The accused was charged with sexual interference, invitation to sexual touching, sexual assault, uttering a death threat, and forcible confinement arising from an attack on a child in a public park in 1997.

The Crown relied heavily on DNA evidence obtained from semen found on the complainant’s clothing, which was later matched to the accused after his DNA was entered into the national databank following a later conviction.

The defence argued that the DNA could have been transferred indirectly and invoked the framework in R. v. W.(D.), asserting reasonable doubt.

The court rejected the accused’s account that his semen was deposited during consensual sex in a different area of the park and found the theory implausible and unsupported by evidence.

The judge concluded that the DNA continuity and analysis were reliable and that speculative alternative explanations could not raise a reasonable doubt.

The accused applied for a stay of proceedings alleging a breach of the right to make full answer and defence under s. 7 of the Charter due to missing police notes and investigative materials in a historical sexual assault prosecution.

The defence argued that the loss of notes from several investigating officers and the absence of photo lineup materials impaired the ability to challenge the investigation.

The court applied the principles governing lost evidence from R. v. La and related jurisprudence, considering whether the evidence was relevant, whether its loss resulted from unacceptable negligence, and whether the accused suffered actual prejudice.

The court concluded that the substance of the allegedly missing evidence was preserved through existing reports, testimony, and other documentation, and that the missing materials were either irrelevant or duplicated elsewhere.

No prejudice to the ability to make full answer and defence was established and no Charter breach occurred.

The Crown appealed the acquittal of a youth charged with drug possession.

Police officers had searched the youth's partially unzipped backpack found in a vehicle after observing an open bottle of vodka nearby and noting the youth was intoxicated.

The trial judge found the search violated section 8 of the Charter and excluded the evidence under section 24(2).

The Superior Court of Justice allowed the appeal, finding the search was authorized under section 32(5) of the Liquor Licence Act because the officer had reasonable grounds to believe liquor was unlawfully kept in the vehicle and the backpack was not fastened closed.

The court further held that even if a breach occurred, the evidence should not have been excluded under section 24(2).

A new trial was ordered.

Following jury convictions for conspiracy to facilitate a terrorist activity and facilitating a terrorist activity, the court conducted a Gardiner hearing to determine disputed facts relevant to sentencing.

Applying s. 724 of the Criminal Code and the principles in R. v. Gardiner, the judge determined which aggravating facts were proven beyond a reasonable doubt and which alleged mitigating facts were established on a balance of probabilities.

The court found that the accused supported violent jihadist causes, assisted associates involved in terrorist activity, provided funds intended for foreign terrorists to purchase weapons and grenades, and participated in recruiting others into the group.

The court also addressed possession of explosive components but concluded that the purpose of that possession was not proven beyond a reasonable doubt in light of the jury’s acquittal on the explosives charge.

The decision sets out factual findings to guide the subsequent sentencing determination.

The accused brought a Garofoli application challenging the validity of CSIS search warrants that formed the basis for subsequent RCMP wiretap warrants in a terrorism investigation.

The applicant alleged breaches of s. 8 of the Charter and argued the information to obtain the warrants failed to establish both a threat to the security of Canada and investigative necessity under s. 21 of the Canadian Security Intelligence Service Act.

The court held that the affidavit contained sufficiently reliable information, including detailed statements from a human source relaying incriminating admissions from a target of the investigation, and that the issuing judge could reasonably conclude the statutory requirements were met.

The court further held that the investigative necessity requirement under the CSIS Act differs from the investigative necessity standard applicable to Criminal Code wiretaps.

The application to set aside the warrants was dismissed.

In a terrorism prosecution, the applicants sought further disclosure from the Canadian Security Intelligence Service relating to payments made to a human source relied upon in a CSIS affidavit supporting investigative warrants under the Canadian Security Intelligence Service Act.

The court held that records detailing remuneration and reimbursements paid to the source were likely relevant to a pending Garofoli voir dire because financial incentives may affect credibility and the affiant’s assessment of reliability.

Production of records relating to payments to the source was therefore ordered.

However, the request for disclosure of any CSIS reliability assessments concerning a target of the investigation was refused, as the target was not a traditional informant whose reliability required evaluation.

The applicants brought a motion to reconsider a previous decision denying production of CSIS source documents and sought leave to cross-examine the CSIS affiant on a Garofoli voir dire.

The court found that newly disclosed information revealed an apparent contradiction in the CSIS affidavit regarding whether a target was actively seeking a gun.

This contradiction met the threshold to show the affiant may have failed to make full, frank, and fair disclosure.

The court ordered the CSIS source documents to be produced for judicial review to determine their relevance to the Garofoli application.

Following the dismissal of an urgent motion for injunctive relief and the stay of the action pending exhaustion of a statutory grievance procedure under the National Defence Act, the court addressed the issue of costs.

The plaintiff sought full solicitor-client costs, arguing that the judgment achieved a result more favourable than a prior settlement proposal.

The court rejected this argument, finding the plaintiff obtained no advantage from the judgment and had in fact lost certain protections offered during settlement negotiations.

The defendant sought partial indemnity costs calculated at 60 percent of counsel’s hourly rate for work responding to the motion.

The court found the request reasonable given the complexity of the issues and ordered the plaintiff to pay fixed costs of $26,404.73 inclusive of taxes and disbursements.

The applicants sought leave to cross‑examine a CSIS affiant in a Garofoli‑type challenge relating to warrants issued under the Canadian Security Intelligence Service Act in a terrorism prosecution.

They alleged material non‑disclosure and mischaracterization in the affidavit supporting the warrants, including contradictions in source material regarding an alleged attempt to acquire a firearm, the remuneration structure of a confidential source, the source’s alleged status as an agent, and the possibility of direct meetings between the source and one applicant.

Applying the threshold in R. v. Garofoli and R. v. Pires; R. v. Lising, the court held that cross‑examination is permitted only where it could undermine a statutory precondition for authorization.

The court found a sufficient factual foundation regarding a contradiction about attempts to obtain a gun, which could relate to the existence of reasonable grounds and the duty of full, fair, and frank disclosure.

Leave was granted on that issue but denied for the remaining proposed lines of questioning.

The plaintiff, a Captain in the Canadian Forces, brought a motion for an interlocutory injunction to prevent the military from requiring her to undergo a psychosocial assessment, and a civil action seeking damages for alleged Charter breaches.

The defendant argued the court lacked jurisdiction because the plaintiff had not exhausted the statutory grievance procedure under the National Defence Act.

The court agreed, finding the plaintiff's claims arose exclusively from her military employment and were a disguised grievance.

The court also dismissed the injunction motion, finding the plaintiff failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured her.

The action was stayed pending the exhaustion of the statutory grievance process.

The appellant appealed his convictions and sentence for sexually assaulting two minor complainants.

He argued the trial judge erred in assessing credibility under the W.(D.) framework and in refusing to allow his counsel to cross-examine the complainants on their victim impact statements at sentencing.

The Superior Court of Justice dismissed the conviction appeal, finding the trial judge's credibility findings were supported by the evidence and his reasons were sufficient for appellate review.

However, the court allowed the sentence appeal, holding that the trial judge erred by effectively denying defence counsel the opportunity to establish an 'air of reality' to justify cross-examining the complainants on their victim impact statements.

The matter was remitted for a fresh sentencing hearing.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for breach of non-competition and non-solicitation agreements.

The plaintiff opposed the motion, arguing it was premature as the defendants had failed to produce relevant documents and there were significant credibility issues between the key affiants.

The court agreed with the plaintiff, finding that the motion was premature and could not be disposed of without full discovery and the exchange of affidavits of documents.

The motion for summary judgment was stayed pending the completion of these steps.