Darrell L. Brown

In a sexual assault trial, the defence sought an order compelling the complainant to provide contact information for her partner and mother, arguing it was necessary to investigate the complainant's truthfulness regarding her disclosures to them.

The Crown argued the evidence was irrelevant under the collateral facts rule.

The court dismissed the application, finding the information collateral to the main issue of the sexual assault and primarily related to credibility on a minor point.

The court also noted the defence had ample opportunity for a pre-trial motion for third-party disclosure.

The Crown brought a pre-trial motion seeking an order to compel the defence to file a s. 278.3 application for the production of third-party records of the complainant in an upcoming sexual assault trial.

The Crown argued that such an application should be brought before trial to avoid delays and ensure an orderly proceeding.

The court dismissed the motion, finding that compelling the defence to bring a specific application could conflict with counsel's instructions or tactical assessments and would be an inappropriate exercise of judicial trial management powers, potentially compromising the judge's impartiality.

The court emphasized that while judges have broad trial management powers to ensure timely and fair proceedings, these powers do not extend to dictating a party's strategic decisions or compelling them to take specific procedural steps.

J.R., charged with sexual assault, brought a disclosure motion seeking various communications between the Crown and the complainant/counsel, the Victim Witness Assistant Program (VWAP), and details regarding the storage and destruction of J.R.'s DNA sample from a previous, unrelated case.

The defence argued these materials were relevant to the admissibility of extrinsic sexual activity, the similar fact witness's knowledge, and potential Crown misconduct.

The court dismissed the motion, finding the requested communications irrelevant to the evidence and the DNA sample issue unrelated to the current case.

The court also determined that the defence's claim of Crown misconduct was speculative and not supported by evidence of an abuse of process, thus not warranting the broad disclosure sought.

The Crown sought to admit similar fact evidence from a prior sexual assault allegation (F.J.) against the accused (J.R.) in his current trial for sexual assault (D.F-H.).

The defence argued the evidence was inadmissible due to issue estoppel, abuse of process, or failure to meet the orthodox test for similar fact evidence.

The court found that a prior stay of proceedings for delay (s. 11(b) Charter) on the F.J. charges did not constitute a determination on the merits, thus issue estoppel and abuse of process did not apply.

The court further found that the F.J. evidence met the test for admissibility as similar fact evidence, demonstrating sufficient similarities in context and method, and that any prejudice was minimized in a judge-alone trial.

The Crown's application was allowed.

The accused, C.T., charged with sexual assault, brought a pre-trial motion for directions seeking a ruling that photos and videos in his possession, taken in close temporal proximity to the alleged assault, fall outside the protections of section 276 (evidence of other sexual activity) and section 278.91 (private records) of the Criminal Code.

The court ruled that the materials were exempt from sections 276 and 278.92-94, finding they did not constitute 'sexual activity' under section 276 or 'private records' under section 278.91, as they were integrally connected to the alleged assault and the complainant had no reasonable expectation of privacy in them.

The court also addressed the procedure for such motions, including complainant participation and disclosure to the Crown, and declined to issue an order restricting the Crown from discussing the motion's contents with the complainant.

The Children's Aid Society brought a motion for summary judgment in a status review application concerning a child who had been in care for nearly four years following apprehension due to physical and sexual abuse.

The child's mother sought to have the child returned to her care, but was in an ongoing intimate relationship with the man who had previously abused the child.

The court granted the Society's motion and ordered that the child remain in extended society care with access to the mother and siblings, finding that the mother's continued relationship with the abuser presented an ongoing risk to the child and that she had not demonstrated sufficient insight into the protection concerns.

Following conviction for sexual assault and sexual interference arising from historic sexual touching of a six-year-old child by a trusted family member, the court determined a fit sentence.

The defence argued for a conditional sentence and raised Charter issues concerning the applicable minimum punishment under s. 11(i), while the Crown sought a custodial term and a stay of the sexual assault count.

The court held that denunciation and general deterrence predominated in sentencing sexual offences against children, particularly where there was a breach of trust and significant victim impact.

A conditional sentence was found inappropriate, the sexual assault conviction was stayed, and a custodial sentence of six months less a day followed by two years' probation was imposed, together with ancillary orders.

The accused, charged with firearms and drug offences, brought pre-trial applications challenging the constitutional validity of a search warrant executed at their residence.

The warrant was based primarily on information from a confidential informant.

As part of the Garofoli procedure, the accused sought leave to cross-examine the affiant of the Information to Obtain (ITO) the search warrant on various alleged misstatements, omissions, and unsubstantiated claims.

The court granted leave to cross-examine on limited grounds, including the affiant's failure to maintain a proper investigative file, a specific reference to a police occurrence report, and the basis for the night entry request.

Leave was denied for the remaining proposed areas of cross-examination as they were deemed irrelevant or unlikely to elicit testimony discrediting the preconditions for the warrant's issuance.

In a historical child sexual abuse prosecution involving two complainants from the same family, the court assessed reliability concerns arising from delayed disclosure, childhood memory, inconsistencies, and an alleged family falling-out said to support collusion.

Applying the W. (D.) framework and principles governing children's evidence, the court rejected the accused's evidence and found that one complainant's detailed account bore sufficient indicia of reliability despite inconsistencies attributable to age and the passage of time.

The court found reasonable doubt on the counts relating to the second complainant, including on intent and whether the brief over-clothing contact was sexual in nature.

Convictions were entered on two counts and acquittals on two counts.

The accused was charged with multiple firearm offences after police executed a search warrant at his apartment and found a semi-automatic rifle, ammunition, and a tactical vest.

The accused, who was the sole tenant but in a drug rehab program at the time of the search, denied knowledge of the items.

The court rejected the accused's evidence as not credible, relying on his incriminating statements to police and the lack of any rational alternative explanation.

The court found the accused guilty of four counts, concluding the only rational inference was that he had knowledge and control of the items.

The accused was charged with "excess alcohol" following a motor vehicle stop.

The accused brought Charter applications seeking exclusion of breath sample evidence on grounds of violations of sections 8, 10(a), and 10(b) of the Charter.

The court found that the police had reasonable suspicion to demand an approved screening device test and that the ASD was working properly.

However, the court found a serious breach of section 10(b) rights regarding the right to counsel of choice.

The police called duty counsel before attempting to facilitate contact with the accused's preferred counsel, waited only one minute before placing the accused on the phone with duty counsel, and provided misleading information about efforts to contact counsel of choice.

The court excluded the breath sample evidence under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute due to the serious and systemic nature of the breach.

The applicants sought disclosure of handler's notes, investigative plans, and payment records relating to a confidential informant used in obtaining a search warrant.

The Crown opposed the disclosure, arguing the request was a fishing expedition.

The court held that while the handler's notes do not normally form part of the investigative file when the handler is not the affiant, the applicants met the "reasonable possibility" or "reasonable likelihood" test for disclosure.

The court found that on the face of the Information to Obtain, reasonable questions arose as to whether the claimed confidential informant was actually a police agent, which is a material issue on a Garofoli application.

The court ordered disclosure of the handler's notes subject to claims of blanket confidential informant privilege or editing, but declined to order disclosure of investigative plans.

The Crown brought a pre-trial motion to qualify three police officers as expert witnesses in a prosecution for cocaine importation and money laundering.

The court applied the Mohan and Abbey tests for admissibility.

The court admitted the general opinion evidence of the money laundering expert, excluding portions relating to methods not alleged against the accused.

The court fully admitted the evidence of the cocaine trafficking expert, including opinions on pricing and cell phone use.

However, the court excluded the proposed evidence regarding Mexican drug cartels, finding it irrelevant to the charges and highly prejudicial as bad character evidence.

The accused brought a pretrial motion for a stay of proceedings, alleging a breach of their s. 11(b) Charter right to be tried within a reasonable time.

The total delay from the date of the charge to the anticipated end of the trial was 35 months, exceeding the 30-month presumptive ceiling established in Jordan.

The court found that the Crown successfully rebutted the presumption of unreasonableness by demonstrating that the matter was a "particularly complex case" involving extensive wiretap evidence, multiple accused, and voluminous disclosure.

The court concluded that the Crown had a reasonable plan to manage the complexity and dismissed the application for a stay.

The Ontario Nurses Association (ONA) brought a motion under the CCAA seeking an order to restructure the Victorian Order of Nurses for Canada (VON Canada) pension plan.

The ONA proposed transferring assets and liabilities related to VON Ontario employees into a new pension plan and sought a declaration that VON Ontario was not jointly and severally liable for any pension deficits.

The court dismissed the motion, finding that the ONA's proposal did not advance the CCAA's policy objectives of fostering going concern restructuring and avoiding liquidation.

The court also applied the business judgment rule, deferring to VON Canada's board decision to maintain the status quo, and deemed the request for a declaration on future liabilities premature and speculative.

The accused was charged with sexual assault contrary to Section 271 of the Criminal Code for alleged incidents occurring during a house party.

The complainant testified that she woke twice to unwanted sexual touching by the accused while she was in bed with another woman.

The accused testified that he dozed off in the bed and denied all allegations.

The court found the accused not guilty, determining that the Crown had not discharged its burden of proving guilt beyond a reasonable doubt based on credibility issues with the complainant's testimony, corroborating evidence from a third party in the bed, and inconsistencies in the complainant's account.

In CCAA proceedings involving several affiliated corporate applicants, the monitor sought court approval of a settlement resolving competing priority claims over estate funds among pension plans, a U.S. bankruptcy trustee, secured lenders, and other creditors.

The settlement provided for partial distributions to pension beneficiaries and retired executives, with the remaining funds payable to the U.S. trustee for the bankruptcy estates of related U.S. debtors.

The court held the settlement was a reasonable and proportionate resolution that avoided costly and protracted litigation over competing statutory deemed trusts and secured claims.

A related motion by the pension plan administrator sought amendment of the salaried pension plan to implement the settlement distribution scheme.

Relying on its broad discretionary authority under s. 11 of the Companies’ Creditors Arrangement Act, the court ordered the amendment where notice had been given and no affected party objected.

The applicant brought a motion under s. 490(15) of the Criminal Code seeking access to two videos seized by police during the Project Traveller investigation.

The applicant argued access was necessary to protect his reputation and obtain legal advice regarding potential civil remedies, as media coverage linked him to the alleged recording of a controversial video involving a public official.

The court held that although the applicant had a potential legal interest in the seized material, he failed to establish that access to the videos was necessary to advance that interest in a concrete way.

The court emphasized that s. 490(15) requires both a legal interest in the seized item and necessity of access to advance that interest.

Balancing these considerations and the risks of disclosure relating to ongoing prosecutions and public sensitivity, the court refused access.

The defendant was charged with impaired driving following a traffic stop in Toronto.

Police observed the defendant driving at excessive speed in a residential zone, making a rolling stop, and exhibiting signs such as bloodshot eyes and an odour of alcohol.

Upon exiting his vehicle, the defendant appeared to have difficulty.

However, video recordings of the defendant at the police station approximately 20 minutes after arrest showed no signs of impairment.

The court found that while the Crown established the defendant had consumed alcohol, the totality of the evidence did not prove beyond a reasonable doubt that his ability to drive was impaired.

The defendant was acquitted.

The defendant was charged with two offences: having care and control of a motor vehicle while impaired by alcohol, and refusing to comply with a lawful demand to provide breath samples.

The Crown proved that the defendant was intoxicated and that police had reasonable and probable grounds to demand a breath sample following a single-vehicle collision.

The defendant claimed insufficient evidence of care and control and argued his injuries provided a reasonable excuse for refusing the breath demand.

The court found reasonable doubt regarding the impaired charge but convicted on the refusal charge, finding the defendant's injuries did not provide a reasonable excuse and that his conduct in the breath room demonstrated his refusal was not medically motivated.