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.

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 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.

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.

The defendant was charged with impaired driving and driving with a blood-alcohol concentration exceeding the legal limit on January 6, 2012.

The trial was scheduled for April 3, 2013, approximately 15 months after the charges were laid.

The defendant brought a Charter section 11(b) application seeking a stay of proceedings on the grounds of unreasonable delay.

The court analyzed the delay using the framework established in R. v. Morin, considering the overall length of delay, reasons for the delay, prejudice to the accused, and societal interests.

The court found that while approximately 4.5 months of delay were attributable to Crown conduct and institutional factors contributed significantly, the total justiciable delay of approximately 9.75 months fell within acceptable parameters when balanced against the seriousness of the offences and minimal actual prejudice suffered by the defendant.

The application was dismissed.

The appellants appealed from the Court of Appeal's reversal of the CCAA court's decision regarding the priority of pension plan wind-up deficiency claims over court-ordered DIP financing charges.

The majority held that wind-up deficiencies under s. 75(1)(b) of the Pension Benefits Act were subject to a statutory deemed trust under s. 57(4), but that the deemed trust was superseded by the DIP charge by virtue of the doctrine of federal paramountcy.

The majority further held that while the employer-administrator breached its fiduciary duty by failing to ensure the pension plan beneficiaries had adequate notice and representation in the CCAA proceedings, a constructive trust was not an appropriate remedy because the breach did not result in an identifiable asset that it would be unjust for the wrongdoer to retain.