David G. Kirk

The offender, a Staff Sergeant with the Ontario Provincial Police, pleaded guilty to breaching the public trust under s. 122 of the Criminal Code for taking seized items (a beaded firearm strap and scope) and misleading colleagues for 11 months.

The items held significant sentimental and spiritual value for the Indigenous victim.

The defence sought a conditional discharge, citing the offender's public service, community support, and mental health struggles (PTSD and depression).

The Crown sought a suspended sentence and probation, arguing against a discharge.

The court denied the conditional discharge, emphasizing the need for denunciation and general deterrence in breach of trust cases involving police officers, particularly given the sustained deception and the impact on a vulnerable Indigenous victim.

A suspended sentence with 12 months probation and specific conditions was imposed.

The accused was charged with sexual assault following an encounter with the complainant in his truck.

The complainant passed away after testifying at the preliminary hearing, and her prior statements and testimony were admitted at trial.

The accused testified that the encounter was a consensual sex trade transaction and admitted to initially lying to police.

The court applied the W.(D.) framework to assess credibility and found that while the accused's evidence was largely rejected, material inconsistencies in the complainant's hearsay evidence, without the benefit of viva voce testimony, left the court with a reasonable doubt.

The accused was acquitted.

The accused, Mallorie Makara, a night staff member at a residential care facility, was charged under Section 215(2)(b) of the Criminal Code for failing to provide the necessaries of life to Rhonda McClenaghan, a severely disabled resident who drowned in a bathtub.

The Crown alleged that Makara's conduct, specifically leaving the resident unattended, constituted a marked departure from the standard of care.

The defence argued that leaving residents to soak was a common practice, even verbally directed by a primary support worker, and that Makara's actions did not meet the high threshold of a marked departure required for criminal fault.

The court found that while the actus reus of the offence was proven, the Crown failed to prove beyond a reasonable doubt that Makara's conduct represented a marked departure from the conduct of a reasonable caregiver in the same circumstances, leading to an acquittal.

The self-represented appellant, an OPCA litigant, was convicted of failing to appear in court.

During his trial, the judge excluded him from the courtroom twice due to his obstructionist and pseudo-legal behaviour, invoking s. 650(2)(a) of the Criminal Code.

After the Crown closed its case, the trial judge immediately proceeded to find the appellant guilty without offering him the opportunity to make full answer and defence under s. 650(3).

On appeal, the Superior Court found that while the exclusion was justified, the failure to offer the appellant the opportunity to present a defence constituted a miscarriage of justice.

The conviction was quashed and a new trial ordered.

This sentencing decision addresses three co-accused, James Bolan, Jarrett Jocko, and Gilbert Ryan Wilson, who pleaded guilty to aggravated assault and unlawful entry into a dwelling house.

The victim sustained severe, life-altering injuries from a premeditated and violent vigilante attack.

The court considered aggravating factors, including the extreme violence and premeditation, and mitigating factors such as guilty pleas, expressions of remorse, pre-sentence custody, and the impact of COVID-19 lockdowns (Duncan factors).

Gladue principles were applied for the Indigenous offenders, Bolan and Jocko.

The court rejected the defence's request for time served, imposing a global sentence of 7 years imprisonment for aggravated assault and 1 year concurrent for unlawful entry, with credit for pre-sentence custody.

Ancillary orders included DNA orders, lifetime firearms prohibitions (with sustenance hunting exception for Indigenous offenders), and no-contact orders with the victim and a co-accused.

Postmedia Network Inc. sought a declaration that a publication ban, imposed during a 2017 bail hearing for a sexual assault charge, applied only to the victim and not to a testifying mental health worker (B.M.) who was later identified in a newspaper article and subsequently sued Postmedia.

Alternatively, Postmedia sought to quash the ban via certiorari, arguing the court lacked jurisdiction to impose a mandatory ban on adult witnesses.

The Crown opposed, arguing improper collateral attack and lack of standing due to oblique motives and delay.

The court found Postmedia had standing, the application was not an improper collateral attack, and interpreted s. 486.4 of the Criminal Code to mean that mandatory publication bans apply only to victims of all ages and witnesses under 18 years.

The application was allowed, and a declaration issued that the ban applied only to the victim.

The offender was sentenced for multiple counts of sexual interference, invitation to sexual touching, and sexual exploitation involving three minor children.

The offender, who was a parent to the children, abused his position of trust over a significant period of time.

Applying the principles from R. v. Friesen, the court emphasized denunciation and deterrence, balancing the profound harm caused to the victims against the offender's guilty pleas and tragic background.

A global sentence of 4 years imprisonment was imposed, along with mandatory ancillary orders and a 10-year section 161 prohibition order.

The accused pleaded guilty to firearms and drug trafficking offences after shooting and killing an assailant who attempted to rob him during a drug deal.

The Crown sought a sentence of eight to nine years, while the accused sought five years.

The court found that the shooting constituted lawful self-defence under s. 34(1) of the Criminal Code and therefore could not be used as an aggravating factor in sentencing.

The court imposed a global sentence of six years in custody, emphasizing denunciation and deterrence for the firearms and drug offences while acknowledging the accused's youth and rehabilitative prospects.

The applicant, charged with first-degree murder, applied for judicial interim release.

The Crown opposed release on the primary, secondary, and tertiary grounds.

The court found no basis for detention on the primary or secondary grounds, noting the applicant's lack of criminal record and proposed house arrest plan.

However, applying the factors from R. v. St-Cloud, the court concluded detention was necessary on the tertiary ground to maintain public confidence in the administration of justice, given the overwhelming strength of the Crown's case, the gravity of the offence, and the execution-style use of a firearm.

The applicant sought a bail review under s. 520 of the Criminal Code after being detained on charges of possession for the purpose of trafficking and breach of recognizance.

The applicant argued that his new ability to secure GPS electronic monitoring constituted a material change in circumstances.

The Superior Court of Justice dismissed the application, finding that electronic monitoring does not address the tertiary ground for detention and merely monitors rather than prevents non-compliance, thus failing to meet the test for a material change in circumstances under R. v. St. Cloud.

Ernest McKinnon was convicted of sexual assault, unlawful confinement, voyeurism, and a lesser included sexual assault, along with two counts of breach of recognizance.

This decision outlines the sentencing, considering aggravating factors such as breach of trust in a common-law relationship, the degrading nature of the acts, and severe victim impact, against mitigating factors including the offender's age, lack of related criminal record, and expressed remorse.

The court emphasized deterrence and denunciation as primary sentencing principles for sexual assault.

A global sentence of four years incarceration was imposed for the main offences, with concurrent sentences for related counts, and time served plus one day for the breach of recognizance charges.

Ancillary orders included a DNA order, SOIRA order for life, and a lifetime firearms prohibition.

The accused was charged with sexual assault, unlawful confinement, voyeurism, assault, and sexual assault with a weapon.

The trial judge found the accused guilty of sexual assault (Count 1), unlawful confinement (Count 2), and voyeurism (Count 3).

Count 4 (assault) was stayed as the act constituted sexual assault, which was not an included offence to assault simpliciter.

For Count 5 (sexual assault with a weapon), the accused was found not guilty of the weapon charge but guilty of the lesser included offence of sexual assault, as the black marker used was not deemed a "weapon" under the Criminal Code due to lack of intent to injure or actual injury.

The court assessed consent, credibility, and the "air of reality" test for mistaken belief in consent, ultimately preferring the complainant's evidence.

Criminal trial on six historical sexual offence charges arising from allegations by a complainant against her stepfather over a lengthy period from childhood into adulthood.

The case turned entirely on the complainant's evidence, as the accused called no evidence.

The court identified both indicia of truthfulness and multiple serious credibility and plausibility concerns, including inconsistencies, aspects of the narrative that defied logic, and circumstances said to strain belief.

Applying the criminal standard of proof, the court held the evidence did not establish guilt beyond a reasonable doubt and entered acquittals on all counts.

The accused, a professional engineer, was charged with criminal negligence causing death and bodily harm following the partial collapse of the Algo Centre Mall roof parking deck, which killed two people and injured another.

The Crown alleged the accused failed to properly inspect the mall and identify severe corrosion of the steel structure caused by decades of water infiltration.

The court found the accused's engineering work was shoddy and inadequate, but concluded the Crown failed to prove beyond a reasonable doubt that his conduct constituted a marked and substantial departure from the standard of a reasonable engineer, given expert evidence that other professionals had also missed the severity of the corrosion.

The accused was acquitted.

The offender, an indigenous man with no prior criminal record, was convicted of sexual assault and unlawful confinement after attempting to force sexual contact with the victim in a change room.

The Crown sought a two-year less a day jail sentence, while the offender sought a six-month conditional sentence.

The court weighed the aggravating factors of the violent nature of the assault and its emotional impact on the victim against the mitigating factors, including the offender's Gladue factors, lack of criminal record, and community support.

The court concluded that a conditional sentence would not adequately address the need for denunciation and general deterrence, sentencing the offender to six months in jail followed by three years of probation.

The applicant, Trevor William Zachary, sought certiorari to quash a fraud charge (Count 2) on an 18-count indictment following a preliminary inquiry.

He argued the preliminary inquiry judge erred by committing him to trial without evidence of deceit, falsehood, or other fraudulent means, failing to properly test the evidence against the elements of fraud, and not considering all relevant evidence.

The Superior Court found that the preliminary inquiry judge did not commit jurisdictional error.

It determined there was sufficient evidence to establish the actus reus and mens rea of fraud under the "other fraudulent means" category, specifically that the applicant, as a City employee, used his position to book ice time for himself at reduced or zero rates, thereby depriving the City of revenue or putting its economic interests at risk.

The application for certiorari was dismissed.

Criminal trial concerning possession of child pornography and making child pornography available through a peer-to-peer file-sharing program.

The court relied on circumstantial evidence from user accounts, internet search history, encryption activity, and timing evidence to infer that the accused exercised knowledge and control over child pornography stored on the computer, proving possession under s. 163.1(4) of the Criminal Code.

However, the court was not satisfied beyond a reasonable doubt that the accused intended to make the material available to others, or had the necessary knowledge of that sharing function to satisfy s. 163.1(3).

The accused was convicted on possession and acquitted on making available.

The accused pleaded guilty to making available child pornography contrary to section 163.1(3) of the Criminal Code.

The sentencing hearing spanned multiple dates over three years and involved contested applications by the accused seeking a stay of proceedings.

The accused challenged the Crown's election to proceed by indictment and its pursuit of a sentence exceeding the mandatory minimum, arguing abuse of process and Charter violations.

The court dismissed all applications for stay, finding no Charter breaches or abuse of process.

The court imposed a sentence of 12 months imprisonment (the mandatory minimum) with credit for time served at 1.5 days per day, followed by 15 months probation, and mandatory ancillary orders including DNA, forfeiture, and SOIRA registration.

The accused was tried on multiple historical sexual offence counts involving two complainants.

On the counts involving one complainant, the court applied the W.(D.) framework and held that the accused's evidence, though problematic, raised a reasonable doubt on both non-consent and whether he occupied a position of trust or authority under s. 153 of the Criminal Code.

On the counts involving the second complainant, the court accepted the complainant's evidence, rejected the accused's account as implausible, and found the Crown had proved sexual assault and forcible confinement beyond a reasonable doubt.

The accused was acquitted on counts #1, #2 and #3 and convicted on counts #4 and #5.

The accused applied under s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence obtained through a police investigation into alleged child pornography offences.

Police obtained subscriber information from an internet service provider through a Law Enforcement Request without prior judicial authorization and subsequently obtained a search warrant for the accused’s residence and computer devices.

The court held that obtaining subscriber information without prior judicial authorization constituted a breach of s. 8 of the Charter under the principles later articulated in R. v. Spencer.

However, applying the framework in R. v. Grant, the court admitted the evidence because the police acted in good faith under pre‑Spencer practices and the evidence was essential to adjudicating serious charges on their merits.

The court also rejected the accused’s challenge to the Information to Obtain, finding that an error regarding peer ID numbers was inadvertent and immaterial and that the warrant was otherwise supported by reasonable and probable grounds.