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, 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.

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.

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.

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.

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 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.

The Crown brought an application during a sentencing hearing seeking access to the raw psychological data and assessment materials prepared by Dr. Paul Valliant, a defence expert witness.

The accused opposed the application, arguing the Crown should serve a subpoena duces tecum directly on the witness.

The court held that while the Crown is entitled to access the foundational materials underlying expert opinions to enable effective cross-examination, the defence should serve as the intermediary to obtain and produce these materials to the Crown, rather than the Crown serving a subpoena directly on the defence witness.

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

During the sentencing hearing, the defence sought to qualify a forensic clinical psychologist, Dr. P. Valliant, as an expert witness to provide opinion evidence on the accused's psychological assessment and risk to re-offend.

The Crown objected, citing concerns about potential Charter arguments and the timing of the expert evidence.

The court conducted a voir dire to determine the expert's qualification.

The judge ruled that Dr. Valliant satisfied the requirements for expert qualification and was admissible to provide opinion evidence on psychological assessment and risk assessment in the sentencing context.

The accused was charged with five offences arising from an incident on March 8, 2012: two counts of aggravated assault against his mother and her boyfriend, one count of resisting arrest, and two counts of breach of probation.

The central issue was the credibility of the mother's testimony, which changed dramatically between her testimony as a Crown witness and her testimony as a defence witness.

The Crown's evidence established that the accused assaulted both victims.

The defence argued that the mother's injuries were caused by the boyfriend slapping her, resulting in her falling against furniture.

The court rejected the mother's defence testimony as internally inconsistent, contradicted by her own earlier statements, and incongruent with physical and forensic evidence.

The court found the accused guilty of aggravated assault against his mother, assault causing bodily harm against the boyfriend, resisting arrest, and both counts of breach of probation.

The court ruled on the admissibility of hearsay evidence consisting of statements made by the victim to first responders immediately following an alleged assault.

The victim's statements were made to paramedics, firefighters, and police officers at the scene and were offered to prove the truth of their contents.

The court admitted the statements under both the classical res gestae exception to the hearsay rule and the principled approach based on necessity and reliability.

The victim testified at trial but could not recall the events, making the hearsay statements necessary to establish what occurred.

The accused was convicted of uttering threats against the mayor of Sault Ste.

Marie under section 264.1(1)(a) of the Criminal Code and breach of recognizance for failing to report to a bail program.

The accused spent 160 days in pre-trial detention.

The court imposed a sentence of six months imprisonment on the threatening charge and one month consecutive on the breach charge, but credited seven months of pre-trial detention, resulting in time served.

The court imposed a three-year probation order with conditions including staying away from the mayor and City Hall, and a ten-year weapons prohibition.

The accused brought an application for recusal and declaration of mistrial, alleging that the trial judge's questioning of the complainant (the accused's mother) during trial created a reasonable apprehension of bias.

The judge questioned the witness after examination by both counsel to clarify a narrative gap in her testimony regarding an assault.

The court dismissed the application, finding that the judicial intervention did not meet the high threshold for reasonable apprehension of bias.

The questioning was limited, occurred after counsel had completed their examination, sought clarification of prior testimony, and did not demonstrate excessive intervention or departure from accepted judicial conduct.