D. E. Harris

The Crown appealed a trial judge's decision to stay a sexual abuse prosecution due to unreasonable delay under section 11(b) of the Charter.

The total delay slightly exceeded the 18-month Jordan ceiling.

The Crown argued that the defence's inability to accept short-notice earlier trial dates should be attributed as defence delay.

The Summary Conviction Appeal Court dismissed the appeal, finding no error in the trial judge's conclusion that the defence's unavailability on short notice did not constitute defence delay.

In the alternative, the court found that even if the delay fell just under the ceiling, it was markedly excessive due to significant disclosure delays and chronic institutional delays in the jurisdiction.

During the execution of a search warrant at a residence, the applicant, a Black man who was not the target of the warrant, was ordered to the ground and handcuffed by tactical officers pursuant to a general police policy.

He was subsequently arrested for drug possession by another officer who mistakenly believed he was already under arrest and who lacked objective reasonable grounds.

The applicant brought a motion to exclude the seized fentanyl under s. 24(2) of the Charter.

The court found flagrant violations of the applicant's s. 9 and s. 10(b) rights, noting the systemic issues and the heightened impact of the breaches on a racialized individual in his own home.

The evidence was excluded.

The plaintiff vendor brought a motion to amend her statement of claim to add a real estate agent, his brokerage, and an undisclosed third party as defendants in an aborted real estate transaction.

The original defendant purchaser alleged he was merely a front for the third party, orchestrated by the real estate agent.

The court granted the motion, finding that the proposed claim for negligent misrepresentation disclosed a reasonable cause of action against the real estate agent, who owed a prima facie duty of care to the vendor regarding the identity of the purchaser.

The respondent wife brought a motion under Rule 25(19)(e) of the Family Law Rules to set aside or stay a default divorce order.

She argued that granting the divorce would prejudice ongoing criminal proceedings in India against the applicant husband regarding dowry harassment.

The court dismissed the motion, finding that the wife had adequate notice of the divorce proceedings but failed to file an Answer.

Applying the test for setting aside default judgments, the court concluded there was no arguable defence on the merits and insufficient evidence that the divorce would prejudice the foreign criminal litigation.

During a first-degree murder trial, the defence sought to admit a text message sent by the accused to a police officer inquiring about his mother's life insurance policy.

The Crown opposed, arguing it was self-serving hearsay.

The court found that while the text was presumptively inadmissible hearsay, it should be admitted under the principled exception to the hearsay rule.

The court held that the statement's substantive reliability was corroborated by other evidence and that fairness to the accused required its admission to provide a complete picture of his statements regarding the insurance policy.

The accused, charged with first-degree murder, applied to re-open a pre-trial statement voir dire under section 551.3(4) of the Criminal Code.

The accused argued that fresh evidence showing he received pre-interview advice from a disbarred lawyer acting as a paralegal, rather than a licensed lawyer, undermined the original finding that his statement to police was voluntary and compliant with the Charter.

The court dismissed the application, holding that the fresh evidence could not have affected the original ruling, as the accused was not detained at the time and had explicitly declined to exercise his right to counsel even if he had been detained.

The self-represented accused applied for certiorari to quash an Ontario Court of Justice order that appointed counsel to cross-examine the complainant, appointed counsel for the complainant on a third-party records application, and authorized a witness to testify via Zoom.

The Superior Court dismissed the application, finding no jurisdictional error and emphasizing that extraordinary remedies should not be used to interfere with ongoing trial matters in the absence of truly exceptional circumstances.

The applicants, arrested in a large-scale police investigation, brought an abuse of process motion seeking a stay of proceedings due to systemic delays in holding their special bail hearings.

They argued that their section 11(e) Charter rights were violated, similar to the applicants in a previous case where a stay was granted.

The court found that while the applicants' rights were violated by the delays, the systemic problem in the jurisdiction had been largely rectified following the previous decision.

As the ongoing systemic delay had been addressed, a stay of proceedings was no longer necessary to protect the integrity of the justice system.

The application was dismissed, though the court noted the Charter violations could warrant a sentence reduction if the applicants are convicted.

The accused, charged with sexual assault and sexual interference, sought to exclude a DVD video from evidence at trial.

The DVD, which likely constituted child pornography, had been in the exclusive possession of the defence but was ordered turned over to the Crown pursuant to the ethical obligations of defence counsel regarding physical evidence of a crime.

The accused argued that allowing the Crown to use the DVD would violate his right against self-incrimination under sections 7 and 11(d) of the Charter.

The court dismissed the application, finding that the requirement to turn over the evidence was based on professional ethical obligations to maintain the integrity of the judicial system, not to assist in convicting the accused, and its use by the Crown would not render the trial unfair.

The Crown brought a pre-trial motion to admit expert evidence and the defence brought applications regarding jury selection, editing a co-accused's statement, and admitting third-party suspect evidence in a first-degree murder trial.

The court ruled that the accused, an Indo-Caribbean man, could ask the standard Parks question during jury selection.

The court admitted the Crown's expert evidence on bloodstain pattern analysis and handwriting, finding it necessary and reliable.

The court declined to heavily redact the co-accused's police statement, opting instead for limiting instructions.

Finally, the court admitted hearsay evidence implicating a third-party suspect under the state of mind exception and the principled approach to hearsay.

The plaintiff's wrongful dismissal action was dismissed on consent after it was determined that, as a unionized employee, his claims were governed by a collective agreement and could not be adjudicated in court.

The defendant sought substantial indemnity costs of $46,544.75.

The court found the requested costs excessive given the straightforward nature of the jurisdictional issue and the plaintiff's likely impecuniosity.

Costs were fixed at $10,000 all-inclusive.

The applicant sought bail pending his appeal of a sexual assault conviction and a 15-month sentence.

While the applicant met the criteria for showing the appeal was not frivolous and that he would surrender into custody, the court found his detention was necessary in the public interest.

The court noted the applicant's recent diagnoses of severe mental health issues and subsequent charges for attempted murder and assault while on bail.

The application for bail pending appeal was dismissed, but the court ordered the appeal hearing to be expedited.

The applicants brought an application and a motion for an injunction against their neighbours and the Town of Oakville regarding the construction of a retaining wall between their properties.

The applicants abandoned the injunction motion shortly before the hearing.

At the hearing of the application, the court found that the material facts regarding liability, encroachment, and damages were highly disputed and could not be resolved on a paper record.

The court dismissed the application and ordered the matter to proceed to trial.

The applicants were ordered to pay partial indemnity costs for the abandoned injunction motion.

The accused, charged with historical sexual offences against his son, brought a Mills application for the production of the complainant's counselling records.

The Crown brought a Seaboyer application to adduce evidence of sexual acts involving the complainant and his sister in the accused's presence.

The court dismissed the Mills application, finding the counselling records lacked detail and were not likely relevant.

The court granted the Seaboyer application, ruling that the sexual acts in the accused's presence constituted the subject matter of the charge and were not presumptively excluded under s. 276(2) of the Criminal Code.

The applicant moved to amend a previous Superior Court order that dismissed its action, seeking to add a clause stating the dismissal was without prejudice to a parallel Small Claims Court action.

The court found that the applicant had obtained a default judgment in Small Claims Court without notice to the respondent and failed to disclose this to the Superior Court judge who dismissed the action the following day.

The court dismissed the motion, finding no justification to interfere with the Small Claims Court process and noting that the requirements for amending an order under Rule 59.06 were not met.

The court also noted significant evidence suggesting the applicant was a fictional entity created by a declared vexatious litigant using aliases.

The applicant father brought an urgent motion seeking the return of his four-year-old daughter from India and an order for interim equal shared custody.

The respondent mother had unilaterally taken the child to India over a year prior and argued that returning during the COVID-19 pandemic posed a risk.

The court found the motion urgent, noting the unilateral removal was akin to abduction, and ordered the mother to return the child by December 31, 2020.

However, the court dismissed the father's request for interim equal custody, finding it incautious given the lengthy separation and the mother's allegations of abuse.

The applicant father applied to move the primary residence of the parties' two children from the respondent mother's home to his own.

The mother had unilaterally relocated with the children and the environment in her home was described as high-conflict and stressful.

Relying heavily on the investigation and evidence provided by the Office of the Children's Lawyer, which indicated the children preferred to live with their father and that the mother had engaged in coaching, the court found it was in the children's best interests to reside primarily with the father.

The application was allowed.

The mother brought an urgent motion for access and shared residency of the parties' 10-year-old daughter following their separation.

The mother had limited access to the child since leaving the matrimonial home, and alleged the father was alienating the child.

The father alleged the mother had substance abuse issues and that the child did not feel safe alone with her.

The court found the matter urgent and, noting no safety concerns justifying the mother's exclusion, ordered a graduated access schedule leading to overnight visits, while prohibiting both parents from using marijuana or non-prescription drugs while caring for the child.

The father brought an urgent motion for an order that the children live with him in the matrimonial home in Mississauga and attend the local school, after the mother unilaterally moved with the children to Maple and enrolled them in school there.

The court found the mother's move was a unilateral action designed to alter the status quo and was not a reasonable step required by the best interests of the children.

The father's motion was granted, ordering the children to be returned to Mississauga and enrolled in the local school.

The applicant husband brought a motion to supplant a previous consent order that established a process for valuing and buying out or selling the matrimonial home.

The court dismissed the motion, finding it was an unjustified attempt to alter a previous agreement.

The respondent wife generously agreed to allow the husband a second opportunity to obtain a proper valuation, which the court ordered to be completed by a set date.

Costs of $3,000 were awarded to the respondent wife.