Erdal Gok

During a criminal trial involving multiple accused, the Crown brought a Khelawon application to admit the out-of-court statements of two deceased witnesses for the truth of their contents under the principled exception to the hearsay rule.

The court found that the unsworn, audio-recorded telephone statement of a former neighbour lacked both procedural and substantive reliability and was inadmissible.

However, the court admitted the video-recorded statement of a deceased complainant, finding sufficient procedural safeguards and substantive reliability corroborated by other witnesses to overcome hearsay dangers.

During a trial for sexual offences, the defence sought to cross-examine a complainant on alleged prior inconsistent statements recorded in notes made by Family and Children's Services workers, pursuant to s. 11 of the Canada Evidence Act.

The Crown objected, arguing the notes were not verbatim statements.

The court ruled that the notes, being summaries written in the third person and not verified by the complainant, lacked the necessary reliability to be characterized as prior inconsistent statements under the Act.

The defence was permitted to cross-examine on the content of the interviews but could not use the notes as formal prior statements.

The children's aid society brought a status review application regarding a young child who had been placed in the temporary care of the maternal grandmother after the parents were found to have physically abused the child's half-sibling.

At trial, the society and the parents sought the return of the child to the parents' care subject to supervision, while the maternal grandmother sought custody.

The court found that the parents had made significant rehabilitative efforts and demonstrated appropriate parenting, whereas the maternal grandmother exhibited hypervigilance that risked alienating the child from the parents.

The court ordered the child returned to the parents subject to a six-month supervision order, finding it to be in the child's best interests.

The Crown sought a ruling on the admissibility of lay opinion evidence from a registered nurse and capacity assessor regarding the complainant's capacity to manage her personal care.

The accused opposed the admission, arguing it was irrelevant and potentially prejudicial.

The court applied the principles from Graat and ruled the evidence admissible, finding it relevant to the complainant's condition and helpful to the jury, subject to appropriate limiting instructions.

The Crown sought a ruling on the admissibility of proposed demonstrative aids, specifically aerial maps of Port Colborne with embedded photographs and property descriptors, for a lengthy trial involving multiple accused and sexual offences.

The accused objected to the necessity of the maps, the accuracy of Google Street View photos, and the prejudicial nature of certain descriptors.

The court allowed the use of the aerial maps with municipal addresses and commercial names, but excluded the embedded photographs and non-neutral descriptors to avoid clutter and potential prejudice.

The applicant accused brought a third party records application.

Following a decision releasing records to the Crown and the applicant, the court issued an addendum ordering that the records may also be released to counsel for the co-accused on the same terms.

The Crown brought an application to admit similar fact evidence in a sexual assault trial where the complainant allegedly lacked the capacity to consent due to intellectual disabilities.

The Crown sought to introduce evidence from another witness alleging the accused provided her with drugs before engaging in non-consensual sex.

The court dismissed the application, finding that the dissimilarities between the two scenarios outweighed the similarities, and the prejudicial effect of the evidence significantly outweighed its probative value.

The accused, charged with sexual assault, brought a Step One application under section 278 of the Criminal Code seeking the production of police occurrence reports relating to the complainant and 14 other proposed Crown witnesses.

The court found that the reports concerning the complainant were likely relevant to the key issue of her capacity to consent, given her developmental delay, and ordered their production to the court for review.

However, the application for reports relating to the other 14 witnesses was dismissed as the accused failed to establish an evidentiary foundation beyond mere speculation that the reports would contain information useful for impeachment.

The Children's Aid Society of the Niagara Region sought to continue a temporary care and custody order for the child L.H. due to ongoing concerns regarding parental drug abuse, the mother's untreated mental health issues, and inadequate care.

The respondent parents opposed this, requesting the child be placed in the father's care subject to Society supervision.

The court found compelling evidence of drug abuse by both parents, the father's interference with the mother's mental health treatment, and a lack of full disclosure by the parents regarding their living situation.

Applying the two-part test under the Child, Youth and Family Services Act, 2017, the court concluded that the child was at risk of harm and could not be adequately protected by a supervision order.

The Society's motion was granted, continuing the temporary care and custody order.