Eric D. McCooeye

The Crown brought an application to admit similar fact evidence from multiple complainants in a sexual assault trial involving charges against the accused relating to his biological daughter, stepdaughter, and a childhood acquaintance.

The Crown sought to have evidence from two complainants admitted across all counts on the indictment, arguing high probative value regarding actus reus, rebuttal of implausibility, motive to fabricate, and negation of innocent association defences.

The defence opposed the application, arguing the facts were strikingly dissimilar and that prejudicial effect outweighed probative value.

The court dismissed the application, finding that the alleged facts did not meet the threshold for similar fact evidence and that each offence must be considered separately.

The accused was charged with 14 counts of sexual offences and assault involving three complainants: his biological daughter M.B., his stepdaughter R.B., and a childhood friend of M.B., S.C. The trial involved allegations spanning from 2007 to 2020.

The court found the accused guilty on 10 counts involving M.B. and R.B., including sexual interference, sexual assault, incest, invitation to sexual touching, assault, and uttering threats.

The court acquitted the accused on 4 counts involving S.C., finding irreconcilable inconsistencies between the evidence of S.C. and M.B. regarding the incidents alleged.

The court found M.B. to be credible and reliable on the allegations involving M.B. and R.B., but found the contradictions between S.C. and M.B.'s accounts of the incidents involving S.C. to be material and unresolvable, preventing the Crown from meeting the beyond reasonable doubt standard on those counts.

A youth offender convicted of attempted murder, aggravated assault, and sexual assault sought a sentence review under section 94 of the Youth Criminal Justice Act.

The offender had been sentenced to 30 days credit for time served, 11 months secure custody, 12 months open custody, and 12 months community supervision.

After approximately three months in youth custody, the offender was transferred to an adult facility when his application to remain in youth custody was denied.

The court found that serving the remainder of the sentence in adult custody would effectively impose a harsher sentence than originally imposed, contrary to the principles of youth criminal justice.

The court converted the remainder of the sentence to community supervision with conditions including house arrest for approximately nine months, followed by conditional supervision with relaxed mobility restrictions.

This decision concerns the youth sentencing of J.S., who was found guilty of attempted murder, aggravated assault, and sexual assault after a jury trial.

The Crown's application to sentence J.S. as an adult was previously dismissed.

The court applied the principles of the Youth Criminal Justice Act (YCJA), emphasizing accountability, rehabilitation, and reintegration, while also considering the diminished moral blameworthiness of youth.

Aggravating factors included intimate partner violence, use of a weapon, unprovoked attack, victim vulnerability, serious injuries, and the offender leaving the victim to die.

Mitigating factors included no prior record and a pro-social life.

The court imposed a blended youth sentence, balancing denunciation and deterrence with rehabilitation, resulting in secure custody, open custody, and community supervision.

The offender, J.D., pleaded guilty to two counts of sexual touching of a person under 16 and two counts of breach of probation.

The court addressed the outstanding issue of whether to impose a Sex Offender Information Registration Act (SOIRA) order, following recent legislative amendments.

Applying the new s. 490.012(3) of the Criminal Code, which places the onus on the offender to demonstrate that a SOIRA order is unwarranted, the court considered the seriousness of the offences against a vulnerable 13-year-old victim, the offender's lengthy criminal history (though not for sexual offences), and the lack of expert evidence on recidivism risk or specific programming for sexual offending.

The court found the risk of recidivism to be significant and was not convinced that the criteria for exemption were met.

Consequently, a 10-year SOIRA order was imposed.

The Children's Aid Society of Algoma brought an application regarding the child F.R.D. The respondent father, J.C., brought a motion for access to the child, which was opposed by the Society, the mother (C.D.), and Michipicoten First Nation.

The court dismissed the father's motion for access, finding that his extensive criminal history, including sexual offenses against his own children and the mother, and his lack of insight, meant that granting access was not in the child's best interests, despite the principle of maximum contact.

The offender, Michael Morris, was sentenced for sexual assault of a 14-year-old complainant.

The court considered the paramount sentencing principles of deterrence and denunciation for sexual offences against children, as guided by the Criminal Code and Supreme Court jurisprudence (R. v. Friesen).

Aggravating factors included the victim's age, multiple incidents, and a significant breach of trust due to the offender's close relationship with the victim's family.

Mitigating factors were limited to a largely unrelated criminal record.

The court imposed a five-year custodial sentence, less pre-trial custody credit, along with various ancillary orders.

A voir dire was held to determine the voluntariness of an exculpatory statement made by the accused, Michael James Morris, to police.

The Crown sought to use the statement for cross-examination if the accused testified at his upcoming trial for sexual assault and related offences.

The accused alleged that a police officer induced his statement by implying he would be able to go home and see his son if he cooperated.

The court assessed the credibility of the accused and the police officer, finding the accused's testimony unconvincing and preferring the officer's account.

The court concluded that the statement was voluntary beyond a reasonable doubt and admissible for cross-examination.

The Children's Aid Society of Algoma sought summary judgment in a child protection matter, requesting a finding of need for protection, deemed custody for the mother, and supervised access for the father.

The mother consented to the Society's proposals.

The father agreed to the protection finding and custody for the mother but contested the requirement for supervised access to default to a supervised access centre.

The court granted the Society's motion, finding the child in need of protection, awarding custody to the mother, and ordering supervised access for the father with the contested default provision, citing the history of domestic violence and the father's probation.

The accused was charged with sexual assault after allegedly anally penetrating the complainant while the complainant was asleep and highly intoxicated.

The complainant had travelled to meet a woman from an online dating app, became heavily intoxicated, and fell asleep in her bed.

The accused, a friend of the woman, entered the home and engaged in sexual acts with the complainant.

The court rejected the accused's claim of communicated consent, finding the complainant lacked capacity to consent due to intoxication and sleep, and that the accused was reckless or wilfully blind to this lack of capacity.

The accused was found guilty.

The Children's Aid Society of Algoma brought a motion under section 98 of the Child, Youth and Family Services Act for a psychosexual assessment of the respondent father, A.L.-S., due to his history of sexual assault convictions and concerns about risk to the child.

The maternal grandmother supported the motion, while the father opposed it, arguing it was unnecessary, invasive, and infringed his Charter rights.

The court dismissed the motion, finding that the Society failed to demonstrate the assessment was "necessary" as required by section 98, noting that the father's criminal record was already before the court and his insight could be tested via cross-examination.

The court also expressed uncertainty about the assessment's methodology, particularly the reliance solely on phallometric testing, and its relevance given the existing evidence.

The accused was charged with multiple offences, including attempted murder, aggravated assault, and robbery, following a violent home invasion committed by two masked men.

While one assailant pled guilty, the identity of the second assailant was at issue.

The Crown's case against the accused was entirely circumstantial, relying on the testimony of unreliable witnesses and lacking any forensic evidence linking the accused to the crime scene.

The defence advanced a viable alternate suspect theory pointing to the victim's son, who had motive and opportunity.

Applying the Villaroman test for circumstantial evidence, the court found that the evidence did not lead to an inescapable inference of guilt and acquitted the accused on all counts.

During a criminal trial for a home invasion and assault, the Crown brought an application on a voir dire to admit the videotaped police statement of an unavailable witness under the principled exception to the hearsay rule.

The witness, who was initially arrested for the offences against his father, could not be located to testify.

The court found the necessity criterion was met but concluded the statement lacked threshold reliability.

Given the witness's animus toward the victim and his motive to fabricate while under arrest, the absence of an oath and contemporaneous cross-examination posed significant limitations on assessing the statement's truthfulness.

The application was dismissed.

The appellant, G.C., appealed a lower court's dismissal of his appeal from a summary judgment motion that found his children in need of protection due to a risk of sexual harm by him under the Child, Youth and Family Services Act, 2017.

The primary issue on appeal was whether the summary judgment procedure was suitable given the significant consequences and the appellant's inability to cross-examine affiants.

The Court of Appeal dismissed the appeal, affirming that the motion judge and appeal judge correctly applied the summary judgment test in child protection cases, including the principles from Kawartha-Haliburton, and properly weighed the evidence.

The appellant father appealed a summary judgment decision finding that his three children were in need of protection due to a risk of sexual harm.

The father argued that the motion judge applied the wrong test for summary judgment, failed to apply the principles for child protection cases set out in Kawartha, and erred in admitting and weighing evidence.

The Superior Court of Justice dismissed the appeal, finding that the motion judge correctly applied the summary judgment test, properly considered the children's Indigenous status and best interests, and made no palpable and overriding errors in his credibility assessments or evidentiary rulings.

Supplementary reasons following a status review application under the Child, Youth and Family Services Act involving three children.

The court determined placement and access for the middle child (J., age 14).

The court ordered that J. be placed in the care and custody of his maternal grandmother, subject to a seven-month supervision order, rather than remaining in foster care or being returned to his mother.

The court found the grandmother was not a source of risk of harm despite the society's objections.

The court also granted J. access to his mother and grandmother as access holder, with specific terms and conditions.

The decision addresses the balance between protection concerns and the statutory purposes of maintaining family relationships and cultural continuity.

Supplementary reasons following a status review application under the Child, Youth and Family Services Act concerning three children in the care of the Children's Aid Society of Algoma.

These reasons address the placement and access determinations for the youngest child, P., who was placed in extended society care.

The court considered statutory provisions governing access for children in extended society care and determined that access orders should be made in the child's best interests, applying a holistic analysis that considers the child's wishes, relationships, and overall circumstances rather than applying a blanket policy approach.

Supplementary reasons following a status review application under the Child, Youth and Family Services Act concerning three children in the care of the Children's Aid Society of Algoma.

These reasons address the placement and access arrangements for the child M., a 16-year-old girl.

The court determined that placement with the maternal grandmother was appropriate, subject to a nine-month supervision order with tailored conditions.

The court rejected the Society's concerns regarding the grandmother's suitability as a caregiver and granted M. access to her mother as the access holder, with conditions permitting both supervised and unsupervised contact.

The decision emphasizes the statutory obligation to consider placement with relatives and the importance of respecting a mature minor's wishes and best interests.

The accused applied for release from custody under a section 525 bail detention review.

He had been detained on secondary grounds and proposed a release plan without a surety, relying on community services and his own good intentions.

The court found the plan insufficient to address the secondary ground concerns given the accused's lengthy criminal record and history of breaching court orders.

The application for release was dismissed.

The Crown brought an application seeking an order pursuant to section 714.1 of the Criminal Code to permit three police constables to testify remotely by video-link from the Sault Ste.

Marie police station rather than in person at trial.

The accused opposed the application, arguing that in-person testimony was essential given the nature of the charges involving direct physical and verbal interaction between the officers and the accused.

The court granted the application, finding that the video-link technology would not impair the accused's right to a fair trial, that the officers' status as front-line workers exposed to COVID-19 presented a legitimate safety concern, and that suitable safeguards could be implemented to preserve the integrity of the proceedings.