Eric D. McCooeye

The accused, charged with sexual assault, brought an application under s. 276.2 of the Criminal Code seeking permission to cross-examine the complainant about prior interactions and alleged sexual activity between them.

The defence argued the evidence was relevant to the defence of honest but mistaken belief in consent and necessary to explain the accused’s state of mind.

The court held that certain prior interactions, including cuddling and holding, the complainant placing the accused’s hand on her breast, and the complainant sending a nude photograph, were admissible because they were relevant and their probative value outweighed the prejudicial effect under s. 276(2).

However, the accused was not permitted to cross-examine the complainant about her alleged statement that she had been raped by her ex-husband.

The application was therefore granted in part.

The mother brought a motion seeking recusal of the trial judge on grounds of perceived bias.

The judge had previously presided over a summary judgment motion where she determined the children were in need of protection and could not be placed in the mother's full-time care and custody.

The mother argued that the judge's prior findings and exposure to inadmissible evidence would cloud her judgment on the remaining issue of access.

The court dismissed the motion, finding no cogent evidence of actual bias or reasonable apprehension of bias.

The judge emphasized that findings regarding full-time parenting capacity were distinct from determinations regarding access rights.

The applicant father sought joint custody and unsupervised access to his child born in 2005.

The respondent mother opposed the claim and sought sole custody.

Following allegations of sexual abuse made by the child in August 2010 (which were not substantiated by police or Children's Aid Society), the mother sought to restrict access to supervised visits.

The court found that the allegations did not meet the threshold of reliability and that the father's credibility was compromised by inconsistent contact with the child, minimization of serious family issues, and involvement with the Children's Aid Society regarding physical discipline concerns.

The court ordered continued supervised access rather than the unsupervised access sought by the father.

The appellant appealed his sentence, introducing a Gladue report as fresh evidence to provide context regarding his Aboriginal background.

The Court of Appeal considered the fresh evidence and the appellant's rehabilitative efforts but found no error in principle in the trial judge's reasons.

The trial judge had already rejected a penitentiary sentence in favour of a reformatory sentence with probation.

The Court of Appeal dismissed the appeal, concluding the sentence was fit and fully reflected the principles mandated by Gladue and Ipeelee.

The accused was charged with assault with a weapon under section 267(a) of the Criminal Code for spraying the complainant in the face with bear spray.

The accused did not deny the spraying but argued the court should reject the complainant's evidence and find a reasonable doubt.

The court found the essential elements of the offence were proven beyond a reasonable doubt.

While there were weaknesses in the complainant's evidence, they were not so serious as to warrant complete rejection.

The accused's testimony was equally or more incredible.

The court found the accused had sprayed the complainant in the facial area, bear spray constitutes a weapon, and the accused's possession of a prohibited weapon was not adequately explained.

The accused was found guilty.

The applicant mother sought to amend her claim in a custody application from joint custody of her adult son (age 18) to sole custody, with paternal access subject to the child's wishes.

The respondent father opposed the amendment, arguing the court lacked jurisdiction to make custody orders for adult children under section 18(2) of the Children's Law Reform Act, which limits the definition of "child" to minors.

The court granted the amendment, holding that section 18(2) does not preclude custody orders for adult children and that such orders are necessary and desirable in practical circumstances where adult children remain dependent on their parents.

The Children's Aid Society of Algoma brought a motion for summary judgment seeking a finding that four children were in need of protection and that their mother was not an appropriate caregiver.

The mother had an extensive history with the Society spanning decades, including her own childhood as a Crown Ward, and demonstrated persistent inability to provide adequate supervision, maintain stable housing, manage substance abuse and mental health issues, and exercise appropriate parenting judgment.

The court found that the children were in need of protection under the Child and Family Services Act and that the mother could not be placed in full-time care of the children, though supervised access would continue.

A child protection case involving two children, V. (age 4.5) and J. (age 3.5), apprehended on March 3, 2009.

The Children's Aid Society sought Crown wardship without access for adoption purposes.

The mother sought return of the children with a supervision order; the father supported the mother's position but sought ongoing access.

The court found both children in need of protection under section 37(2)(b) of the Child and Family Services Act based on risk of physical harm due to parental neglect, inadequate care, poor supervision, and unsafe living conditions.

After a 16-day trial, the court ordered Crown wardship without access for both children, finding that return to the mother would create substantial to overwhelming risk of harm and that adoption was in the children's best interests.

This case involves two motions concerning temporary care and custody of four children apprehended by the Children's Aid Society of Algoma.

The Society sought temporary care and custody in its favour; the father sought placement of the children with himself or alternatively unsupervised liberal paternal access.

The court found that the Society failed to meet the statutory two-part test under section 51(3) of the Child and Family Services Act with respect to three of the four children.

The court was particularly critical of the warrantless apprehension of two older children, finding insufficient reasonable and probable grounds for their apprehension.

The court ordered the return of three children to their father's care and deferred determination regarding the youngest child pending further evidence on kinship placement options.

A mother sought an order placing her two-year-old child in her care and custody during a status review proceeding under the Child and Family Services Act, or alternatively, sought to specify the details of her access (frequency, duration, location, and level of supervision).

The child had been in the care of the Children's Aid Society for over 18 months following apprehension due to protection concerns.

The court dismissed both the motion for interim care and custody and the motion for interim variation of the existing access order, finding that the mother failed to satisfy her evidentiary burden to demonstrate material changes in circumstances warranting a change from the status quo.

The court emphasized the importance of continuity of care for the young child and noted concerns regarding the mother's unresolved drug use, lack of stable housing, financial means, and childcare arrangements.

The Children's Aid Society of Algoma brought a motion seeking temporary care and custody of an eight-year-old child, along with orders for maternal and paternal access.

The child had been apprehended approximately three months prior due to concerns regarding malnutrition, poor hygiene, inadequate dental care, and general neglect.

The mother opposed the society's claims and sought return of the child to her care.

The father supported the society's custody claim but sought progressive paternal access.

The court granted the society's claim for temporary care and custody, finding reasonable grounds to believe the child would suffer harm if returned to the mother's care and that the mother had failed to adequately address identified problems despite months of intervention.

However, the court dismissed the society's claims for both maternal and paternal access orders, finding insufficient evidence that such orders would be in the child's best interests.

The court addressed multiple interim motions in a family law proceeding involving two children.

The mother sought interim custody of one child, child support for both children, section 7 expenses, and restraining orders.

The father sought to amend his answer to include a restraining order claim.

The court dismissed all restraining order claims due to insufficient evidence and lack of proper service.

The court declined to grant interim sole custody, finding the status quo acceptable pending final hearing.

The court granted interim child support of $664 per month based on the Child Support Guidelines, effective March 1, 2012, recognizing that both children now reside primarily with the mother.

The court deferred decisions on retroactive support and section 7 expenses pending final hearing with better evidence.

The Children's Aid Society of Algoma brought a motion seeking an interim order placing a child in the temporary care and custody of the mother under Society supervision, subject to specified terms and conditions.

The central issue was whether the mother's resumption of alcohol consumption posed a risk to the child.

The court found that given the mother's extensive history of substance abuse, criminal convictions, parole violations, and recent incidents of impaired driving and poor judgment while consuming alcohol, the consumption of alcohol by the mother posed a risk of harm to the child.

The court ordered that the child remain in the mother's care subject to conditions including a prohibition on alcohol consumption while the child was in her care.

The Provincial Director suspended the young person's conditional supervision after he breached his curfew condition by staying out three and a half hours late on the day after his release from custody.

The case was referred to the Youth Justice Court for review.

The court found that the breach was not serious and did not increase the risk to public safety, noting the young person's difficult family circumstances and his voluntary return and reporting.

The court cancelled the suspension and ordered the young person to serve the balance of his sentence in the community.

The offender pleaded guilty to sexual interference and sexual assault involving a 17‑year‑old who sought spiritual healing from him.

The offender, a respected cultural leader and pipe carrier within the Ojibway community, exploited a position of trust by persuading the complainant that sexual touching was part of a healing ritual.

The court considered significant aggravating factors including the victim’s age, the abuse of authority, and a prior conviction for sexual assault.

Mitigating factors included a guilty plea, remorse, deteriorating health, and extensive Gladue factors detailing systemic and personal hardships experienced by the Indigenous offender.

Balancing denunciation and deterrence with the offender’s background, the court imposed a custodial sentence followed by probation and ancillary orders.

The appellant appealed her sentence for offences involving the exploitation of young teenage girls.

The trial judge had rejected a joint submission, imposing a sentence that emphasized denunciation and deterrence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to give greater weight to those principles given the serious nature of capitalizing on the sale of children's sexual services.

The appellant appealed the dismissal of his application for a declaration of paternity and access to a child.

The trial judge had dismissed both the appellant's application and a cross-application by another man, finding the evidence of all parties highly unreliable and noting the mother's refusal to permit DNA testing.

The Court of Appeal dismissed the appeal, holding that the trial judge's adverse inferences regarding the DNA refusal were reasonable, the reasons for rejecting the appellant's credibility were clear from the record, and any error regarding privileged CAS records would not have affected the outcome.

The appellant appealed his conviction for assault and the resulting conditional sentence.

He argued the trial judge should have found implied consent to the assault.

The Court of Appeal dismissed the conviction appeal, finding the complainant was moving away when pushed and did not consent to a fight.

On the sentence appeal, the Court declined to impose a discharge but varied the sentence from a conditional sentence to a suspended sentence with probation, which was stayed as the conditional sentence had already been served.

The appellant appealed his total sentence of 43 months imprisonment for two sets of offences, including impaired driving and driving while disqualified.

The appellant had a lengthy record with eight prior convictions for drinking and driving.

The Court of Appeal upheld the global sentence as fit but found the sentencing judge erred in denying two-for-one credit for pre-sentence custody due to an adjournment requested by the appellant's counsel.

The appeal was allowed in part to reduce the sentence on the second impaired driving charge by 1.5 months to reflect the proper pre-sentence custody credit.

The appellant appealed his sentence, arguing the trial judge misapprehended the allocation of pre-trial custody.

The Crown conceded the error.

The Court of Appeal allowed the appeal in part, reducing the sentence of imprisonment to time served.

The appeal was otherwise dismissed, with the court upholding the restitution and probation orders, finding the trial judge made no error in principle regarding the appellant's ability to pay.