Ernest J. Guiste

The applicant, charged with importing cocaine after a secondary inspection at the airport, brought an application for third party records seeking CBSA training materials on racial profiling.

She alleged that her referral to secondary inspection was based on racial profiling because she is Black and was travelling from Jamaica.

The court applied the O'Connor test and found that the applicant failed to establish that the requested records were likely to be relevant.

The court held that there was no direct or circumstantial evidence of racial profiling, as travelling from a drug source country was only one of several objective indicators used by the CBSA officer.

The application was dismissed.

The appellant appealed his conviction for assault with a weapon and assault, alleging ineffective assistance of counsel based on a conflict of interest, failure to interview/review disclosure, denial of the right to testify, failure to challenge a search, and inadequate cross-examination.

The court found the appellant's fresh evidence regarding his lack of awareness of counsel's role to be incredible and untruthful.

The appeal was dismissed, as the court found no factual basis for the ineffective assistance claim, no improper conflict of interest, that the decision not to testify was made by the appellant based on counsel's reasonable advice, and that the tactical decision not to challenge the search was reasonable.

The appellant appealed his convictions for multiple offences relating to an armed home invasion robbery.

He argued that the trial judge erred in finding sufficient evidence of identity, misapprehended evidence, and erred in law by reversing the burden of proof.

The Court of Appeal found that the trial judge reasonably inferred identity from circumstantial evidence, including the doctrine of recent possession, and did not misapprehend material evidence or misapply the W.(D.) framework.

The appeal was dismissed.

The defendant was charged with assaulting his wife.

The trial proceeded over multiple dates with significant issues arising regarding defence counsel's conduct.

The defence counsel failed to meet minimum standards of competence, including incomplete motions, confusing disclosure requests, repetitious and irrelevant questioning, inattentiveness to evidence, incivility, inadequate review of disclosure materials, and an inappropriate allegation of prosecutorial misconduct.

The defence counsel closed his case prematurely without calling all intended witnesses and was unable to answer simple questions from the bench.

The judge declared a mistrial due to the defendant's lack of effective assistance from counsel and referred the matter to the Law Society.

Following dismissal of a malicious prosecution action for delay and the subsequent dismissal of a motion to set aside the registrar’s order, the court addressed costs.

The responding police defendants sought partial indemnity costs and reduced their request due to the moving party’s limited financial means.

The moving party argued that costs should not be awarded on public policy and access to justice grounds, relying on authorities where unsuccessful litigants were spared costs to avoid discouraging public interest litigation.

The court distinguished those authorities because the action had not been adjudicated on its merits but had been dismissed for delay and failure to comply with procedural rules.

Costs were awarded in a reduced amount payable within six months.

The applicant sought judicial review of two Human Rights Tribunal of Ontario decisions dismissing his complaints against his former employer, the TTC, and his union.

The TTC complaint was dismissed because the applicant had previously signed a settlement agreement releasing all claims, and the union complaint was dismissed for having no reasonable prospect of success due to a lack of particulars.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's procedures were fair and its decisions were reasonable.

During the hearing of an application for judicial review, the applicant's counsel requested an adjournment and leave to file additional evidence towards the end of his submissions.

The opposing counsel objected, noting they had never seen the document.

The Divisional Court denied the requests, finding it totally inappropriate to raise the issue at the end of submissions when the application had been commenced over a year prior and listed for hearing for over nine months.

The applicant, a Justice of the Peace, sought judicial review of a decision by the Justices of the Peace Review Council regarding his inappropriate conduct.

The Divisional Court dismissed the application primarily due to an unexplained 18-month delay in bringing the proceeding.

The court also considered the merits, finding no procedural unfairness in the complaint or investigation process, and rejecting the applicant's claim of ineffective counsel, noting there is no right to effective counsel in civil proceedings.

The appellant appealed his conviction for possession of crack cocaine for the purpose of trafficking, arguing the trial judge failed to properly consider his s. 15 Charter violation and racial profiling allegations.

The Court of Appeal dismissed the appeal, noting the appellant had not sought a specific Charter remedy at trial.

Furthermore, the trial judge's rejection of the racial profiling claim was based on credibility findings that were open to her on the evidence.

Following the dismissal of his appeal regarding the enforcement of a settlement, the appellant sought to be relieved from paying costs, claiming impecuniosity.

The Divisional Court rejected this argument, finding the appellant failed to provide sufficient evidence of his financial situation.

The court noted the appellant had $30,000 in settlement funds held in trust, which could satisfy the costs award.

Costs were fixed at $5,000 payable to the respondent police services board out of the trust funds.

Sentencing decision following guilty pleas to aggravated assault, assault with a weapon, and impaired driving.

The offender attacked a victim outside a bar with a machete, striking her in the head and causing a serious laceration and long-term psychological harm, before threatening others inside the bar.

The court considered the violent and unprovoked nature of the assault, the use of a weapon, and the significant impact on the victim as aggravating factors.

Mitigating factors included the offender’s guilty plea, lack of prior violent record, advanced age, long-standing physical and mental health issues, and compliance with strict bail conditions.

The court imposed a penitentiary sentence reflecting denunciation and deterrence while accounting for pre-trial custody credit.

The personal respondent requested a reconsideration of a Tribunal decision that found against him and the corporate respondent for sexual harassment and reprisal.

He argued he did not receive notice of the hearing.

The Tribunal denied the request, finding that the respondent had received fair warning that failing to respond could result in the Tribunal proceeding without notice, and that he had failed to update his address with the Tribunal.

The Tribunal also found no conflict with established jurisprudence or procedure.

The appellant appealed an order enforcing a settlement agreement reached by his former counsel with the respondent police board.

The appellant argued the motion judge erred in law by failing to consider her discretion to continue the proceeding under Rule 49.09(b) and erred in fact by ignoring his evidence.

The Divisional Court dismissed the appeal, finding the motion judge properly exercised her discretion to enforce the settlement, as the former counsel had ostensible authority to settle and the appellant's remedy for any allegedly negligent legal advice lay against his former counsel, not the respondents.

The applicant sought judicial review of four decisions of the Human Rights Tribunal of Ontario, which had dismissed his complaint of disability discrimination against his former employer and union.

The Divisional Court upheld the Tribunal's decisions, finding it reasonable to bar re-litigation of facts decided by the Ontario Labour Relations Board, rejecting allegations of bias, and finding no denial of procedural fairness in refusing late document production.

The Court also found the Tribunal reasonably concluded that the applicant's termination was based on misconduct, not disability.

During a criminal trial for sexual offences, the Crown sought to admit a video‑recorded police statement given by the accused.

After a blended voir dire, the court found the statement voluntary but concluded that the accused’s right to counsel under s. 10(b) of the Charter had been infringed because police failed to adequately address obvious language difficulties during the arrest and interview process.

The court held that the officers should have inquired further into the accused’s English comprehension and offered interpreter assistance to ensure meaningful exercise of the right to counsel.

Applying the framework in R. v. Grant, the court determined that admission of the statement would bring the administration of justice into disrepute.

The statement was therefore excluded under s. 24(2) of the Charter.

The applicant applied under s. 684 of the Criminal Code for state-funded legal assistance to appeal his conviction for possession of cocaine for the purpose of trafficking.

He argued the trial judge failed to properly consider circumstantial evidence of racial profiling and erred by not drawing an adverse inference from the Crown's failure to call a passenger as a witness.

The Court of Appeal dismissed the application, finding the proposed appeal lacked merit as it merely sought to revisit the trial judge's credibility findings, and noted that no Charter application to exclude evidence had been made at trial.

Following the dismissal of a civil action alleging racial and gender discrimination in a police investigation, the defendants sought costs.

Although the plaintiff subjectively believed he had been discriminated against and evidence revealed negligent and substandard police record-keeping, the court had found no discriminatory motive.

The plaintiff argued he was impecunious and sought costs in his favour due to the public importance of the issues.

The court rejected the claim of impecuniosity and applied the principles under Rule 57 and the guidance in Boucher to determine the appropriate award.

Costs were awarded to the defendants in the reduced amount of $120,000 all-inclusive.

The applicant filed human rights applications against her former employer and union alleging discrimination on the basis of age and disability.

The applicant had previously settled a grievance regarding her termination, signing minutes of settlement and a release that resolved all employment matters and withdrew her human rights complaint.

The applicant argued the settlement was signed under duress and was a charade.

The Tribunal held that allowing the applications to proceed would be an abuse of process, as the settlement fully addressed the human rights issues and there was no factual foundation to support the claim of duress or discriminatory conduct by the union in reaching the settlement.

The applications were dismissed.

The plaintiff brought an action for malicious prosecution, negligent investigation, and breaches of sections 7 and 15 of the Charter against the defendant police services board and individual officers.

The claims arose from the plaintiff's arrest and detention for domestic assault and uttering death threats.

The plaintiff alleged that the police failed to properly investigate by not seeking his version of events and discriminated against him based on race and gender, noting that his spouse was not ultimately prosecuted despite admitting to striking him first.

The Superior Court of Justice dismissed the action, finding that the police had reasonable and probable grounds to arrest and charge the plaintiff.

The court held that the police's failure to interview the plaintiff was dictated by his Charter rights to silence and counsel, and that the different treatment of the parties was based on the evidence of the plaintiff's escalating violence, not discriminatory motives.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his discrimination complaint against his employer and union to the Human Rights Tribunal.

He alleged a denial of natural justice because the Commission failed to interview certain witnesses and consider evidence of systemic discrimination.

The Divisional Court dismissed the application, finding no breach of procedural fairness as the un-interviewed witnesses lacked direct knowledge, and holding that the Commission's conclusion of insufficient evidence of discrimination was reasonable given the applicant's objective test scores.