Evelyn J. Baxter

The accused was charged with sexual assault following an incident where he and the complainant consumed significant amounts of alcohol.

The complainant awoke naked with no memory of the sexual activity, and DNA evidence confirmed the accused's involvement.

The court found that the complainant was incapacitated by severe intoxication and incapable of consenting, relying on circumstantial evidence including CCTV footage showing her deteriorating motor skills and her immediate distress upon waking.

The accused was found guilty.

The accused was tried on summary conviction charges of sexual assault and sexual exploitation involving a child complainant during a sleepover in a family context.

The trial judge applied the W. (D.) framework and the reasonable doubt standard, finding the complainant generally credible in the sense that she believed her account, but not sufficiently reliable to ground conviction given inconsistencies, delayed disclosure, and competing evidence about the sleeping arrangements and subsequent conduct.

The accused's explanation that any contact may have arisen while moving the child from a couch to a mattress was found plausible when considered with the whole of the evidence.

The Crown failed to prove guilt beyond a reasonable doubt, and the accused was acquitted.

The accused pleaded guilty to sexual assault contrary to section 271 of the Criminal Code.

The Crown sought a reformatory sentence of two years less one day with ancillary orders.

The defence sought a conditional sentence of two years less one day.

The court imposed a conditional sentence of two years less one day, followed by 18 months probation, considering the accused's significant Gladue factors, intellectual and mental health challenges, youth, lack of criminal record, and participation in Mental Health Court, balanced against the seriousness of the offence and the vulnerability of the Indigenous victim.

This decision addresses the acquittal of Cadence Kakepetum on a charge of aggravated assault under s. 268 of the Criminal Code.

The court analyzed conflicting witness testimony, including that of a reluctant civilian witness, a co-accused youth who pled guilty, and an intoxicated bystander, alongside forensic evidence such as blood spatter and CCTV footage.

Applying the three-prong test from R. v. W.D. and considering the guidance from R. v. Hoohing and R. v. J.D., the court found reasonable doubt as to Ms. Kakepetum’s participation in the assault.

The forensic evidence and video corroborated her version of events, while the credibility of other witnesses was undermined by inconsistencies, intoxication, and self-serving testimony.

The accused was therefore acquitted.

The Anishinaabe Abinooji Family Services (AAFS) brought a motion for temporary care and custody of a 12-year-old Indigenous child, M.P., who was apprehended after threatening self-harm if forced to return to the care of Traci Lockman, a non-Indigenous former caregiver.

The child's biological father, N.J., and the G.N. First Nation (GNFN) supported the AAFS's position to place M.P. with her elder sister, S.P., in the First Nation community.

Ms. Lockman sought the child's return to her care.

The court applied the Child, Youth and Family Services Act, 2017 (CYFSA) and the paramount federal An Act Respecting the First Nations, Inuit and Metis Children Youth and Families (Federal Act).

The court found that AAFS discharged its onus, establishing reasonable and probable grounds of risk of harm if the child returned to Ms. Lockman.

Emphasizing the Federal Act's priority of placement scheme and the child's best interests, including cultural continuity and connection to the Indigenous community, the court determined that S.P., as an adult family member, had priority over Ms. Lockman, who was not considered family by the First Nation or the father.

The court dismissed Ms. Lockman's request and ordered M.P. to remain in the temporary care and custody of S.P. under AAFS and GNFN supervision, with structured access for Ms. Lockman.

This motion concerned the temporary care and custody of an Indigenous child, J.M. Tikinagan Child and Family Services (TCFS) sought to place the child with J.L., with access to the mother, R.M. Former caregivers S.C. and J.V. brought a cross-motion for the child's placement with them.

The court applied the Child, Youth and Family Services Act, 2017 (CYFSA) and the An Act Respecting First Nations, Inuit and Metis Children, Youth and Families (Federal Act), emphasizing the best interests of the child and the priority of placement for Indigenous children.

The court found TCFS discharged its onus, citing concerns about S.C. and J.V.'s care, their interference with access, and their lack of support for reunification and cultural continuity.

The court dismissed S.C. and J.V.'s motion and ordered the child's temporary care and custody with J.L., with supervised access to the mother, supporting reunification efforts.

Rhett Wrightsell pleaded guilty to three counts of possession of narcotics for the purpose of trafficking (fentanyl, cocaine, and methamphetamine).

The court considered aggravating factors, including the significant amount of fentanyl (cut with benzodiazepine), the multiple substances, the danger posed to hotel staff, and the impact on the Kenora community, particularly vulnerable Indigenous populations.

Mitigating factors included the offender's youth, lack of criminal record, early guilty plea, rehabilitative steps, and strong family support.

The Crown sought a 7-year penitentiary sentence, while the defense sought 5 years.

The court imposed a total sentence of 5.5 years in the penitentiary, with concurrent sentences for the cocaine and methamphetamine counts, emphasizing general and specific deterrence for fentanyl trafficking.

The applicant child protection society sought a finding that the children were in need of protection under ss. 74(2)(h) and 74(2)(i) of the Child, Youth and Family Services Act, 2017, due to parental mental health, substance use, neglect of medical needs, and unsanitary home conditions.

The respondent mother opposed the application.

The court found the children were not in need of protection under the pleaded grounds of emotional harm but found them in need of protection under ss. 74(2)(b)(i) and (ii) due to the parents' failure to adequately care for, provide for, supervise, or protect the children, and a pattern of such behavior, particularly concerning unsanitary living conditions and exposure to adult conflict.

This decision addresses a voir dire application by the Kenora-Rainy River Districts Child and Family Services to admit out-of-court utterances made by two young children (ages 7 and 5) in a child protection proceeding.

The court applied the principled exception to the hearsay rule from R. v. Khan, assessing both necessity and threshold reliability.

The court found that requiring the children to testify would cause emotional harm, satisfying necessity.

It admitted statements made to child protection workers due to their training, contemporaneous notes, and lack of fabrication motive.

However, statements reported by the children's grandmother were deemed inadmissible due to reliability concerns.

The court also admitted the "voice of the children" memo from the Office of the Children's Lawyer, but cautioned against counsel acting as a witness and recommended best practices for future interviews.

Joshua Normand pleaded guilty to mischief, criminal harassment, possession of a loaded restricted firearm, and unsafe storage of a firearm, stemming from a tumultuous domestic relationship.

The court considered aggravating factors, including the domestic context, the dangerous use of loaded firearms in a public place, and the significant trauma inflicted on the victims.

Mitigating factors included Normand's Indigenous heritage (Gladue factors), his guilty plea, and his efforts towards rehabilitation while in custody.

The court also addressed a "Duncan application" for enhanced credit for exceptionally harsh pre-sentence custody conditions, granting some additional credit beyond the standard Summers credit, but denying credit for general COVID-19 impacts.

The final sentence was 4 years of custody, reduced by time served, followed by a 3-year probation period with strict conditions.

Lee Mosley was convicted of four criminal offenses, including pointing a firearm, possessing a weapon contrary to a s. 109 prohibition order, failing to comply with a release order, and unauthorized weapon possession.

The charges stemmed from an incident where Mosley brandished a handgun at two unarmed men attempting to retrieve stolen tires from his property.

The court considered aggravating factors such as the use of a real firearm, the existing prohibition order, and the threat posed to public safety, alongside mitigating factors like the absence of prior firearms convictions and a history of trauma.

The pre-sentence report indicated a lack of insight and remorse.

The court imposed a total sentence of three years imprisonment, emphasizing denunciation and deterrence for firearms offenses, while rejecting the Crown's request for 4.5 years as disproportionate given the specific facts and the accused's record.

The applicant father brought a motion to find the respondent mother in contempt of court for wilfully disobeying a final order regarding parenting time and an interim court order.

The mother repeatedly failed to return the child, citing misinterpretations of COVID-19 health guidelines, despite negative tests and police intervention.

The court found the mother in contempt, satisfying the test beyond a reasonable doubt, noting her deliberate actions and disregard for court orders.

Despite the finding, no jail time or fines were imposed due to the mother's medical conditions and existing child protection prohibitions on her parenting time.

The court amended the parenting order, granting primary residence to the father and restricting the mother's contact and future litigation without leave.

This sentencing decision concerns H.T., an Anishnaabe-ikwe, found guilty of three counts of simple assault and one count of mischief under $5000, arising from an intimate partner relationship.

The court considered extensive Gladue factors, including intergenerational trauma from residential schools, child welfare system involvement, sexual exploitation, and substance abuse, which significantly diminished her moral culpability.

Despite the Crown seeking incarceration, the court granted conditional discharges with probation, emphasizing H.T.'s significant rehabilitative efforts, sobriety, and commitment to parenting.

The decision highlights the importance of rehabilitation and restraint in sentencing Aboriginal offenders, particularly when systemic factors have contributed to their circumstances.

The father brought a motion to change a 2017 parenting order concerning a young child.

He argued that a material change in circumstances had occurred due to employment changes, relocation back to the child’s community, the birth of the child’s sibling, and the mother’s unilateral restriction of parenting time.

The court found a material change had occurred and held that the child’s best interests required a more stable and balanced parenting schedule.

The court rejected the father’s request for a two‑week rotating schedule but implemented a week‑about shared parenting arrangement and replaced the earlier order.

The court also recalculated child support arrears and set a payment plan while maintaining joint decision‑making responsibility.

The accused, Arthur R.C. Rule, pleaded guilty to accessing and possessing child pornography.

The Crown sought a custodial sentence of 18 to 24 months, while the defence sought a conditional sentence, arguing extraordinary personal and medical circumstances and bringing a constitutional challenge to the sentencing provisions.

The court reviewed the extensive collection of child pornography, the accused's background, medical conditions, and the impact on victims.

Applying the principles of sentencing and recent jurisprudence, particularly R. v. Friesen, the court found that a conditional sentence was not available and would offend the proportionality principle.

A custodial sentence of 22 months was imposed, followed by a 3-year probation order with strict conditions, including internet monitoring and restrictions on contact with minors.