Faye E. McWatt

The appellant, B.P. (YOA), appealed convictions for sexual assault, sexual interference, and invitation to sexual touching.

The appeal focused on the trial judge's errors regarding the admissibility and reliability of the complainant's hearsay statement, the weight given to the complainant's mother's evidence despite misidentification, the failure to properly analyze the appellant's evidence against the burden of proof, and impermissible speculation about the complainant's knowledge of sexual activity.

The Superior Court of Justice found multiple errors in the trial judge's approach to hearsay reliability, assessment of witness credibility, and application of the burden of proof.

The appeal was granted, convictions quashed, and a new trial ordered.

The appellant appealed his conviction and sentence for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appeal was based on three grounds: the trial judge's reliance on inadmissible evidence, an error in finding an unequivocal refusal, and an error in finding the incident was not a "single transaction." The Superior Court dismissed the appeal, finding that the entire video evidence was admissible as it was tendered without limitation, the trial judge's finding of an unequivocal refusal was supported by evidence and entitled to deference, and the appellant's late inquiry about providing a sample did not constitute an unequivocal offer or part of a "single transaction" to mitigate the initial refusal.

The applicants, three police officers charged with sexual assault, sought to vary a sealing order to prohibit publication of information from an Information to Obtain (ITO) DNA warrants, arguing it was necessary to preserve trial fairness and prevent witness tainting and stigmatization.

The Crown supported the ban for consistency with a prior publication ban on conflict motion materials.

The media respondents opposed the ban.

The court dismissed the application, finding the applicants failed to provide sufficient evidence to meet the Dagenais/Mentuck test for a publication ban, which requires demonstrating a serious risk to the proper administration of justice that cannot be prevented by alternative measures, and that the salutary effects outweigh the deleterious effects on freedom of expression and public right to know.

The court emphasized the presumptive openness of warrant materials and the public interest in the investigation of police officers.

The applicant sought to challenge the constitutionality of s. 674 of the Criminal Code, arguing it violated her Charter rights by barring an appeal of a dismissed directed verdict application after her first trial ended in a mistrial.

However, prior to the hearing of the constitutional application, the Crown withdrew all charges against the applicant.

The court dismissed the application, holding that it lacked jurisdiction to hear a freestanding Charter challenge once the underlying criminal charges had been withdrawn.

The applicant brought a Charter motion under sections 8 and 24(2) to quash a search telewarrant and exclude evidence seized from his residence.

The warrant was based on information from a confidential informant.

After applying the Step Six procedure from Garafoli to review redacted portions of the Information to Obtain, the court assessed the informant's tips based on their compelling nature, credibility, and police corroboration.

The court found the information sufficient to justify the warrant.

The court also dismissed the applicant's argument that the police improperly used a telewarrant, finding that personal attendance before a justice was impracticable under the circumstances.

The application was dismissed.

The appellant appealed his summary conviction for assault causing bodily harm, arguing the verdict was unreasonable, the trial judge's reasons were inadequate, and the judge erred in finding his version of events did not afford a defence.

The Superior Court of Justice dismissed the appeal, finding the trial judge's credibility assessments and rejection of the appellant's exculpatory statement were logical and supported by the evidence.

The court held that the trial judge's reasons were sufficient and did not misapprehend the evidence regarding the appellant's involvement in the swarming.

The appellant appealed his convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80.

He argued that his statement to police and the officer's observations of the smell of alcohol were inadmissible under section 7 of the Charter, as he was statutorily compelled to report the accident under the Highway Traffic Act.

The Superior Court of Justice dismissed the appeal, finding that the officer's observations were not conscriptive evidence and that the appellant failed to establish an honest and reasonably held belief that he was required by law to make the statement.

The appellant appealed his conviction for sexual assault and the resulting 18-month sentence.

The Crown's case at trial relied entirely on circumstantial forensic evidence, including the presence of the appellant's DNA on the complainant's underwear.

The appeal court found the trial judge's verdict was unreasonable, as he drew impermissible inferences not supported by the evidence and failed to provide sufficient reasons explaining his credibility findings and rejection of the appellant's exculpatory statement.

The appeal was allowed and a new trial ordered.

The appellant appealed his summary convictions on sexual interference charges involving two children at his parent's home day care.

The appeal court found that the trial judge materially misapprehended the evidence of both complainants and the appellant.

Specifically, the trial judge failed to properly consider one child's adoption of prior inconsistent statements to police, overlooked evidence relevant to the other child's credibility, and mischaracterized the appellant's testimony without basis.

The appeal was allowed, with acquittals entered for the charges relating to one complainant and a new trial ordered for the charges relating to the other.

The appellant appealed his summary conviction for sexual assault, arguing the trial judge misapprehended evidence, inadequately explained credibility findings, placed too much emphasis on the complainant's demeanor, and misapplied the W.(D.) framework.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility assessments and concluding that the reasons were sufficient for appellate review.

The offender pleaded guilty to historical offences of break and enter and sexual assault with a weapon committed in 1998, after being linked by DNA evidence in 2013.

The Crown sought a penitentiary sentence of four years, characterizing the offence as a home invasion, while the defence sought a non-custodial or conditional sentence.

The court considered the offender's significant Gladue factors, his extensive rehabilitation efforts over the past five years, and the profound impact on the victim.

The court distinguished the case from typical home invasions and sentenced the offender to two years less a day in custody followed by three years of probation.

Sentencing decision for offences of possessing child pornography, accessing child pornography, and making child pornography available arising from online chats and a search revealing thousands of child pornography images and videos.

The court emphasized denunciation and deterrence under s. 718.01 of the Criminal Code, while also weighing the offender's youth, guilty plea, remorse, cooperation, and psychiatric evidence indicating a low risk of contact offending but risk of future internet-based recidivism.

Comparable authorities did not support the defence request for a 12-month custodial sentence.

A sentence of 18 months' jail and 3 years' probation was imposed, together with DNA, SOIRA, prohibition, non-communication, weapons, and forfeiture orders, while a broader prohibition on attending parks and pools was refused.

Following a twelve‑day family law trial concerning parenting arrangements, the successful party sought costs exceeding $140,000 after defeating the other party’s motion to change a prior consent order.

Applying Rule 24 of the Family Law Rules, the court found the successful party achieved total success and acted reasonably throughout the proceedings.

Although self‑represented at trial, the successful party had used limited legal assistance and was herself a lawyer, making recovery of reasonable fees appropriate.

The court reduced certain claimed amounts but rejected arguments that self‑representation barred recovery of legal fees.

Substantial costs were awarded against the unsuccessful party.

The father brought a motion to change a final consent order, seeking equal time-sharing, parallel parenting, and decision-making authority over the children's education and health.

He alleged the mother failed to consult with him and that his employment changes constituted a material change in circumstances.

The court dismissed the motion, finding no material change in circumstances.

The court noted the high level of conflict between the parents and held that joint custody or parallel parenting would not be in the children's best interests.

The mother's proposal to slightly increase the father's parenting time was incorporated into the final order.

The father brought a motion to terminate child support for an adult child retroactive to January 1, 2010.

The evidence showed the child had resided primarily with the father since 2010, had completed college, and was working full-time as an automotive apprentice, rendering him financially independent.

The court found the child was no longer entitled to support but declined to terminate support retroactively due to the father's lengthy delay in bringing the motion and the likelihood the funds had already been spent.

The mother's cross-motion seeking a historical review of child support and extensive financial disclosure was dismissed due to her own delay in pursuing the claim.

Child support was terminated prospectively and the mother was ordered to pay partial indemnity costs.

Following a motion to change seeking termination or reduction of long‑term spousal support, the court addressed costs after the responding party successfully defended the support order.

Although the court found a material change in circumstances due to the recipient’s failure to pursue employment, it declined to reduce support and noted the payor had been paying less than the Spousal Support Advisory Guidelines suggested.

The court held the responding party was the successful party and had beaten a prior settlement offer.

The court also considered the moving party’s incomplete financial disclosure and unreasonable settlement offers.

Full recovery costs were awarded to the responding party.

This was a costs endorsement following a family law trial in which success was divided.

The court held that neither side should recover costs, citing the mixed outcome on support issues, the applicant's failure to beat an offer to settle, the dismissal of the constructive trust claim, and litigation conduct by both parties.

The court also noted that the respondent made no offer on spousal support and that the applicant had previously been required to bring a motion for a certificate of pending litigation.

Each party was ordered to bear their own costs.

On a motion to change spousal support arising from a 26-year common law relationship, the moving party sought termination or reduction of indefinite support on the basis that the recipient had failed to make reasonable efforts toward self-sufficiency.

The court found a material change because the recipient admitted he was capable of work and had not made reasonable efforts to obtain employment, and it imputed income of $30,000 to him.

However, applying compensatory and non-compensatory support principles for a long traditional relationship, together with the Spousal Support Advisory Guidelines, the court held the recipient remained entitled to indefinite support and that the existing monthly payment was already below the guideline range.

The motion succeeded only to the extent of the finding of material change and imputation of income, but no reduction, step-down, termination, or review was ordered.

The applicant sought child support, spousal support, and a declaration of unjust enrichment regarding a property purchased by the respondent.

The court imputed income to the respondent for child support purposes, finding he unreasonably deducted business expenses from his employment income.

The court awarded the applicant spousal support of $200 per month for 24 months due to her financial dependence and child care obligations.

However, the court dismissed the applicant's unjust enrichment claim, finding no intention between the parties to co-own the property and concluding the funds advanced were for living expenses and debt repayment.

On a motion for summary judgment seeking dismissal of a spouse's corollary relief claim and preservation of a separation agreement, the court held the motion could not proceed because a pending Divisional Court appeal challenged an earlier severance order.

The court applied Rule 16(2) of the Family Law Rules, which prohibits deciding a claim that includes a divorce by summary judgment motion.

Given the unresolved validity of the severance, the court declined to hear the motion, converted the attendance into a case conference, and directed the parties to return after the appeal ruling.

Costs were deferred.