Gary R. Clewley

The accused, R.S., was charged with sexual assault involving the complainant, A.P., a close family friend's daughter.

The complainant testified about an incident where the accused touched her breast, and earlier instances of slapping her bum.

The accused denied all allegations.

The court assessed the credibility and reliability of both witnesses, noting significant inconsistencies in the complainant's account regarding the timing and conclusion of the alleged incident, particularly concerning a phone call and her initial statement to the police.

These inconsistencies, deemed central to the complainant's narrative, undermined the reliability of her testimony.

Coupled with the accused's consistent denial, the court found that a reasonable doubt existed.

Consequently, the accused was acquitted of the sexual assault charge.

Brent Armitage pleaded guilty to failing to remain at a collision that resulted in death.

The Crown sought 18-24 months real jail, while the defence sought a conditional sentence.

The court considered the seriousness of the offence, the impact on the victim's family, and the offender's background, including his genuine remorse and health issues (sleep apnea).

Applying the principles of proportionality, denunciation, deterrence, and rehabilitation, the judge imposed a conditional sentence of two years less a day, followed by 18 months probation, a 5-year driving prohibition, and other conditions, finding that a conditional sentence would better achieve the sentencing objectives than real jail given the specific circumstances.

The plaintiff moved for an extension of the deadline to set the action down for trial, while the defendants brought a cross-motion to dismiss the action for delay.

The action, stemming from a 1998 arrest, had been stayed due to related criminal proceedings until 2017.

The court applied a contextual approach, considering the preference for merits-based decisions and timely resolution.

It found the plaintiff provided an adequate explanation for the delay, including the criminal proceedings and subsequent steps taken to gather evidence.

The court was not satisfied that the defendants demonstrated actual prejudice.

Consequently, the plaintiff's motion was granted, extending the deadline, and the defendants' cross-motion to dismiss for delay was dismissed.

The Crown appealed a certiorari decision quashing a committal for trial on a charge of breach of trust contrary to section 122 of the Criminal Code.

The respondent, an on-duty police officer, refused to assist a member of the public who reported a potential suicide in progress in High Park, Toronto.

The victim subsequently died by suicide.

The application judge found no evidence capable of supporting the necessary mens rea for breach of trust.

The Court of Appeal upheld the decision, holding that while the respondent's conduct was egregious, the Crown failed to establish an improper purpose materially different from the mere failure to perform his duty.

The court distinguished between misfeasance in public office (which requires an improper purpose) and neglect of official duty (which does not), and held that a desire to avoid an unpleasant duty does not constitute the requisite improper purpose.

A Hamilton Police officer with approximately two years of experience was charged with assault causing bodily harm after punching a suspect in the face during an arrest.

The suspect, a 35-year-old man with mental health issues, had spat on the officer.

The officer delivered three punches total: one immediately after being spat upon (conceded as reasonable by the Crown), and two additional punches while the suspect was on the ground and handcuffed.

The court found the latter two punches were excessive and not protected by section 25 of the Criminal Code, as they were delivered in retribution rather than for a legitimate law enforcement purpose.

However, the Crown failed to prove beyond a reasonable doubt that either of the two excessive punches caused the suspect's facial fracture, which required surgery.

The officer was acquitted of assault causing bodily harm but convicted of the lesser included offence of assault.

The accused pleaded guilty to impaired driving causing bodily harm after driving with a blood alcohol level more than double the legal limit, resulting in a vehicle rollover that caused serious injury to his passenger.

The Crown sought 12 to 18 months imprisonment with a 3-year driving prohibition, while the defence sought 90 days intermittent with a 4-year prohibition.

The court imposed 8 months imprisonment followed by 2 years probation and a 3-year driving prohibition, emphasizing the principles of general deterrence and denunciation while considering the accused's youth, lack of criminal record, genuine remorse, and rehabilitative efforts.