Irving André

Philip Fitzpatrick brought a pre-trial application seeking leave to lead evidence and cross-examine witnesses regarding a Crown witness, Marquis Grant-Mentis, and his alleged involvement in the murder of Brandon Hall, or alternatively, to argue that one of the perpetrators was a black man other than Mr. Fitzpatrick.

The Crown opposed, arguing no air of reality to the defence.

The court applied the 'air of reality' test, considering whether the evidence could support the inference of an alternate suspect and establish a sufficient connection and opportunity.

The court found that the circumstantial evidence, including eyewitness testimony, surveillance video interpretation, shoe exchange, and the third party's knowledge of intimate details, met the 'opportunity threshold' and provided an air of reality to the third-party suspect defence.

The application was allowed.

Philip Fitzpatrick, jointly charged with murder, brought a K.G.B. application to admit two police statements made by his mother, Cheryl Hall, for the truth of their contents regarding the shooter's identity.

The Crown was not opposed if the statements were edited and Ms. Hall could be cross-examined.

The court applied the principled exception to the hearsay rule, finding necessity due to Ms. Hall's recantation/unwillingness to adopt her prior statements, and threshold reliability due to procedural safeguards (availability for cross-examination, videotaping) and circumstantial guarantees (statements made hours after shooting, no influence, no leading questions, no motive to lie).

The court ruled the statements admissible for their truth, to be shown to the jury in their entirety with appropriate edits, and permitted the Crown to cross-examine Ms. Hall on the identification and her state of mind.

In a first-degree murder trial, the defence brought a motion for a mistrial, alleging numerous instances of prosecutorial misconduct during the Crown's closing address to the jury.

The alleged errors included misstating evidence, introducing unelicited evidence, mocking defence counsel and witnesses, and improperly commenting on the burden of proof.

The court reviewed each alleged impropriety, finding some instances of improper conduct but concluding that, individually or cumulatively, they did not fatally wound the trial process or deprive the accused of a fair trial to the extent that a mistrial was warranted.

The motion was dismissed, with the court indicating that corrective instructions would be given to the jury.

Defence counsel for Mr. Fitzpatrick and Mr. Wright brought a motion for a mistrial, alleging that Crown counsel adduced impermissible bad character evidence ("snitches get stitches") during re-examination of a witness, thereby wounding trial fairness.

The Crown argued the re-examination was appropriate given the cross-examination.

The court denied the motion, finding that while the defence was prejudiced by a prior ruling limiting cross-examination on a witness's inconsistent statements, this could be remedied by allowing further cross-examination.

The court concluded that the "snitches get stitches" evidence, while potentially prejudicial, did not rise to the level requiring a mistrial, especially with proper jury instructions, and did not constitute a "catastrophic" defect to trial fairness.

The accused, Evan Wright, charged with first-degree murder, brought a Corbett application to exclude his criminal record from evidence at trial, arguing its prejudicial effect outweighed its probative value.

The court ruled that convictions post-dating the offence are admissible.

It refused to "read down" an aggravated assault conviction but decided to limit cross-examination to only the aggravated assault conviction, excluding two weapon possession convictions.

This decision was based on concerns about propensity reasoning and the potential for imbalance, given the nature of the current charges and the lack of a criminal record for the Crown's main witness.

The moving party, former counsel for the applicant, brought a motion for a charging order pursuant to section 34 of the Solicitors Act for unpaid legal fees.

The applicant opposed the motion, arguing there was no evidence to justify the order.

The court applied the three-part test for a charging order and found that the property was preserved through the law firm's instrumentality and that the applicant had no intention of paying the outstanding fees.

The motion was granted and costs were awarded to the moving party.

The accused, Marko Tubic and Kenneth Clifford, were charged with first-degree murder.

The Crown's case relied heavily on the testimony of a Vetrovec witness, Abdul-Aziz Ahmed, corroborated by forensic and surveillance evidence.

The court found the Vetrovec witness's testimony required extreme caution due to inconsistencies and motives to lie.

However, independent confirmatory evidence supported material aspects of his testimony regarding a physical altercation and the disposal of the victim's body.

The court found reasonable doubt as to whether the victim was alive when thrown over the bridge, thus precluding a first-degree murder conviction based on that specific act.

However, considering Tubic's extensive post-offence conduct (cleaning, disposing of body, hiding evidence, attempting to use victim's bank card), the court inferred intent to cause death or serious bodily harm, finding Marko Tubic guilty of second-degree murder.

Kenneth Clifford was found not guilty, as there was reasonable doubt regarding his involvement in the death or the plan to dispose of the body, and his post-offence conduct indicated distress rather than complicity.

The applicant solicitor brought a motion to strike the respondent former client's affidavit and to vacate two orders for the assessment of his legal accounts, citing the respondent's refusal to answer questions on cross-examination and delay in scheduling the assessment.

The court dismissed the motion, finding that the applicant had already received adequate medical and financial disclosure, the questions refused were largely irrelevant, and the delay was partly attributable to the respondent's medical issues, the applicant's own numerous motions, and the COVID-19 pandemic.

The respondent was ordered to set an assessment date and the applicant was ordered to pay $5,000 in costs.

The applicant mother brought a motion for temporary sole custody and week-about access of the parties' 11-year-old child, alleging the respondent father was alienating the child from her.

The respondent father brought a cross-motion to retain temporary custody and major decision-making authority.

The court declined to change the child's living arrangements pending a section 30 assessment, noting the child's established school routine and the potential disruption.

The court ordered that the child continue to reside with the respondent father, with specified parenting time for the applicant mother, joint major decision-making, and child support payable by the applicant mother.

Jerome Green sought a bail review after being detained on secondary and tertiary grounds for firearm and fentanyl trafficking charges.

The application considered the length of pretrial detention, the availability of electronic monitoring, and the impact of the COVID-19 pandemic as material changes in circumstances.

The court found that the extended pretrial custody, coupled with the heightened risk of COVID-19 in correctional facilities, significantly altered the bail analysis.

Despite the seriousness of the allegations and previous breaches of court orders, the court concluded that a reasonable member of the public would not have concerns about the administration of justice if Green were released under a robust supervision plan including GPS monitoring.

Bail was granted with specific conditions.

P.R. was charged with break and enter, sexual assault, and assault with a weapon following an incident where he mistakenly entered a residence while intoxicated.

The accused claimed mistaken entry and self-defence.

The court acquitted P.R. of break and enter and sexual assault, finding reasonable doubt regarding his intent due to intoxication and inconsistencies in witness testimony.

However, P.R. was convicted of assault with a weapon, as his use of a flashlight against the homeowner was deemed disproportionate and not a reasonable act of self-defence given the homeowner's right to remove an intruder.

The accused, Bill Kastanis, was charged with possession of cocaine for the purpose of trafficking after being arrested with 15 kilograms of cocaine.

He denied knowledge of the contents, claiming he believed he was picking up gold under duress from a person named Carlos.

The court found numerous inconsistencies between Kastanis's trial testimony and his police statement, discrediting his evidence.

The court concluded that Kastanis either knew the contents of the bags or was wilfully blind to them, considering the high value and quantity of the drugs.

Consequently, Kastanis was found guilty of the offence.

Elias Gibb was convicted by a jury of second-degree murder.

The Crown sought a 15-year parole ineligibility period, while the defence sought 12-14 years.

The court considered aggravating factors, including the senseless nature of the killing, the number of shots, the offender's criminal record, prior display of the gun, rejection of provocation defence, and increased gun violence in the region.

Mitigating factors included remorse, difficult childhood, family support, youth, and rehabilitation prospects.

The court also considered the jury's recommendation (majority 10 years) and the impact of Covid-19 on incarceration conditions, but affirmed proportionality.

The court imposed a life sentence with a 13-year period of parole ineligibility, rejecting the jury's majority recommendation due to the aggravating factors.

The Crown sought a review of a Justice of the Peace's decision to release the respondent on bail following serious charges including failing to comply with a recognizance, discharge of a firearm, uttering a threat to damage property, and break and enter of a residence.

The Superior Court found that the Justice of the Peace erred in law and principle by failing to adequately analyze the secondary and tertiary grounds for detention, and by allowing the COVID-19 pandemic to disproportionately influence the decision without a robust supervision plan.

The court concluded that the proposed supervision plan was inadequate given the seriousness of the allegations and the respondent's criminal record.

The respondent's bail was vacated, and she was ordered detained.

The applicant, Jehroomien Rajendram, sought a bail review under s. 520 of the Criminal Code, challenging his detention by a Justice of the Peace on secondary and tertiary grounds.

He argued legal errors in the initial detention and, alternatively, a material change in circumstances due to a new supervision plan and the COVID-19 pandemic.

The court found no legal error in the Justice of the Peace's assessment of the sureties or the supervision plan.

Regarding the material change, the court acknowledged the new sureties and enhanced electronic monitoring but found them insufficient to mitigate the substantial likelihood of reoffending, given the serious allegations (discharging a firearm, breaching prior orders, threatening text messages) and the applicant's criminal record.

While acknowledging the enhanced risk of COVID-19 in prisons, the court concluded it did not tip the scale in favor of release, especially as the applicant had no pre-existing medical conditions and there was no significant outbreak at the correctional facility.

The application for bail review was denied.

Lamar Grant applied for a bail review following his detention on secondary and tertiary grounds.

He argued that a new supervision plan with two sureties, electronic monitoring, and the COVID-19 pandemic constituted a material change in circumstances.

The court found that the new sureties and electronic monitoring, combined with the risks posed by COVID-19 given Grant's pre-existing medical conditions and the conditions in detention, amounted to a material change.

The court concluded that his detention was not necessary in the public interest and ordered his release with strict conditions including a recognizance, house arrest, weapons prohibition, no contact with specific individuals, no non-medically prescribed drugs, and GPS monitoring.

The appellant, Leigh McQuat, appealed his conviction for impaired driving.

The trial judge had found him guilty despite excluding evidence related to a breath sample due to a Charter s. 10(b) infringement.

The appeal raised issues regarding the application of the R. v. W.(D.) test, the trial judge's adoption of the breathalyzer technician's opinion on impairment, palpable errors in assessing witness evidence, and the weight given to the appellant's medical issues.

The appellate court dismissed the appeal, finding no reversible error in the trial judge's application of the W.(D.) test, his independent assessment of impairment based on all evidence, his credibility findings, or the weight given to medical issues.

The court reiterated that any degree of impairment, however slight, is sufficient for a conviction.

The mother brought an application for custody and corollary relief in Ontario.

The father, residing in Pakistan, brought a motion to dismiss the application on the basis that Pakistani courts had already exercised jurisdiction, and sought the return of the children to Pakistan.

The court found that while the children were not habitually resident in Ontario at the commencement of the application, the requirements of s. 22(1)(b) of the Children's Law Reform Act were met.

The court assumed jurisdiction, noting the children's real and substantial connection to Ontario and the balance of convenience favouring Ontario.

The father's motion was dismissed.

This costs endorsement followed a motion concerning the sale of a jointly owned investment property.

Both parties sought costs, with the applicant seeking partial indemnity costs and the respondent seeking substantial or partial indemnity costs.

The court found that success on the underlying motion was mixed, although the applicant was more successful regarding property repairs.

The respondent's offers to settle did not comply with Rule 49 of the Rules of Civil Procedure as they were delivered too late.

Given the mixed success and non-compliant offers, the court determined it was not appropriate to make any costs order.

The plaintiff brought a motion for partial summary judgment, alleging the defendants breached two Agreements of Purchase and Sale for adjacent properties.

The defendants countered that the plaintiff repudiated the contracts by failing to comply with the Planning Act's subdivision control provisions, specifically regarding the retention of fee in abutting land.

The court found that the parties' clear intent was to treat the sale of the two merged parcels as a single transaction, and the plaintiff's statutory declaration did not contravene the Planning Act.

Therefore, the defendants' failure to close constituted a breach of contract.

Partial summary judgment was granted on the breach, with the issues of deposit forfeiture and damages reserved for trial.