John A. Desotti

The accused brought an application under s. 24(2) of the Charter seeking exclusion of evidence obtained during the execution of a telewarrant at his residence on drug trafficking charges.

The defence argued the telewarrant lacked sufficient grounds because it relied heavily on information from a confidential informant and contained an error regarding the accused’s vehicle.

The court applied the Debot framework assessing the compelling nature of the tip, the credibility of the source, and police corroboration.

Despite a mistake in the information to obtain, the court found the informant’s observations, partial corroboration by police records and surveillance, and prior reliability of the source sufficient to justify the warrant.

The court concluded the totality of the circumstances supported issuance of the telewarrant and refused to exclude the evidence.

Following a conviction for first degree murder committed when the offender was 15 years old, the Crown applied under the Youth Criminal Justice Act for the imposition of an adult sentence.

The court considered the seriousness of the offence, the offender’s age and background, the lengthy delay between the offence and arrest, and whether a youth sentence would adequately hold the offender accountable.

The murder involved a violent aggravated sexual assault of a vulnerable elderly victim and had a significant impact on the community.

Although the offender had lived an otherwise law‑abiding life in the intervening years and was assessed as a low risk to reoffend, the court concluded that the gravity and circumstances of the offence required an adult sentence to achieve meaningful accountability.

A life sentence with a seven‑year parole ineligibility period was imposed, and the conviction for aggravated sexual assault was stayed under the Kienapple principle.

Two accused were jointly charged with multiple drug trafficking and firearms offences following a police traffic stop and brief pursuit.

Controlled substances were discovered in plain view on the centre console of the vehicle, and a civilian witness observed the passenger discard a plastic bag containing a handgun nearby.

The court held that both accused had joint knowledge and control of the drugs and were guilty of possession and possession for the purpose of trafficking.

The driver was convicted of fleeing police and dangerous driving but acquitted of the joint firearm offences due to reasonable doubt regarding knowledge of the firearm.

The passenger was found guilty of all firearm-related offences and possession while prohibited.

The applicant brought a motion to vary a prior child support order.

The respondent had relocated to England and sought to rely on a provisional order from an English family court reflecting his reduced income as a landscape architect after leaving higher-paying employment as a boilermaker.

The court imputed income of $80,000 to the respondent, finding that his change in employment was voluntary and undertaken for personal reasons.

The court recalculated child support obligations, adjusted section 7 extraordinary expenses, and added unpaid post-secondary education expenses to the arrears.

The respondent’s pension from his former union was ordered to stand as security for accumulated child support arrears.

In a highly contentious post‑divorce family dispute involving two teenage children, the court addressed ongoing conflict between the parents regarding custody, access, and child support.

The evidence showed prolonged litigation and persistent conflict that had negatively affected the children.

The court allowed the son’s primary residence to remain with the father but declined to alter custody arrangements.

Significant costs were awarded to the mother due to the father's conduct and repeated litigation.

The court further ordered that no additional proceedings could be commenced by either party without leave of the court.

A third party brought a motion to change venue from Toronto to Chatham in litigation arising from damage to telecommunications infrastructure.

The court considered the factors under Rule 13.1.02(2) of the Rules of Civil Procedure, including convenience of witnesses, location of the damage, and community interest.

Although some witnesses and the incident location were in Chatham, many damages witnesses and counsel were located in Toronto and the plaintiff had chosen Toronto as the forum.

The moving party failed to establish that the proposed venue was significantly better than the plaintiff’s chosen forum.

The motion to change venue was dismissed with costs.

The accused applied under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence obtained after Canada Border Services Agency officers examined his cell phone during a secondary inspection at the Sarnia border crossing.

Police had previously created a border 'Lookout' based on an investigation suggesting the accused possessed child pornography but lacked sufficient grounds for a warrant.

During a routine secondary inspection triggered by the lookout, an officer briefly viewed the accused’s phone and observed an image believed to be child pornography, leading to arrest and further searches.

The court held that routine border searches of goods, including electronic devices, fall within the powers granted under s. 99 of the Customs Act and do not engage the same privacy expectations as domestic searches.

The application to exclude the evidence was dismissed.

The accused brought a pre‑trial application under s. 591(3)(a) of the Criminal Code seeking severance of multiple counts on a fifteen‑count indictment involving several complainants and allegations including sexual assault, aggravated assault, strangulation, administering a stupefying drug, and unlawful confinement.

The court considered the factors governing severance, including prejudice to the accused, factual and legal nexus between the counts, complexity of the evidence, potential for inconsistent verdicts, and the likelihood of similar fact evidence.

The court found significant similarities among many of the allegations, including the manner of contact with complainants, the location of the offences, and distinctive forms of alleged conduct.

Although acknowledging the risk of prejudice in a jury trial involving multiple complainants and unusual sexual allegations, the court concluded the nexus between the offences was sufficiently strong to justify a joint trial.

The accused failed to demonstrate that severance was warranted on a balance of probabilities.

The applicant sought retroactive child and spousal support, challenging a 2002 separation agreement that terminated spousal support when the youngest child turned 18.

The court applied the Miglin framework, finding the termination clause failed to meet the objectives of the Divorce Act given the 20-year traditional marriage.

Ongoing spousal support was ordered at $1,000 per month.

Applying the D.B.S. framework for retroactive child support, the court imputed income to the applicant and calculated a net overpayment by the respondent of $10,802.

Retroactive spousal support was fixed at $13,900, resulting in a net payment of $3,102 to the applicant.

The Crown brought several pre‑trial applications in a homicide prosecution seeking to admit statements made by the accused to police, evidence of disreputable conduct, post‑offence conduct, and hearsay statements of the deceased reflecting her state of mind prior to death.

The court reviewed the principled approach to hearsay admissibility, including the requirements of necessity and threshold reliability, and the balancing of probative value against prejudicial effect.

Numerous statements by the deceased to friends, family, and others were admitted where they reliably reflected her state of mind and potential motive related to the accused, while other statements were excluded as overly prejudicial, too remote, or constituting inadmissible hearsay about past events.

The court also ruled that various evidence of the accused’s alleged disreputable conduct and post‑offence behaviour could be admitted as circumstantial evidence relevant to motive and concealment.

The accused applied for a Fisher (Peterman) order seeking increased public funding to retain specific out‑of‑town counsel at rates substantially higher than the Legal Aid tariff.

Both accused already held Legal Aid certificates with travel authorization for counsel.

The court held that the right to counsel of choice does not impose a positive obligation on the state to fund that counsel at enhanced rates.

The applicants had not exhausted available competent counsel in nearby jurisdictions and the circumstances did not meet the extraordinary threshold required for such relief.

The application was dismissed.

The accused, charged with first degree murder and aggravated sexual assault, brought a pre‑trial application seeking to adduce evidence suggesting two alternative suspects.

The proposed evidence relied largely on hearsay statements, speculative inferences, and circumstantial allegations regarding the individuals’ past conduct.

Applying the governing threshold from Supreme Court jurisprudence requiring a sufficient connection between the third party and the crime to establish probative value and an air of reality, the court held that neither proposed suspect had any evidentiary nexus to the offence.

The material advanced was found to be unreliable, speculative, and lacking any direct or circumstantial link to the crime scene.

The application to present third‑party suspect evidence was therefore denied.

In a family law proceeding following separation after a long marriage, the remaining issue concerned the appropriate imputation of income to both parties for purposes of determining spousal support.

The applicant alleged that the respondent had intentionally reduced his income after separation, while the respondent argued that the applicant was underemployed and capable of earning more than her reported income from retail work.

The court accepted evidence of broader economic factors affecting the respondent’s earnings and declined to find intentional income reduction.

However, the court found the applicant’s reported income unrealistically low and imputed a higher earning capacity to her.

Applying the Spousal Support Advisory Guidelines midpoint, the court ordered spousal support of $2,000 per month effective November 1, 2010 with arrears payable and a four‑year review period.

The accused brought an application under s. 638(1)(b) of the Criminal Code seeking permission to challenge prospective jurors for cause based on pre‑trial publicity surrounding a historic homicide investigation.

The defence argued that media reports referring to the arrest and describing the murder as “solved” could create community bias and impair juror impartiality.

The court reviewed the governing principles from Supreme Court of Canada jurisprudence on challenges for cause and assessed factors including the number of publications, their circulation, timing relative to trial, and potentially prejudicial content.

Given that the publicity occurred more than three years prior to the trial and was limited in scope, the court held that the passage of time eliminated any realistic potential for juror prejudice.

The application for a challenge for cause was dismissed, although the court directed that a cautionary instruction be given to the jury panel at the start of selection.