John K. Lefurgey

The applicant, Kenneth Bettes, brought a pre-trial application under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his s. 11(b) right to trial within a reasonable time.

The total delay was 1447 days (47.5 months), exceeding the 30-month presumptive ceiling for Superior Courts set by R. v. Jordan.

The court analyzed the delay, deducting periods attributable to defence conduct (illegitimate actions of first counsel, new counsel's failure to schedule, illegitimate scheduling of a voir dire, and a speculative s. 278 application) and discrete events (COVID-19 court closure, late disclosure by complainant).

The court found the net delay to be 774 days (25.46 months), well below the Jordan ceiling.

Consequently, the defence failed to establish that the delay was unreasonable, and the application to stay proceedings was dismissed.

The defendant, K.B., a 27-year-old first offender with no criminal record and significant family caregiving responsibilities, was found guilty of sexual assault involving two sleeping victims, one with digital penetration.

The Crown sought six months of real jail, while the defence sought a conditional sentence.

The court, emphasizing proportionality and the individualized nature of sentencing for first offenders, determined that a conditional sentence was appropriate, capable of achieving denunciation and deterrence without requiring incarceration.

K.B. received a 12-month conditional sentence (9 months house arrest, 3 months curfew) followed by 18 months probation and community service.

The appellant appealed a conviction for sexual assault, arguing the trial judge misapprehended evidence regarding the timing and location of the assaults.

The complainant testified about assaults occurring between 1995 and 1999, when she was 11-13 years old.

A key inconsistency involved a distinctive tattoo on the appellant, which the complainant claimed to have seen throughout the assaults, but which the trial judge found was acquired after the appellant moved out and the abuse allegedly stopped.

The Court of Appeal found that the trial judge was entitled to reconcile inconsistencies in the complainant's memory regarding precise timing and location, while still accepting the essential nature of the sexual assaults.

The appeal was dismissed.

The accused, Jordan Bolger, was charged with sexual interference and sexual assault involving a 15-year-old complainant, E.B., at a waterpark.

The Crown's case relied primarily on E.B.'s testimony, which described multiple attempts and one successful touching by the accused in a hot tub.

The accused denied the allegations.

The court applied the principles of proof beyond a reasonable doubt, the W.(D.) analysis for assessing conflicting evidence, and specific considerations for child testimony and victim reactions in sexual assault cases.

Despite finding E.B.'s evidence more reliable and probable, the court concluded that it did not meet the high standard of proof beyond a reasonable doubt required for a criminal conviction.

The applicant, charged with human trafficking and prostitution-related offences, brought a constitutional challenge arguing that ss. 286.2(1), 286.3(1) and 286.4 of the Criminal Code violate s. 7 of the Charter.

The applicant relied on a previous Superior Court decision that declared the provisions invalid.

The court found the previous decision to be plainly wrong, as it misidentified the purpose of the legislative scheme and incorrectly interpreted the provisions.

Applying the correct statutory interpretation, the court held that the provisions are rationally connected to their objectives, are not overbroad, and do not have grossly disproportionate effects.

The application was dismissed.

The accused, Jeremy Gough, charged with first-degree murder, brought a pre-trial motion challenging the admissibility of two videotaped statements made to police.

The first statement was challenged on grounds of voluntariness and breaches of Charter rights (ss. 7, 10(a), 10(b)), alleging he was a suspect and detained without proper caution or counsel notification.

The second statement was challenged on voluntariness and as tainted by the first.

The court found the Crown failed to prove the voluntariness of the first statement beyond a reasonable doubt.

Alternatively, the court found Gough was psychologically detained by police without being informed of his Charter rights, leading to breaches of ss. 7, 10(a), and 10(b).

Consequently, both statements were ruled inadmissible at trial.

This costs endorsement followed a motion for security for costs where the defendants were partially successful, obtaining an order for $18,000 in security despite requesting $55,000.

The court determined that the defendants, as the successful parties on the underlying motion, were entitled to costs, though less than complete partial indemnity due to their partial success.

Costs were fixed at $6,000 all-inclusive, payable by the plaintiffs to the defendants within 30 days.

The Crown brought a pre-trial motion to determine the admissibility of ante mortem statements made by the deceased, Jessica Scanlon, to her sister, friend, and boyfriend, in a first-degree murder trial against Jeremy Gough.

The statements concerned the nature of Scanlon's relationship with Gough, their separation, and Gough's reaction.

The court found the statements relevant and material to Gough's state of mind, Scanlon's state of mind, and motive.

Applying the principled exception to the hearsay rule, the court found the statements met the necessity and threshold reliability criteria, noting that most were recorded text messages and corroborated by multiple recipients available for cross-examination.

The court also determined that the probative value of the statements outweighed their minimal prejudicial effect, making them admissible.

The accused, charged with first-degree murder, brought a pre-trial motion concerning the admissibility of and testimony about two police-prepared PowerPoint presentations containing video clips of a vehicle and an unidentified male.

The court ruled the presentations admissible for efficiency and organization, but restricted the police officer's testimony regarding lay opinion evidence on vehicle identification.

The officer could testify to factual observations and reasons for selection, but not offer an opinion on whether vehicles matched or were the same.

Video clips of the unidentified male were deemed relevant circumstantial evidence and admissible.

The court also allowed the use of annotations in the presentations and directed mid-trial instructions to the jury.

The defendants moved for security for costs against the corporate plaintiffs under Rule 56.01(1)(d), alleging insufficient assets in Ontario.

The plaintiffs claimed impecuniosity caused by the defendants' conduct and a meritorious claim.

The court found the defendants met the initial onus regarding insufficient assets.

However, the plaintiffs failed to provide robust financial disclosure, including that of their shareholders, to prove impecuniosity.

The court also found the plaintiffs' impecuniosity was not caused by the defendants' conduct and that their claim, while not devoid of merit, did not meet the higher standard of having a good chance of success.

Consequently, the motion for security for costs was granted, ordering the plaintiffs to pay $20,340 into court.

The accused pleaded guilty to five offences involving the sexual abuse of a four-year-old child: sexual interference, invitation to touch for a sexual purpose, making child pornography through text communications, possessing child pornography, and agreeing with the child's mother to commit sexual interference.

The offences occurred over a three-day period in January 2016.

The accused was 27 years old at the time and had no prior criminal record.

The sentencing hearing required the court to balance aggravating factors including the extreme vulnerability of the victim, the planned and deliberate nature of the offences, and the depravity of the text messages, against mitigating factors including guilty pleas, cooperation with authorities, expressions of remorse, and family support.

The court imposed a total sentence of six years less pre-sentence custody credit.

The accused pleaded guilty to breaking and entering a dwelling house and committing the indictable offence of sexual interference against an eight-year-old child.

The Crown sought imprisonment for four to five years with ancillary orders including a section 161 order, DNA order, SOIRA compliance, and firearms prohibition.

Defence counsel sought imprisonment for two years less one day followed by probation.

The court imposed a sentence of four years imprisonment (46 months plus two months pre-sentence custody credit) with ancillary orders including a 20-year section 161 order, lifetime SOIRA compliance, and a 10-year firearms prohibition.

The court balanced the extremely serious nature of the offence, including the home invasion and sexual assault of a young child, against the accused's youth, first-offender status, genuine remorse, guilty plea, and rehabilitation potential.

A priority dispute arose between a building mortgagee and construction lien claimants over funds paid into court to vacate liens.

The plaintiff lien claimant argued the priority extended to the full amount owed by the owner to the general contractor.

The mortgagee argued priority was limited to the 10 percent statutory holdback.

The court held that paying money into court to vacate a lien does not alter the priority scheme under the Construction Lien Act, and the lien claimants' priority over the mortgagee was limited to the statutory holdback amount.