Joseph M. Fragomeni

The accused were charged with multiple counts of importing cocaine and conspiracy to import cocaine into Canada from Trinidad and Grenada.

The Crown's case relied on the testimony of couriers, fingerprint evidence on the seized suitcases, and circumstantial evidence including travel records and items seized from Guthrie's home.

The court found the couriers' testimony to be unreliable and fraught with inconsistencies.

The court also found the fingerprint and circumstantial evidence insufficient to prove guilt beyond a reasonable doubt, particularly given the loss of police search videos and photos.

Both accused were found not guilty on all counts.

The accused was tried on multiple counts of assault with a weapon, sexual assault, and assault arising from alleged incidents within a marriage.

The court reviewed the complainant's testimony, prior statements, documentary communications, and supporting witnesses, and applied the W.(D.) framework together with the requirement of proof beyond a reasonable doubt.

While recognizing that impermissible myths and stereotypes cannot govern the assessment of sexual assault evidence, the court found material inconsistencies and reliability concerns in the complainant's account on critical details, and found the supporting evidence insufficient to cure those concerns.

The accused's evidence, viewed in the context of the whole record, at minimum raised a reasonable doubt.

Findings of not guilty were entered on all counts.

The applicant insurer sought judicial review of a Director's Delegate's appeal decision regarding a catastrophic impairment determination under the Statutory Accident Benefits Schedule.

The Delegate had overturned an arbitrator's finding that combining impairment ratings for a physical brain injury and a separate psychological disorder constituted impermissible 'double counting'.

The Delegate also remitted the issue of medication impairment back to arbitration and upheld a 4% rating for scarring.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Delegate's interpretation of the AMA Guides and the Schedule fell within the range of acceptable outcomes.

The applicant union sought judicial review of an Ontario Labour Relations Board decision regarding a work jurisdiction dispute over exterior concrete formwork at a hospital construction project.

The Board had upheld the employer's assignment of the work to a composite crew of Carpenters and Labourers, finding that the Labourers' collective agreement did not explicitly claim the disputed work.

The Divisional Court dismissed the application, holding that the Board's interpretation of the collective agreement was reasonable and that the Board was not bound to follow its prior decisions where the circumstances or arguments differed.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying her request to convert her non-economic loss (NEL) benefit from a lump sum to a monthly payment retroactive to 1993.

The applicant argued that her cumulative NEL awards exceeded the statutory threshold for monthly payments.

The Divisional Court dismissed the application, finding the Tribunal's interpretation of section 42 of the Workers Compensation Act—that the threshold applies to the amount of compensation as it is awarded, rather than cumulatively—was reasonable.

The accused was charged with importing a controlled substance, possession for the purpose of trafficking, and conspiracy to import cocaine after a package containing 3.5 kilograms of cocaine from Peru was intercepted by border services.

The police conducted a controlled delivery, tracking the package as it was handed from one co-conspirator to another, eventually arriving via taxi at the accused's apartment building.

The accused met the taxi, paid the fare, and fled when police announced their presence.

Relying on circumstantial evidence, including phone records, the pattern of delivery, and the accused's post-offence conduct, the court found the accused guilty on all counts.

The moving parties brought motions for leave to appeal to the Divisional Court from orders arising from summary judgment motions, while also commencing appeals in the Court of Appeal.

Noting potential jurisdictional issues regarding whether the underlying orders were final or interlocutory, the Divisional Court adjourned the motions for leave to appeal and ordered the parties to provide supplementary written submissions on the jurisdictional question.

The accused, Gerri Carvalho, faced charges of drug possession and possession for the purpose of trafficking, with the trial blended with a Charter application challenging the legality of the initial police stop (s.9) and subsequent search (s.8).

The court found the initial stop was lawful due to dangerous driving, dismissing the s.9 application.

However, the s.8 application was granted, as inconsistencies in police testimony regarding the presence of a scale and marijuana shake meant that the smell of marijuana alone was insufficient to establish reasonable and probable grounds for the search.

Applying the R. v. Grant factors under s.24(2), the court admitted the seized evidence, citing the good faith of the officer, the low expectation of privacy in a rental vehicle, and society's interest in adjudication on the merits.

Ultimately, Carvalho was found guilty of simple possession of ecstasy and cocaine found on his person, but not guilty of the charges related to drugs found in the vehicle, as the Crown failed to prove knowledge and control beyond a reasonable doubt.

This decision addresses a voir dire concerning the voluntariness of statements made by the accused, Anne Marie Asia Maerkl, to Canada Border Services Officers (CBSA).

The accused had abandoned a Charter application.

The court reviewed the testimony of three CBSA officers and applied legal principles regarding the admissibility of unrecorded and partially recorded statements.

While some statements were found voluntary and admissible, others were excluded due to issues with contemporaneous recording and clarity of attribution, particularly those made during the initial roving inspection.

The accused was charged with procuring two women to become prostitutes and exercising control, direction, or influence over the movements of one of them for the purpose of gain.

The court found that the accused manipulated and coerced the first complainant, a vulnerable young woman with significant debt, into stripping, performing 'extras', and escorting, while taking the money she earned.

The accused was found guilty of the charges relating to the first complainant.

However, the court found the second complainant was a strong, independent woman who made her own choice to dance for money without being procured by the accused, resulting in an acquittal on that count.

The applicant brought an application for certiorari to quash his committal for trial on charges of attempted murder and transferring a firearm.

He argued the preliminary inquiry judge committed jurisdictional errors by allowing the Crown to re-open its case and by improperly weighing after-the-fact conduct evidence.

The Superior Court dismissed the application, finding that the decision to re-open the case was an evidentiary ruling not subject to certiorari, and that there was some evidence upon which the judge could reasonably order committal on the attempted murder charge.

The applicant, charged with importing cocaine, brought a Rowbotham application for state-funded counsel after his Legal Aid certificate was cancelled due to his income level.

The court reviewed his financial circumstances and found he was not indigent, as he was fully employed and had discretionary income.

Furthermore, the court determined the case was straightforward, involving a short border investigation and a single issue of knowledge, meaning counsel was not essential for a fair trial.

The application was dismissed.

The applicants, Greg Guthrie and Delon Griffith, sought an order for severance of charges in a multi-count indictment related to cocaine importation and conspiracy.

Guthrie applied to be tried separately on counts one and four from counts two and three, while Griffith sought to sever counts two and three from counts one and four.

The court considered the legal and factual nexus between the counts, the applicants' intention to testify on some counts but not others, and potential prejudice.

The court found a sufficient factual and legal nexus, concluding that the Crown's theory of an ongoing enterprise was reasonable.

It dismissed concerns about testimonial intention and prejudice, emphasizing that a properly instructed jury could consider each count separately.

Both severance applications were dismissed.

The parties separated after a short marriage.

The wife sought damages for assault and battery, and for invasion of privacy after discovering the husband had surreptitiously installed a hidden camera in their bedroom and bathroom.

The court awarded the wife $5,000 for assault and battery and $15,000 for intrusion upon seclusion.

The court also ordered the wife to pay an equalization payment of $14,916.57 to the husband, finding no grounds for an unequal division.

The husband was ordered to pay $5,600 in retroactive spousal support and ongoing support of $700 per month for two additional months before termination.

Douglas LaFramboise sought leave to amend his Statement of Defence to Cross-Claim and add a counterclaim for defamation against The Toronto-Dominion Bank.

The Bank consented to the amendment of the Statement of Defence but opposed the counterclaim, arguing it lacked legal foundation and was protected by absolute privilege.

The court, applying Rule 26.01, found that statements made in pleadings are protected by absolute privilege, meaning the proposed counterclaim for defamation had no reasonable chance of success.

The motion to amend the Statement of Defence to Cross-Claim was allowed on consent, but the motion to add the counterclaim was dismissed.

The Crown sought to admit two statements made by Azhar Hussain to police on April 29, 2011, and September 30, 2011.

Hussain sought to exclude these statements, arguing they were involuntary and obtained in breach of his Charter rights.

The court found the April 29, 2011 statement involuntary and inadmissible because Hussain was not adequately informed of his jeopardy as a suspect.

However, the September 30, 2011 statement was found voluntary and admissible, as Hussain had access to counsel, understood his rights, and his will was not overborne by the interview conditions, despite his claims of fatigue and fear.

The appellant landlord appealed a Small Claims Court decision dismissing its claim for property damages against a former tenant for lack of jurisdiction.

The Deputy Judge had ruled that the Landlord and Tenant Board (LTB) had exclusive jurisdiction over the matter.

The Divisional Court found that the Deputy Judge erred in law, as section 89(1) of the Residential Tenancies Act requires a tenant to be in possession of the rental unit for the LTB to have jurisdiction over damage claims.

Since the tenant had vacated the unit, the Small Claims Court had jurisdiction.

The court also found the Deputy Judge made a palpable and overriding error in finding that a second LTB hearing had occurred where damages could have been addressed.

The Federation of Rental-Housing Providers of Ontario intervened.

The appeal was allowed and the matter remitted to the Small Claims Court.

The respondent father brought a motion for a psycho-educational assessment of the child, Jesse, to inform a future summary judgment motion regarding Jesse's schooling.

The applicant mother opposed the assessment, citing concerns about its necessity, potential emotional harm, and financial burden.

The court, applying Section 30(1) of the Children’s Law Reform Act and relevant case law, found the assessment to be reasonably necessary given the conflicting affidavits and the child's best interests.

The motion was granted, ordering the assessment to proceed, with the father initially responsible for the costs, subject to review by the summary judgment justice.

The applicant sought a determination on the constitutionality of section 85(4) of the Criminal Code, which mandates consecutive sentences for using a firearm during an indictable offence, arguing it violates section 12 of the Charter by imposing cruel and unusual punishment.

The court found that section 85(4) was unconstitutional, as its "stacking effect" would lead to grossly disproportionate sentences for the applicant and reasonable hypothetical offenders, and could not be saved under section 1 of the Charter.

The court declined to rule on the constitutionality of section 85(3), finding it severable.

This endorsement addresses costs following an appeal hearing.

The court found that the respondent (husband) improperly proceeded with a Rule 14B motion, and the applicant (wife) unreasonably appealed a prior order.

Despite both parties seeking costs, the court determined that each party was responsible for their own legal expenses due to their respective unreasonable procedural actions that led to the appeal and its dismissal.