Julianne A. Parfett

The court allowed the Crown's appeal from an acquittal on an "over 80" charge under s. 320.14(1)(b) of the Criminal Code, finding that the trial judge erred in law by failing to properly apply the objective element of the statutory defence in s. 320.14(5).

The trial judge had accepted the respondent's subjective belief that he would not be required to provide a breath sample after a car accident, but did not adequately consider whether that belief was objectively reasonable in the circumstances.

The matter was remitted for a new trial.

The court also dismissed the respondent's cross-appeal regarding the trial judge's findings on state agency and Charter s. 24(2).

This decision concerns the bail hearing of Ahmed Mashkor, charged with second-degree murder in the death of his four-month-old daughter, L.M. The court reviews the circumstances of L.M.'s death, the applicant's background, the proposed release plan, and the suitability of the proposed surety (the applicant's brother, Ali Mashkor).

The court finds the surety unsuitable and the release plan inadequate, particularly in light of concerns about interference with witnesses and public confidence in the administration of justice.

Bail is denied.

The appellant, Brandie Spagnolo, appealed her conviction for two counts of disobeying a court order under section 127(1) of the Criminal Code.

She argued that the underlying Family Court order was invalid because the Children’s Aid Society commenced its protection application in the wrong court.

The Superior Court of Justice found that the proceedings were properly before the Family Court and that the collateral attack rule prevented the appellant from challenging the validity of the order in this context.

The appeal was dismissed.

The appellant, Scott Hockaday, appealed his conviction on two counts of mischief related to his participation in the 2022 Ottawa "Freedom Convoy" protest.

The court reviewed the lawfulness of his arrest, the admissibility of evidence obtained as a result, and the sufficiency of evidence regarding his intent.

The appeal was dismissed, with the court finding that the arresting officer had reasonable grounds, the trial judge made no palpable and overriding error, and the evidence supported the conviction.

The accused, A.M., pleaded guilty to one count of sexual interference contrary to s. 151 of the Criminal Code involving an 11-year-old victim.

The assaults occurred multiple times over five months, were penetrative, and caused the victim pain and significant emotional and psychological harm, including self-harm and suicidal thoughts.

The accused was in a position of trust.

The Crown sought a four-year penitentiary sentence, while the defence sought two years.

The court emphasized denunciation and deterrence, considering aggravating factors such as the victim's age, abuse of trust, and severe impact, and mitigating factors including the accused's lack of prior criminal record and guilty plea.

The court imposed a sentence of three years imprisonment, along with various ancillary orders including a DNA order, weapons prohibition, Section 161 order, non-communication order, and SOIRA order.

The appellant, Octavio Gomez, appealed his convictions for impaired operation and over 80 mg blood alcohol concentration.

The appeal raised two Charter issues: whether his s. 10(a) right to be informed of the reason for detention was breached when asked to exit his vehicle, and whether his s. 9 right against arbitrary detention was breached due to a 3.5-hour delay in release from custody.

The court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that neither Charter right was breached.

The court also opined that even if breaches occurred, the evidence would not be excluded under s. 24(2) of the Charter.

The defendant, Matthew Pecore, brought an application under s. 11(b) of the Charter of Rights and Freedoms seeking a stay of charges for sexual assault due to unreasonable delay.

The total delay from the information being sworn to the anticipated end of trial was 27 months and 7 days, which is below the 30-month presumptive ceiling for Superior Court matters.

The delay was primarily attributed to new memories from the complainant leading to further charges and a change in trial complexity and dates, including a direct indictment moving the case to Superior Court.

The court found that while the new disclosure inevitably caused delay, it was not attributable to the fault of any party, and the overall delay was not "markedly unreasonable" when balancing the interests of the accused, victims, and public confidence in the justice system.

The application for a stay was dismissed.

The Crown sought rulings on the voluntariness of a statement given by the accused to police and the admissibility of prior discreditable conduct evidence.

The court found the statement voluntary and admissible, applying the *Oickle* factors.

However, the court dismissed the application to admit prior discreditable conduct evidence, finding its prejudicial effect outweighed its probative value, despite its relevance to party liability, citing concerns about reasoning prejudice and the unproven nature of some prior charges.

This criminal trial concerned one count of sexual assault against the accused, J.D., involving his grandchild, V.C. V.C. alleged multiple incidents of sexual touching over several years.

The court heard testimony from V.C., who adopted her prior video statements to police, and from V.C.'s grandmother (J.D.'s common-law partner), who testified for the defence.

The court assessed V.C.'s credibility and reliability, noting inconsistencies in her testimony and a lack of present memory regarding key details, despite finding her an honest witness.

The grandmother's testimony, which was accepted, contradicted the frequency of the alleged incidents.

Applying principles for assessing young witnesses' evidence, the court found that the Crown had not proven the case beyond a reasonable doubt due to concerns about the reliability of the complainant's evidence.

J.D. was acquitted.

The appellant, Augustine Mulimbwa, appealed his conviction for impaired care and control of a conveyance.

He argued that the trial was unfair due to the judge's handling of his self-representation, the validity of his admission of impairment, and the failure to consider the impact of involuntary cocaine ingestion on mens rea and care and control.

The court dismissed the appeal, finding that the trial judge provided adequate assistance to the self-represented accused, the admission of impairment by voluntarily consumed cannabis was valid, and the defence regarding involuntary cocaine ingestion lacked an air of reality as voluntary cannabis consumption established the necessary mens rea.

The court concluded that the trial judge properly considered the totality of the evidence of impairment.

The Crown sought summary dismissal of J.P.'s appeal from an Ontario Court of Justice decision.

J.P. had applied under s. 74 of the Firearms Act to review the Registrar's alleged decision to revoke his Firearms Registration Certificate, following a reclassification of certain firearms by federal regulation.

The OCJ had dismissed J.P.'s application for lack of jurisdiction, relying on the Ontario Court of Appeal's decision in AGC v. M.C. The Superior Court dismissed J.P.'s appeal, finding that the case was not factually distinguishable from M.C. and that the OCJ correctly determined it lacked jurisdiction, as the change in firearm status was by operation of law, not a reviewable decision of the Registrar.

This decision addresses two mid-trial rulings in a criminal case.

First, the Crown sought to introduce the preliminary inquiry transcript of a police constable who was unable to testify due to serious illness, pursuant to s. 715 of the Criminal Code.

The court found the criteria for admission were met and exercised its discretion to admit the evidence, as there was no unfairness to the accused.

Second, the Crown sought to admit emails sent by the accused to the investigating officer.

The court determined the officer was a "person in authority" from the accused's perspective and found the emails to be voluntary, as they were unsolicited and free from threats, promises, oppression, or police trickery.

Both applications by the Crown were granted.

The appellant, Ahmad Hasan, appealed his conviction for criminal harassment, contrary to s. 264(3) of the Criminal Code.

The appeal was based on two grounds: ineffective representation by counsel (specifically, amicus curiae) and an unreasonable verdict.

The court dismissed the ineffective counsel claim, finding that the amicus's actions were within acceptable professional judgment and that the proposed lines of questioning regarding the initial date were irrelevant to the harassment charge.

Regarding the unreasonable verdict claim, the court found no significant discrepancies in the complainant's testimony and upheld the trial judge's findings that the complainant genuinely feared for her safety, and that this fear was reasonable given the appellant's persistent and escalating communications after being told to stop, even after police intervention.

The appeal was dismissed, and the conviction was affirmed.

The appellant appealed her conviction for driving with more than 80mg/100ml of alcohol, arguing a breach of her s. 10(b) Charter right to counsel due to a three-minute delay in being informed of her rights after arrest.

The court found no breach, determining the delay was justified by safety protocols (calling for a female officer, tow truck, and seating the appellant in the cruiser) and consistent with the contextual analysis required for "without delay" in s. 10(b).

The appeal was dismissed.

The court also noted that even if a breach had occurred, the evidence would likely not have been excluded under s. 24(2) of the Charter.

The Crown sought a ruling on the admissibility of prior discreditable conduct to establish the accused's identity and provide narrative context in a criminal trial for uttering threats, impeding justice, and criminal harassment.

The accused, Lance Crossley, was self-represented with amicus curiae assistance.

The court applied the general principle that prior misconduct evidence is inadmissible to prove propensity but recognized exceptions for identity, narrative, and similar fact evidence, requiring relevance and a probative value outweighing prejudicial effect.

The court admitted evidence from March 2018 to February 2020, finding it inextricably linked to the current charges and highly probative of identity, motive, and intent, subject to limiting instructions.

However, incidents from 2016 and January 2018 were deemed too remote and prejudicial, thus inadmissible.

The defendant, Canadian Pacific Railway Company (CP), brought a motion to dismiss the plaintiff, Aureus Solutions Inc.'s (Aureus), Statement of Claim for lack of jurisdiction, citing a forum selection clause in their Supply of Services Agreement (SSA) which granted exclusive jurisdiction to Alberta courts.

Aureus argued the clause was inapplicable as the dispute's substance predated the contract or involved fraudulent misrepresentation rendering the contract void.

The court applied the two-stage test from Z.I. Pompey Industrie v. ECU-Line N.V., finding the forum selection clause valid and enforceable.

The court ruled that allegations of fundamental breach or voidability were insufficient to provide "strong cause" to oust the clause, especially given the parties were sophisticated commercial entities.

The motion was granted, and the action dismissed.

The Children's Aid Society brought a motion for a temporary care and custody order to place a child with his biological father, J.W., under an interim supervision order.

The child's parents, K.T. and E.M., sought the child's return to K.T.'s care under an interim supervision order.

The court found the child was at risk of emotional harm due to exposure to adult conflict between the parents.

However, given that the parents were now living separately, the court determined that the child could be adequately protected by an interim supervision order returning the child to K.T.'s care, with terms reflecting the Society's notice of motion.

The Society's request for placement with J.W. was dismissed, and the child was returned to the mother, K.T., under supervision.

The applicant, Tamara Lich, sought to review a bail review decision, alleging errors of law in the imposed release conditions.

The Crown argued the Superior Court of Justice lacked jurisdiction to review a decision of another SCJ judge.

The court examined the interpretation of sections 520 and 521 of the Criminal Code, distinguishing between reviews based on material change in circumstances and those based on errors of law.

Relying on Ontario precedent (R. v. Saracino and R. v. Durrani) over Saskatchewan precedent (R. v. Smith), the court found that the Superior Court of Justice does have jurisdiction to review a bail decision made by another judge of the same court, regardless of whether the previous decision affirmed or vacated the justice's order, and whether the grounds for review are a change in circumstances or an error of law.

The plaintiff brought a motion for summary judgment seeking payment for roofing work.

The defendant alleged deficiencies in the work and withheld payment, citing contractual provisions allowing for such holdbacks.

The court found that despite some credibility issues with the defendant's assertions, there remained a genuine issue requiring a trial regarding the existence and cost of the alleged deficiencies.

Consequently, the motion for summary judgment was dismissed.

The applicant, Hydro One Networks Inc., sought a declaration of a permanent easement over a portion of the respondent's land to access its existing transmission line easement, based on claims of prescriptive easement or lost modern grant.

The respondent disputed the continuous use and asserted that Hydro One had sought permission.

The court dismissed the application, finding that Hydro One failed to prove its use was "as of right" due to evidence of seeking permission, and that its infrequent use (once a year at most) did not meet the "continuous" requirement for a prescriptive easement.