Karen Lische

The Ontario Court of Justice considered whether it had jurisdiction to entertain an application for interim release under section 523(2)(b) of the Criminal Code after the accused had been committed to stand trial and an indictment had been filed with the Superior Court of Justice.

The court held that jurisdiction over interim release transfers to the Superior Court of Justice upon the filing of the indictment, and that the Ontario Court of Justice has no jurisdiction to hear the application once the matter is before the Superior Court.

The applicant sought mandamus compelling a justice of the peace to issue process following a pre‑enquête hearing concerning a proposed private prosecution against a police officer for intimidation of a justice system participant under the Criminal Code.

The justice of the peace had declined to issue process after determining that the evidence failed to establish essential elements of the offence.

The Superior Court held that where a justice of the peace exercises discretion within jurisdiction during a pre‑enquête hearing, mandamus is unavailable and review may only occur by certiorari.

Treating the application as one for certiorari, the court found no jurisdictional error, denial of natural justice, or procedural irregularity.

The justice of the peace properly identified the elements of the offence and reasonably concluded there was no evidence of threats of violence or intent to impede a justice participant.

A youth accused was charged with sexual assault, sexual touching, and inviting a child to sexual touching arising from an incident during a family visit where the complainant and accused were alone in a bedroom.

The court found the complainant's evidence credible and consistent with surrounding circumstances, rejecting the accused’s denial as unconvincing.

The evidence established that the accused touched the complainant’s vagina inside her clothing and forced her hand to touch his penis.

The court found the actus reus and mens rea of sexual assault proven beyond a reasonable doubt.

Applying the Kienapple principle, the court stayed the additional counts of sexual touching and invitation to sexual touching as they arose from the same factual transaction.

A 13-year-old accused was charged with sexual assault, sexual touching for a sexual purpose, and invitation to sexual touching of a seven-year-old girl during a family visit in November 2011.

The Crown alleged the accused took advantage of an unsupervised moment to sexually assault the complainant.

The accused denied the allegations, suggesting they may have been imagined.

The court found the accused guilty of sexual assault based on credible evidence from the complainant and her mother.

The court stayed the remaining counts as they were subsumed within the sexual assault conviction under the Kienapple principle, which prohibits multiple convictions for the same delict absent clear parliamentary intention.