Kelly A. Gorman

This sentencing decision concerns M.S., who was found guilty of sexual interference and two counts of assault against his daughters, A1 and A2.

The court reviews the facts of the offences, the impact on the victims, the offender’s background including Indigenous heritage and intergenerational trauma, and the results of a Gladue report and Sentencing Circle.

The court considers the principles of sentencing, including denunciation, deterrence, and the appropriateness of a conditional sentence.

Ultimately, the court imposes a conditional sentence of two years less a day for sexual interference, concurrent 90-day sentences for assault, followed by two years’ probation and various ancillary orders.

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiff's defamation claim, arguing that the allegedly defamatory statements were protected by absolute privilege as they were made in preparation for contemplated litigation.

The plaintiff opposed and also had a separate motion for particulars.

The court first addressed the defendants' motion, admitting an affidavit from one of the defendants.

Applying the five factors for absolute privilege in pre-litigation communications, the court found that the communication was protected by absolute privilege, as it was directly concerned with actual or contemplated judicial proceedings and made for the purpose of obtaining evidence from a limited audience.

Consequently, the court granted the defendants' motion, striking the Statement of Claim without leave to amend.

The plaintiff, Sharon Gannon, brought a wrongful dismissal action against Kinsdale Carriers Limited following the closure of its trucking business due to the economic impact of the COVID-19 pandemic.

The court considered whether the plaintiff had advanced notice of the closure and, critically, whether she failed to mitigate her damages by refusing an offer of comparable employment.

The court found that the plaintiff had constructive notice of the impending closure and that she unreasonably rejected a comparable job offer from Zehr Transport.

Consequently, the plaintiff was not entitled to reasonable notice damages.

The plaintiff, Mary Ann Pepper, brought a Rule 76 Simplified Procedure trial claiming damages for wrongful dismissal, breach of implied covenants, and damages under the Occupational Health and Safety Act and Human Rights Code, alleging constructive dismissal or discrimination based on mental health.

The defendant, Jeff Lamb, argued the plaintiff resigned after refusing a reasonable accommodation.

The court found the plaintiff was not a reliable historian and that the accommodation offered by the defendant was reasonable.

The court concluded that the plaintiff had resigned and dismissed the action.

The Applicant sought to increase spousal support from a 2010 divorce order, requesting $1327.00 per month for nine years, citing the termination of child support as a material change.

The Respondent sought to terminate spousal support entirely.

The court found the Applicant was still in need of support but noted a pattern of "under-performing" in her career efforts.

The court declined to increase support based on the Respondent's post-separation income increase, finding no direct link to the Applicant's contributions.

Spousal support was ordered to continue at the original amount of $375.00 per month for a further two years, after which it would terminate.

Gary Green pleaded guilty to multiple criminal offences including mischief, break and enter, theft, weapons possession, robbery, dangerous driving, flight from police, driving while disqualified, and breach of recognizance.

The court considered sentencing principles, including denunciation, deterrence, and rehabilitation, alongside significant mitigating Gladue factors due to the offender's Aboriginal status and difficult upbringing.

Despite the Crown seeking 8-10 years, the court imposed a sentence of time served plus one day, effectively crediting 3.5 years for pre-sentence custody, along with a two-year probation period and ancillary orders, emphasizing rehabilitation and the unique circumstances of Aboriginal offenders.

The accused was involved in a lengthy police pursuit while driving stolen vehicles, resulting in collisions with several police cruisers.

He pled guilty to numerous offences including dangerous driving, theft, and break and enter.

For the remaining charges of attempted murder, aggravated assault, and assault with a weapon against the officers, the central issue was intent.

Applying the W.D. framework, the court believed the accused's testimony that he was merely trying to escape and did not intentionally target the officers or their vehicles, resulting in acquittals on the contested charges.

The applicant, charged with sexual assault, assault, and choking, sought disclosure of the complainant's counselling records beyond what was initially consented to.

The applicant argued that inadvertent prior disclosure by the Crown negated the complainant's expectation of privacy and rendered the Criminal Code's s. 278 regime inapplicable.

The court rejected this argument, affirming that an accused cannot bypass the s. 278 procedure due to Crown negligence.

The court found the applicant's request for production was based on speculation and did not meet the threshold for likely relevance or necessity for full answer and defence, as required by s. 278.3(4) and established jurisprudence.

The application was dismissed.

The court accepted a joint sentencing submission for the accused, Jason Daniel.

The sentence included credit for 189 days of pre-sentence custody (calculated at 1.5x, totaling 284 days), an additional 60 days of intermittent custody, and two years of probation.

Probation conditions included non-association with specified individuals, reporting requirements, residence approval, counselling, and prohibitions against possessing controlled drugs/substances or weapons.

A DNA order was issued, and a $200 victim fine surcharge was imposed.

Michael Larson was sentenced for an offence that significantly impacted the Ontario Provincial Police and Elgin County citizens, involving the destruction of the only OPP vessel.

Aggravating factors included the undermining of police authority and potential public safety risks.

Mitigating factors were numerous: Larson was a youthful first offender, had no prior criminal record, entered a guilty plea, provided fulsome statements, was on bail without incident for 2.5 years, had an excellent pre-sentence report, demonstrated remorse, and remarkably, had saved $15,000 towards anticipated restitution.

The court distinguished his case from a co-accused due to his lack of criminal record and proactive restitution efforts.

The sentence included 10 days credit for time in custody (concurrent on two counts), three years probation, a DNA order, a restitution order totaling $52,640.81 (less the $15,000 already saved), non-association with the co-accused, and a prohibition on weapons and incendiary devices.

A victim fine surcharge of $400 was also imposed.

The defendants moved for summary judgment in multiple consolidated medical malpractice actions, arguing that the plaintiffs' claims were statute-barred by the Limitations Act, 2002.

The plaintiffs contended that their claims were only discovered after a 2011 press release and media coverage regarding allegations against Dr. Frank.

The court applied the objective discoverability test, finding that the plaintiffs were aware, or ought to have been aware, of the material facts giving rise to their claims well before the press release.

The information from the press release did not provide new material facts related to their individual care but rather served as evidence to support existing allegations.

Consequently, the court determined that the plaintiffs failed to demonstrate due diligence in discovering their claims, and thus, their actions were statute-barred.

Sentencing decision following guilty pleas to three counts of fraud over $5,000 involving approximately $116,500 obtained from close family members.

The offender, a lawyer, induced the victims to invest in his company by promising high returns and providing false documentation showing fictitious profits.

The court emphasized denunciation and general deterrence, particularly where a professional abuses both a legal and familial position of trust.

Aggravating factors included the significant amount of money, multiple victims, prolonged deception, and breach of trust as a lawyer.

The court concluded that a conditional sentence was inappropriate and imposed a custodial sentence.

The Crown brought an application seeking a ruling on whether the new self‑defence provisions enacted by the Citizen’s Arrest and Self‑defence Act, which replaced former Criminal Code ss. 34–37 and came into force March 11, 2013, applied retrospectively to offences committed before that date.

The accused was charged with multiple assault‑related offences arising from an incident in his apartment and intended to rely on self‑defence and defence of property at a judge‑and‑jury trial.

The court reviewed conflicting authorities across Canadian jurisdictions regarding whether the new provisions operate prospectively only or also apply to earlier conduct.

Emphasizing the remedial purpose of the amendments and the need for clear jury instructions, the court concluded that the presumption against retrospectivity was rebutted in these circumstances.

The jury would therefore be instructed under the new self‑defence provisions.

The appellant appealed a conviction for care and control of a motor vehicle with blood alcohol exceeding the legal limit and a sentence of six months’ imprisonment with a four-year driving prohibition.

The appellant argued the roadside screening demand was not made “forthwith” under s. 254(2) of the Criminal Code and alleged Charter breaches under ss. 8, 9, and 10.

The court held the demand was made promptly in the circumstances, noting the officer acted reasonably in securing the scene of a collision and arranging for an approved screening device.

However, the sentencing judge improperly treated the appellant as the cause of the collision using a balance of probabilities standard rather than proof beyond a reasonable doubt for an aggravating factor.

The conviction appeal was dismissed but the sentence appeal was allowed and the custodial term and driving prohibition were reduced.