Kenneth S. Marley

The Crown brought an application seeking to vacate preliminary hearing dates scheduled for three separate matters, arguing that amendments to Bill C-75 restricting preliminary inquiries should apply retrospectively to cases where charges were laid before September 19, 2019.

The defendants opposed the application, contending that the amendments should apply prospectively only.

The court considered the retrospectivity of the amendments to sections 535 and 536 of the Criminal Code and ultimately followed the authoritative decision of Justice Thomas in R. v. R.S., 2019 ONSC 5497, holding that the amendments are procedural in nature and do apply retrospectively.

Consequently, the preliminary hearings were vacated as the offences charged no longer qualified for a preliminary inquiry under the new legislation.

Sentencing following convictions for nine sexual offences committed by a fire chief against four male victims, including youth co-op students and a workplace subordinate.

The court rejected the offender's double jeopardy argument, holding that sexual assault and sexual exploitation each contain distinguishing elements and therefore both convictions could stand where they arose from the same factual nexus.

Applying the principles of denunciation, deterrence, proportionality, consecutive sentencing for child sexual offences, and totality, the court imposed a global penitentiary sentence of five years.

The court granted 7.5 days' credit for pre-sentence custody, denied further credit for bail conditions, and made DNA and lifetime sex offender registry orders.

The Appellant, Robert Meersseman, appealed his conviction for operating a motor vehicle with a blood alcohol concentration exceeding .080.

The appeal raised two issues: whether the trial judge reversed the burden of proof and whether the breath samples were obtained "as soon as practicable." The Superior Court of Justice found that the trial judge did not reverse the burden of proof, properly assessed credibility, and correctly concluded that the breath samples were taken as soon as practicable, despite a minor miscalculation of a time interval.

The court emphasized that "as soon as practicable" requires a reasonably prompt time considering overall circumstances, not an exact accounting of every moment.

The appeal was dismissed, and the driving prohibition was reinstated.

T.D. was convicted of sexual assault and extortion against his spouse, T.K., by repeatedly threatening to withdraw her immigration sponsorship and have her deported.

The court considered aggravating factors including abuse of spouse, abuse of a position of trust and authority due to T.K.'s vulnerable immigration status, and a pattern of abuse.

Mitigating factors included a minimal criminal record and a traumatic upbringing, though mental health issues were not sufficiently established to explain the conduct.

The court emphasized denunciation and deterrence.

A global sentence of 40 months imprisonment was imposed, with sentences for sexual assault (40 months) and extortion (14 months) to run concurrently due to their inextricable nexus as part of a single endeavour to obtain sexual favours.

Ancillary orders included a 20-year Sex Offender Registry order, mandatory DNA collection, a no-contact order, forfeiture of an offence-related cellphone, and a 10-year firearm prohibition.

The applicant, K.K., charged with historical sexual assault, sought an order for the production of the complainant T.V.'s counselling records from Steven Kerr, pursuant to sections 278.5 and 278.7 of the Criminal Code.

The application was based on the complainant's admitted uncertainty regarding the details of the alleged assaults and the temporal connection between counselling and reporting to police, arguing that the records were likely to be relevant to her reliability and credibility.

The court conducted a two-stage analysis, first finding that the applicant had met the threshold for judicial review of the records.

However, after reviewing the notes, the court found them to be brief summaries lacking specific details of the allegations and consistent with the complainant's preliminary hearing evidence.

The court concluded that releasing the material would not assist the applicant's right to make full answer and defence and would only serve to discourage victims from seeking counselling.

The application was dismissed.

The accused faced a 17-count indictment alleging sexual offences against eight complainants arising from his roles as a fire chief and former teacher.

The court applied the W.(D.) framework, the law of consent and mistaken belief in consent, and the statutory requirements for sexual exploitation, including whether the accused occupied positions of trust, authority, or dependency toward younger complainants.

The court admitted similar fact evidence among four younger complainants and relied on the improbability of coincidence in their accounts of baths or hot tubs, massages, and genital touching.

The accused was convicted on counts involving certain adult and younger complainants where lack of consent or the exploitative relationship was proven beyond a reasonable doubt, and acquitted on other counts where credibility conflicts or reasonable doubt remained.

The offender was convicted by a jury of second degree murder for stabbing his girlfriend 69 times in a jealous rage.

The Crown sought a parole ineligibility period of 14-17 years, while the defence sought 10-13 years, citing the offender's troubled past, mental health issues, and intoxication.

The court weighed the brutal nature of the domestic homicide against the offender's personal circumstances and remorse.

The offender was sentenced to life imprisonment with a parole ineligibility period of 15 years.

On a Crown application in a multi-complainant sexual offence prosecution, the court considered whether count-to-count similar fact evidence was admissible.

Applying the similar fact framework, the court held the evidence of four complainants who were youths associated with the fire department was sufficiently specific and probative, with no air of reality to collusion, to outweigh prejudicial effect in a judge-alone trial.

The court found the allegations of three adult firefighter complainants were less similar and were affected by a live concern about collusion between at least two of them, undermining probative value.

The application was therefore granted only for the youth complainant group and otherwise dismissed.

The Crown sought to have Brian Morgan-Baylis declared a dangerous offender following his conviction for aggravated assault, assault with a weapon, uttering threats, and counselling to commit suicide.

The court found Morgan-Baylis to be a dangerous offender under all three subsections of s. 753(1)(a) of the Criminal Code, citing a pattern of repetitive and persistent aggressive behaviour, a failure to restrain his conduct, and the brutal nature of the predicate offences.

Despite the Crown's request for an indeterminate sentence, the court imposed a determinate sentence of 6 years 4 months (after enhanced pre-sentence custody credit) followed by a 10-year Long-Term Supervision Order, concluding that this composite sentence, coupled with robust programming and strict conditions, offered a reasonable expectation of public protection.

The accused were charged with numerous offences related to dog fighting, firearms, and drug trafficking.

They brought a pre-trial application seeking a stay of proceedings, arguing their right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The total time from charge to the anticipated end of trial was calculated at 30 months and 28 days, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court found that the delay was primarily caused by late disclosure and the Crown's ill-advised decision to join a co-accused late in the proceedings.

Finding no exceptional circumstances to justify the delay, the court granted the application and stayed all charges.

The defendants were charged with discharging or causing the discharge of a pesticide (Headline) into the environment contrary to the Pesticides Act.

The Crown alleged that on July 23, 2013, a helicopter operated by the defendants sprayed pesticide near Highway 40 and St. Andrews Line in Chatham-Kent, causing material discomfort to two witnesses.

The trial hinged on identity and whether the pesticide was improperly used.

The court found that while the pesticide was detected and material discomfort was established, the Crown failed to prove identity and improper use beyond a reasonable doubt.

The critical evidence linking the defendants to the incident (Exhibit 13) was found to be unreliable due to authentication and reliability problems.

The defendants were acquitted.

The accused, a mother and her boyfriend, were charged with criminal negligence causing death and failing to provide the necessaries of life after the mother's 20-month-old child died from severe scald burns.

The child was accidentally burned by hot coffee, suffering third-degree burns to 25 percent of his body.

Neither accused sought medical attention for the child over the three days leading to his death, despite the obvious severity of the injuries.

The mother claimed she delegated care to her boyfriend and was unaware of the child's deteriorating condition, while the boyfriend argued he had no legal duty of care as he was not the child's parent.

The court rejected both defences, finding the mother's testimony implausible and establishing that the boyfriend acted as a guardian with a legal duty of care.

Both accused were found guilty on all counts, as their failure to seek medical treatment constituted a marked and substantial departure from the standard of a reasonably prudent parent or guardian.

The defendant, J.R.M., was charged with multiple counts of assault, mischief, and sexual assault.

He pleaded guilty to one count of assault and one count of mischief.

The trial proceeded on the remaining charges of sexual assault and assault against his former common-law partner, M.D. The court meticulously reviewed the evidence, focusing on the complainant's credibility and reliability, which was found to be significantly compromised due to admitted lies to police under oath, inconsistencies, and potential ulterior motives related to a plea agreement for other charges.

Applying the principles of reasonable doubt and the analytical framework for credibility, the court found that the Crown failed to prove the essential elements of the remaining offences beyond a reasonable doubt.

Consequently, the defendant was acquitted of all sexual assault and assault charges against M.D.

The offender was convicted of two counts of trafficking marijuana.

He was found with approximately 10 kilograms of marijuana in his vehicle and half a kilogram at his home.

The court considered his prior record for the same offence and that he was on probation at the time.

Mitigating factors included his genuine remorse, his bipolar disorder diagnosis, and the stringent bail conditions he endured.

The court sentenced the offender to 9 months in custody, less credit for pre-sentence custody, followed by two years of probation.

The accused, charged with sexual offences and child pornography, brought a Charter application to exclude evidence obtained from his cell phone.

Police attended the home of the accused's mother without a warrant, informed her the phone contained child pornography, and demanded she hand it over, creating exigent circumstances.

The court found the warrantless seizure violated section 8 of the Charter because the police instigated the exigent circumstances instead of pursuing prior judicial authorization.

However, applying the Grant framework, the court declined to exclude the evidence under section 24(2), finding the evidence was highly reliable, pre-existed the investigation, and its exclusion would bring the administration of justice into disrepute.

The Crown appealed the acquittal of a commercial fishing corporation on four strict liability charges relating to inaccurate logbooks and Daily Catch Reports submitted by its vessel captain.

The trial judge had acquitted the corporation on the basis of due diligence, finding there was little more the owner could have done from shore.

The Superior Court of Justice allowed the appeal, holding that the trial judge erred in law by applying an incorrect standard of care and failing to consider what a proper system of compliance would entail.

The court found the corporation's blind trust in a captain with a known history of non-compliance did not amount to due diligence.

Convictions were entered and the matter remitted for sentencing.

The accused was charged with attempted murder, arson causing bodily harm, aggravated assault, failing to stop for police, and arson of a dwelling after dousing individuals with gasoline during a violent altercation.

The court rejected the accused’s testimony under the R. v. W. (D.) credibility framework and accepted the eyewitness evidence that the accused intentionally poured gasoline on the complainant and another individual.

However, the court held the Crown had not proven beyond a reasonable doubt that the accused intentionally ignited the complainant, noting multiple possible ignition sources and uncertainty about how the fire began.

The accused was acquitted of attempted murder but convicted of arson causing bodily harm, aggravated assault, failing to stop for police, and arson of a dwelling, as well as the included offence of simple assault relating to the second complainant.

During a criminal trial involving allegations of attempted murder, arson causing bodily harm, aggravated assault, and flight from police, the Crown sought to admit a statement made by the complainant identifying the accused shortly after being burned in a house fire.

The statement was relayed through a neighbour and tendered under the res gestae or spontaneous utterance exception to the hearsay rule.

The defence challenged admissibility based on the complainant’s intoxication, inconsistencies in witness recollection, and the Crown’s failure to comply with procedural rules governing pre-trial applications.

The court held the statement was sufficiently reliable and contemporaneous with the traumatic event to meet the res gestae exception, and that the procedural non-compliance caused no prejudice to the defence.

Leave was granted to hear the late application and the hearsay statement was admitted, though the court cautioned that its weight might be reduced due to the complainant’s intoxication.

The accused pleaded guilty to assault with a weapon (a truck) against his domestic partner, assault causing bodily harm against a fellow inmate, and driving over 80.

The Crown and defence jointly proposed a sentence of 46.5 months (including pre-sentence custody credit) followed by three years of probation.

The court accepted the joint submission but had to decide two contested issues: whether to impose a no-contact order with the domestic partner despite her wish to maintain the relationship, and whether to order restitution to insurance companies.

The court imposed the no-contact order to protect the victim and her children, prioritizing public safety over her autonomy, but declined to order restitution due to the accused's inability to pay and the uncertainty of the amounts.

The accused was convicted of multiple counts of drug trafficking (heroin, methamphetamine, cocaine) and simple possession after concealing the drugs in his anal cavity.

The accused had a significant prior criminal record for drug trafficking and showed no remorse or effort toward rehabilitation.

The court emphasized denunciation and deterrence, sentencing the accused to a global term of 10 years' incarceration, reduced to 7 years, 3 months, and 24 days after credit for pre-sentence custody.

The court also ordered a lifetime weapons prohibition, forfeiture of seized property, and a DNA sample.