COVID-19

The appellant was convicted of second-degree murder and sentenced to life with 12 years parole ineligibility.

He appealed both conviction and sentence, and alleged ineffective assistance of counsel.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of evidence and credibility.

However, the court granted leave to appeal the sentence, reducing the parole ineligibility period from 12 to 10 years.

The court held that pre-sentence custody conditions, especially those exacerbated by the COVID-19 pandemic, are a relevant mitigating factor in determining parole ineligibility under s. 745.4 of the Criminal Code, even without a Charter application, disagreeing with previous Superior Court decisions.

The claim of ineffective assistance of counsel was dismissed due to lack of evidence.

The applicant, Terrell Als, sought a stay of charges under sections 11(b) and 24(1) of the Charter of Rights and Freedoms, alleging unreasonable delay in bringing his case to trial.

The total time from arrest to the scheduled completion of trial was 1505 days, exceeding the 910-day presumptive ceiling established by R. v. Jordan.

The court analyzed the delay, attributing significant portions to defence delay (due to change of counsel and counsel's calendar unavailability) and exceptional circumstances (COVID-19 court closures, Crown counsel's family emergency, and unforeseen judicial unavailability).

The court found that the Crown and court made reasonable efforts to mitigate delays.

Ultimately, the application was dismissed, as the net delay, after accounting for defence delay and exceptional circumstances, did not exceed the Jordan threshold.

The appellant, Dr. Kulvinder Kaur Gill, appealed the dismissal of her defamation, conspiracy, and negligence claims against four defendants (Dr. Angus Maciver, André Picard, Carly Weeks, and Alheli Picazo) under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act), and the associated costs order totaling over $1.1 million.

The Court of Appeal upheld the motion judge's decision, finding that the claims were strategic lawsuits against public participation (SLAPPs).

The court affirmed that the "fair comment" defence was prima facie available to Picard, Weeks, and Picazo, and that the appellant failed to demonstrate "serious harm" causally linked to the defendants' expressions, which would outweigh the public interest in protecting free expression.

The court also upheld the substantial indemnity costs award, distinguishing the case from general guidance due to its complexity and the number of defendants.

The plaintiff, a commercial landlord, brought a motion for summary judgment against its tenant and personal indemnifiers for unpaid rent and damages following the tenant's default and early termination of a commercial lease.

The defendants argued frustration of contract due to COVID-19 lockdowns and disputed the extent of damages.

The court found that the lease was not frustrated by the pandemic, as the tenant's business model allowed for adaptation (online classes), and the landlord's mitigation efforts were reasonable.

The court granted summary judgment in favour of the plaintiff, holding all defendants jointly and severally liable for rental arrears, accelerated rent, property taxes, insurance, utilities, and repair costs, after making credibility findings against the self-represented defendants regarding the extent of damages.

The plaintiff, Michael Chalmers, brought a motion for summary judgment against his former employer, Airways Transit Service Limited, and its owner, Badder Capital Group Limited, for constructive dismissal.

Chalmers was laid off in March 2020 due to the COVID-19 pandemic and was never recalled, despite other management staff returning to work.

Airways Transit argued that Ontario Regulation 228/20 (Infectious Diseases Emergency Leave) precluded a common law constructive dismissal claim.

The court rejected this argument, affirming that the ESA does not displace common law remedies.

The court found that Chalmers was constructively dismissed as of June 4, 2020, when Airways Transit effectively phased him out due to his high salary.

The court awarded Chalmers 25 months' reasonable notice, including a "COVID bump," and $30,000 in punitive damages for the employer's high-handed and misleading conduct, while declining aggravated/moral damages.

Jacques Trudel was found guilty of possession of over two kilograms of methamphetamine for trafficking, possession of hydromorphone, and possession of proceeds of crime.

The Crown sought a penitentiary sentence of seven to nine years, while the defence proposed a conditional sentence or two to three years.

The court considered aggravating factors, including the quantity of drugs, Trudel's principal role, and his lengthy criminal record, and mitigating factors such as his age, serious health conditions (HIV, Hepatitis C), and four years under strict house arrest.

The court rejected a conditional sentence, distinguishing Trudel's case from that of a co-accused due to his leadership role and failure to seek addiction treatment.

While acknowledging the impact of age, health, and house arrest, the court found these factors did not warrant a substantial reduction from the appropriate sentencing range for drug trafficking.

Trudel was sentenced to six and a half years of incarceration for trafficking, with concurrent sentences for the other offences.

M.K. brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 11(b) right to a trial without unreasonable delay.

The total delay was 858 days (28 months and 7 days), exceeding the 18-month presumptive ceiling for the Ontario Court of Justice established in R. v. Jordan.

The court deducted 224 days for the COVID-19 pandemic (an exceptional circumstance) and 50 days for defence-caused delay (due to lack of diligence in filing a trial scheduling form).

The net delay remained 19 months and 1 week (578 days), which was presumptively unreasonable.

The Crown failed to rebut this presumption, with the court noting a lack of institutional resources and flexibility as a prominent cause of delay.

Consequently, a stay of proceedings was granted.

Chang Yul (Colin) Lee pleaded guilty to aggravated assault, forcible confinement, extortion, transmitting intimate images, and fraud under, stemming from a 30-hour ordeal where the victim was held hostage, severely beaten, humiliated, sexually violated, and extorted by Lee and a co-accused.

The Crown sought a 5-year penitentiary sentence, while the defence sought 2 years less a day.

The court considered significant aggravating factors, including the gratuitous, prolonged, and sexualized nature of the violence, and the severe physical and psychological impact on the victim.

Mitigating factors included Lee's guilty plea (though attenuated), lack of prior criminal record, significant rehabilitative efforts for substance abuse, strong family support, low risk of re-offending, and the fact he was not the mastermind.

The court emphasized denunciation and general deterrence, tempered by the principle of restraint for a first offender.

Lee was sentenced to a total of 4 years in the penitentiary for the most serious counts (aggravated assault, forcible confinement, extortion), with concurrent sentences for transmitting intimate images and fraud, along with a lifetime weapons prohibition, DNA order, and no-contact order.

The appellant sought leave to appeal his sentence of 9 months in custody, plus 12 months’ probation, for indecent assault.

He argued that the trial judge erred by not imposing a conditional sentence, particularly given his health issues and fear of contracting COVID-19 in prison, and by failing to give sufficient weight to rehabilitation and specific deterrence.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's decision.

The court affirmed that the principles of denunciation and deterrence were paramount in this case, outweighing mitigating factors, and reiterated that concerns about incarceration conditions due to health or COVID-19 are best addressed by correctional and parole authorities, not by disproportionately reducing a fit sentence.

The accused, Graham Polmateer, brought an application for an in-person trial, while the Crown brought a s. 714 application.

The court dismissed the accused's application, ordering the trial to proceed remotely as previously scheduled.

The court found the application was brought too late, violating the 60-day notice rule, and that the accused was bound by his earlier agreement to a remote trial.

The judge emphasized that "personally" in the Criminal Code does not necessitate physical presence in a courtroom, and that modern technology facilitates access to justice.

The Crown's s. 714 application was deemed moot but would have been allowed.

Andre Martin was convicted of attempted murder with a firearm and unauthorized firearm possession.

The Crown sought an 18-year sentence, while the defence proposed 6-10 years.

The court considered aggravating factors, including the use of a firearm, the victim's permanent paralysis, and the offender's criminal record.

Mitigating factors included provocation, a dysfunctional upbringing, and systemic anti-Black racism.

The court emphasized general deterrence, denunciation, and the importance of rehabilitation, imposing a total sentence of 12 years, accounting for pre-trial custody and future COVID-related restrictions.

The offender, Paul David Batchelor, was found guilty of two counts of sexual assault involving two complainants (Ms. B and Ms. R) after a 24-day trial.

The court considered sentencing principles, aggravating factors (significant victim impact, predatory nature, lack of insight), and mitigating factors (first-time offender for these charges, pre-sentence custody, and difficult conditions due to the COVID-19 pandemic, warranting a Duncan credit).

The court imposed a total sentence of two years and six months imprisonment, along with a two-year probation order, lifetime Sex Offender Registry compliance, a DNA order, and a lifetime weapons prohibition.

M.E.D. was convicted of multiple sexual violence offences, including human trafficking, receiving financial benefit from sexual services, procuring, advertising sexual services, and sexual assault, committed between August 2016 and January 2017.

The Crown sought an eight-year global sentence, while the defence proposed five years.

The court considered aggravating factors such as the profound victim impact, profit motive, victim's attempts to escape, and the sexual assault.

Mitigating factors included the offender's age, difficult upbringing, mental health issues, family support, minimal criminal record, and the harsh conditions of pre-sentence custody and bail, as well as the impact of the COVID-19 pandemic on incarceration.

The court imposed a global sentence of six years imprisonment, with credit for pre-sentence custody, resulting in five years and nine months remaining to serve, along with various ancillary orders including a $10,000 restitution order.

The defendant, Chad Valiquette, applied under sections 11(b) and 24(1) of the Charter of Rights and Freedoms to stay charges of assault and sexual assault due to unreasonable delay.

The court analyzed the total delay of 1331 days against the 30-month Jordan ceiling, deducting periods attributed to defence actions (awaiting an appeal decision, Legal Aid issues) and exceptional circumstances (threat to counsel, COVID-19 court suspensions).

The court found that after deductions, the remaining delay was 27.99 months, which is below the Jordan ceiling.

Consequently, the application for a stay of proceedings was dismissed.

The applicant father brought a motion to vaccinate the parties' twelve-year-old daughter, who has high-functioning autism, against the respondent mother's opposition.

The mother argued against urgency and sought to enforce a mediation clause in their separation agreement.

The court found the matter urgent due to the pandemic and systemic delays, and exercised its parens patriae jurisdiction to override the mediation clause.

Relying on judicial notice of public health guidance, the court determined that vaccination was in the child's best interests, dismissing the mother's objections based on personal research and natural immunity claims.

The father's motion was granted, and the mother was ordered to pay costs.

The applicant sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay.

The court applied the Jordan framework, subtracting periods of defence-instigated delay and exceptional delay caused by the COVID-19 pandemic.

The net delay of 20.5 months was found to be well within the 30-month ceiling for Superior Court cases, leading to the dismissal of the application.

Seymour Young pleaded guilty to manslaughter while using a firearm.

The offence occurred during a drug transaction where the 15-year-old victim attempted to rob Young with an imitation firearm, leading Young to fatally shoot the victim.

The court considered aggravating factors, including the use of a firearm, involvement in the drug trade, and the victim being a child.

Mitigating factors included an early guilty plea, genuine remorse, no prior criminal record, and a difficult upbringing marked by violence and deprivation.

The court also accounted for the harsh conditions of pre-sentence custody due to the COVID-19 pandemic, granting a seven-month reduction to the sentence.

A final sentence of five years' imprisonment was imposed, along with a lifetime firearms prohibition and a mandatory DNA order.

The College of Physicians and Surgeons of Ontario brought applications to compel three physicians to cooperate with investigations into their practices, particularly concerning the issuance of COVID-19 vaccination exemptions and the dissemination of information.

The physicians refused to cooperate, asserting constitutional rights.

The court dismissed the respondents' adjournment requests and ordered them to comply with the investigations, including providing medical charts and patient information.

The court granted a publication ban on the identities of private physician sources and witnesses but denied a ban on the identities of the College's staff and the Medical Officer of Health, finding that social media comments directed at public officials, while vituperative, did not constitute actual threats of violence justifying such a ban.

The appellant, Joshua Nuziato, appealed his sentence for trafficking cocaine, arguing the sentence was inappropriate given his guilty plea, insufficient weight was given to COVID-19 during pre-sentence custody, and the probation term was not legally available.

The Court of Appeal found the sentence fit and within range, noted the sentencing judge had considered COVID-19 as a mitigating factor, and confirmed that a probation order was legally available as the term of imprisonment did not exceed two years.

The appeal was dismissed.

The plaintiff brought a motion to strike the defendants' jury notice due to significant delays caused by the COVID-19 pandemic, arguing that the ongoing adjournments were causing prejudice, including the erosion of her claim for past income loss.

The defendants opposed, asserting the right to a jury trial and advocating for a "wait and see" approach.

The court granted the motion, finding that the current and anticipated delays in civil jury trials in the Central East Region, coupled with the possibility of an earlier judge-alone trial, justified striking the jury notice.

The court emphasized that delay in obtaining a civil jury trial date can, by itself, constitute prejudice, aligning with recent Court of Appeal guidance.