Brad Allison

Two applications were brought to determine the boundary between properties in Lot 16, Concessions 9 and 10 in the Township of Gordon.

The applicant Walker claimed ownership based on mathematical survey lines, while the respondents and the applicant Bainborough argued that an antique fence marked the true boundary.

The court applied the hierarchy of boundary evidence, finding that the historical fence, which had been accepted by previous landowners for decades, was the best evidence of the original boundary.

The court also found that Walker's claim was statute-barred under the Real Property Limitations Act.

Walker's application was dismissed, and the fence was declared the true boundary.

The applicant, charged with historical sexual offences against his daughter, applied for certiorari to quash his committal to stand trial following a preliminary inquiry.

He argued there was no evidence proving he was the person who committed the offences.

The Superior Court dismissed the application, finding that the identity of the name on the information and the name testified to by the complainant constituted sufficient evidence for committal.

Furthermore, the court declined to exercise its discretion to grant certiorari because defence counsel had tactically failed to raise the identification issue or file a mandatory statement of issues at the preliminary inquiry.

The appellant appealed his conviction for sexual assault, arguing unreasonable delay under s 11(b) of the Charter, lack of consent, and insufficient identification evidence.

The summary conviction appeal court dismissed the Charter and consent grounds but found that the trial judge erred in relying on DNA evidence because the Crown failed to properly authenticate the hospital records and establish the chain of custody for the rape kit.

As the trial judge relied heavily on this inadmissible DNA evidence to establish identity, the conviction was quashed.

However, because there was other circumstantial identification evidence, a new trial was ordered rather than an acquittal.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code.

The Crown proceeded summarily and the impaired operation count was dismissed.

The central issue was whether the officer had reasonable and probable grounds to make a breath demand following a positive approved screening device result, particularly in light of evidence of an open beer can found in the vehicle after the screening device test was administered.

The court found that the officer had reasonable and probable grounds based on multiple indicia of impairment and that the presence of the beer can did not constitute credible evidence of recent consumption sufficient to undermine the reliability of the screening device result.

The accused was convicted.

The Crown charged Brian Jordan Ense and Joseph Bernard Edward Ense with sexual assault contrary to section 271 of the Criminal Code.

The charges arose from an alleged incident on November 5, 2016, at a house party on Manitoulin Island.

The complainant, a 16-year-old girl, testified that she was sexually assaulted by both men while intoxicated.

Joseph Ense's charges were withdrawn after his death during the trial.

The court found Brian Jordan Ense guilty of sexual assault based on the complainant's testimony, DNA evidence linking him to the complainant, and corroborating evidence from other witnesses.

The court rejected arguments regarding continuity of DNA evidence and credibility challenges to the complainant's testimony, finding her evidence credible and reliable despite inconsistencies between her police statement, 911 call, and trial testimony.

The accused was charged with dangerous operation of a motor vehicle contrary to section 249(1)(a) of the Criminal Code and failure to stop at the scene of an accident contrary to section 252 of the Criminal Code.

The Crown proceeded summarily.

The charge under section 252 was quashed as it did not constitute an offence known to law.

At trial, the Crown proved that the accused operated a vehicle in a manner dangerous to the public.

The accused did not testify.

The court found that the accused's conduct—leaving the roadway, driving onto private property, gunning the engine to escape the yard, coming within five feet of a pedestrian, and subsequently driving a severely damaged vehicle in an erratic manner—constituted a marked departure from the standard of care expected of a reasonable person in the same circumstances.

The court convicted the accused of dangerous operation of a motor vehicle.

The accused pleaded guilty to aggravated assault and stood trial for aggravated sexual assault.

The complainant, who was highly intoxicated, was violently beaten and choked into unconsciousness by the accused.

While the court found the complainant's evidence of vaginal penetration insufficiently reliable due to her intoxication and head injuries, the court convicted the accused of aggravated sexual assault based on his actions of unfastening and lowering the unconscious complainant's pants with sexual intent.

The accused was charged with dangerous operation of a motor vehicle and failure to remain at the scene of an accident involving property damage.

At the close of the Crown's case, the defence brought a motion for a directed verdict on the failure to remain charge, arguing that section 252 of the Criminal Code only applies to accidents involving another person, vehicle, or cattle, not property.

The court initially considered this as a directed verdict motion but subsequently treated it as a motion to quash.

The court found that the information did not disclose an offence known to law, as section 252 contains no reference to accidents with property.

The court quashed count 2 on the information, finding that any amendment would result in irreparable prejudice to the accused by completely changing the case to meet.

A youth was charged with sexual assault under the Criminal Code following an incident at a party on January 30, 2016.

The complainant, a 15-year-old girl, consumed significant quantities of alcohol and had no memory of the alleged assault.

The Crown relied primarily on the testimony of a witness who claimed to have found the accused and complainant together in a locked bedroom.

The defence challenged the reliability of the witness testimony and argued there was insufficient evidence to prove the essential elements of sexual assault beyond a reasonable doubt.

The court found the witness evidence to be fraught with inconsistencies, contradictions between trial testimony and police statements, and significant reliability concerns.

The court acquitted the accused, finding the Crown had not proven beyond a reasonable doubt that force was applied or that any force took place in circumstances of a sexual nature.

The accused was charged with sexually assaulting a complainant on April 3, 2015, contrary to section 271 of the Criminal Code.

The complainant was unable to identify her assailant as the assault occurred in darkness and she kept her eyes closed.

The defence raised issues of identity and continuity of forensic evidence.

DNA evidence from a sexual assault kit, collected from the complainant's body, was matched to the accused with a probability of 1 in 110 quadrillion.

Circumstantial evidence placed the accused in the bedroom where the assault occurred.

The court admitted the forensic evidence despite the defence challenge to its continuity and convicted the accused based on the overwhelming evidence.

The accused was charged with assault contrary to section 266 of the Criminal Code for an incident occurring on May 6, 2016, in Wikwemikong.

The complainant, the mother of the accused's grandchild, attended the accused's residence to retrieve her young daughter after receiving information that the accused was intoxicated.

A physical altercation ensued between the accused and the complainant.

The accused raised defences of self-defence and defence of property.

The court found the accused guilty of assault, rejecting both defences on the basis that the accused was not acting reasonably in the circumstances and that the complainant was attempting to leave the property with her child when attacked.

The Crown appealed the accused's acquittal on charges of impaired care or control and over 80.

The accused was found intoxicated in the driver's seat of a vehicle stuck in a ditch.

The trial judge acquitted the accused, finding no realistic risk of danger because the vehicle was immovable.

The Superior Court of Justice allowed the appeal, holding that the trial judge erred in law by misapplying the statutory presumption of care or control under s. 258(1) of the Criminal Code.

The court found that the accused's intention to set the vehicle in motion was established, meaning the presumption was not rebutted and a realistic risk of danger was embedded in the presumption.

A guilty verdict was entered for the over 80 charge.

The Crown appealed an acquittal on charges involving alleged sexual touching of two minors.

The trial judge had rejected the accused’s evidence as unreliable while fully accepting the complainants’ testimony, yet concluded the Crown had not proven the touching was for a sexual purpose.

The appeal court held that the trial judge’s reasons were insufficient because they failed to explain how, after accepting the complainants’ evidence and rejecting the accused’s testimony, the element of sexual purpose was not established beyond a reasonable doubt.

The absence of analytical reasoning prevented meaningful appellate review under the principles in Sheppard and R.E.M. The appeal was allowed and a new trial ordered.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood under s. 253(b) of the Criminal Code.

The appeal focused on whether the Crown proved that the first breath sample was taken within two hours of the accused operating a motor vehicle, permitting reliance on the evidentiary presumption in s. 258(1)(c).

The appellant argued the timing evidence was unreliable due to uncertainty in the officer’s timekeeping methods and discrepancies in the recording of events.

The court held that the trial judge reasonably relied on corroborated timing evidence, including synchronization of watches and consistent records of the breath technician call.

Applying the deferential appellate standard for unreasonable verdicts, the court found the conviction supported by the evidence and the reasons sufficient for appellate review.