Marc A. Garson

The appellant appealed his summary convictions for impaired operation and operating a conveyance with a blood alcohol concentration over 80mg.

He argued the trial judge erred by denying a last-minute adjournment request to pursue disclosure regarding the breath technician's prior misconduct, and by admitting a copy of the Certificate of Qualified Technician (CQT) instead of the original.

The Superior Court of Justice dismissed the appeal, finding the trial judge reasonably exercised his discretion to deny the adjournment given the defence's failure to act on earlier opportunities.

The court also held that a copy of the CQT is admissible and sufficient under the Criminal Code, aligning with Parliament's intent to streamline impaired driving trials.

The accused was charged with first-degree murder and aggravated assault following an execution-style shooting at a bird-dog trial event.

The Crown's case relied heavily on circumstantial evidence, including motive, opportunity, and post-offence conduct, as well as eyewitness identification.

The court found significant discrepancies in the eyewitness descriptions of the shooter and the shooter's vehicle compared to the accused and his vehicle.

Applying the Villaroman test for circumstantial evidence and the W.(D.) framework, the court concluded that the Crown failed to prove the identity of the shooter beyond a reasonable doubt.

The accused was found not guilty on both counts.

The accused was tried on a single count of sexual assault arising from multiple alleged sexual incidents with a 16-year-old complainant who was a friend of his son and frequently attended his home.

The court accepted the complainant’s evidence on four incidents, rejected the accused’s denial that any sexual acts occurred, and found the defence evidence did not raise a reasonable doubt under W.(D.).

The court held the complainant did not subjectively consent and, in any event, any apparent consent was vitiated because the accused abused a position of trust, power, and authority over a vulnerable teenager.

A finding of guilt was entered.

The applicant, charged with fraud over $5000, brought a motion for a stay of proceedings alleging a violation of her right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was 38.4 months.

The court deducted 8.25 months as defence delay due to implicit waiver during protracted resolution discussions, and a further 1.15 months for discrete exceptional circumstances caused by the COVID-19 pandemic.

The remaining delay fell below the 30-month ceiling and was found to be reasonable, as the applicant took no meaningful steps to expedite the proceedings.

The application was dismissed.

The case concerns a father's opposition to the mother's request to relocate their child from Belle River, Ontario, to Surrey, British Columbia, following the breakdown of their marriage.

The court also addressed decision-making responsibility and parenting time.

The mother sought to relocate for family and financial support, alleging family violence by the father.

The father opposed, emphasizing the child's stability in Belle River and the child's stated preference to remain with him.

The court found no credible evidence of family violence by the father and rejected the mother's reasons for relocation, particularly her past "self-help" actions of unilaterally withholding the child.

The court prioritized the child's best interests, including stability and the child's clear wishes, denying the relocation request.

Decision-making responsibility remained primarily with the father for long-term matters, and the existing parenting time arrangement (majority with mother) was maintained.

The defendant was charged with sexual assault with a weapon following an encounter with the complainant at his apartment.

The complainant testified that she initially consented to vaginal intercourse but revoked her consent when the defendant digitally penetrated her rectum.

She alleged the defendant ignored her protests, used a belt around her neck as a weapon, and forced further non-consensual sexual acts.

The court applied the W.(D.) framework, found the complainant's evidence credible and reliable, and rejected the defendant's version of events as illogical.

The defendant was found guilty.

The accused was tried on historic charges of sexual touching and sexual assault arising from allegations that he repeatedly assaulted the complainant when she was 11 years old.

The court applied the W.(D.) framework, treated the complainant's evidence with caution in light of material inconsistencies, dishonesty-related criminal record, and Facebook messages threatening police involvement unless money was paid, and found the evidence of alleged admissions to be vague and obtained in coercive circumstances.

Although the court was convinced some abuse of a sexual nature had occurred in the complainant's childhood and was suspicious of the accused's involvement, the Crown did not prove the offences beyond a reasonable doubt.

The accused was acquitted.

The defendant by counterclaim brought a motion for the production of due diligence documents related to a corporate acquisition, arguing they were relevant and that any solicitor-client privilege had been impliedly waived.

The court dismissed the motion, finding that the broad request for acquisition due diligence was not relevant to the specific claims regarding a separate supply agreement.

Furthermore, the court held that the documents were protected by solicitor-client privilege, which had not been waived because the responding party did not put its reliance on legal advice at issue in its pleadings.

The accused was charged with possession of methamphetamine for the purpose of trafficking after police found 9 ounces of the drug in the bed of his pickup truck during a search incident to a warrantless arrest.

The accused brought a Charter application alleging breaches of his s. 8 and s. 9 rights, arguing police lacked reasonable grounds for the arrest.

The court dismissed the Charter application, finding the police had both subjective and objective reasonable grounds based on surveillance of the accused meeting with a known drug supplier.

At trial, the court rejected the accused's testimony as a complete fabrication and found that the circumstantial evidence proved beyond a reasonable doubt that he had knowledge and control of the drugs.

The accused was found guilty.

The plaintiffs brought a motion to remove the defendant MVAC's counsel of record from the tort claim.

The counsel was acting for MVAC in both the accident benefits claim and the tort claim.

After initially accepting the plaintiff's catastrophic impairment designation, the counsel abruptly reversed the decision hours later without explanation.

The court found that a reasonably informed onlooker would perceive a possibility of conflict and misuse of information, warranting the disqualification of counsel to maintain the integrity of the administration of justice.

The applicant pled guilty to drug trafficking offences but sought a stay of two counts of cocaine trafficking, alleging entrapment.

He argued police lacked reasonable suspicion that he was trafficking cocaine before providing him the opportunity to sell it to an undercover officer.

The court dismissed the application, finding that police had formed the requisite reasonable suspicion based on reliable confidential informant tips, extensive surveillance, and the applicant's own statements to the undercover officer prior to the drug transaction.

The defendants were jointly charged with trafficking in various drugs and possession of proceeds of crime after police executed a search warrant at their rural hobby farm.

Police found over $800,000 worth of drugs and $82,000 in cash buried in a drive shed, along with packaging materials and scales in the main residence.

The court found that the circumstantial evidence, including matching containers found in the residence and the drive shed, established beyond a reasonable doubt that the defendants had constructive and joint possession of the drugs and currency.

The defendants were found guilty of possession for the purpose of trafficking, simple possession, and possession of proceeds of crime.

The young person, convicted of second-degree murder and sentenced to seven years (four in secure custody, three under conditional supervision), appeared for a mandatory annual review of his sentence under s. 94(1) of the Youth Criminal Justice Act.

The young person sought early release to conditional supervision in the community, citing his progress in custody.

The court acknowledged the young person's academic and behavioural improvements but found that he remained in the early stages of therapeutic gain and that his progress was insufficient to justify a change in sentence.

Balancing the needs of the young person with the interests of society, the court confirmed the original sentence, emphasizing the need for continued rehabilitation and accountability for the serious nature of the offence.

In this family law trial, Patricia Zacher sought to establish beneficial ownership of a property (14 Steeplechase) legally held by her adult dependent daughter, Nichola Zacher, and to divide Robert Zacher's in-pay CN pension, as well as ongoing spousal support.

The court dismissed Patricia's claims, finding that the property was a gift to Nichola, and that further pension division or spousal support would constitute impermissible "double-dipping" given the prior equalization of net family property and Patricia's substantial assets.

Interim spousal support was ordered to end December 1, 2019.

Following a 27-year marriage, the applicant sought ongoing and retroactive spousal support.

The respondent, who had previously earned a significant income in construction, experienced periods of unemployment and took lower-paying jobs, claiming it was no longer financially viable to continue his previous work.

The court found the respondent was intentionally underemployed, relying on text messages where he stated he would not pay support and his subsequent employment history.

The court imputed the respondent's income at $50,000 and ordered indefinite spousal support of $729 per month, fixing arrears at $51,060.

The appellant appealed his conviction for impaired operation of a motor vehicle by drug.

He argued the trial judge misapprehended evidence regarding the smell of 'freshly' burnt marijuana and the timing of the drug recognition evaluator's conclusion.

He also argued the trial judge improperly limited cross-examination and improperly questioned an officer about his criminal record.

The summary conviction appeal court dismissed the appeal, finding the trial judge's misstatements were minor, the limits on cross-examination were appropriate, and the brief reference to the criminal record was for a permissible purpose and did not affect the verdict.

The accused was charged with a single count of sexual assault against his wife, the complainant, occurring between August 2013 and April 2016.

The complainant alleged multiple instances of forced, non-consensual sexual activity, while the accused maintained all sexual activity was consensual.

The court assessed the credibility of the complainant, her mother, and the accused, relying heavily on text messages that contradicted the complainant's testimony regarding her relationship with her mother and the accused.

Applying the W.(D) principles, the court accepted much of the accused's evidence and found significant inconsistencies in the complainant's testimony, leaving a reasonable doubt as to the absence of consent.

The accused was found not guilty.

The defendant, Nathan Hathaway, was charged with four counts of dangerous driving causing bodily harm and four counts of impaired operation of a motor vehicle by drug causing bodily harm following a tragic head-on collision.

The court assessed witness credibility, toxicology reports, and expert opinions regarding methamphetamine impairment and driving conduct.

It was found that the defendant voluntarily ingested a substantial amount of methamphetamine, which impaired his ability to drive, and his driving constituted a marked departure from the standard of a reasonable driver, demonstrating a disregard for public safety.

The defendant was found guilty on all counts.

A youth, T.J.T., convicted of second-degree murder, faced a Crown application for an adult sentence under the Youth Criminal Justice Act.

The court assessed the presumption of diminished moral blameworthiness and the sufficiency of a youth sentence for accountability.

Considering T.J.T.'s difficult upbringing, immaturity at the time of the offence, and significant rehabilitative progress in custody, the court found the presumption of diminished moral blameworthiness was not rebutted.

Consequently, a youth sentence was imposed, consisting of the maximum four years in custody followed by three years of conditional supervision, with no credit for pre-sentence custody to ensure sufficient accountability and rehabilitation.

The defendant insurer brought a cross-motion for a declaration that Ontario law applied to the assessment of damages in an underinsured motorist claim arising from a motor vehicle accident in Nevada.

The defendant relied on an agreement reached at a pre-trial conference where plaintiffs' counsel conceded Ontario law applied.

The plaintiffs sought to withdraw this admission, arguing it was based on a mistake of law regarding the interpretation of the OPCF-44R Endorsement and ignorance of binding appellate jurisprudence.

The court dismissed the defendant's motion, allowing the plaintiffs to withdraw the admission as there was no consensus ad idem and enforcing the agreement would cause significant prejudice to the plaintiffs.