Maria V. Carroccia

The accused brought two applications under sections 276 and 278.92 of the Criminal Code seeking to admit evidence of the prior sexual activity of two young complainants (sisters).

Under section 278.92, the accused sought to admit text messages exchanged between the accused and one complainant, and text messages between that complainant and her friend.

Under section 276, the accused sought to admit evidence that the younger complainant had viewed pornography and attempted to observe the accused and her mother engaging in sexual activity.

The court found that the text messages constituted records under section 278.1 and were capable of being admitted.

At stage two, both the complainant's counsel and the Crown conceded that the text messages had significant probative value not substantially outweighed by prejudice, and the court admitted them.

For the section 276 application, the court found that viewing pornography and observing sexual activity constitute sexual activity within the meaning of section 276, and that the evidence was sufficiently specific.

At stage two, the court balanced the factors under section 276(3) and found that the evidence had significant probative value relevant to the accused's ability to make full answer and defence, and admitted the evidence subject to parameters to be determined by the trial judge.

The accused was charged with knowingly participating in or contributing to the activities of a terrorist group (Atomwaffen Division/National Socialist Order) for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity, contrary to section 83.18(1) of the Criminal Code.

The Crown proved that the accused completed an application to join the terrorist organization, pledging loyalty and offering his skills as a mechanic and military training.

The court found that the accused knew AWD/NSO was a terrorist organization, participated in its activities by offering his skills, and did so for the purpose of enhancing the terrorist group's ability to carry out terrorist activity.

The accused was found guilty.

This decision concerns the prosecution of five members of the 2018 Canadian World Junior Hockey Team for sexual assault.

The complainant, E.M., alleged that after consensual sexual activity with Michael McLeod, she was sexually assaulted by McLeod and his teammates in a London hotel room.

The accused maintained that E.M. was a willing and active participant.

The court found significant inconsistencies and reliability issues in the complainant’s evidence, including contradictions with video evidence and other witness testimony.

The court concluded that the Crown had not proven the absence of consent beyond a reasonable doubt for any of the accused and acquitted all five.

The judgment provides a detailed analysis of the law of consent, credibility, and the use of myths and stereotypes in sexual assault trials.

This decision addresses the Crown's application to admit a text message as hearsay evidence under the principled exception in a high-profile sexual assault prosecution.

The court reviews the necessity and reliability requirements for hearsay, ultimately finding that the reliability threshold is not met and dismissing the application.

The ruling provides a detailed application of the Supreme Court’s guidance in R. v. Bradshaw and R. v. Charles on the dangers of hearsay and the use of corroborative evidence.

The Crown sought to admit a text message sent by Brett Howden to Taylor Raddysh as past recollection recorded, an exception to the hearsay rule.

The court reviewed the requirements for admissibility, including reliability, timeliness, absence of memory, and the witness’s ability to vouch for the accuracy of the record.

The court found that while the first three requirements were met, Mr. Howden could not vouch for the accuracy of the text message, as he had no memory of sending it and could not confirm its truthfulness.

As a result, the application to admit the text message as past recollection recorded was denied.

This decision addresses a defence motion for a mistrial after a jury note alleged unprofessional conduct by defence counsel, raising concerns about jury impartiality.

The court reviews the legal principles governing mistrials, including the presumption of jury impartiality, the test for reasonable apprehension of bias, and the discretion to discharge jurors or declare a mistrial.

The court finds that the fairness of the trial has been compromised and grants the motion for a mistrial, emphasizing that such a remedy is reserved for the clearest of cases where no other remedy will suffice.

This decision concerns a motion for a directed verdict in a terrorism prosecution under section 83.18(1) of the Criminal Code.

The accused, Seth Bertrand, was alleged to have participated in or contributed to the activities of the Atomwaffen Division (AWD), a listed terrorist group, for the purpose of enhancing its ability to facilitate or carry out terrorist activity.

The court found that there was some evidence on each essential element of the offence, including the accused’s application to join AWD, his statements, and his actions, such that a properly instructed jury could convict.

The motion for a directed verdict was dismissed.

The appellant, Phillip Rodd, appealed a decision ordering the forfeiture of his firearms and a three-year weapons prohibition under s. 117.05(4) of the Criminal Code.

The appeal challenged the application judge’s findings on the basis of misapprehension of evidence, reliance on hearsay, and failure to consider the appellant’s circumstances.

The Superior Court of Justice found that the application judge properly considered all evidence, including hearsay, and applied the correct legal test.

The appeal was dismissed.

The court granted summary judgment in favour of the plaintiff, Moyra Miller, finding that she was wrongfully dismissed by Alaya Care Inc. The court held that the termination provisions in the employment agreement and offer letter were unenforceable as they violated the Employment Standards Act, 2000, and did not clearly rebut the presumption of reasonable notice at common law.

The court found that Miller was induced to leave secure employment, and awarded her damages based on a 14-month reasonable notice period, including lost salary, benefits, bonus, and RSUs.

The offender, Audley Crooks, was convicted by a jury of multiple Criminal Code offences including two counts of sexual assault, human trafficking, receiving a material benefit from human trafficking, and advertising sexual services.

The offences occurred over a two-week period in August 2020, involving a vulnerable complainant who was already engaged in sex work.

The court considered aggravating factors such as the serious nature of the offences, the victim's vulnerability, the offender's prior conviction for a similar offence, and his lack of insight.

Mitigating factors included the offender's efforts to change his lifestyle while on bail, family support, and the fact that the complainant was already in the sex trade.

The court applied "Duncan credit" for harsh pre-sentence custody conditions and "Downes credit" for strict bail conditions.

The Crown sought a 14-year global sentence, while the defence sought 3-5 years.

The court imposed a global sentence of eight years imprisonment before credit, which was reduced to six years after accounting for 24 months of pre-sentence and bail credit.

Ancillary orders included a DNA order, a lifetime weapons prohibition, a 20-year SOIRA order, and a non-communication order.

Nada Court was found deceased at the bottom of stairs, initially believed to be an accidental death.

Timothy Shawn Nahmabin, her former neighbour, was charged with manslaughter following an investigation.

The Crown argued the accused unlawfully caused her death through physical assault, relying on circumstantial evidence and the accused's statements.

The defence contended there was no evidence of a deliberate act and that the accused's statements were speculative.

The court found that the Crown failed to prove the unlawful act beyond a reasonable doubt, as the evidence did not exclude the reasonable possibility of an accidental fall.

The accused was found not guilty.

The Crown appealed the acquittal of the respondent on a charge of impaired driving (over 80 mg) after the trial judge excluded breathalyzer evidence due to a s. 10(b) Charter violation.

The trial judge found a breach because the breathalyzer technician failed to follow up on the respondent's "equivocal" non-verbal response (shrug and nod) when asked if he was satisfied with duty counsel.

The appeal court found the trial judge erred in law and fact, holding that an equivocal response, especially when the respondent himself testified he intended to convey satisfaction, does not constitute an "objectively observable indicator" requiring further police inquiry under s. 10(b).

Consequently, the s. 24(2) Charter exclusion of evidence was also found to be in error as the breach did not seriously impact the respondent's Charter-protected interests.

The appeal was allowed, the acquittal set aside, and a verdict of guilty entered.

The accused, Sean Lypaczewski, pleaded guilty to communicating with a person believed to be underage for sexual purposes, possessing child pornography, and making child pornography.

The court considered aggravating factors, including the accused's position as a teacher and the high moral blameworthiness, and mitigating factors, such as genuine remorse, no prior criminal record, and significant rehabilitation efforts.

The court imposed a sentence of 12 months' imprisonment, concurrent on all counts, followed by two years of probation with conditions, a DNA order, a 20-year Sex Offender Information Registration Act compliance, and a 10-year prohibition on employment/volunteering with minors and internet use restrictions.

This ruling addresses the costs of an application where the applicants successfully obtained an order terminating an Agreement of Purchase and Sale via summary judgment.

The applicants sought $37,052.24 in partial indemnity costs, citing complexity and importance.

The respondent argued the matter was not complex and proposed a maximum of $15,000.

The court, applying principles of reasonableness and proportionality, awarded the applicants $25,000 inclusive of disbursements and HST.

The accused brought an application under s. 11(b) of the Charter of Rights and Freedoms, seeking a stay of proceedings due to unreasonable delay in their first-degree murder and attempted murder trial.

The total delay from charge to anticipated trial end was 37.12 months (1129 days).

The court deducted 98 days for defence delay (preference for consecutive preliminary inquiry dates) and 11 days for judicial illness, resulting in a net delay of 33.53 months (1020 days), which exceeded the 30-month presumptive ceiling for Superior Court cases.

The Crown argued that the delay was justified by exceptional circumstances, specifically the COVID-19 pandemic and the complexity of the case.

The court found the case to be of moderate complexity and attributed 107 days (3.53 months) of the delay to the COVID-19 pandemic's systemic impact and backlog.

This brought the net delay down to 30 months, falling within the presumptive ceiling.

The court also found that the defence had not demonstrated meaningful and sustained efforts to expedite the proceedings.

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

The applicants sought a declaration that they validly terminated an Agreement of Purchase and Sale for commercial property.

The agreement included a termination option if the respondent failed to complete a pre-consultation meeting with the municipality within four weeks of signing.

The respondent argued a meeting held prior to signing satisfied the condition and sought to convert the application into an action.

The court held the matter could proceed by application as it involved contract interpretation, found the prior meeting did not satisfy the condition, and declared the agreement validly terminated.

The accused was arrested for impaired driving causing bodily harm (later upgraded to causing death) following a motor vehicle collision.

While detained in police cells, she was subjected to video surveillance, including while using the toilet.

The accused brought a Charter application alleging a breach of her s. 8 rights, arguing she should have been automatically provided a privacy gown rather than merely offered one.

The court dismissed the application, finding no s. 8 breach because the police took reasonable steps to protect her privacy by repeatedly advising her of the video surveillance, pointing out signage, and offering her a privacy gown, which she declined.

Following a consent order appointing the Public Guardian and Trustee (PGT) as guardian of the respondent's property, the PGT sought its costs of the application.

The respondent opposed, arguing that Rule 57 of the Rules of Civil Procedure should apply to deny costs.

The court held that section 8 of the Public Guardian and Trustee Act provides statutory authority for the PGT to deduct its reasonable fees and expenses from the respondent's property, and this provision prevails over Rule 57.

The court found the PGT's requested costs of $21,173.38 to be reasonable and ordered them payable from the respondent's funds.

Donald Earhart, convicted of first-degree murder, applied under s. 745.61 of the Criminal Code for a reduction in his parole ineligibility period.

The court conducted a judicial screening to determine if there was a "reasonable prospect" that a jury would unanimously reduce the period, considering factors such as his character, conduct in prison, the nature of the offence, victim impact statements, and his Indigenous background (Gladue factors).

The court found that the applicant had established a reasonable prospect, particularly given his Indigenous status, mental health conditions, and extended periods in segregation.

The application was granted, and a jury will be empanelled.

The defendant, Peter Cunnington, brought a motion seeking an order to stay or dismiss the plaintiff's action, or alternatively, to require the plaintiff to post security for defence costs pursuant to Rules 56.01 and 56.02 of the Rules of Civil Procedure.

The plaintiff, ordinarily resident in Michigan, opposed the motion.

The court found that the plaintiff's counsel had adequately responded to the demand regarding residency, thus declining to stay or dismiss the action under Rule 56.02.

However, the court determined that the defendant met the low onus under Rule 56.01(1)(a) by establishing the plaintiff's ordinary residency outside Ontario.

The plaintiff failed to provide sufficient evidence of assets in Ontario or a reciprocating jurisdiction to satisfy a potential costs order, relying on a hearsay affidavit from counsel.

While the claim was not deemed frivolous or vexatious under Rule 56.01(1)(e), the plaintiff, not being impecunious, failed to demonstrate a "real possibility of success" given significant causation and credibility issues.

The court also found the defendant's delay in bringing the motion was sufficiently explained and did not prejudice the plaintiff.

Consequently, the court ordered the plaintiff to post $15,000 as security for costs, prohibiting further steps in the proceeding until the security is posted.