Marion L. Cohen

This judgment follows a Zoom trial for sexual assault under the Youth Criminal Justice Act.

The Crown alleged the accused sexually assaulted the complainant between September and October 2019.

Key evidence included the complainant's video statement and text message screenshots, which contained the accused's apologies.

The defence argued these apologies were not admissions of guilt but attempts to placate the complainant.

The court found the accused's explanations for his apologies incredible, accepted the complainant's testimony despite minor inconsistencies, and convicted the accused, finding him guilty beyond a reasonable doubt.

The accused was charged with 24 offences including possession for the purpose of trafficking of prohibited substances (heroin, cocaine, crack cocaine, and crystal methamphetamine), firearms offences relating to possession and careless storage of a handgun and ammunition, and possession of proceeds of crime.

The preliminary inquiry judge assessed whether the Crown had adduced sufficient evidence to establish the essential elements of possession—knowledge and control—through circumstantial evidence.

The judge found that the Crown's proposed inferences were speculative and did not logically flow from the established facts.

The accused was discharged on all counts.

A motion within a Children's Law Reform Act application concerning the permissible response of a domestic court to a possible misinterpretation of the Hague Convention by a foreign court.

The applicant sought orders affirming Ontario's jurisdiction and habitual residence of the child, and ordering the child's return from Georgia.

The respondent did not participate.

The court appointed amicus curiae to assist.

The Georgian courts had found wrongful retention but refused return under Article 13(b) exception.

The court declined to make the requested declarations, finding it lacked jurisdiction to issue binding declarations and that it was inappropriate to opine on issues pending before the European Court of Human Rights.

The proceedings were stayed pending the outcome in the European Court.

The applicant father sought orders affirming Ontario's jurisdiction over custody and access matters for a child wrongfully retained in Georgia by the respondent mother, following dismissal of a Hague Convention application in Georgian courts.

The applicant sought these "chasing orders" to support his application to the European Court of Human Rights.

The court found arguable errors in the Georgian courts' application of the Hague Convention, particularly regarding the Article 13(b) exception, but declined to make the requested orders without further evidence, argument from both parties, and amicus assistance, citing principles of judicial comity and the limited evidentiary foundation before the Ontario court.

The Children's Aid Society of Toronto brought a summary judgment motion seeking statutory findings, a protection finding, and an order making two young children (ages 2 and 1) wards of the Crown.

The respondent mother opposed the motion.

The respondent father did not participate.

The court found no triable issue on the statutory findings and protection finding, granting summary judgment on those issues.

On disposition, the court found the mother had a long history with the society, significant unaddressed mental health and medical issues, a pattern of missing access visits and Plan of Care meetings, and had not demonstrated any meaningful change.

The father was found to be disengaged and unreliable.

The court granted summary judgment on crown wardship as the least disruptive order in the children's best interests.

However, the court declined to grant summary judgment on the access issue, finding insufficient evidence to fairly determine whether the relationship was beneficial and meaningful and whether access would impair adoption prospects.

The matter was adjourned for a structured hearing on access.

This is an application under Part Six of the Youth Criminal Justice Act for an order granting the parties access to police records created during a police interaction with a young person that did not result in criminal charges or extrajudicial measures.

The respondent sought access to police records to pursue a discrimination claim before the Human Rights Tribunal of Ontario, alleging that the police interaction was based on race, colour, place of origin, ethnic origin, and disability.

The court determined that while the Act does not explicitly provide a statutory pathway for accessing records where no charges were laid and no extrajudicial measures were used, such access is available by necessary implication from the legislative scheme, particularly where the young person's own interests in the proper administration of justice would otherwise be compromised.

A youth was charged with two counts of possession of cocaine for the purposes of trafficking following a police raid on an apartment.

The Crown alleged the accused moved a white plastic bag containing 89.76 grams of cocaine using his foot while police were present.

The accused conceded possession of 1.19 grams of crack cocaine found sewn into his pants.

The central issue was whether the Crown proved beyond a reasonable doubt that the accused possessed the larger quantity of cocaine in the white bag for purposes of trafficking, or alternatively, whether he was in joint or constructive possession of drugs in the apartment or was a party to the offence.

The court found the accused guilty of simple possession of the crack cocaine on his person but acquitted him of possession for purposes of trafficking on both counts.

The Children's Aid Society of Toronto sought access to youth criminal justice records of A.C., now an adult, for use in child protection proceedings regarding A.C.'s infant son.

The records were created when A.C. was a young person and are protected under the Youth Criminal Justice Act.

The court was required to balance the society's interest in protecting the child against A.C.'s privacy rights under the Act.

The court granted limited access to two records within the statutory access period (robbery and breach of recognizance charges) but denied access to all other records that fell outside the access periods.

The court imposed strict conditions on the use and distribution of the records granted.

The applicant, a youth worker injured during an incident with a young person in care, sought access to the pre-sentence report of the young person who was subsequently charged with assault.

The applicant was pursuing a negligence action against the youth residential services facility.

The court granted limited access to the pre-sentence report under section 119(1)(s) of the Youth Criminal Justice Act, balancing the applicant's valid interest in the information for civil litigation purposes against the strong privacy protections afforded to young persons under the Act.

Access was restricted to exclude information derived from child protection files and mental health assessments, with strict confidentiality conditions imposed.

A child protection society brought a summary judgment motion in a child protection proceeding under the Child and Family Services Act.

The child had been found in need of protection due to parental substance abuse.

The society sought an order placing the child in the sole custody of the father, with access to the mother.

The mother opposed the motion and sought joint or parallel parenting arrangements, arguing she should participate in major decisions regarding the child's education and religious upbringing.

The court granted summary judgment to the society, finding no genuine issue requiring trial on the question of sole custody to the father.

The court found the father had provided stable, appropriate care, while the mother's recovery was recent and there was no history of effective co-parenting or communication between the parties.

The Toronto Police Service and a police officer sought access to youth records of a young person (L.D.) who was a witness and complainant in a police disciplinary hearing.

The officer was alleged to have assaulted L.D. while in police custody.

The court considered whether access to L.D.'s youth records was permitted under sections 119(1)(s) and 123 of the Youth Criminal Justice Act.

The court held that the applicants failed to establish a valid or valid and substantial interest in the records, and that permitting access would undermine the proper administration of justice under both the YCJA and the Police Services Act.

The application was dismissed.

The respondent brought a motion regarding jurisdiction in a child support proceeding.

The applicant sought to vary a foreign child support order made in Maryland through either a Motion to Change or an Application under the Family Law Act.

The respondent argued the applicant must proceed under the Interjurisdictional Support Orders Act (ISOA).

The court held that jurisdiction to vary a foreign support order made corollary to a foreign divorce can only be derived from provincial legislation respecting enforcement of support orders, namely the ISOA.

The court stayed the Motion to Change and Application insofar as they related to support and ordered the applicant to proceed under the ISOA.

A 17-year-old youth charged with two counts of assault appeared in youth court with a paralegal, Leopoldo Llorente, rather than with counsel.

The youth and his father had attempted to access legal aid but were unable to reach the Legal Aid Ontario toll-free line.

The paralegal sought to be recognized as a suitable adult under section 25(7) of the Youth Criminal Justice Act to assist the youth.

The court held that paralegals are not eligible to be considered suitable adults under section 25(7) and directed that the youth be represented by counsel under section 25(4) of the Act.

The accused applied for production of the complainant's medical records pursuant to section 278.3 of the Criminal Code in a sexual assault case.

The court conducted an in camera hearing to determine whether the records should be produced for judicial review.

The court found that the complainant's waiver of her privacy rights was invalid because she did not have knowledge of the statutory protections or the consequences of waiving them.

The court also rejected the defence argument that the Crown had a duty to review the records and take a position on likely relevance.

On the substantive issue, the court found that the accused failed to establish that the records were likely relevant to any issue at trial or to the competence of the witness.

The application was dismissed.

A ruling on a jurisdictional question in a family law matter concerning a motion to change a final consent order regarding custody and access of a child.

The applicant sought to determine whether the Ontario Court of Justice or the Superior Court of Justice had jurisdiction to hear the motion to change.

The respondent had brought multiple motions in the Superior Court on grounds of urgency, despite the original application having been commenced in the Ontario Court of Justice.

The court held that the Ontario Court of Justice retained exclusive jurisdiction as the court of first instance, and that the Superior Court orders were made per incuriam and had no force and effect.

A youth was charged with sexual assault and sexual interference of a younger relative occurring between 1997 and 2002.

The complainant, who was between six and eleven years old at the time of the alleged offences, testified that the accused engaged in repeated sexual abuse including kissing, touching, cunnilingus, analingus, and attempted penetration.

The accused denied all allegations.

The trial judge found the complainant credible despite inconsistencies on peripheral matters, accepted the mother's evidence of an incriminating phone call in which the accused admitted guilt, and convicted the accused on all three charges.

The decision emphasizes the importance of assessing child witness credibility in context of their age and circumstances, and the reliability of adult recollections of childhood trauma.

An application by a seventeen-year-old transgender youth to change her name from her birth name to a female name.

The applicant sought an order dispensing with parental consent under the Change of Name Act, arguing that her mother did not have lawful custody of her.

The court found that the applicant's mother did not exercise physical care or control, nor did she make decisions regarding the applicant's residence, education, or medical care.

The court determined that no person had lawful custody of the applicant for purposes of the Change of Name Act, and therefore no parental consent was required.

A Hague Convention application for the return of a child to Latvia, brought by the father against the mother who fled with the child to Canada.

The mother and child were recognized as Convention refugees based on domestic violence perpetrated by the father.

The court found that while the removal was wrongful under the Hague Convention, the exceptions under Articles 13(b) and 20 applied due to the grave risk of harm to the child and mother if returned, the principle of non-refoulement, and the inability of the Latvian justice system to protect victims of domestic violence.

The application was dismissed and interim custody was granted to the mother.

The Children's Aid Society brought a motion to vary a temporary care order for a child in its care, seeking to increase the mother's access to include overnight and extended visits, with the intention of eventually returning the child to the mother's care subject to a supervision order.

The mother has a severe cognitive disability.

The court dismissed the motion without prejudice, finding that while the mother had demonstrated progress in parenting skills during supervised access, the evidence was insufficient to establish that she could safely care for the child over an extended period without adequate support systems in place.

The court ordered a comprehensive parenting capacity assessment and appointed legal representation for the child.

This is a ruling on an application by the accused in a sexual assault trial for production of the complainant's school records pursuant to section 278.1 of the Criminal Code.

The complainant alleged that the accused had sexual intercourse with her without consent while she was in a paralytic state induced by alcohol consumption.

The trial had commenced and the Crown had concluded examination in chief.

The accused sought production of the complainant's Ontario Student Record, attendance records, and school social worker records.

The court applied the two-stage test under sections 278.3-278.5 of the Criminal Code, considering likely relevance and whether production was necessary in the interests of justice, while balancing the accused's right to make full answer and defence against the complainant's privacy and equality rights.