Mark L. Edwards

The Crown appealed an acquittal for impaired care and control.

The trial judge found reasonable doubt that the accused drove the vehicle and acquitted based on the vehicle being inoperable and posing no public danger, thus rebutting the s. 320.35 presumption.

The Superior Court held that inoperability does not rebut the presumption, which only requires the accused to prove they did not occupy the driver's seat to set the vehicle in motion.

The court found the trial judge erred in law by not applying the presumption and remitted the matter for a new trial.

Following a five-day jury trial where the plaintiffs were awarded a net judgment of $18,000, the court addressed the parties' submissions on pre-judgment interest and costs.

The plaintiffs sought approximately $114,000 in partial indemnity costs plus disbursements, while the defendant argued against any costs award, contending the recovery fell within Small Claims or Simplified Rules jurisdiction, and sought costs for abandoned claims.

The court found that both parties' litigation strategies were inconsistent with the trial outcome, particularly noting the defendant's "no liability" stance and lack of a Rule 49 offer.

The court awarded the plaintiffs $50,000 in costs plus HST and $18,677.42 in disbursements, emphasizing that a defendant's failure to realistically assess risk can lead to a costs award even for a low judgment.

The defendant's request for costs on abandoned claims was denied.

The defendant, Alex Clarke, was charged with one count of sexual assault.

The central factual issue was whether the complainant, S.A., consented to the sexual activity that occurred on June 30, 2020.

The court found S.A.'s testimony credible and reliable, concluding that she never consented to any form of sexual activity with the defendant.

The court rejected the defendant's claim of honest but mistaken belief in consent, finding his interpretation of S.A.'s passive responses and her "go slow" comment as consent to be unreasonable and self-serving.

The court emphasized that consent must be affirmatively communicated for each sexual act and that "only yes means yes." The defendant was convicted of sexual assault.

The appellant appealed his conviction for impaired driving, arguing a violation of his s. 11(b) Charter rights due to unreasonable delay, particularly concerning the impact of the COVID-19 pandemic, and errors in the trial judge's assessment of evidence.

The court dismissed the appeal, affirming the trial judge's finding that the net delay of 14 months and 9 days was reasonable given the exceptional circumstances of the pandemic and the local court context.

The court also upheld the trial judge's credibility findings and assessment of evidence, finding no palpable and overriding error.

The Corporation of the Town of Wasaga Beach sought statutory, interlocutory, and quia timet injunctions against "Persons Unknown" to prevent an unauthorized H2Oi car rally scheduled for September 1-4, 2023.

The Town presented evidence of significant public safety issues, property damage, and financial costs from previous unsanctioned rallies.

The motion was heard ex parte.

The court granted the injunctions, finding a strong prima facie case that the Town's by-laws would be violated, that irreparable harm would occur, and that the balance of convenience favored the Town.

The court also affirmed the ability to issue injunctions against unknown persons.

This is a summary conviction appeal from convictions for over-80 impaired driving and failing to remain at the scene of an accident.

The appellant challenged the trial judge's finding of identity, arguing his post-arrest utterances were ambiguous and that the trial judge reversed the burden of proof.

The appellant also challenged the dismissal of his s. 8 Charter application, asserting a lack of reasonable and probable grounds for detention and arrest.

The appellate court dismissed the appeal, affirming the trial judge's common-sense interpretation of the utterances as an admission of driving and upholding the finding of reasonable and probable grounds for arrest based on the totality of evidence.

The defendant, Seebastien Hariraj, brought a motion to exclude evidence seized from his residence pursuant to a search warrant, arguing the warrant was facially deficient and lacked reasonable and probable grounds.

The defence sought to cross-examine the affiant regarding misleading information in the Information to Obtain (ITO), specifically an inaccurate criminal record attributed to the defendant.

The court allowed cross-examination on the criminal record issue, finding it was misleading, but dismissed the broader challenge to the warrant's validity.

The court found that, even after excising the erroneous criminal record information, sufficient reasonable and probable grounds existed for the warrant.

Applying the s. 24(2) Charter analysis, the court concluded that the police conduct was not egregious and that the highly relevant and reliable evidence should not be excluded, as its exclusion would undermine the truth-seeking function of the justice system.

The applicant, A.B., sought a stay of criminal proceedings or exclusion of evidence due to alleged police misconduct by a confidential informant handler (W).

The misconduct included attempts to breach solicitor-client privilege, disparage A.B.'s counsel as a "gangster lawyer," and breach a witness exclusion order during a preliminary hearing.

The court found W's actions constituted a reckless disregard of A.B.'s Charter rights and fundamentally undermined the integrity of the judicial system.

A stay of charges was granted, with an alternative finding that the evidence would be excluded under section 24(2) of the Charter.

The defendant, Mark Taylor, who was convicted of human trafficking and related charges, brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms to stay the proceedings due to alleged unreasonable judicial delay in the delivery of the trial judge's reasons.

The trial judge had reserved her decision for 6 months and 9 days.

The court dismissed the application, finding that the deliberation time, while slightly exceeding the 6-month guideline, was not "markedly longer" than reasonably required given the complexity of the case, which involved multiple counts, seven complainants, two former co-accused, and a four-week trial.

The court also noted the trial judge's competing responsibilities and the defence's failure to proactively seek an earlier return date for the 11(b) application.

The applicant, Maisum Ansari, brought an application under s. 11(b) of the Charter, seeking a stay of proceedings due to alleged unreasonable delay in the delivery of the trial judge's reasons for conviction.

The original trial judge was medically unable to continue, and the application was heard by a different Regional Senior Justice.

The court found that the period of judicial delay in delivering reasons was 7.2 months, calculated from the completion of all submissions after the re-opened trial.

Applying the test from R. v. K.G.K., the court determined that the delay was not "markedly longer than it reasonably should have in all of the circumstances" and that the applicant failed to rebut the presumption of judicial integrity.

The application for a stay of proceedings was dismissed.

The plaintiff brought a motion to amend her statement of claim to add a claim for punitive and aggravated damages, nearly 12 years after the motor vehicle accident and after the action had been set down for trial and case managed for two years.

The court dismissed the motion, finding that the egregious delay led to a presumption of non-compensable prejudice to the defendant, making it inappropriate to grant the amendment on the "eve of trial."

The Crown brought a motion to admit excerpts of audio-video recordings from police cells, containing alleged party admissions by the accused, Jordan Nicholas and Reymon Duncan-Jones.

The defence opposed, arguing issues of context, audio quality, and potential prejudice.

Applying the principles from R v Schneider, the court found the evidence relevant and admissible as party admissions, noting that such evidence is rarely excluded.

The court determined that concerns regarding context and quality were matters of weight for the jury, to be addressed through appropriate jury instructions.

The Crown's application was granted.

This is an application by the accused for a stay of prosecution due to unreasonable delay, pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms.

The total delay from arrest to anticipated trial completion was 31.4 months, exceeding the 30-month presumptive ceiling established by R. v. Jordan.

The court considered two discrete events as potential exceptional circumstances: a mistrial declared in March 2022 and delays caused by the COVID-19 pandemic.

The court found that the mistrial was an exceptional circumstance, as the trial judge in the mistrial had assigned no blame to any party.

The court also found that a six-month period of delay was attributable to the pandemic, acknowledging inherent court system delays even pre-pandemic.

After deducting these periods, the net delay fell within the Jordan timeframe.

The application for a stay of proceedings was dismissed.

The defendant, Anoop Kumar Ubbu, was charged with one count of sexual assault.

The trial focused on whether the complainant, JY, consented to sexual activity and whether the defendant had an honest but mistaken belief in consent.

The court found JY to be a credible witness who did not consent to any sexual activity with the defendant or other individuals.

The defendant's claim of honest but mistaken belief in consent was rejected due to his failure to take reasonable steps to ascertain consent and inconsistencies in his testimony.

The court found the defendant guilty of sexual assault.

The plaintiff in a motor vehicle accident trial sought leave for late service of expert reports regarding past and future income loss and medical rehabilitation needs, citing cost as the reason.

The court denied leave, finding the explanation unreasonable and that granting leave would cause undue delay to the empanelled jury trial.

The court also limited the jury questions to general damages only, refusing to put questions on income loss, competitive advantage, or medical/housekeeping expenses due to insufficient evidentiary basis.

The jury awarded $25,000 in general damages, which resulted in a zero net award after the statutory deductible.

The Royal Bank of Canada sought to set aside a property transfer from the defendant debtor to his wife as a fraudulent conveyance under the Fraudulent Conveyances Act and Assignments and Preferences Act.

The defendants were noted in default, deeming the factual allegations of fraudulent intent admitted.

The court found the transfer suspicious due to its timing (after the plaintiff's claim was served) and the close relationship between the transferor and transferee, consistent with "badges of fraud." The court declared the conveyance null and void, restoring joint title, but declined to award additional damages due to lack of specific proof.

Youssef Messoudi was found guilty of importing 754 grams of methoxyacetyl fentanyl, an analogue of fentanyl with an estimated street value of $23-38 million, and occupying a vehicle with a prohibited weapon.

The Crown sought a sentence of 15-20 years, while the defence proposed 8 years.

The court emphasized deterrence and denunciation as paramount for fentanyl offences, acknowledging the drug's extreme danger and societal impact.

While considering the offender's youth (23 years old) and rehabilitative efforts (completing high school), the court found him to be involved beyond a simple street trafficker.

A Charter s. 10(a) breach (failure to promptly inform of arrest reason) was found but did not warrant a sentence reduction due to lack of deliberate police misconduct.

The court imposed a sentence of 12 years for importing fentanyl and 3 years concurrent for the firearms offence, with a credit of 1 year for pre-trial custody and house arrest, resulting in a total sentence of 11 years imprisonment.

The defendants brought a motion for summary judgment in a medical malpractice claim, arguing the plaintiffs lacked expert evidence on negligence, standard of care, and causation.

Despite previous adjournments and an order for production of expert reports, the plaintiffs failed to provide any.

The court granted the defendants' motion, dismissing the action, emphasizing the critical need for expert evidence in medical malpractice cases and the unreasonableness of further delay.

This is a costs endorsement following a successful motion by the defendants to strike the plaintiff's statement of claim.

The defendants sought substantial indemnity costs due to the plaintiff's unfounded and vitriolic allegations of fraud and dishonesty against them, which continued even in his costs submissions.

The plaintiff, self-represented, also raised impecuniosity.

The court awarded substantial indemnity costs of $17,500, finding the allegations against the lawyers' professional integrity warranted such an award, despite the plaintiff's impecuniosity claim and some potential duplication of defence counsel hours.

This endorsement concerns a costs award following the dismissal of the defendant's counterclaim.

The plaintiff, The Toronto-Dominion Bank, sought costs on a substantial indemnity basis.

The self-represented defendant's costs submissions were found to be lengthy, inappropriate, scandalous, and vexatious, failing to address the relevant factors under Rule 57.01.

The court awarded substantial indemnity costs of $1,500 to the plaintiff, emphasizing the need for fair and reasonable costs and the losing party's reasonable expectation of payment.