Mark L. Edwards

The defendant, Mario Rodrigues, was charged with two counts of assault, break and enter, abduction of his daughter, and dangerous driving causing bodily harm.

The central issue at trial was whether he was Not Criminally Responsible (NCR) due to a mental disorder under s. 16(1) of the Criminal Code.

The court considered conflicting expert psychiatric opinions regarding the defendant's mental state and capacity to understand the moral wrongfulness of his actions.

The court found that the defendant failed to prove his NCR defence on a balance of probabilities, concluding that he knew his actions were both legally and morally wrong.

Consequently, convictions were entered on all five counts.

The plaintiff landlord sought double damages under sections 48 and 50 of the Commercial Tenancies Act against the tenant corporation and its principals for allegedly fraudulently or clandestinely removing goods to prevent distress for rent arrears.

The court found that the bulk of the goods were removed before rent arrears accrued and that the removal was not clandestine or fraudulent.

The claims against the individual defendants and the claim for double damages against the corporate tenant were dismissed.

The corporate tenant was found liable for damages for breach of lease due to unpaid rent.

The plaintiff, William Rallis, brought an action against various judicial officials and court staff.

The court considered a request to dismiss the action under Rule 2.1.01 of the Rules of Civil Procedure, on the grounds that it was frivolous, vexatious, and an abuse of process.

The court found that claims against judicial officials were barred by absolute judicial immunity, and claims against court staff were barred by section 5(6) of the Proceedings against the Crown Act.

Consequently, all claims against the named judicial officials and court staff defendants were dismissed without costs.

The defendants brought a motion for security for costs against the plaintiff, a real estate brokerage, which admitted having insufficient assets in Ontario to cover a potential costs award, though its shareholders were not impecunious.

The court, applying a holistic approach under Rule 56.01(1) of the Rules of Civil Procedure, determined that it was just to order security for costs.

The plaintiff's claim was found to be arguable but not demonstrated to have a good chance of success on the merits.

The court granted the motion, ordering the plaintiff to post $60,000 for one group of defendants and $45,000 for another, covering the pleading and discovery stages, and awarded motion costs to the successful defendants.

The defendants moved for a stay of the plaintiffs' action until the plaintiff, Tan Duc Ngo, completed a neuropsychological assessment.

This assessment had been previously attempted but terminated due to the plaintiff's health issues, leading to a prior motion before Di Luca J. to compel re-attendance, which was denied without prejudice to renew if new evidence of improved health emerged.

The current motion for a stay was dismissed by Edwards J., who found it an attempt to circumvent Di Luca J.'s order without presenting the required new evidence.

However, the court, acting as case management judge, ordered the plaintiff's counsel to obtain a medical report addressing the plaintiff's current ability to undergo the assessment and to testify at trial, and to explain any discrepancies.

Costs were to be resolved by the parties or through written submissions.

The plaintiff sought summary judgment for wrongful dismissal, arguing she could rescind her notice of retirement.

She had submitted a written notice of retirement effective December 31, 2016, but later orally sought to withdraw it after a company conversion project was suspended.

The defendant maintained the retirement was binding.

The court examined whether an employee can rescind a resignation after it has been accepted by the employer, concluding that once a clear and unequivocal resignation is accepted, it forms a binding contract that cannot be unilaterally resiled from.

The plaintiff's claim was dismissed.

The Plaintiff sought an order finding the L'vova Defendants (Aida L'vova and Yuri Kulinich) in contempt for breaching various court orders, including a Mareva injunction, an order for accounting, and an order to pay $700,000 into court.

The court found both Aida and Yuri in contempt, concluding they knowingly and deliberately acted to hide funds and defy court orders.

Aida directed the transfer of $700,000 to her son, who then transferred it to Yuri, who claimed to have used it for gambling debts.

The court imposed an initial 2-day detention, followed by an 88-day intermittent (weekend) incarceration if the $700,000 is not paid into court by mid-September 2018, emphasizing deterrence, denunciation, and coercion.

This sentencing decision follows a jury conviction of Nicholas Jenkins for three counts of trafficking and three counts of possession for the purpose of trafficking cocaine, fentanyl, and heroin.

Tianna Morgan was convicted of three counts of possession for the purpose of trafficking heroin, fentanyl, and cocaine, and one count of obstructing a peace officer, plus a breach of probation.

The court applied the Kienapple principle to conditionally stay the fentanyl convictions for both defendants due to unknown quantities and lack of specific knowledge, entering convictions for heroin instead.

Jenkins received a global sentence of six years and six months, reduced to five years and 295 days after pre-sentence credit.

Morgan received a global sentence of time served (305 days) and three years probation, with a focus on rehabilitation.

The applicant and respondent, brothers, disputed their interests in a condominium.

They signed minutes of settlement for the respondent to buy out the applicant's share for $80,000.

The respondent failed to pay, leading to litigation where both sought partition and sale, but the applicant also sought enforcement of the settlement.

The respondent argued impossibility of enforcement due to the property's sale, but the court found this argument specious, noting the respondent's prior inconsistent positions and lack of ability to fund the buyout.

The court enforced the minutes of settlement, ordering the respondent to pay $80,000 from the sale proceeds.

The accused brought a second third-party records application under s. 278.3 of the Criminal Code, seeking records from the Children's Aid Society (CAS) and Ottawa Police Service (OPS).

The defence argued the records were relevant to the complainant's credibility and reliability, particularly concerning her alleged drug and alcohol use, which was a factor in her leaving the family home and subsequently making allegations.

The court, applying the two-part test from R. v. Mills, reviewed the records.

It found that certain OPS records (incidents from March 18, 2016, and April 16, 2016, and a related video), which suggested the complainant may have been intoxicated, were relevant and producible, subject to redactions, consistent with a prior ruling by Gilmore J. regarding similar York Regional Police Service records.

However, a 911 audio call and OPS records from April 18, 2016, relating to Algonquin College, were deemed irrelevant and not produced.

The court emphasized the need to avoid stereotypical conclusions about complainants.

Rehan Riaz, facing multiple charges including impaired driving and driving disqualified, sought a bail review after being denied bail.

The application was based on a material change in circumstances, including new sureties and efforts to secure addiction counselling, and arguments regarding the length of pre-trial custody potentially exceeding a fit sentence.

The court found that the new supervision plan was not a material change but accepted that the potential length of pre-trial incarceration, possibly exceeding a likely sentence, constituted a material change.

The court granted judicial interim release with specific conditions, including residing with his sister, supervision, and prohibitions on alcohol, non-prescriptive drugs, and driving.

Yuk Yuen Lee and Jing Zhang Huang were convicted by a jury of production and trafficking of cannabis.

A Gardiner hearing determined that the Crown did not prove the number of plants for mandatory minimum sentencing, but confirmed a substantial grow operation.

The Crown sought four years for Lee and two years for Huang, arguing Lee was the mastermind.

The defence sought suspended sentences or fines.

The court rejected the 'mastermind' theory, finding both individuals were lower-level participants.

Lee was sentenced to 15 months incarceration and three years probation, with no credit for speculative parole eligibility time.

Huang was sentenced to seven months and one week incarceration (net five months after pre-trial credit) and three years probation.

Ancillary orders under s. 109 of the Criminal Code and DNA orders were imposed for both.

The court emphasized denunciation and deterrence, noting that commercial grow operations remain unlawful despite pending legislative changes to marijuana possession.

Anna Fontana was found guilty of fraud over $5,000 and theft by conversion.

The fraud involved a $150,000 loan from an elderly friend, Edda Marie Favretto-Post, intended for a restaurant but used for personal expenses and gambling.

Only $12,000 was repaid.

The Crown sought three years imprisonment and restitution, while the defence sought an 18-month conditional sentence.

The court imposed a conditional sentence of two years less a day, including nine months of house arrest, a restitution order of $150,000, and a fine in lieu of forfeiture of $150,000, with the expectation that the family residence might need to be sold to satisfy the restitution.

The court emphasized denunciation, deterrence, and reparation, noting the breach of friendship and the victim's vulnerability.

This costs endorsement arises from the plaintiffs' acceptance of the defendant's offer to settle for $50,000, which included partial indemnity costs, HST, and disbursements to the date of the offer.

The court assessed the plaintiffs' costs, noting that the total costs claimed were disproportionate to the settlement amount.

Applying the principle that costs must be fair and reasonable from the perspective of the unsuccessful party, the court fixed the plaintiffs' partial indemnity costs at $22,500 plus HST, along with disbursements incurred up to the offer date, leaving the exact disbursement amount for counsel to resolve.

Ms. Fairbarn brought a second Rowbotham application for state-funded counsel after her initial application was denied.

The court found a material change in circumstances, including her loss of employment and a formal separation agreement providing only for subsistence.

The court determined that Fairbarn was indigent and could not obtain private counsel, and that representation was essential for a fair trial.

A conditional stay of proceedings was ordered until the Attorney General provided funding for legal counsel, citing violations of Charter sections 7 and 11(d).

K.M. was convicted by a jury of sexual assault, sexual touching, and invitation to sexual touching involving a 13-year-old victim.

The court conducted a Gardiner hearing and found that K.M. had rubbed oil on the complainant's stomach for sexual purposes, participated in mutual masturbation, and had sexual intercourse with the complainant multiple times.

The Crown sought a sentence of six to seven years, while the defence sought one year incarceration plus three years probation.

The court considered aggravating factors, including the victim's age, K.M.'s non-traditional position of trust, and the grooming behaviour, and mitigating factors, such as K.M. being a first-time offender.

Emphasizing denunciation and deterrence, the court imposed a sentence of 66 months (five and a half years) incarceration, along with a DNA order and a 20-year SOIRA order, declining a weapons prohibition or public park restriction.

The defendant, Kafaru Mustafa, pleaded guilty to one count of Fraud Over $5,000 related to a "Black Money Scam." Despite initial denials in the Presentence Report, the defendant reaffirmed his guilty plea after a further plea inquiry, understanding the implications of a criminal record.

The Crown recommended a suspended sentence with probation and restitution, which the court accepted, considering the defendant's first-time offender status, remorse, and willingness to make restitution.

The applicant, John Bradley Atkinson, sought a conditional stay of his sentencing and long-term offender (LTO) proceeding until the Attorney General funded his legal representation, pursuant to a Rowbotham application.

The court applied the three-part Rowbotham test, finding that the applicant had exhausted Legal Aid appeals and that his right to a fair hearing would be compromised without counsel.

However, the court found that the applicant failed to establish indigency, as he had access to a $10,000 inheritance that he had not disclosed to Legal Aid Ontario and had not demonstrated was insufficient to retain private counsel for the estimated four-day LTO hearing.

Consequently, the application was dismissed.

Giuseppe DiMichele was found guilty of sexual assault and touching for a sexual purpose a person under 16.

The victim was 15, vulnerable due to age, intoxication, and a brief employee-employer relationship.

The court considered aggravating factors including the victim's age, vulnerability, and significant emotional harm, and Mr. DiMichele's prior criminal record (non-violent) and issues with alcohol and compliance with bail conditions.

Mitigating factors were few, as he maintained innocence and showed no remorse.

The court emphasized denunciation and deterrence, imposing a sentence of 40 months' incarceration, a 10-year weapons prohibition, DNA sample, and a 20-year SOIRA order.

Credit for restrictive bail conditions was denied due to the defendant's self-inflicted breaches.

A Gardiner hearing was held to determine the number of marijuana plants for sentencing purposes after convictions for production and possession for trafficking.

The Crown sought to engage a mandatory minimum sentence based on a plant count exceeding 500.

The defence presented expert statistical evidence challenging the adequacy of the police's sampling methodology.

The court found that the Crown failed to prove beyond a reasonable doubt that the number of marijuana plants exceeded 500 due to the arbitrary sampling process, thus precluding reliance on the mandatory minimum.

However, the court accepted that it was a substantial marijuana grow operation for general sentencing purposes.