Martin S. James

The offender, G.T., was found guilty of sexual assault.

This decision outlines the reasons for sentencing.

The Crown sought 18-24 months incarceration, while the defence proposed a conditional discharge or a 3-6 month conditional sentence.

The court rejected a conditional discharge due to the offender's lack of genuine remorse and insight.

Ultimately, the court imposed a 12-month conditional sentence followed by an 18-month probation order, citing mitigating factors such as the offender's youth, lack of criminal record, and significant procedural delays, and the constitutional ruling that allowed for conditional sentences for sexual assault.

The offender, R. V., was found guilty of sexual interference involving a 7-8 year old female child.

The sentencing proceeded in abstentia due to the offender's unconfirmed whereabouts.

The court considered aggravating factors including repeated incidents with penetration, a dated but significant criminal record, and a breach of trust, alongside mitigating factors such as a strong work history, family support, health issues, and a low risk of re-offending.

Applying the principles from Friesen (2020 SCC 9), which emphasizes denunciation and deterrence for child sexual abuse, the court imposed an 8-year prison sentence.

The Town of Laurentian Hills brought an application without notice under s. 7(2) of the Municipal Conflict of Interest Act for an order allowing all members of its municipal council to discuss and vote on matters related to a Near Surface Disposal Facility proposal by Canadian Nuclear Laboratories.

Every member of the council had a conflict of interest as they or a close relative received remuneration from the company, which would prevent a quorum.

The court granted the order, finding that the issue was one of governance and political decision-making rather than personal financial benefit, and did not offend the spirit of the Act.

The plaintiffs in three related lawsuits arising from a fatal head-on automobile accident brought summary judgment motions to determine liability.

All parties agreed that liability could be determined by summary judgment but held diametrically opposed positions on who was liable.

The court found that the existence of competing expert accident reconstruction reports, particularly those based on computer simulations with unknown reliability, created genuine issues of material fact regarding causation.

The court also noted an "air of reality" to the contention that the deceased plaintiff's distracted driving might have contributed to the collision, despite a prior Highway Traffic Act conviction against one of the defendants.

Consequently, the motions for summary judgment were dismissed, as a full trial with oral testimony and cross-examination was deemed necessary to resolve the complex factual disputes and competing expert opinions.

The applicants sought an order for restitution and vacating of victim fine surcharges imposed between 2013 and 2018, following the Supreme Court of Canada's decision in R. v. Boudreault which found the surcharge unconstitutional.

The court granted the order vacating the unpaid surcharges for the applicant, Serge Parent, finding it just and appropriate under s. 24(1) of the Charter, and that the limitation period had not expired.

However, the court dismissed the request for restitution of already paid surcharges and the broader class remedy, noting that s. 24(1) is for personal remedies and that government measures had ameliorated some harms.

A child protection agency brought a motion for temporary care and custody of a six-year-old child.

The child's parents had been involved in protracted custody litigation in both Canada and the United States, including Hague Convention proceedings after the mother surreptitiously removed the child to the United States.

Following a U.S. court order returning the child to Canada, the child was placed in the father's care.

The court found that returning the child to the mother's care would effectively mean returning the child to the United States, posing a high risk of harm and loss of contact with the father.

The court ordered that the child be placed in the temporary care and custody of the father under the agency's supervision, finding it to be the least intrusive alternative consistent with the child's best interests.

The 73-year-old accused was convicted of sexually assaulting a 16-year-old victim who was sleeping at his home after consuming alcohol.

The Crown sought a sentence of two to three years' incarceration, while the accused sought a conditional sentence, relying on his Indigenous heritage and Gladue factors.

The court found insufficient evidence of Gladue factors to warrant an alternative sanction and emphasized the need for denunciation and deterrence for sexual offences against adolescents, applying the principles from Friesen.

The accused was sentenced to 12 months' incarceration, less pre-sentence custody credit, followed by 12 months' probation.

The Applicant, successful in an oppression application under the Canada Business Corporations Act, sought substantial indemnity costs after recovering a modest $14,555.34.

The court assessed the Applicant's costs outline, which included two offers to settle.

The first offer was deemed invalid for costs consequences under Rule 49.11 as it was not made to all jointly and severally liable defendants and was not unilaterally controllable.

The second offer, while made to both respondents, was structured in a way that required an ad hoc assessment of costs, making it difficult to determine if the result was better than the offer.

Emphasizing proportionality given the modest recovery and the significant costs incurred by the Applicant (including multiple lawyers), the court awarded a proportionate sum of $20,000, all inclusive, payable jointly and severally by the Respondents, significantly less than the Applicant's claim.

The applicant children's aid society brought a motion for temporary care and custody of a youth.

The youth had been living with the mother but experienced significant difficulties, including failing school, technology addiction, and physical altercations.

The youth was temporarily placed with the father.

The mother opposed the placement and sought the youth's return.

The court found that returning the youth to the mother would likely cause harm and that a supervision order would not be effective.

The court granted the society's motion to maintain the youth's placement with the father.

In a Motion to Change proceeding, the moving party sought to file a reply affidavit after the responding party delivered a 340-page affidavit shortly before the hearing.

The responding party objected, arguing the Family Law Rules do not explicitly authorize reply affidavits on Motions to Change.

The court held that while the Rules do not explicitly authorize a right of reply, it is common practice and necessary for fairness, especially given the responding party's late filing and the long delay caused by the pandemic.

The moving party was permitted to file a reply affidavit limited to new matters.

The Integrity Commissioner applied for a determination that a municipal councillor contravened the Municipal Conflict of Interest Act.

The councillor had declared a conflict of interest regarding a fire department service charge levied against her son, but remained in the council meeting and actively questioned the fire department representative about practices and procedures.

The court found the councillor intentionally used her position to attempt to obtain a financial advantage for her son, contravening the Act.

The court declared the councillor's seat vacant but declined to disqualify her from seeking re-election in the future.

Following separate sexual assault convictions and before sentencing, the applicants brought joined constitutional applications challenging the prohibition on conditional sentence orders for indictable sexual assault under s. 742.1(f)(iii) of the Criminal Code.

The court held that the provision was overbroad under s. 7 of the Charter because sexual assault encompasses a broad spectrum of conduct, including cases not so serious as to require imprisonment to maintain the integrity of the justice system.

Relying on the reasoning in Sharma and a prior superior court decision extending that analysis to sexual assault, the court rejected the Crown's mootness argument and granted both applications.

The court found no cogent reason, under principles of judicial comity, to depart from the earlier decision.

The applicant father brought an urgent motion for a temporary order returning the parties' 9-year-old son to a week-about shared parenting regime.

The respondent mother had unilaterally withheld the child following an incident that resulted in criminal charges and a no-contact order against the applicant.

The court found that returning to the established status quo of shared parenting was in the child's best interests, noting no evidence of parental alienation by the applicant.

The motion was granted, with exchanges ordered to take place at a Visitation and Exchange Centre.

The applicant father brought an urgent motion prior to a case conference seeking sole decision-making power, primary parenting responsibility, and supervised access for the respondent mother.

The father alleged that the mother's parents, who temporarily moved in with her, created an unsafe environment due to alcohol-fueled arguments and a recent homicide investigation at their property.

The court dismissed the motion, noting the lack of corroborating evidence from child protection agencies and finding that the conflicting affidavit evidence did not establish an emergency or that the requested orders were in the child's best interests.

The respondents were successful in defending an application for a declaration of a public highway.

The Township and the individual respondents, who were separately represented, sought costs.

The Township claimed partial indemnity costs, while the individual respondents sought full indemnity costs.

The court found that separate representation was justified but declined to award substantial indemnity costs as there was no Rule 49 offer or discreditable conduct.

Costs were fixed at $19,000 for the Township and $17,000 for the individual respondents, payable by the applicant.

The plaintiff moved to amend the statement of claim, and the defendant insurer moved under Rule 21 to strike out a portion of the claim seeking declarations regarding insurance coverage.

The defendant argued that adjudicating coverage issues in the main action was premature and contrary to the Insurance Act.

Relying on a recent decision of the same court, the judge granted the plaintiff's motion to amend and dismissed the defendant's motion to strike.

The plaintiffs successfully moved to strike the defendant's statement of defence for failure to deliver a proper affidavit of documents, answer undertakings, and pay an unpaid costs order.

The plaintiffs sought costs of $16,770.71 on a full indemnity basis.

The court found that the costs claim improperly included steps taken prior to previous costs orders.

The court limited the costs entitlement to the period subsequent to the last costs order and awarded the plaintiffs $1,550 inclusive of fees, disbursements, and HST on a full indemnity basis.

The applicant sought continued child support for the parties' 18-year-old child who was completing high school and planning to attend university.

The respondent argued the child was no longer a child of the marriage due to her unilateral estrangement from him.

The court held that the child remained a child of the marriage, noting that situational conflict does not disentitle a child to support.

The court ordered child support to continue until the end of August and directed the parties to discuss a financial plan for the child's post-secondary education.

The applicant sought a declaration that an 1890 municipal by-law established a public road across the respondents' properties to provide access to his landlocked parcel.

The court reviewed historical township minutes and found that while a road was contemplated and partially constructed, its exact location could not be determined with certainty.

The original survey was lost, and there was no modern record or visual evidence of the road's existence.

The application was dismissed due to the lack of certainty regarding the road's location.

The defendants, who were patients and cleaners for a family physician, were charged with multiple offences including using forged prescriptions and possessing fentanyl and oxycodone.

The Crown alleged they used their after-hours access to the doctor's office to forge prescriptions and fax them to pharmacies.

The court found both defendants guilty of using forged documents and possessing fentanyl and property obtained by crime, relying on circumstantial evidence including fax transmission times, lack of office stamps, and evidence of cutting and pasting.

The defendants were acquitted of possessing proceeds of crime due to insufficient evidence.