M.D. McArthur

The appellant appealed a summary conviction for sexual assault, arguing the trial judge misapprehended evidence regarding the order the parties entered a shed, which allegedly rendered the complainant's account impossible.

The Superior Court of Justice found that the trial judge's reasons did not hinge on the order of entry and that she was entitled to accept parts of witnesses' evidence.

The court concluded there was no misapprehension of evidence material to the outcome and dismissed the appeal.

Sentencing for repeated child sexual offences committed over years against the complainant in a trusted caregiver context.

The court treated denunciation and deterrence as the predominant sentencing principles, while also considering totality, proportionality, rehabilitation prospects, and the offender's lack of prior record.

Aggravating features included escalating sexual conduct, breach of trust, vaginal intercourse, the complainant's pregnancy and abortion, and the complainant's ongoing emotional harm.

A global penitentiary sentence of nine years was imposed together with ancillary no-contact, child-protection, DNA, weapons prohibition, and sexual offender registry orders.

During a murder trial, counsel for one co-accused renewed an application to recall two witnesses to testify about the deceased's general reputation for violence and aggression, arguing that the evidentiary basis had changed since both co-accused had now testified.

The court had previously permitted specific Scopelliti evidence of the deceased's prior acts of weaponized intimidation but denied broader character evidence.

The court found that the law and reasons from its prior ruling continued to apply and denied the renewed request, noting that unlike the other co-accused who had established an air of reality for self-defence, the moving co-accused had not satisfied that threshold.

The applicant brought a motion for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

The total delay from arrest to the anticipated end of trial was approximately 70 months, exceeding the presumptive 30-month ceiling established in R. v. Jordan.

However, the court found that the applicant failed to comply with procedural requirements by not filing the application within the prescribed timeframe and not seeking leave to bring the application.

The court also found that the trial evidence could have been completed within the initially scheduled four days, with any extended period attributable to discrete exceptional circumstances including mistrial applications and a voir dire on video authenticity, both of which were reasonably unforeseeable and unavoidable from the Crown's perspective.

The application was dismissed.

The applicant sought to quash a municipal by-law establishing a new municipal accommodation tax on the grounds that it violated the Municipal Act by attempting to repeal a by-law under which a debt had been contracted, and that it was passed in bad faith to vitiate a valid and subsisting agreement.

The court found that the revenue sharing arrangement under the transient accommodation tax did not constitute a debt under the Municipal Act, and that the municipality had not acted in bad faith in passing the new by-law.

The court dismissed the application, finding that the municipality retained the power to enter into agreements with eligible tourism entities and that no exclusivity was granted to the applicant.

The court considered a Charter application by Douvainn Dean, who was charged with multiple offences including possession of a handgun, drugs, and a stolen vehicle.

The court found that the police lacked both subjective and objective grounds for Dean's detention, resulting in a violation of his section 9 Charter rights.

The court also addressed the issue of racial profiling and found no evidence that race or racial stereotypes motivated the police.

Ultimately, the evidence seized as a result of the detention was excluded under section 24(2) of the Charter.

The accused, N.D.H., was charged with multiple sexual offences against a child.

The trial focused on the credibility and reliability of the complainant’s evidence, which was found to be inconsistent and unclear on significant points.

The defence established a motive to fabricate based on the complainant’s upset over having her electronic devices taken away.

The court found the accused’s evidence credible and acquitted him, holding that the Crown had not proven the charges beyond a reasonable doubt.

The defendant applied for a directed verdict of acquittal on two counts of operating a conveyance with THC in his blood exceeding 5.0 ng/mL, contrary to s. 320.14(1)(c) of the Criminal Code.

The Crown conceded no liability for impairment but argued sufficient evidence for the THC concentration.

The court, applying the test for a directed verdict and considering the expert toxicologist's evidence regarding measurement uncertainty (specifically, the +/- 0.4 ng/mL margin of uncertainty on the 5.2 ng/mL reading), found that the Crown failed to negate the reasonable inference that the THC level could have been below 5.0 ng/mL.

Consequently, the evidence was insufficient to support a conviction beyond a reasonable doubt, and the motion for a directed verdict was granted, dismissing counts 1 and 3.

The defendant, Christian Almendares, was charged with two counts of sexual assault and sexual exploitation.

The trial focused on the credibility and reliability of the complainant and the defendant.

Applying the principles from R. v. W.D., the court found that the defendant's evidence created a reasonable doubt.

The court also expressed concerns about the overall reliability and context of the complainant's evidence.

Consequently, the Crown failed to prove the charges beyond a reasonable doubt, and the charges were dismissed.

The defendant, Abe Benico Vergara, was found guilty after a trial of six counts of sexual assault involving six adult employees at his massage parlour.

The offences involved non-consensual sexual activity during otherwise consensual massages.

The court considered aggravating factors, including the abuse of a position of authority and forced penetration, and mitigating factors, such as no prior criminal record and positive family support.

Applying principles of denunciation, deterrence, proportionality, and totality, the court sentenced the defendant to a total of 68 months (5 years and 8 months) in jail, with some counts running concurrently and others consecutively.

Ancillary orders for a communication ban, DNA, lifetime weapons prohibition, and sexual offender registry were also imposed.

This endorsement concerns a costs decision following a motion brought by the bankrupt, Brian Wayne Flight, against the respondent trustee, Adamson & Associates Inc. The bankrupt sought document production and the examination of the trustee regarding his fourth bankruptcy.

The court found that while document verification was facilitated, the request for the trustee's examination was denied as it was for the bankrupt's personal benefit, not the creditors', and outside the core statutory purposes of the Bankruptcy and Insolvency Act.

Considering the divided success and the acrimonious context of related litigation, the court determined that the respondent trustee was largely successful in resisting the examination request.

This endorsement addresses the issue of costs following a trial where the plaintiffs were successful in their breach of contract claim against the defendants, arising from an aborted business sale.

The court had previously found the defendants committed an anticipatory breach and awarded damages of $53,310.04.

The plaintiffs sought $70,000 in costs, while the defendants argued no costs should be awarded, citing the judgment amount being below the Rule 76 threshold.

The court, applying Rule 57.01, found that costs were appropriate given the plaintiffs' success, their Rule 49 offer, and the defendants' unfounded allegation of civil fraud, which complicated the trial.

The court awarded the plaintiffs an all-inclusive amount of $64,000 for costs.

The applicant brought a Charter application challenging the facial validity of a tele-warrant issued for her residence during a drug trafficking investigation.

The court found that while there were reasonable and probable grounds to search other locations associated with the main target, the evidence connecting the applicant's residence to drug activity amounted to mere suspicion based solely on a single visit by the target.

The court concluded the search violated section 8 of the Charter and excluded the seized methamphetamine under section 24(2), finding the serious intrusion into a private residence outweighed society's interest in adjudicating the case on its merits.

This criminal trial concerned charges against the defendant, Warren Walls, for inviting sexual touching, transmitting sexually explicit material to a person believed to be under 16, and sexual assault.

The court assessed the credibility and reliability of the complainant's testimony, noting significant inconsistencies and fabrications regarding the sexual assault and invitation to sexual touching allegations, which raised reasonable doubt.

While the transmission of sexually explicit material was proven, the Crown failed to establish the requisite purpose of facilitating a sexual offense beyond a reasonable doubt.

Consequently, the defendant was acquitted on all counts.

The Crown applied under s. 486.2(2) of the Criminal Code for the complainant to testify via closed-circuit television (CCTV) in a sexual assault and sexual interference trial.

The accused opposed, arguing the evidential threshold was not met.

The court considered factors under s. 486.2(3), including the complainant's heightened anxiety and emotional state, finding that her ability to provide a full and candid account would be adversely influenced by the accused's presence.

Despite the case being "marginal" and lacking medical evidence, the court granted the application, concluding that CCTV would facilitate the complainant's testimony.

The accused, charged with sexual assault, brought an application seeking a declaration that text messages between himself and the complainant were not 'records' under section 278.1 of the Criminal Code.

The messages primarily involved the complainant asking the accused for money to purchase a property and expressing frustration.

Applying the framework from R. v. J.J., the court found that the messages did not contain highly sensitive personal information going to the complainant's biographical core.

The application was granted, and the court declared the text messages were not records.

The Crown brought an application under s. 486.2(2) of the Criminal Code seeking an order to allow the complainant to testify at trial by closed-circuit television (CCTV).

The accused opposed the application.

The court considered the factors under s. 486.2(3) and found that the complainant, a mature and articulate adult without disabilities, was capable of providing a full and candid account of the allegations in open court.

The court noted that the complainant had previously participated in family court proceedings with the accused in the same courtroom without incident.

The application was dismissed, with the court noting that pauses or breaks would be available to the complainant if needed during her testimony.

The plaintiffs, representing the estates and family of two murder victims, sued the Brantford Police Services Board in negligence, alleging the police failed to respond to citizens' reports of suspicious activity prior to the murders.

The defendant brought a Rule 21 motion to strike the statement of claim for disclosing no reasonable cause of action.

The court granted the motion, finding that the police owed a duty to the public at large, not a private law duty of care to the specific victims, as there was no advance notice of a specific risk of harm to them.

The statement of claim was struck without leave to amend.

The Crown closed its case in a trial where the accused were charged with possession of various prohibited substances for the purpose of trafficking and possession of property obtained by crime.

The accused brought motions for directed verdicts of acquittal on all counts.

The court granted the directed verdict of acquittal for the charge of possession of property obtained by crime, finding no reasonable inference could connect the seized cash to drug trafficking.

However, the court dismissed the motions for the drug trafficking charges, finding sufficient circumstantial evidence of constructive possession and intent to traffic for a reasonable jury to potentially convict.

This trial concerned a failed asset purchase agreement for a fastener distribution business.

The plaintiffs, vendors of the business, sued the defendants, purchasers, for breach of contract after the transaction failed to close.

The defendants argued the agreement was void for uncertainty and that the plaintiffs had made fraudulent misrepresentations regarding sales and inventory.

The court found the agreement enforceable, dismissed the misrepresentation claims, and determined that the defendants committed an anticipatory breach by attempting to renegotiate the purchase price.

The plaintiffs were awarded damages, calculated based on the expectancy principle, though the amount was adjusted from their initial claim.