Michael Anne MacDonald

The Crown brought an application seeking to quash a decision by the Ontario Court of Justice (OCJ) that granted a preliminary inquiry to the respondent, William Stengel.

Stengel was charged with sexual assault and related offences committed between 2010 and 2012, which at the time carried a maximum penalty of 10 years imprisonment.

The Crown argued that under the amended s. 535 of the Criminal Code, preliminary inquiries are only available for offences punishable by 14 years or more, and that the relevant maximum punishment is determined at the time of the offence's commission, not the current maximum.

The court, applying s. 43 of the Interpretation Act and Supreme Court precedent, agreed with the Crown, finding that the OCJ lacked jurisdiction to hold a preliminary inquiry.

The decision of the application judge was quashed, and the matter was remitted to the OCJ for trial election without a preliminary hearing.

The Crown applied for a declaration that the accused's election to request a preliminary hearing was without jurisdiction, arguing that Bill C-75 amendments to the Criminal Code restricted preliminary inquiries to offences punishable by 14 years or more of imprisonment.

The accused was charged with sexual offences that carried a maximum penalty of 10 years at the time of the alleged conduct in 2011-2012, but 14 years under the current Criminal Code.

The court rejected the Crown's position and held that the right to a preliminary inquiry is determined by reference to the current maximum penalty of the offence as it appears in the Criminal Code, not the penalty applicable at the time of the alleged conduct or the specific circumstances of the accused.

The accused was charged with sexual assault following an incident in which he engaged in vaginal intercourse with the complainant while she was asleep.

The central issues were consent and honest but mistaken belief in communicated consent.

The court rejected the accused's evidence that the complainant had invited him into the bedroom and instead accepted the complainant's evidence that she was asleep when the intercourse began.

The court found that the accused failed to take reasonable steps to ascertain consent and that any belief in communicated consent was based on silence, passivity, and ambiguous conduct, which constitutes a mistake of law.

The court also found that the accused was at minimum reckless or willfully blind to the absence of consent.

The accused was convicted of sexual assault.

The Crown brought a motion on a voir dire to qualify a police officer as an expert witness in drug trafficking.

The accused was charged with possession of marijuana and a prohibited firearm.

The court considered the officer's 12 years of police experience, including two years on the drug squad, involvement in numerous drug investigations, surveillance, undercover buys, informant handling, and specialized training courses.

Applying the R. v. Mohan criteria, the court found the expert evidence relevant, necessary, and not subject to any exclusionary rule.

The officer was deemed properly qualified based on his extensive practical experience and formal training.

The application to admit the officer's expert testimony was granted.

The Crown brought applications to quash subpoenas issued by the defence against two prosecutors, David Holmes (federal) and Steven Scharger (provincial).

The defence sought to compel their testimony at a preliminary hearing regarding an officer's alleged history of misconduct and excessive force, arguing it was material to the officer's credibility and the accused's ability to make full answer and defence.

The court found that the proposed evidence was not likely material to the preliminary hearing issues, was governed by the collateral fact rule, and that the necessity test for compelling counsel's testimony was not met.

The applications to quash the subpoenas were granted.

Following a family law trial concerning enforcement of a prior custody and relocation order, the parties settled mid‑trial and asked the court to determine costs.

The moving party had served earlier offers to settle that were as favourable or more favourable than the eventual settlement terms.

Applying Rules 18(14) and 24 of the Family Law Rules, the court held that a party who achieves a result as favourable as their offer is presumptively entitled to full recovery of costs, even where the final order arises from minutes of settlement rather than adjudication.

The court found the moving party’s conduct reasonable and the opposing party’s litigation conduct unfocused and unnecessarily expansive.

Despite the responding party’s limited financial means, the court concluded entitlement to costs remained and fixed costs at $55,000 inclusive of disbursements and HST.

The appellant father appealed a motion judge’s order granting the respondent mother sole temporary custody of the parties’ eight‑year‑old child after the mother relocated with the child from Kingston to Parry Sound.

The father argued the motion judge erred by finding he consented to or acquiesced in the relocation and by failing to treat the matter as a mobility case.

The court refused to admit fresh evidence, holding it failed the Palmer test because it could have been adduced earlier and would not have affected the result.

The court found no palpable and overriding error in the motion judge’s factual findings and concluded the decision appropriately focused on the child’s best interests and the disruption that a return to Kingston would cause.

The appeal was dismissed.

The applicant mother brought a motion seeking leave to relocate with the parties' two children from Parry Sound to Aurora, to vary the respondent father's access schedule, and for retroactive child support.

The father opposed the relocation, arguing it would further alienate him from the children, particularly the daughter who already refused to see him.

The court applied the best interests of the child test from Gordon v. Goertz.

Despite two Office of the Children's Lawyer reports recommending against the move, the court granted the relocation, finding it would provide the mother with better economic opportunities and would not disrupt the father's existing alternate-weekend access with the son.

The court also ordered the mother to seek treatment to repair the father-daughter relationship and ordered the father to pay retroactive child support.