Michael Fairney

The 30-year-old first offender was convicted of being a party to a sexual assault after digitally penetrating the complainant while she was physically restrained by another passenger in his vehicle.

The Crown sought a four-year sentence, while the defence argued for 18 months to two years less a day.

The court emphasized denunciation and deterrence given the gravity of the offence and the vulnerability of the victim, finding that digital penetration is as serious as penile penetration.

The offender was sentenced to three years' imprisonment, less credit for pre-sentence custody, along with mandatory ancillary orders.

The accused, Libsom Hibab, was charged with sexual assault as a party to the offence under s. 272(1)(d) of the Criminal Code.

The complainant alleged that Hibab digitally penetrated her vagina while another individual, Tinsay, restrained her.

Hibab admitted to some sexual touching but claimed it was consensual and stopped when asked, and that Tinsay's actions were separate and unknown to him.

The court rejected Hibab's testimony, finding it contrived and unbelievable, particularly his explanation for the complainant's injuries.

The court found the complainant's evidence credible and reliable, supported by physical injuries and her distressed demeanour during the 911 call.

Applying the principles from R. v. W.(D.), the court found the Crown proved guilt beyond a reasonable doubt, convicting Hibab as charged.

The accused was charged with extortion and firearms offences.

Due to the COVID-19 pandemic, his jury trial was suspended, resulting in a delay beyond the 30-month ceiling.

The accused brought a s. 11(b) Charter application, arguing that the suspension of jury trials was an unconstitutional overreaction to the pandemic and seeking to call expert medical evidence to challenge the lockdown measures.

The Crown brought an application to summarily dismiss the accused's motion.

The court granted the Crown's application, finding that the Chief Justice's decision to suspend jury trials was an exceptional circumstance under the Jordan framework, regardless of whether it was the correct public health response, and that the accused's motion had no reasonable prospect of success.

The applicant, facing robbery and firearms charges, sought an adjournment of his trial scheduled for January 4, 2021.

Due to the COVID-19 pandemic and a provincial lockdown, the Chief Justice directed that non-jury matters proceed virtually unless an in-person hearing was absolutely necessary.

The applicant opposed a virtual trial, citing difficulties with his living situation, his counsel's childcare issues, and potential custody issues, and offered to waive his s. 11(b) Charter rights.

The court granted the adjournment, finding that in the specific circumstances, the applicant's right to a fair trial warranted an in-person hearing.

The defendant was charged with impaired driving and driving with a blood-alcohol level of 80 milligrams or greater following a motor vehicle stop at a roadblock in Caledon, Ontario.

The defendant challenged the admissibility of breath test results on Charter grounds, alleging a breach of his right to counsel.

The court found that the defendant was properly advised of his right to counsel both at the roadside and at the police station, and that any implementation issues were not communicated to police or were resolved to the defendant's satisfaction.

The court rejected the defendant's credibility as unreliable and found him guilty on both counts, staying the over-80 charge pursuant to the Kienapple principle.

The Crown applied for an order permitting the complainant and her mother to testify by video link from Quebec in a trial for human trafficking and sexual assault.

The defence opposed the complainant testifying by video link but did not strenuously oppose the mother's request.

The court granted the application for the mother to testify from Quebec under s. 714.1 of the Criminal Code.

For the complainant, the court found it appropriate for her to testify outside the courtroom but ordered that she must do so from the Oshawa courthouse, citing concerns about managing cross-examination with documents and transcripts if she were in Quebec.

The defendant, approximately 60 years old, was charged with sexual assault and sexual interference upon a 5-year-old girl who was being babysat at his daughter's home.

The complainant alleged that the defendant touched her vaginal area under her clothing while she was sitting on his lap watching television.

The Crown's case relied primarily on the child's statement to police and statements made by the defendant to the child's parents during a confrontational meeting.

The defendant denied all allegations.

The trial judge found that while the child's evidence could support the allegations, the circumstances surrounding the defendant's statements—including the coercive nature of the confrontation, language barriers, and translation difficulties—rendered those statements of minimal evidentiary weight.

Applying the test from R. v. W.D., the judge concluded that a reasonable doubt existed and acquitted the defendant of all charges.

The defendant, A.S., was found guilty of criminal negligence causing bodily harm (and failure to provide necessaries of life, which was judicially stayed).

The case involved her failure to protect her nine-year-old daughter, I.B., from protracted sexual abuse by her stepfather, J.K., despite having clear knowledge of the abuse for nearly a year.

The court considered sentencing principles, including denunciation and deterrence for offences against children, and aggravating factors such as breach of parental trust and significant victim impact.

Mitigating factors included no prior criminal record and a low risk of re-offending, though remorse was deemed tepid.

The court granted six months credit for pre-trial custody and stringent bail conditions.

A penitentiary sentence of three years was imposed, reduced to two years and six months after credit.

Ancillary orders included a DNA sample, firearm prohibitions, communication prohibitions with the victim and abuser, and a victim surcharge.

The Crown brought an application to permit a non-accredited interpreter to provide simultaneous translation in Visayan for a defendant charged with sexual assault and sexual interference.

The defendant, an elderly man from the Philippines with a grade 3 education, required interpretation to exercise his section 14 Charter rights.

The proposed interpreter was an intelligent and accomplished woman with extensive multilingual experience and prior court interpretation work, but lacked formal accreditation in Visayan and had not taken certification exams in that language.

The court found that while the interpreter possessed competence in the language, the Crown failed to discharge its burden of proving on a balance of probabilities that she could meet the constitutional standard required for a lengthy, complex trial involving simultaneous translation of all courtroom proceedings.

The accused was charged after failing to protect her young daughter from prolonged sexual abuse and exploitation by the accused's partner in the family home.

The court held that the accused had specific knowledge, by at least April 2013, of sexualized conduct and prior abuse, yet chose not to report it or remove the child from danger.

Applying the objective fault standards for s. 215 and criminal negligence, the court found the omission was both a marked departure and a marked and substantial departure from the conduct of a reasonably prudent parent.

Convictions were entered for failure to provide the necessaries of life and criminal negligence causing bodily harm, but the count of permitting prohibited sexual activity failed because the Crown did not prove the accused knowingly permitted the child to be on the premises for that purpose.

On a voir dire in a prosecution arising from an alleged failure to protect a child from sexual abuse, the court considered the voluntariness of statements made by the accused mother to police and a child protection worker.

Applying the contextual voluntariness analysis and the law governing when a witness becomes a suspect requiring a full caution, the court held that the February 11 interview remained admissible despite the absence of a full suspect caution until the accused admitted knowledge of abuse in April 2013.

The accused was then objectively implicated, but the surrounding circumstances still established voluntariness beyond a reasonable doubt for that interview.

By contrast, the February 12 interview was focused on the accused's own conduct, no caution was given at the outset, and police minimized the jeopardy by describing it as a Children's Aid discussion.

The court found reasonable doubt about voluntariness and excluded all February 12 utterances and statements.

The accused was charged with carrying a knife for a purpose dangerous to the public peace contrary to section 88(1) of the Criminal Code.

The Crown proceeded on one count after acknowledging lack of proof on four counts.

The accused's stated purpose was to kill himself during an incident at his apartment.

The court applied the two-stage test from R. v. Kerr: first determining the accused's subjective purpose, then assessing objectively whether that purpose was dangerous to the public peace.

The court found that even if the accused's true intent was suicide, the fact that he communicated this intent to his common-law partner, who was present and reasonably expected to intervene, made the possession dangerous to the public peace.

The court convicted the accused.

Following a conviction for trafficking in cocaine and possession of proceeds of crime arising from a street‑level undercover drug buy, the accused applied for a stay of proceedings on the basis of entrapment.

The court reviewed the entrapment doctrine from R v Mack and subsequent jurisprudence, including the principles governing random virtue testing and bona fide police investigations targeting areas of suspected criminal activity.

Evidence showed the undercover officer conducted an opportunity buy in an area reasonably suspected of significant drug activity and did not induce the accused beyond offering an opportunity to sell drugs.

The court rejected the accused’s claim that the officer exploited sympathy or persisted unfairly.

The accused failed to meet the burden of establishing entrapment as an abuse of process.

The accused was charged with two counts of robbery, two counts of robbery with an imitation firearm, and one count of arson arising from incidents on February 19, 2014.

The Crown sought detention on primary and secondary grounds.

The accused, who is of Aboriginal descent, proposed his mother as surety with a house arrest plan.

The court found that the Crown satisfied its onus on both the primary ground (ensuring attendance in court) and the secondary ground (protection of the public).

The accused's extensive criminal history involving violence and weapons, combined with his demonstrated non-compliance with court orders and supervision, established that detention was necessary.

The court ordered the accused detained in custody.

The landlord brought a motion to set aside the tenants' notice of appeal from an eviction order issued by the Landlord and Tenant Board.

The tenants argued the Board erred by failing to consider their efforts to pay rent with cheques that were ultimately dishonoured.

The Divisional Court granted the landlord's motion and quashed the appeal, finding that the tenants' ground of appeal did not raise a question of law and had no arguable merit.

Costs of $1,000 were awarded to the landlord.