Michael Malleson

The corporate defendant pleaded guilty to altering an archaeological site without a licence under the Ontario Heritage Act after demolishing a building on a property containing a highly significant Saugeen First Nation archaeological and burial site.

The court accepted a joint submission emphasizing reconciliation, which included the defendant voluntarily transferring the property to the Saugeen First Nation, making a $30,000 donation to stabilize the site, and paying a $3,500 fine.

The sentencing hearing was held on the territory of the Saugeen First Nation to facilitate community participation and healing.

The Applicant sought leave to appeal the Director's decision to issue an Environmental Compliance Approval for air and noise to a meat processing facility.

The Applicant argued that the facility's noise emissions exceeded guidelines and that the eight-year timeline for implementing noise mitigation measures was unreasonable.

The Tribunal found that the Applicant had standing to seek leave to appeal based on his past involvement with an adjacent residential subdivision.

However, the Tribunal dismissed the application for leave to appeal, finding that the Applicant failed to satisfy the two-part test under section 41 of the Environmental Bill of Rights.

The Director's decision was reasonable, and the Applicant provided no compelling evidence that the decision could result in significant harm to the environment.

The appellant appealed the dismissal of his certiorari application, which sought to quash an appeal judge's order disqualifying his unlicensed agent and refusing an adjournment in a provincial offences appeal.

The Court of Appeal upheld the lower court's decision, finding that the appeal judge correctly applied the principles for disqualifying agents, particularly where the agent engaged in misconduct by intentionally concealing their involvement.

The court affirmed its inherent authority to control its processes and ensure the integrity of proceedings.

The adjournment issue was deemed moot as the appellant was permitted to restart his appeal.

The applicant sought leave to appeal the Director's decision to issue an amendment to an Environmental Compliance Approval for a 12-month pilot program to process municipal de-watered biosolids.

The applicant argued the decision was unreasonable due to the proximity of residential dwellings, cumulative impacts, the operator's track record, and potential health risks.

The Tribunal found the applicant had standing but failed to meet the test for leave to appeal under s. 41 of the Environmental Bill of Rights, 1993, as the Director's decision was reasonable and included appropriate conditions to mitigate environmental harm.

The application for leave to appeal was dismissed.

At a preliminary inquiry, the accused was charged with sexual assault, sexual interference, and sexual exploitation involving two complainants.

The Crown conceded committal on charges involving the first complainant.

Regarding the second complainant, the defence argued that the complainant consented to the sexual activity at the time it occurred, and that the accused was not in a position of trust or authority.

The court found that the complainant's subjective state of mind at the time of the sexual activity was determinative, and that her later retrospective characterization of the relationship as abusive did not negate consent that existed at the time.

The court also found no evidence that the accused was in a position of trust or authority over the complainant despite her volunteering at his mother's martial arts facility.

All charges involving the second complainant were discharged.

The accused pleaded guilty to assault causing bodily harm and breach of a peace bond.

The Crown sought a 30-day jail sentence followed by two years of probation.

The defence sought a conditional discharge with probation, emphasizing the accused's youth, lack of criminal record, and significant rehabilitative efforts.

The court imposed a conditional discharge with two years of probation, finding that while general deterrence typically militates against discharge in cases of violence, the exceptional circumstances—including the accused's youth, genuine remorse, substantial steps toward rehabilitation addressing underlying addiction and mental health issues, and the disproportionate impact of a conviction on future employment—warranted a discharge as not contrary to the public interest.

Sharon Baksh pleaded guilty to manslaughter during her second-degree murder trial.

The sentencing hearing considered aggravating factors, including a home invasion, the victim's age (89), and 149 stab wounds, alongside mitigating factors such as her drug/alcohol dependency and troubled childhood.

The court accepted a joint submission for a 12-year custodial sentence, which, after 1.5x credit for pre-sentence custody, resulted in a net sentence of 7 years, 8 months, and 13 days.

Non-communication, DNA, and lifetime weapons prohibition orders were also issued.

At a preliminary inquiry, the Crown sought committal on five counts of robbery with an offensive weapon against both defendants, with additional charges against Moore for disguising with a bandana and possession of a weapon.

The central issue was identification of the perpetrator(s) based on circumstantial evidence.

The Crown's theory was that Moore committed the robberies with Stanojevic as the getaway driver.

The court admitted similar fact evidence regarding the robberies and found sufficient circumstantial evidence linking Moore to all robberies.

Moore was committed to trial on all counts.

Stanojevic was committed on the August 21 robbery but discharged on the August 12 robbery, as there was insufficient evidence linking her to that incident.

The accused was convicted by a jury of possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code after police executing a search warrant discovered a loaded sawed‑off shotgun with a defaced serial number in a gym bag near where the accused was staying.

The Crown sought a penitentiary sentence of three and one‑half to four years, emphasizing the seriousness of possessing a loaded prohibited firearm and the accused’s youth record involving violence.

The defence argued for a reformatory sentence of 18 to 24 months, relying on the unconstitutionality of the mandatory minimum under s. 95 and the accused’s rehabilitative prospects.

The court rejected the Crown’s request to treat alleged drug dealing as an aggravating factor because it was not proven beyond a reasonable doubt.

Considering denunciation and deterrence while recognizing rehabilitation prospects and the circumstances of possession, the court imposed a two‑year custodial sentence followed by two years’ probation, along with a lifetime weapons prohibition and a DNA order.

The Crown brought an application seeking to admit evidence of discreditable conduct consisting of mail belonging to the deceased that was found in the apartment occupied by the accused and another individual.

The deceased had lived across the hall from the accused and there was no evidence of any relationship that would explain the presence of the deceased’s mail in the accused’s residence.

The court considered whether the evidence was relevant and whether its probative value outweighed any prejudicial effect.

Applying the principles governing admissibility of discreditable conduct evidence, the court found the evidence was capable of supporting an inference relevant to the identity of the person responsible for the death.

The probative value was found to outweigh any potential prejudice to a fair trial.

The accused brought a pre-trial application seeking permission to sit at counsel table with defence counsel during a jury trial for second-degree murder rather than in the prisoner’s dock.

The Crown opposed the request, relying on customary courtroom practice and security concerns.

The court reviewed authorities recognizing that the location of the accused in the courtroom is a matter within the trial judge’s discretion and that the traditional use of the dock does not create a presumption of guilt.

Given the absence of flight risk, anticipated violence, or disruption, and considering the modern courtroom setting, the court held that there was no reason to insist on the traditional arrangement.

The accused was therefore permitted to sit beside counsel without restraints in the presence of the jury.

The accused brought a third party records application seeking production of correctional, parole and probation, telephone, and Children's Aid Society records relating to an alleged jailhouse informant expected to testify about admissions to a murder.

Applying the framework from R. v. O’Connor, the court assessed the likely relevance of the records and balanced the accused’s right to make full answer and defence against privacy interests of the witness and other inmates.

The court found the probative value of certain correctional, parole, probation, and limited telephone records outweighed privacy concerns, given the need to scrutinize jailhouse informant evidence.

Limited disclosure with redactions was ordered, while Children's Aid Society records were withheld.

Strict conditions were imposed governing use, disclosure, and eventual destruction of the records.

The defendant was charged with 13 offences arising from a deteriorating marriage, including multiple counts of threatening death, assault, assault with a weapon, mischief, and criminal harassment.

The Crown's case relied primarily on the testimony of the complainant (the defendant's estranged wife), with limited corroborating evidence.

The defendant admitted to mischief but denied the remaining charges.

The court found significant credibility issues with both parties due to their substance abuse (alcohol and cocaine use during the relevant period), lack of independent witnesses to most incidents, and inconsistencies in the complainant's account.

The court convicted the defendant on three counts: assault with a weapon, assault, and mischief, all arising from an April 2013 incident.

All other charges were dismissed.

A ruling on spousal privilege in a preliminary inquiry concerning charges of murder and assault with a weapon.

The court determined that the defendant's common-law spouse was a competent and compellable witness despite spousal privilege protections under s. 4 of the Canada Evidence Act.

The court applied the common-law exception to spousal incompetence where surrounding circumstances disclose a threat to the person, liberty, or health of the witness spouse.

The court also addressed jurisdictional issues regarding the joinder of murder and assault charges under s. 589 of the Criminal Code.

The defendant was convicted of sexual assault, sexual interference with a person under 16 years, and invitation to sexual touching involving a person under 16 years.

Following conviction, the Crown applied to have the defendant declared a dangerous offender.

The court found the defendant met the statutory criteria for dangerous offender designation under section 753 of the Criminal Code.

Rather than imposing an indeterminate sentence, the court imposed a fixed sentence of six years imprisonment followed by a ten-year long-term supervision order, finding that with proper conditions and supervision, the risk of re-offending could be reduced to an acceptable level to protect the public.

The defendant was charged with impaired driving, driving with a blood alcohol level exceeding the legal limit (over 80), and stunt racing (exceeding the speed limit by more than 50 km/hr).

The defendant challenged the admissibility of breath test evidence, claiming a violation of her right to counsel under the Charter.

The court found the defendant not guilty of impaired driving but guilty of over 80 and stunt racing.

The court rejected the Charter argument, finding the police made reasonable efforts to locate counsel of choice and that the defendant's testimony regarding denial of cell phone access was not credible.

Following the defendant's conviction for sexual interference, invitation to sexual touching, and sexual assault, the Crown applied for a dangerous offender assessment under section 752.1 of the Criminal Code.

The court appointed a psychiatrist to prepare the assessment report.

The Crown sought the right to cross-examine the psychiatrist at the dangerous offender hearing, claiming the assessor was a court-appointed witness.

The defence objected, arguing that permitting Crown cross-examination would undermine the adversarial system and give the Crown an unfair advantage.

The court ruled that both Crown and defence had the right to cross-examine the assessor, distinguishing the nature of dangerous offender proceedings from traditional adversarial trials.

The applicant, Warsame Douale, brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been infringed.

He was charged with impaired care or control and having care or control of a motor vehicle while over 80 mg following a motor vehicle accident.

The total delay from the offence date to the scheduled trial date was 15 months and 25 days.

The Ontario Court of Justice dismissed the application, finding that the institutional delay of approximately 8 months fell within the acceptable guidelines established in R. v. Morin.

The accused was charged with 10 criminal offences including 8 counts of fraud over $5,000, 1 count of possession over $5,000, and 1 count of mail theft, arising from allegations that he fraudulently cashed corporate cheques between October 31, 2011 and December 28, 2011.

During trial, the court ruled on the admissibility of evidence regarding ATM machine locations and ATM surveillance video photographs.

The court admitted Ms. Jaramy's testimony regarding ATM locations as an exception to the hearsay rule, finding the banks' central listing of ATM locations satisfied reliability and necessity requirements.

The court also admitted ATM surveillance video photographs as admissible under section 29 of the Canada Evidence Act.

The defendant was charged with failure to comply with probation by not paying restitution of $2,023.15 by the end of a three-year probation term.

The defendant had pleaded guilty to fraud, communicating for the purposes of prostitution, failure to comply with a recognizance, and possession of a controlled substance.

The sentencing judge imposed probation with a restitution condition, finding that the defendant would have the ability to pay over the three-year period.

The defendant made no payments, repeatedly lied to the probation officer about making partial payments, and spent between $2,400 and $4,800 per month on crack cocaine during the probation period.

The trial judge found the defendant guilty of the breach charge, holding that while abject poverty can constitute a reasonable excuse for non-compliance, such cases are rare and compliance must be virtually impossible.

The defendant's continued drug use, repeated false promises, and failure to apply for a variance of the order negated any reasonable excuse based on poverty.