Michael D. McArthur

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.

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.

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.

The applicant sought to prove the deceased's 2020 Will and inter vivos transfers, while the respondent filed a Notice of Objection alleging lack of testamentary capacity and undue influence regarding both the 2016 and 2020 Wills, as well as the transfers.

The court reviewed the evidence, applying the minimal evidentiary threshold test for suspicious circumstances.

The court found that the respondent failed to meet this threshold for any of her grounds, and the applicant successfully addressed any potential concerns.

The respondent's Notice of Objection was struck.

The applicant sought interim primary residence of the four children following separation and a unilateral move.

The respondent also sought primary care or shared custody.

The court, applying the best interests of the child test under the Children’s Law Reform Act, ordered interim shared custody on an alternate week basis.

The decision emphasized the need for stability and consistency, and discouraged parental conflict and "affidavit-wars," noting that both parents had demonstrated the ability to care for the children.

The Office of the Children’s Lawyer was appointed.

The defendants applied under s. 11(b) of the Charter for a stay of charges due to unreasonable delay, as the time from charge to the anticipated end of trial exceeded the 30-month presumptive ceiling.

The court found no defence-caused delay and no discrete events that would justify the delay.

Furthermore, the case was not deemed particularly complex to rebut the presumption of unreasonable delay.

Despite acknowledging significant judicial resource limitations, the court concluded that the 30.5-month delay was unreasonable and granted the application, staying the charges against both defendants.

The Crown sought to admit expert forensic accounting evidence from Jeffrey J. Good to establish that approximately $49,500 in seized currency was proceeds of drug trafficking.

The defendants were jointly charged with possession of various prohibited substances for trafficking and possession of proceeds of crime.

The court applied the two-step admissibility test for expert evidence from *Mohan* and *White Burgess*.

While the expert was qualified, the court found the evidence lacked logical relevance to directly link the seized funds to drug trafficking over the seven-year period analyzed.

Concerns were also raised regarding the unexplained expansion of the expert's mandate from one defendant to both, and the arbitrary selection of the seven-year period.

The court concluded that the potential prejudicial effects of the evidence, including inviting speculation and devolving the case into a remote inquiry, outweighed its slight probative value.

Consequently, the expert evidence was deemed inadmissible.

The defendant, The Personal Insurance Company, brought a motion to compel the plaintiff to attend a defence psychiatric examination.

The plaintiff opposed, citing concerns about the trial date being compromised under Rule 53.03.

The court found that a psychiatric assessment was necessary due to a recent material change in the plaintiff's circumstances (inability to work).

While acknowledging the plaintiff's diligent conduct, the court ordered the plaintiff to attend the examination and the defendant to serve the report by a specific date.

The defendant was ordered to pay the plaintiff $3,500 in costs, despite being successful on the motion, due to the defendant's delay in seeking the examination.

Dr. Grochowski, an emergency room physician, sued Adam Young for defamation over online comments published by The Sarnia Observer.

Young's comments alleged Grochowski prescribed highly addictive medication without close inspection.

The court found the statements defamatory, rejecting Young's defenses of justification, fair comment, and responsible communication.

The court awarded Dr. Grochowski $12,500 in general damages plus prejudgment interest, and $2,000 in costs for a pleading amendment.

The defendant sought a bail review after being denied bail by a Justice of the Peace.

He was charged with robbery, disguise with intent, dangerous driving, possession for the purpose of trafficking, and failing to comply with release conditions.

The defendant proposed a new release plan including his mother as surety for a higher amount, residing at her home, GPS monitoring, and drug counselling.

The court found that the new evidence, including GPS monitoring, constituted a material relevant change in circumstances, triggering a review.

However, the court ultimately found that the defendant failed to discharge the reverse onus on both secondary and tertiary grounds, given his serious criminal record, long-standing drug addiction, past breaches, and the escalating nature of his criminal activity.

The application for bail review was dismissed.