Michael N. Varpio

The accused pleaded guilty to firearms and drug trafficking offences after shooting and killing an assailant who attempted to rob him during a drug deal.

The Crown sought a sentence of eight to nine years, while the accused sought five years.

The court found that the shooting constituted lawful self-defence under s. 34(1) of the Criminal Code and therefore could not be used as an aggravating factor in sentencing.

The court imposed a global sentence of six years in custody, emphasizing denunciation and deterrence for the firearms and drug offences while acknowledging the accused's youth and rehabilitative prospects.

This motion concerned a Hague Convention application brought by the mother for the return of the child to Costa Rica.

The father opposed, arguing the child's habitual residence was Canada or that the parties had agreed to the child residing with him.

The court found both parents engaged in discreditable conduct, discounting their affidavit evidence.

Based on objective evidence, the court determined the child's habitual residence was Costa Rica at the time of travel to Canada and that no agreement to change residence existed.

The child was ordered to be returned to Costa Rica forthwith.

No costs were awarded due to both parties' unreasonable conduct.

This case involved cross-motions for summary judgment concerning the enforceability of a personal guarantee provided by a defendant for a corporate mortgage.

The plaintiff, a mortgagee, sought to enforce the guarantee against the defendant guarantor, despite multiple mortgage extensions made without the guarantor's knowledge or consent.

The court applied principles of contractual interpretation, particularly the strict construction of guarantee clauses, especially for accommodation sureties.

It found that specific language in the Mortgage Schedule, which defined a time-limited guarantee, amended the broader Standard Charge Terms that allowed for extensions without affecting the guarantee.

Consequently, the guarantor's liability was held to have terminated upon the expiration of the initial term, rendering the guarantee unenforceable at the time of default.

The father sought a mobility order to return children from Sault Ste.

Marie to Ottawa, while the mother filed a cross-motion for child support.

The court, prioritizing the children's best interests, expressed concerns over the mother's alleged substance abuse and both parties' insufficient evidence regarding care plans.

The judge ordered further detailed affidavits from both parents on specific issues, including the mother's drug history and living conditions, and the father's proposed care plan.

The Office of the Children's Lawyer was invited to intervene.

An interim decision on residency and child support is pending receipt of the additional evidence.

The accused, Falcon Beauchamp, brought a Charter application under s. 8 to exclude an imitation firearm and narcotics found in his vehicle after a traffic stop and search.

The search was conducted under s. 32(5) of the Liquor Licence Act based on an observed open beer can.

The court found the search unlawful due to a lack of objective reasonable grounds.

However, applying the s. 24(2) Grant test, the court determined that the seriousness of the breach was low, the impact on the accused's Charter rights was moderate, and society's interest in adjudicating serious drug and gun offences was high.

The application to exclude evidence was dismissed.

The accused was charged with assault and sexual assault against his wife.

The complainant alleged multiple instances of physical abuse and non-consensual anal and vaginal sex.

The accused denied the physical assaults and testified that the sexual encounters were consensual or stopped immediately upon the complainant expressing pain or lack of consent.

The court found the complainant's evidence to be deeply flawed due to inconsistencies, minimization of her role in the toxic marriage, and delayed disclosure.

Conversely, the accused's evidence was credible and unshaken.

Applying the W.(D.) framework, the court was left with a reasonable doubt and acquitted the accused of all charges.

The plaintiff hotel sought an injunction to restrain the neighbouring defendant tire shop from servicing commercial vehicles, alleging the noise constituted a nuisance and breached municipal by-laws and the Environmental Protection Act (EPA).

The court found that the noise from servicing commercial vehicles likely caused an adverse effect, breaching s. 9(1) of the EPA and, consequently, the municipal zoning by-law.

Applying the RJR-MacDonald test, the court granted an injunction restraining the defendant from servicing commercial vehicles between 8:00 p.m. and 9:00 a.m. to prevent irreparable harm to the hotel's reputation.

The Federal Crown brought an application to change the venue of the respondents' substantive application, which sought to attack a search warrant executed primarily in North Bay.

The Crown argued the matter should be heard in Ottawa, where the warrants were authorized.

The court found that while the issuance of a search warrant constitutes a pre-charge criminal proceeding, creating a presumption for the originating jurisdiction, the balance of convenience strongly favoured North Bay.

The respondents resided and operated businesses in North Bay, and the majority of the searched locations were there.

The Crown's application for a change of venue was dismissed.

The accused sought release from custody under s. 525 of the Criminal Code, having been detained on serious drug and firearm charges.

He presented a new release plan with multiple sureties, electronic monitoring, and medical evidence of hypertension, which heightened his risk from COVID-19.

The court considered the new plan and the COVID-19 risk but ultimately dismissed the application, finding that the accused's continued detention was necessary on secondary grounds due to a substantial likelihood of re-offending, particularly given his alleged breaches of prior release conditions and continued involvement in the drug trade.

Stephen Ward brought an application for detention review under s. 520 of the Criminal Code, challenging his detention by a Justice of the Peace on tertiary grounds.

The application raised three issues: whether the Crown needed leave to cross-examine a surety, whether the Justice of the Peace adequately balanced tertiary ground factors, and the failure to explicitly mention the lack of trial dates due to COVID-19.

The reviewing judge dismissed the application, finding no error in the Justice of the Peace's decision not to require leave for cross-examination of a surety, and that the tertiary ground analysis was functionally sound despite a minor misstatement.

The judge also found no error in the omission regarding trial dates, noting the fluid nature of the pandemic's impact on court operations.

The accused, John Leach, sought a bail review under s. 520 of the Criminal Code of Canada, citing the COVID-19 pandemic and a new plan of care as a material change in circumstances.

The accused, a 44-year-old with no criminal record, faced over 20 charges including domestic offences, human trafficking allegations, and weapons offences.

The court conducted a bail hearing de novo.

While the primary ground for detention was not met, the court found that detention was necessary on both secondary and tertiary grounds.

The proposed plan of care was deemed insufficient to mitigate the risk of reoffending, particularly given the serious nature of the firearms charges (possession of non-hunting weapons, including a sawed-off shotgun and pistols, after a police standoff).

The court also considered the impact of COVID-19 but found it did not substantially alter the analysis in this specific case.

The application for release was dismissed.

The accused, a 67-year-old with a heart condition, brought a detention review under s. 525 of the Criminal Code, arguing his vulnerability to COVID-19 warranted release.

He was detained on charges of attempting to purchase a firearm while prohibited, following a previous conviction for serious domestic violence offences against his ex-wife.

The court acknowledged the accused's heightened risk from COVID-19 but found the jail had implemented rigorous mitigation protocols.

Balancing the Gladue factors and pandemic risks against the substantial likelihood that the accused would cause serious harm to his ex-wife if released, the court concluded his detention remained necessary on secondary grounds.

The application was dismissed.

The accused, Jason Cunningham, sought a detention review under s. 525 and a bail review under s. 520 of the Criminal Code of Canada, arguing that the COVID-19 pandemic and a new release plan warranted his release pending trial.

The court acknowledged COVID-19 as a material change in circumstances but dismissed both applications.

The judge found that the accused's detention remained necessary on secondary grounds due to a substantial likelihood of re-offending, given his probable involvement in the drug trade, a recent criminal record for violence, and poor self-control.

Detention was also necessary on tertiary grounds to maintain confidence in the administration of justice, considering the seriousness of the firearms and drug-related charges and the strength of the Crown's case, even when factoring in pandemic-related concerns.

The accused was arrested for assault with a weapon (a pellet gun) and declined to speak with counsel.

Upon release, he was additionally charged with discharging a firearm, an offence carrying a mandatory minimum sentence, but was not re-advised of his right to counsel regarding this new, more serious charge.

The accused brought a Charter application to exclude a subsequent statement made to police.

The Superior Court of Justice found that the new charge constituted a fundamental and discrete change in jeopardy, violating the accused's s. 10(a) and 10(b) Charter rights.

Applying the Grant test, the court excluded the statement under s. 24(2).

This appeal concerned the determination of a child's Indigenous background under section 90 of the Child, Youth and Family Services Act, 2017.

The motions judge had found the child to be a First Nations person based on the father's self-identification and his maternal grandfather's identification.

The appellant, Batchewana First Nation, argued that this evidence was insufficient and that a simple statement of self-identification could not establish band affiliation for the purposes of the Act.

The Superior Court of Justice agreed, finding that the motions judge erred in law by relying solely on self-identification without a sufficient evidentiary foundation connecting the child to the community, and made a palpable and overriding error by overstating the evidence regarding the lack of contradiction.

The appeal was granted, and the matter remitted for a new hearing.

The accused brought an application to exclude his statement to police following his arrest for a home invasion robbery, alleging Charter breaches and involuntariness.

The court dismissed the Charter claims, finding the accused understood his jeopardy when he spoke with counsel despite being under the influence of drugs.

However, the court found that the interviewing officer offered an improper inducement by suggesting a confession to a drug-fueled crime would potentially change the Crown's course of action.

Consequently, the portion of the statement made after the inducement was excluded as involuntary.

The applicants, accused of a home invasion robbery, brought a Charter application to exclude evidence (including firearms and disguises) found in the trunk of a vehicle.

The police had stopped the vehicle hours after the robbery without reasonable grounds, detaining the occupants for an extended period without reading them their rights to counsel.

The court found serious breaches of sections 9 and 10(b) of the Charter.

Applying the Grant framework, the court concluded that the seriousness of the breaches and their impact on the applicants' rights outweighed society's interest in adjudicating the case on its merits, resulting in the exclusion of the evidence.

The appellant appealed his impaired driving conviction, arguing that the trial judge erred in dismissing his Charter application.

The central issue at trial was the arresting officer's credibility regarding whether he had an Approved Screening Device (ASD) in his cruiser, as he had failed to make notes about it.

After conviction, the officer's notes were disclosed, revealing he had taken inventory of his cruiser's backseat but omitted the ASD.

The appeal court applied the Dixon test and found that the undisclosed notes were highly material and raised a reasonable possibility that the verdict might have been different, as they directly impacted the officer's credibility.

The appeal was allowed and a new trial ordered.

The Crown appealed a trial judge's decision to exclude breath room evidence, which had led to the accused's acquittal on a charge of refusing to provide a breath sample.

The trial judge found that the police breached the accused's s. 10(b) Charter right to counsel of choice by failing to make reasonable inquiries to contact her specific lawyer after leaving a message at an office number.

The Superior Court of Justice found no palpable and overriding error in the trial judge's conclusion that the police failed to make reasonable efforts.

The court upheld the exclusion of evidence under s. 24(2) of the Charter and dismissed the appeal.

The applicants, charged with offences relating to a home invasion robbery, brought an application to adduce evidence that a third party committed the robbery.

The court found a strong nexus between the third party and the crime, noting police intelligence and surveillance linking the third party to a vehicle similar to the one used in the robbery.

The court held that the proposed evidence was relevant and probative, and its probative value substantially outweighed any prejudicial effect.

The application was allowed.