Michael Swinwood

The defendants sought to qualify Dr. Sidney Harring as an expert on the existence and territory of the Amikwa Nation to support their Section 35(1) aboriginal rights claim.

The Crown opposed.

The court applied the two-stage test for expert evidence admissibility from White Burgess and R. v. Abbey (Abbey #2).

The court found Dr. Harring's evidence failed the threshold requirement for proper qualification due to lack of impartiality, independence, and bias, stemming from his reliance on secondary sources, unverified information from an interested party (Stacey McQuabbie), and contradictions with source documents.

The court also found the evidence would be excluded at the gatekeeper stage due to unreliability.

Consequently, Dr. Harring was not qualified as an expert.

The moving parties, former residents of St. Anne's Indian Residential School, appealed an order appointing an Independent Special Advisor (ISA) to review Independent Assessment Process (IAP) claims and sought an interim preservation order for documents.

They argued the ISA appointment undercut ongoing proceedings and was made by a biased judge.

The court dismissed both motions, finding no serious issue on appeal due to the probable interlocutory nature of the order, no irreparable harm to the moving parties, and the balance of convenience not favoring a stay.

The preservation order was also denied due to ongoing related proceedings and Canada's undertaking to preserve documents.

The Attorney General of Canada brought a Request for Directions to appoint an Independent Special Advisor to review certain Independent Assessment Process claims by former students of St. Anne's Indian Residential School.

The review was prompted by concerns that some claims were resolved before additional document disclosure was made available.

The court agreed that an independent review was necessary but modified Canada's proposed process to ensure claimants' interests were represented by an amicus and to remove arbitrary restrictions on the review.

The respondents brought a motion in writing on consent to disburse surplus proceeds from a mortgage sale.

The applicant bank had failed to comply with a previous order requiring the proceeds to be paid into court, instead holding them in its counsel's trust account.

To avoid further delay and expense, the court applied the Rules of Civil Procedure liberally, varied the previous order to reflect the funds being held in trust, and ordered the disbursement of the funds to the parties and their counsel as agreed.

The accused, Gaston Nicholas, was found guilty of two counts of arson.

At sentencing, the Crown sought a 12-month reformatory sentence, while the defence sought a suspended sentence with probation, citing the accused's advanced age, poor physical and mental health (including vascular dementia and depression), and the ongoing COVID-19 pandemic.

The court found a causal link between the accused's mental health and the offences, and concluded that incarceration would have a severe negative effect on him due to his vulnerabilities and the pandemic conditions in correctional institutions.

The court imposed a suspended sentence with three years probation and a 10-year weapons prohibition, declining a DNA order.

The defendants, Her Majesty the Queen in the Right of Ontario and the Attorney General of Canada, successfully moved to strike the plaintiffs' action as res judicata and an abuse of process.

In this costs endorsement, the plaintiffs argued for an exemption from costs as public interest litigants.

The court rejected this argument, finding the action was primarily intended to prevent regulatory charges from being heard, was substantially similar to previous actions, and therefore constituted an abuse of process not in the public interest.

The court applied the five factors from *St. James Preservation Society* and the criteria from *Incredible Electronics Inc.* to determine that the plaintiffs did not qualify as public interest litigants.

Costs were awarded to Ontario and Canada.

The defendants, Her Majesty the Queen in Right of Ontario and the Attorney General of Canada, moved to strike the plaintiffs' action as an abuse of process and res judicata.

The court found the action was substantially similar to two prior dismissed proceedings and was primarily intended to delay regulatory hunting and fishing prosecutions against the individual plaintiffs.

The court determined that constitutional issues related to the prosecutions should be raised in the Ontario Court of Justice, and other land claims could be pursued in a separate, ongoing action (17-71837).

The motion to strike was granted.

Gaston Nicholas was charged with two counts of arson and admitted to setting the fires.

The issue was whether he was not criminally responsible (NCR) due to a mental disorder under s. 16 of the Criminal Code.

The defence argued that vascular dementia, paranoia, or delusions rendered him incapable of appreciating the nature and quality of his acts or knowing they were wrong.

The Crown contended that despite some dementia, his actions and words demonstrated appreciation and knowledge of wrongfulness.

The court found that Nicholas suffered from early-stage dementia, which qualified as a mental disorder, but it did not render him incapable of appreciating the nature and quality of his acts or knowing they were morally wrong.

Consequently, the NCR defence was not established, and Nicholas was found criminally responsible and guilty of arson.

The appellant appealed his convictions for theft under, mischief, and breach of an undertaking.

At trial, the appellant had admitted the facts alleged by the Crown, which involved taking a portable hunt camp and posting no trespassing signs on Crown land in breach of a probation order.

On appeal, the appellant argued the elements of the offences had not been proven.

The Superior Court of Justice dismissed the appeal, finding that the admitted facts conclusively proved the elements of the offences and the appellant could not resile from his admissions.

The appellant sought a stay of a default order requiring payment of spousal support arrears and ongoing support, or incarceration, pending an appeal.

The motion for a stay was brought under the three-part RJR-McDonald test.

The appellant argued that his s. 35 Constitution Act, 1982 rights were infringed by Justice Malcolm's failure to order a Gladue report at the default hearing.

The court found no serious question to be tried, no irreparable harm, and that the support recipient would suffer greater harm if the stay were granted.

The motion to stay was denied.

Two Requests for Direction (RFDs) were brought regarding the disclosure of documents from prior civil and criminal proceedings concerning St. Anne's Indian Residential School.

In the first RFD, an IAP claimant alleged Canada breached its disclosure obligations by withholding discovery transcripts.

The court dismissed this RFD, finding the transcripts were protected by settlement privilege and the deemed undertaking rule.

In the second RFD, former students and an association sought extraordinary relief, including investigations into the conduct of counsel and the reopening of claims.

The court dismissed the second RFD, holding that the requestors lacked standing and that the court lacked jurisdiction under the Indian Residential Schools Settlement Agreement to grant the requested relief, as complaints about lawyer conduct fall outside the court's administrative role.

The applicant, an Indigenous person, sought an urgent interim and interlocutory injunction to restrain the broadcast and display of the Cleveland Indians' team name and 'Chief Wahoo' logo during the American League Championship Series in Toronto, pending human rights complaints.

The court found there was a serious issue to be tried regarding whether the name and logo constituted discrimination in the provision of a service.

However, the court dismissed the application because the applicant failed to establish irreparable harm, noting the delay in bringing the application, and found the balance of convenience favoured the respondents due to the material prejudice of last-minute broadcast and uniform changes.

The applicants, who were charged with various provincial hunting and fishing offences, brought an application in the Superior Court for a writ of prohibition to stay the proceedings in the Ontario Court of Justice and for an order of mandamus to compel the Crown to consult and accommodate their asserted aboriginal title.

The Superior Court dismissed the applications, holding that constitutional and aboriginal rights defences must be raised in the court having jurisdiction over the charges (the Ontario Court of Justice).

The court also found no basis for mandamus as no demand had been refused.

The appellants were charged with a hunting offence under the Provincial Offences Act for allegedly harvesting a moose out of season.

At trial, they brought a Charter application alleging a violation of section 15 of the Canadian Charter of Rights and Freedoms and seeking advanced funding for defence witnesses and counsel fees under section 24(1).

The trial court dismissed the Charter application.

The appellants appealed the dismissal.

The appeal court dismissed the appeal for lack of jurisdiction, finding that the dismissal of a pre-trial Charter motion is not a final order appealable under section 116 of the Provincial Offences Act, and that advanced funding does not constitute "costs" within the meaning of section 116(1)(e).