M. Salama

The Office of the Children's Lawyer sought dismissal of a civil claim under Rule 2.1.01 of the Rules of Civil Procedure on the basis that it was frivolous, vexatious, or an abuse of process.

The self-represented plaintiff had commenced a second action alleging negligence by the OCL arising from a prior family law proceeding, after a substantially identical claim had already been dismissed under the same rule.

The court found the negligence claim untenable because the OCL owed no duty of care to the plaintiff and, even if it did, the Divisional Court had already found no breach of the standard of care.

The claim was dismissed as an abuse of process and as duplicative of matters previously decided.

The applicant sought full recovery or substantial indemnity costs following a family law decision.

The respondents sought full recovery costs or no costs, citing limited means and divided success.

The court found the applicant was substantially successful despite divided success on an access order.

Taking into account the financial resources of one respondent and the limited role of the other, the court awarded the applicant $5,000 in inclusive costs, apportioned between the two respondents.

The Applicant and Respondent A. S. Tsinoglou brought cross-motions concerning interim child support, spousal support, exclusive possession of the matrimonial home, interim access, and return of belongings.

The court addressed these issues prior to a case conference due to urgency and hardship.

The court found Santiago and Alejandra to be children of the marriage for interim child support purposes, awarded interim child and spousal support to the Applicant, and granted her exclusive possession of the matrimonial home (a leasehold interest) and maintenance payments from A. S. Tsinoglou.

Interim access was granted to A. S. Tsinoglou for Christian, and he was permitted to retrieve belongings.

The applicant, facing charges related to child pornography, brought a s. 8 Charter application (voir dire) to exclude evidence seized under a search warrant, raising seven objections.

The court found two breaches of the applicant's s. 8 Charter rights: the police obtained subscriber data without prior judicial authorization (a Spencer breach), and the search warrant was facially defective due to the absence of a judicially authorized appendix listing the items to be seized.

The court dismissed the remaining five objections, including arguments regarding the privacy interest in GUIDs, the adequacy of the ITO's explanation of GUIDs, the sufficiency of subscriber information to establish reasonable grounds, the misleading nature of the ITO, and the necessity of a second warrant for computer searches under R. v. Vu.

The matter was set for s. 24(2) submissions to determine the admissibility of the seized evidence.

Jordan McPhee pleaded guilty to sexual assault causing bodily harm, unlawful confinement, and robbery.

The Crown applied for a dangerous offender designation.

The court, considering McPhee's criminal record, a subsequent aggravated assault conviction, and a psychiatric risk assessment, found him to be a dangerous offender based on a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death, injury, or severe psychological damage.

The court imposed a determinate sentence of six years imprisonment (less pre-sentence custody) followed by a ten-year Long Term Supervision Order, with specific recommendations for conditions to the parole board.

Constable Robert Harris was charged with careless use of a firearm contrary to section 86 of the Criminal Code after firing his service weapon twice at a fleeing suspect during a high-speed pursuit.

Harris believed a female passenger was being dragged or run over by the suspect's tow truck when he discharged his weapon.

The court found that Harris's belief was reasonable under the circumstances, though ultimately incorrect, and that his response was proportionate to that belief.

The defendant was acquitted.