Court of Justice

The society brought a status review application seeking an order for extended society care of a toddler who had been in care since shortly after birth.

The mother, who has cognitive limitations and a transient lifestyle, sought an adjournment on the eve of trial to assess a newly proposed kinship plan by the maternal grandmother.

The court dismissed the adjournment request, finding that further delay was contrary to the child's best interests.

After a full trial, the court found the child remained in need of protection, rejected the grandmother's plan due to a lack of commitment, and ordered extended society care.

The court granted the mother specified indirect access (letters and photos) but denied in-person access, finding no meaningful relationship existed to preserve.

The mother sought sole decision-making responsibility, primary residence, and child support for the parties' two-year-old child.

The father sought joint decision-making and equal parenting time, while claiming an income of less than $15,000 from his self-employment as a mechanic.

The court granted the mother sole decision-making and primary residence, finding the father's conduct, poor judgment, and inability to communicate made joint decision-making inappropriate.

The court imputed the father's income at $50,000, finding him intentionally under-employed and his financial disclosure unreliable, and ordered child support accordingly.

This case involved two motions in a Status Review proceeding under the Child, Youth and Family Services Act.

The Children's Aid Society sought to change the placement of child A.A-L.C. to the maternal grandmother, V.C., while the respondent father, J.T., sought placement of his biological child, J.C-T., in his care.

Both children were currently in the care of their mother, A.C., under supervision orders.

The court dismissed both motions, finding that despite the mother's non-compliance with supervision terms and some inappropriate behavior, there was insufficient evidence to demonstrate a change in circumstances requiring the children's removal from her care, particularly given the lack of evidence of direct harm to the children and the importance of sibling bonds.

The defendant, Edward Bobbitt, brought a s. 11(b) Charter application seeking a stay of proceedings due to unreasonable delay in his trial for operating a motor vehicle with an excess blood alcohol concentration.

The total delay from the swearing of the Information to the anticipated trial conclusion was 989 days.

The court applied the Jordan framework, deducting 322 days attributable to the defence (including periods of counsel unavailability and inaction in rescheduling) and 146 days attributable to the COVID-19 pandemic as an exceptional circumstance.

The resulting net institutional delay was 521 days (approximately 17 months and one week), which fell below the 18-month ceiling for the Ontario Court of Justice.

The court found that the defendant had not made a concerted effort to advance the case and protect his s. 11(b) right.

The application was dismissed, and the trial was ordered to proceed.

This judgment follows a Zoom trial for sexual assault under the Youth Criminal Justice Act.

The Crown alleged the accused sexually assaulted the complainant between September and October 2019.

Key evidence included the complainant's video statement and text message screenshots, which contained the accused's apologies.

The defence argued these apologies were not admissions of guilt but attempts to placate the complainant.

The court found the accused's explanations for his apologies incredible, accepted the complainant's testimony despite minor inconsistencies, and convicted the accused, finding him guilty beyond a reasonable doubt.

The applicant child protection agency sought to qualify an expert in child maltreatment.

The court conducted a voir dire to determine the admissibility of the expert's opinion evidence.

The court found that "child maltreatment" as a general field of scientific inquiry lacked threshold reliability as a novel science, as there was no evidence of tested theories/techniques, peer review of the general discipline, or established standards for information quality.

Furthermore, the court determined that the expert was engaged for litigation purposes, not as a "participation expert" and thus failed to comply with Rule 20.2(2) of the Family Law Rules.

Consequently, the expert was not qualified, and his report was not admitted, as the risks of admitting unreliable evidence outweighed any benefit.

Pezhman Saberi pleaded guilty to child luring under s. 172.1(1)(b) of the Criminal Code.

The Crown sought the mandatory minimum penalty (MMP) of one year incarceration.

Saberi challenged the MMP under s. 172.1(2)(a) as a violation of s. 12 of the Charter, arguing it was grossly disproportionate.

The court found that a fit and proportionate sentence, considering Saberi's circumstances, guilty plea, and severe immigration consequences (deportation if sentence is 6 months or more), was 6 months less one day.

The court declared the MMP of one year unconstitutional as applied to Saberi, finding it to be cruel and unusual punishment that would outrage Canadian standards of decency.

Saberi was sentenced to 6 months less one day incarceration (with credit for pre-trial custody) followed by 18 months probation and various ancillary orders.

In a sexual assault trial, the Crown applied to admit two out-of-court statements by the complainant (A.M.) as hearsay evidence: a spontaneous utterance to a life skills coach and a videotaped statement to police.

The defence conceded necessity but disputed reliability.

The court applied the principled approach to hearsay, finding both substantive and procedural reliability for the videotaped statement, particularly due to DNA evidence and corroborating video/audio.

The spontaneous utterance was admitted under the res gestae exception, as it was made under the stress of a startling event (learning video evidence was deficient).

Both statements were admitted.

The accused, an Indigenous person, pleaded guilty to multiple criminal offences, including assault causing bodily harm to a police officer, breaches of court orders, and drug/weapon possession.

The court considered Gladue factors, the accused's history of trauma and addiction, and the collateral consequences of incarceration during the COVID-19 pandemic.

The Crown sought a five-year sentence, while the defence sought time served.

The court imposed a global sentence of 44 months, applying a 1.5:1 pre-sentence custody credit (35 months) and an additional 3-month mitigation credit for pandemic conditions, resulting in 6 months of new custody.

The court declined to impose a probation order, citing the accused's history of breaches and the Gladue principles.

The accused was charged with firearm and drug offences after police executed search warrants at an apartment and a vehicle.

The accused brought a Charter application to exclude a statement made to police and real evidence seized, alleging violations of his s. 10(a) and 10(b) rights and arguing the statement was involuntary.

The court found the statement was voluntary and that the police facilitated access to counsel at the first reasonable opportunity.

However, the court found a s. 10(b) violation occurred when police failed to restate the right to counsel after discovering drugs in the vehicle, which significantly changed the accused's jeopardy.

Applying the Grant framework, the court concluded that excluding the evidence would bring the administration of justice into disrepute and dismissed the application.

The defendant was charged with breaching a release order by being outside his residence contrary to a curfew condition.

He brought a Charter application to exclude evidence, alleging breaches of ss. 8, 9, 10(a), and 10(b).

The court heard the Charter application and the trial concurrently.

The Charter application was dismissed, as the court found no Charter violations during the traffic stop and subsequent investigation.

However, the defendant was acquitted at trial because the prosecution failed to prove beyond a reasonable doubt that the female passenger in the vehicle was not one of the defendant's sureties, which was an exception to his curfew condition.

The officer's investigation into the passenger's identity was deemed insufficient to negate this exception.

The applicant mother sought costs for her successful motion for temporary parenting orders.

The respondent father failed to comply with court timelines for costs submissions and improperly sought his own costs.

The court found the mother was the successful party on the underlying motion, despite some divided success on parenting time, and that the father's conduct was unreasonable, increasing the mother's costs.

The court awarded the mother $2,000 in costs, payable in installments, considering the father's limited means.

This ruling addresses a Section 8 Charter application by the accused, Paul Spencer, seeking to exclude evidence obtained from a search warrant for his apartment unit.

The warrant was based on police surveillance conducted without permission in the common areas (hallways, stairwells) of his apartment building and exterior observations of his balcony.

The court found that Mr. Spencer had a reasonable expectation of privacy in the common areas of his building, especially near his unit, and that the police's surreptitious entry and surveillance constituted a warrantless search, violating his Section 8 rights.

Applying the R. v. Grant analysis, the court determined that the seriousness of the breach, the significant impact on the accused's privacy, and the need to maintain the repute of the justice system outweighed society's interest in admitting the evidence.

Consequently, all evidence obtained from the search of the accused's residence was excluded.

The applicant father sought parenting time with his two children.

The respondent mother sought a restraining order, sole decision-making regarding travel and documentation, and to limit the father's parenting time to monitored emails.

The court found the father had perpetrated extensive family violence, stalked the mother, and exhibited manipulative behaviour that caused the children significant emotional distress.

The children consistently expressed a desire not to see the father.

The court admitted out-of-court statements from an OCL report, finding them reliable.

The court limited the father's parenting time to monitored emails, dispensed with his consent for travel and documentation, and granted a restraining order against him.

The defendant, Fortunato Zappone, brought a second application to stay proceedings for delay under s. 11(b) of the Charter, facing assault-related charges.

The court analyzed the total delay, deducting periods attributable to defence delay (14 days) and COVID-19 as a discrete exceptional circumstance (4 months 3 days for the first period, and 3 months 18 days for the second period due to the complainant's grandmother's death and the Crown's failure to mitigate).

The court found the net delay was below the presumptive ceiling, concluding that the defendant's right to trial within a reasonable time was not infringed.

The application was dismissed.

This is a costs endorsement following a trial on parenting and child support issues.

The applicant mother sought $4,000 in costs, while the respondent father requested no costs.

The court found the mother to be the successful party, particularly as her offer to settle was more favourable than the trial outcome on most issues, including child support, travel, and documentation.

The father's conduct was deemed unreasonable due to non-compliance with court orders and financial disclosure.

The court awarded the mother $4,000 in costs, inclusive of fees, disbursements, and HST, payable within 30 days, and declared this award enforceable as a support order by the Family Responsibility Office.

The accused was charged with impaired driving and having a blood alcohol concentration over 80 mg%.

The court addressed three issues: reasonable grounds for arrest and breath demand, violation of the right to counsel, and proof of impaired operation.

The court found ample reasonable grounds for the arrest and demand, and that no Charter breach under sections 8 or 9 occurred.

Regarding the right to counsel, the court found the accused failed to prove a section 10(b) Charter breach due to insufficient evidence from a poor video recording.

Ultimately, the Crown proved impaired operation beyond a reasonable doubt based on erratic driving, physical signs of intoxication, and the officer's credible observations.

The accused was found guilty on both counts, with a Kienapple stay to be determined.

This ruling addresses the costs of an urgent motion brought by the father to reinstate parenting time, which was resolved by consent.

The father sought full recovery of costs, arguing the mother's non-compliance necessitated the motion.

The mother sought her own costs or that each party bear their own, arguing the motion was unnecessary and she was more successful as counselling was agreed upon.

The court found the father was more successful in reinstating parenting time, which the mother had unilaterally suspended in breach of a prior order.

However, the father also behaved unreasonably by not informing the mother about a counselling session with the child.

Considering both parties' unreasonable conduct and offers to settle, and the disproportionate legal costs, the court ordered the mother to pay the father $3,500.00 in costs.

This is a sentencing decision for Emmanuel Faria, who pleaded guilty to assault simpliciter.

The victim, SB, who was under 16 at the time of the offence, suffered significant and traumatic impact.

Mr. Faria, a first-time offender, young, and without a criminal record, undertook extensive counselling and psychiatric assessment, showing insight and remorse.

The Crown sought a suspended sentence with 24-36 months probation and a DNA order, emphasizing the victim's profound impact.

The defence sought a conditional discharge, arguing that a conviction would adversely affect Mr. Faria's future employment and subvert community interests.

The court granted a conditional discharge with 24 months of non-reporting probation, including a term of no contact with the victim, and declined the DNA order, finding it to be in the best interests of the accused and not contrary to the public interest, consistent with principles for conditional discharges.

The accused, Jacob Olmstead, brought an application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay from charge to anticipated end of trial was 27 months and 23 days, exceeding the 18-month presumptive ceiling established by R. v. Jordan.

The central issue was how to treat the delay caused by the COVID-19 pandemic as an exceptional circumstance.

The court found that the entire period from June 9, 2020, to March 2, 2021, was a discrete, exceptional circumstance caused by the pandemic.

After deducting this period, the remaining delay fell below the presumptive ceiling.

Consequently, the court determined the delay was not unreasonable and dismissed the accused's application.