ONCJ 2012

This is a costs decision following the dismissal of an appeal from a Compliance Audit Committee decision.

The appellant sought a compliance audit of campaign finances for four municipal candidates under the Municipal Elections Act.

The Committee dismissed the application, and the appellant appealed to the Ontario Court of Justice.

The appeal was dismissed.

The added parties (the four candidates) sought costs awards.

The court awarded costs on a partial indemnity basis, finding that the usual practice of awarding costs to successful parties should apply.

The court rejected arguments that the appellant was a public interest litigant and found the added parties' participation in the appeal was necessary to defend their reputations against public allegations.

The accused, a police officer, was charged with sexual touching of a person under sixteen and sexual assault following an incident on August 19, 2011.

The complainant, his fourteen-year-old daughter, initially provided a detailed video statement to police describing inappropriate touching.

At trial, she recanted her allegations, stating her video statement was false and inaccurate.

The accused testified that he had inadvertently touched the complainant's crotch area while attempting to tickle her awake in a dark room, with no sexual intent.

The court found the Crown had not proven its case beyond a reasonable doubt and acquitted on both counts.

The accused sought judicial interim release following his arrest on serious firearms-related charges, including carrying a concealed firearm, possession of a firearm for committing an offence, pointing a firearm, and discharging a firearm with intent to endanger life.

The Crown opposed release.

The court found that while the Crown's case had some evidentiary weaknesses, the surveillance video evidence was strong and clear.

The proposed release plan was found to be inadequate because the financial and supervisory components did not co-exist: one surety pledged significant funds but could not supervise, while the residential surety could supervise but pledged virtually no funds.

The court held that the accused failed to meet the reverse onus on the secondary ground and ordered detention.

The accused, a former elementary school teacher, was charged with sexual assault and sexual interference of a student during the 1994-95 school year when the complainant was 13-14 years old.

The complainant alleged that the accused engaged in inappropriate sexual contact including kissing, hand-holding, and masturbation over several months.

The accused denied all allegations, claiming his conduct was limited to appropriate academic support and encouragement.

The trial judge found significant reliability concerns with the complainant's evidence, particularly regarding recovered memories obtained through therapy and the provenance of an Italian pendant allegedly given as a gift.

Although the judge found the complainant's testimony generally credible and preferred it over the accused's evidence, the judge concluded that the Crown had not proven guilt beyond a reasonable doubt due to these reliability concerns and reasonable doubt arising from the accused's testimony.

The defendant was charged with three offences against his wife: assault (July 1-31, 2008), assault causing bodily harm (August 18, 2008), and sexual assault (September-December 2008).

The trial was a credibility contest between the complainant and the defendant.

The complainant testified that the defendant assaulted her after discovering her long-standing extramarital affair, and later forced her to have non-consensual anal sex.

The defendant denied all allegations, claiming the complainant fell down stairs and that any sexual contact was consensual.

The court found the complainant credible and the defendant's evidence internally and externally inconsistent.

The defendant was convicted on all three counts.

The accused was charged with uttering threats to cause death, assault, and sexual assault with a weapon following an incident on March 6, 2011.

The accused pled guilty to two counts of breach of probation and not guilty to the remaining four counts.

After a trial spanning multiple dates, the court found the accused guilty of uttering threats to cause death to the complainant and a third party, assault, and sexual assault (as a lesser included offence, not sexual assault with a weapon).

The decision reflects a pattern of domestic violence within a long-term relationship marked by substance abuse and repeated breaches of court orders.

A status review application concerning two children who were made Crown Wards without access in March 2010 due to parental substance abuse and domestic violence.

The birth mother sought supervised access and gradual return of the children to her care, demonstrating significant rehabilitation through methadone treatment, counselling, and stable housing.

The court found that material changes in circumstances warranted granting supervised access for six months with specific conditions, rejecting the child protection agency's position that insufficient progress had been made.

The applicant mother brought a motion to change a final custody order dated February 6, 2009, seeking sole custody of the child and child support.

The respondent father brought a cross-motion seeking sole custody with reduced access to the mother.

The court found a material change in circumstances based on the father's denial of access for over three months in 2009, unilateral decision-making contrary to the joint custody order, and an immunization incident demonstrating lack of communication.

The court maintained the joint custody arrangement with the child's primary residence remaining with the father, but modified the parenting schedule to provide the mother with three out of every four weekends, midweek access, and specified holiday arrangements.

The court rejected both parties' requests for sole custody, finding that while communication between the parties was imperfect, they had demonstrated sufficient cooperation since December 2010 to support a joint custody order with detailed specifications.

The applicant mother sought retroactive child support from the respondent father for their nine-year-old daughter, Fatima, dating back to the child's birth in December 2002.

The father was willing to pay support prospectively but not retroactively.

The father also sought access to Fatima, which the mother opposed entirely.

The court applied the four-part test from S. (D.B.) v. G. (S.R.) and found no reasonable excuse for the delay, no blameworthy conduct by the father, and potential hardship to the father if retroactive support were ordered.

Accordingly, retroactive support was denied.

For prospective support, the court imputed income to the father at minimum wage ($21,300 per year) based on his inadequate disclosure and 11 years in an unprofitable business.

The court ordered $171 per month in child support commencing July 1, 2011.

On the access issue, the court appointed the Office of the Children's Lawyer to investigate and facilitate a controlled introduction between father and child, recognizing the child's right to know her father and the need for careful handling of the situation.

The Children's Aid Society of Toronto brought a motion for summary judgment seeking an order to make four children crown wards.

The children had been in care since November 2010 following the arrest of the mother and her boyfriend on charges of assault with a weapon.

The mother opposed the motion, arguing there remained a genuine issue for trial and time to address protection concerns.

The court found no genuine issue for trial, concluding the mother's parenting deficits were deeply entrenched, she had failed to engage in meaningful remediation over 15 months, and there was no realistic likelihood she could address the serious protection concerns within the remaining statutory timeframe.

The court granted the motion and ordered the children to be made crown wards.

A family law matter involving custody, access, and mobility of a young child born in 2010.

The applicant sought custody, increased access, and DNA testing to establish paternity.

The respondent sought sole custody and child support.

The parties had an on-and-off relationship and were unable to communicate effectively.

The respondent relocated to Alberta with the child without notice during the proceedings.

The court awarded sole custody to the respondent, permitted the relocation to Alberta, and established a phased access schedule for the applicant involving visits to Edmonton and visits when the respondent returns to Ontario.

The accused was charged with break and enter of a residential dwelling, theft, possession of stolen property (a vehicle and a safe), and breach of recognizance.

The Crown's case relied on eyewitness identification evidence from two independent witnesses who identified the accused in photo line-ups, combined with the doctrine of recent possession.

The court found the identification evidence reliable and the photo line-up procedures fair, complying with Sophonow Inquiry recommendations.

The accused was convicted on counts 1, 2, 3, and 4.

Count 5 was dismissed at the Crown's request.

The accused, a psychological associate licensed by the College of Psychologists of Ontario, was charged with three counts of fraud relating to fees paid for counseling services and child custody assessments.

The Crown alleged that the accused fraudulently represented himself as a psychologist rather than a psychological associate by using the title "Dr." in conjunction with his practice, thereby deceiving clients about his qualifications.

The court found that while the accused's use of the title "Dr." combined with his careful compliance with College guidelines in a manner that obscured his status as a psychological associate constituted "other fraudulent means," the Crown failed to prove the essential element of causation—that the misrepresentation caused financial loss or risk of loss to the complainants.

The court concluded that the complainants' lack of knowledge about the existence and qualifications of psychological associates, rather than the accused's conduct, was the cause of their inability to make an informed choice.

All charges were dismissed.

A youth was charged with robbery while using a firearm following a bank robbery on December 29, 2010.

The Crown's case rested primarily on fingerprint evidence found on the interior exit door of the bank and eyewitness testimony.

The accused was not the actual robber but the second youth who entered and exited the bank with the robber.

The court found serious deficiencies in the expert fingerprint evidence, including failure to provide a proper expert report, disclosure violations, documentary errors, and use of prints from a different arrest date without disclosure.

The court also found insufficient evidence of the use of a firearm and no evidence of the accused's knowledge or participation in the robbery beyond mere presence.

The accused was acquitted of all charges.

The accused was charged with aggravated assault causing maiming to a one-month-old infant.

The child sustained multiple serious injuries including rib fractures, metaphyseal fractures to the legs, a torn frenulum, and bruising to the cheek within the first 30 days of life.

Medical evidence established that these injuries required significant force and could not have been self-inflicted or caused by accidental means.

The accused was the primary caregiver during the relevant period.

The court found the accused guilty of the included offence of assault causing bodily harm, rejecting the aggravated assault charge as the evidence did not establish maiming.

The applicant sought to reduce his spousal support obligation from $6,000 monthly to $3,000 monthly commencing January 1, 2010, and terminate it as of January 1, 2011, citing his retirement due to prostate cancer.

The respondent opposed the motion and claimed $16,414.84 owing under a cost of living clause.

The court determined this was a de novo review under the separation agreement rather than a variation requiring material change in circumstances.

The court found the applicant had not fully retired from business and imputed 50% of his prior business income.

The court reduced support to $5,000 monthly for 2011, $4,600 monthly for 2012, and $3,900 monthly from 2013 onward.

The court awarded the respondent $9,412.98 for cost of living increases from October 2005 to December 2009.

The accused was charged with sexual assault of his step-daughter when she was between 12 and 15 years of age, with the alleged offences occurring over a three-and-a-half-year period ending May 31, 2007.

The complainant testified that the accused came into her bedroom on multiple occasions and touched her breasts and attempted to touch her pubic area while she was in bed.

The accused denied all allegations, claiming he only entered her room to wake her for school.

The trial involved significant credibility issues, including the complainant's initial false denial to police, inconsistencies in her evidence regarding peripheral details, and the accused's admission of making an inappropriate sexual comment to the complainant.

The court found the complainant generally credible but harbored concerns about certain aspects of her evidence.

The accused's evidence was also found troubling, particularly regarding his admission of listening to the complainant's phone call and his implausible explanation regarding an alleged accidental breast contact.

Despite finding the complainant more believable than the accused, the court determined that the Crown had not proven guilt beyond a reasonable doubt due to reliability concerns with the complainant's evidence and reasonable doubt arising from the accused's testimony.

The accused was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood contrary to section 253(b) of the Criminal Code.

The defence sought to exclude breath readings obtained by police on the grounds of Charter breaches relating to the "forthwith" requirement under section 254(2) of the Criminal Code and alleged violations of the right to counsel under section 10(b) of the Charter, claiming language difficulties prevented meaningful comprehension.

The court found that the "forthwith" requirement was met, that no special circumstances existed requiring additional steps to ensure comprehension of rights, and that the accused understood his rights and waived his right to counsel.

The breath readings were admitted and the accused was found guilty.

The accused brought a motion to determine the admissibility of the complainant's personal diaries for use in cross-examination.

The defence sought to cross-examine the complainant on four issues: the absence of any mention of alleged sexual abuse in the diaries, limited references to money, the complainant's relationship with her biological father, and her relationship with her mother.

The court applied the test from R. v. Shearing and R. v. Seaboyer, balancing the probative value of the evidence against the prejudicial effect and privacy interests of the complainant.

The court permitted limited cross-examination on the absence of entries relating to sexual abuse and money, but prohibited cross-examination on entries relating to the complainant's relationship with her mother, finding that the prejudicial effect substantially outweighed any probative value.

The applicants brought applications pursuant to Section 8 of the Charter of Rights and Freedoms challenging the validity of a production order directed to Telus, two Part VI wiretap authorizations, and search warrants executed in connection with Project Lancaster, an investigation into firearms trafficking and drug offences in Ottawa.

The applicants challenged the type of order used to obtain text messages, the sufficiency of grounds for the authorizations and warrants, and sought exclusion of evidence under Section 24(2) of the Charter.

The court dismissed all applications, finding that a production order was the appropriate mechanism for obtaining stored text messages, that the authorizing judges had sufficient grounds based on reliable and corroborated confidential informant information, and that the search warrants were properly issued.