ONCJ 2013

In a preliminary inquiry, the Crown sought committal of two bar owners for manslaughter and criminal negligence causing death arising from a fatal motor vehicle collision.

The deceased driver, who had consumed alcohol at the defendants' licensed establishment, was found to have a blood alcohol level exceeding 200 milligrams percent at the time of the collision.

The Crown alleged violations of the Ontario Liquor Licence Act constituted unlawful acts supporting manslaughter charges, or alternatively, that the defendants' conduct amounted to criminal negligence.

The court discharged both accused, finding that violations of liquor licensing regulations, while potentially constituting unlawful acts, were not objectively dangerous as required by law, and that the evidence did not establish the marked departure from the standard of care necessary for criminal negligence.

Motion to change custody and support arrangements for a six-year-old child.

The applicant sought to reduce the respondent's weeknight access from weekly overnight to alternate Wednesdays until 8:00 p.m., while the respondent sought to reinstate weekly overnight Wednesday access.

The court granted weekly overnight Wednesday access to the respondent, finding it in the child's best interests.

The court also addressed transportation responsibilities, exchange locations, child support base amount, and section 7 expense contributions.

The respondent's income was imputed at $109,000 annually for child support purposes, resulting in increased monthly support.

Section 7 expenses for after-school care were ordered to be shared equally between the parties.

Media organizations applied under section 487.3(4) of the Criminal Code to unseal and publish portions of an Information to Obtain (ITO) a search warrant in Project Traveller proceedings.

The court had previously ordered the unsealing of a heavily redacted version with a publication ban.

The accused sought to maintain restrictions on publication regarding: (1) evidence adduced at bail hearings, (2) criminal antecedents, and (3) references to a prior search warrant.

The court declined to rule on bail hearing evidence, continued the publication ban on criminal antecedents, and lifted the ban on prior warrant references except for the name of the individual searched.

This is a motion for summary judgment in a status review application under the Child and Family Services Act.

Native Child and Family Services of Toronto sought an order making two young children (ages 5 and 3) crown wards without access for purposes of adoption.

The mother, who had previously lost four other children to the child protection system, opposed the motion and sought return of the children.

The father, with a significant criminal history and mental health issues, also opposed the motion.

The court found that the parents' plan for care was not viable and did not raise a genuine issue for trial.

The court granted summary judgment and made orders for crown wardship without access to either parent, finding that the children required certainty, finality, and permanence.

The applicant mother brought a motion to stay an order of Justice Flaherty dated August 30, 2013, which changed the primary residence of the child from a shared parenting arrangement to the respondent father in Hamilton, reducing the mother's access to one evening per week and alternate weekends.

The mother alleged procedural unfairness due to the trial judge's hearing difficulties, misapprehension of evidence, and failure to give proper weight to the Office of the Children's Lawyer's recommendations.

The court granted the stay, finding a serious issue for appeal, irreparable harm to the child, and that the balance of convenience favored the child's return to her mother's primary care in Oakville pending the appeal.

A child protection motion for summary judgment brought by Chatham-Kent Children's Services seeking Crown wardship of two children with no access.

The respondent parents had histories of drug use and criminal activity.

The father had engaged in ongoing criminal conduct including break and enter offences and was facing drug charges.

The mother had demonstrated some progress in addiction treatment through methadone programming but continued to test positive for illicit drugs including amphetamines and methamphetamines.

Both children had been in care well beyond the statutory period requiring permanency planning.

The court found no genuine issue for trial and granted Crown wardship with no access for purposes of adoption.

A temporary care and custody motion under Part III of the Child and Family Services Act concerning a 14-year-old child who had been apprehended from her mother's care.

The child had experienced significant trauma including physical and sexual abuse while in her father's care in the United States, and subsequently suffered from self-harm and suicidal ideation while in her mother's care in Ontario.

The mother failed to ensure consistent counselling, regular school attendance, and adequate supervision.

The court found that the child could not be adequately protected by an order returning her to the mother with or without supervision, and ordered that the child remain in the care and custody of the society with supervised access.

The Children's Aid Society of Toronto brought a motion seeking permission for three children in its care to travel to Jamaica for an extended access visit with their paternal grandmother, with the intention of assessing the viability of a permanent placement arrangement.

The mother supported the motion, but the Office of the Children's Lawyer (representing the oldest child), the biological father of the oldest child, and the maternal grandmother opposed it.

The court dismissed the motion, finding that the proposed Jamaica plan was not in the best interests of the children.

The court identified numerous obstacles, including concerns about the father's involvement and his relationship with the mother (whom the society deemed unsuitable), the grandmother's limited financial resources and passive demeanor, the absence of meaningful relationships between the children and the proposed caregivers, and significant jurisdictional and enforcement complications arising from placing the children in a foreign country.

The applicant father sought sole custody of a child born in April 2005, initially seeking joint custody with status quo access but changing his position at trial.

The respondent mother sought sole custody and child support.

The court awarded sole custody to the mother, finding that the father's evidence was unreliable and evasive, with significant concerns about his parenting choices including alcohol use, exposure to violent video games, allowing the child to handle firearms, and inadequate supervision.

The mother, while having some issues with conflict management, demonstrated a stronger commitment to the child's welfare and maintained a stable primary caregiving relationship.

The court also imputed income to the father for child support purposes based on deliberate underemployment and ordered arrears and ongoing support.

The applicant Children's Aid Society sought to maintain temporary care and custody of two young children apprehended on December 19, 2012, due to serious neglect concerns.

The children were found to be severely malnourished and suffering from developmental delays and medical neglect.

The respondent parents sought return of the children, proposing supervision by extended family members.

The court found that the children were at imminent risk of physical harm due to neglect of basic needs, including nutrition, medical care, and developmental stimulation.

The court determined that a temporary supervision order would be inadequate to protect the children given the mother's significant cognitive limitations and the parents' failure to recognize the seriousness of the protection concerns.

The court ordered the children to remain in the Society's care pending completion of a parenting capacity assessment.

The applicant brought a Charter application seeking to exclude evidence obtained as a result of alleged violations of his rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The applicant was charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

The Crown conceded that the applicant's section 9 Charter rights were violated when he was arrested and detained while driving a vehicle.

The applicant challenged the validity of the search warrant on the basis that the Information to Obtain was misleading and insufficiently corroborated the confidential informant's information.

The court found that while the police acted in good faith, the ITO contained insufficient detail regarding surveillance and failed to establish reasonable and probable grounds.

The court excluded the evidence under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

A status review application brought by Bruce Grey Child and Family Services seeking an order of Crown wardship with no access for a child (D.J.M.R.) born in 2005.

The child had been found in need of protection in 2009 and had spent over half his life in the care of the Society.

The mother (K.A.A.) sought to have the child returned to her care.

The court found that while the mother had made positive changes including establishing a stable relationship free from domestic violence and demonstrating improved mental health management, significant concerns remained regarding her historical pattern of prioritizing romantic relationships over her children's needs and her limited parenting capacity as documented in a psychological assessment.

The court also found serious failures by the Society in implementing court-ordered sibling access.

Despite reservations, the court determined it was in the child's best interests to be placed in the mother's care subject to 12 months of Society supervision with extensive conditions, rather than proceed with Crown wardship and adoption, given the child's strong emotional ties to his mother and the lack of a concrete adoption plan.

This is a child protection trial concerning access to a Crown ward.

The child, A.B., was made a Crown ward without access in 2011.

The mother appealed the no-access provision, and the Superior Court ordered a trial on the access issue alone.

The trial examined whether the mother-child relationship was meaningful and beneficial to the child as required under section 59(2.1) of the Child and Family Services Act.

The court found that while a meaningful bond existed, the relationship was not beneficial to the child due to the mother's persistent disregard of court-ordered access conditions, her pattern of encouraging the child to break rules, and her lack of insight into the harm caused to the child.

The court dismissed the mother's claim for access and upheld the no-access order.

A 13-year-old accused was charged with sexual assault, sexual touching for a sexual purpose, and invitation to sexual touching of a seven-year-old girl during a family visit in November 2011.

The Crown alleged the accused took advantage of an unsupervised moment to sexually assault the complainant.

The accused denied the allegations, suggesting they may have been imagined.

The court found the accused guilty of sexual assault based on credible evidence from the complainant and her mother.

The court stayed the remaining counts as they were subsumed within the sexual assault conviction under the Kienapple principle, which prohibits multiple convictions for the same delict absent clear parliamentary intention.

The accused was charged with obstructing a police constable by providing false information during a lawful police investigation at an airport.

The accused admitted to giving a false name to the officer but argued that no obstruction occurred because the officer quickly learned his correct identity from another officer within approximately two minutes.

The court found that the accused's false statement did in fact obstruct the officer in the execution of her duty, as the officer was diverted from her investigative duties to check the false name provided.

The court rejected the argument that only prolonged or significant obstruction constitutes the offence, holding that any lie that in fact obstructs police duties satisfies the actus reus requirement.

The mother brought a contempt motion against the father for wilfully breaching a court-ordered access order by blocking her access to the parties' two children on November 14 and November 16, 2012.

The father claimed he was legally justified in denying access because the older child had allegedly been traumatized after seeing the mother's boyfriend in the apartment building on November 12, 2012.

The court found the father's evidence to be unreliable and contradicted by surveillance video, witness testimony, and the child's counselling report.

The court concluded that the father had fabricated his justification and was motivated by his dislike of the mother's boyfriend and his desire to undermine the mother-child relationship.

The court found the father in contempt of the access order without legal justification.

The accused pleaded guilty to two counts of possession of cocaine for the purpose of trafficking.

He was arrested on September 28, 2011, with 36.5 grams of cocaine and admitted to possessing an additional 59 grams at his residence.

While awaiting resolution of those charges, he was found with 288.5 grams of cocaine on February 16, 2012.

The court imposed consecutive sentences totaling 48 months imprisonment, along with ancillary orders including a DNA order, firearms prohibition, and forfeiture order.

The court balanced the mitigating factors of the accused's youth, lack of prior record, remorse, and participation in counselling against the serious nature of the offences and the aggravating factor of reoffending while awaiting trial.

The accused was charged with three counts of possession of stolen property after purchasing a dump trailer, cargo trailer, and Bobcat skid steer from an individual known only as "Chico" between November 2011 and January 2012.

The accused admitted possession of all three items but pleaded not guilty, claiming he did not know they were stolen.

The Crown proved beyond a reasonable doubt that the accused was willfully blind to the stolen nature of the property, having ignored numerous red flags including purchasing valuable commercial equipment without ownership documentation, at unreasonably low prices, from an unknown seller, and fraudulently registering the trailers as home-made vehicles.

The court found the accused guilty on all three counts.

Maternal grandparents sought to adopt their eighteen-year-old grandson, who had been in their custody since infancy pursuant to a 1996 custody order.

The court considered the application under subsection 146(3) of the Child and Family Services Act, which permits adoption of adults.

The court held that while the grandparents' psychological and emotional reasons for adoption were relevant, the applicant's informed consent was mandatory under subsections 137(6) and 137(7) of the Act.

The court found no evidence in the record of the applicant's views, preferences, understanding, or consent to the adoption.

The application was adjourned pending the applicant's provision of sworn evidence of informed consent.

The accused was charged with sexual assault on March 11, 2010.

The complainant, a 17-year-old high school student, attended a party where she consumed significant quantities of alcohol and became intoxicated to the point of passing out.

She had fragmented memories of events that night.

The Crown alleged the accused sexually assaulted her while she was incapacitated.

The defence presented evidence that the accused provided care and assistance to the intoxicated complainant, including moving her to a bedroom to sleep safely.

The case turned on credibility and the interpretation of text messages exchanged between the accused and a witness.

The court found the Crown had not proven the charge beyond a reasonable doubt and acquitted the accused.