ONCJ 2015

The Children's Aid Society brought a motion within a status review application seeking to place two children (ages 9 and 7) in the temporary care and custody of their maternal grandfather in the Cayman Islands, subject to supervision.

The father opposed the motion and brought a cross-motion seeking placement of the children with himself and his partner.

The court granted the society's motion, finding that the children had been in foster care for nearly two years and that the father had not met his onus of establishing that the best interests of the children required a change in their care.

The maternal grandfather had demonstrated strong parenting skills with the two younger siblings and had a positive home study.

The court ordered placement with the maternal grandfather effective August 29, 2015, with telephone and Skype access to the father, his partner, and the paternal grandmother.

The accused was charged with Drive Over 80 following a RIDE program stop.

The Crown obtained breath samples showing readings of 247 and 230 milligrams of alcohol per 100 millilitres of blood.

The accused challenged the admissibility of evidence under sections 8 and 9 of the Charter, alleging an unreasonable search and seizure arising from videotaping in a police cell and an arbitrary detention.

The court found Charter breaches but declined to exclude evidence or grant a stay of proceedings, finding no nexus between the breaches and the evidence obtained.

The accused was convicted.

This is a costs decision following a motion to change in a family law matter involving custody and child support.

The court heard motions to change brought by both the mother (applicant) and father (respondent) on June 25, 2015.

The court ordered joint custody with equal-time sharing, and ordered the father to pay child support of $457 per month with arrears of $5,088.

The father sought costs of $15,205.22, while the mother requested no costs be awarded.

The court determined that while the father was successful on the dominant parenting issue, the mother was more successful on the support issue.

Considering all relevant factors, the court awarded costs to the mother in the reduced amount of $6,000, payable at $200 per month.

The respondent (mother) sought costs of $6,780 arising from three court appearances in a family law matter involving access, travel, and child and spousal support issues.

The applicant (father) opposed the costs request.

The court found the mother was the successful party at each appearance and awarded costs of $6,000 inclusive of fees, disbursements and HST, payable at $250 per month starting October 1, 2015, with a provision that failure to pay within 30 days would render the entire remaining amount immediately due and payable.

A costs endorsement following a motion to change a custody and child support order.

The father was granted custody of the seven-year-old child, the mother was granted specified access, and the mother was ordered to pay child support of $360 per month.

The father sought costs of $11,649.70.

The court awarded costs of $7,500 inclusive of fees, disbursements and HST, payable at $250 per month starting October 1, 2015, with a provision that failure to pay within 30 days would make the entire remaining amount immediately due and payable.

The defendant was charged with four counts of threatening to kill the complainant, his wife, and two children on March 18, 2013.

The complainant was the defendant's supervising professor at the University of Ontario Institute of Technology (UOIT).

The defendant claimed the reverse was true—that the complainant had threatened him.

After hearing evidence from four witnesses and reviewing numerous exhibits, the court found the defendant guilty.

The court rejected the defendant's testimony as inconsistent with his conduct and accepted the complainant's evidence as credible and corroborated by his actions.

The accused pleaded guilty to transferring two restricted firearms knowing he was not authorized to do so under the Firearms Act, contrary to section 99(1)(a) of the Criminal Code.

The Crown proceeded by indictment.

The accused challenged the mandatory minimum three-year sentence imposed by section 99(2)(a) as violating section 12 of the Canadian Charter of Rights and Freedoms on the grounds that it constitutes cruel and unusual punishment.

The court found that the mandatory minimum was grossly disproportionate both as applied to the offender and as applied to reasonably foreseeable hypothetical situations, such as family members inheriting firearms from deceased soldiers.

The court declared section 99(2)(a) unconstitutional to the extent it imposes a mandatory three-year minimum term of imprisonment.

The accused was convicted after trial of three counts of assault against his common-law spouse.

The Crown sought a custodial sentence of 60 to 90 days, while defence counsel sought time served and/or a conditional sentence.

The court imposed a conditional sentence of imprisonment of four months to be served in the community, with the first 60 days subject to house arrest, followed by three years of probation.

A firearms prohibition under section 110 of the Criminal Code was also imposed for five years.

The court found that a conditional sentence was appropriate given the offender's lack of prior criminal record, good prospects for rehabilitation, and the circumstances of the offences, which occurred during a period of significant personal stress.

Motions to change a joint custody order where the mother faces deportation to St. Vincent.

The mother sought sole custody and permission to take the child with her; the father sought sole custody with the child remaining in Canada.

The court found a material change in circumstances warranting review.

While joint custody continued during the mother's residence in Canada, the court ordered that upon deportation, sole custody would transfer to the father in Canada, with specified access for the mother including two months summer access and alternate winter holidays in St. Vincent.

Child support obligations were terminated upon deportation, with arrears to be repaid at an increased rate.

The accused was charged with dangerous driving, impaired driving, and driving with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood, arising from a motor vehicle collision on February 8, 2012.

The Crown proceeded summarily.

The trial involved Charter voir dire issues regarding the lawfulness of the breath demand and the accused's right to counsel.

The court found violations of the accused's rights under sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms and excluded the breath sample evidence.

On the merits, the court acquitted the accused of impaired driving but convicted him of dangerous driving based on evidence of cell phone use while driving.

The accused sought judicial interim release (bail) on charges of two counts of robbery armed with a handgun, one count of disguise with intent to commit an indictable offence, and one count of assault with a weapon.

The Crown opposed release on secondary and tertiary grounds under section 515(10) of the Criminal Code.

The accused bore the burden of proof due to the firearm allegations under section 515(6)(a)(vii).

The court found the Crown's case to be weak, based primarily on circumstantial evidence including video surveillance, vehicle identification, and clothing similarities.

The court granted bail with conditions, finding the proposed plan of release adequate and that detention would undermine public confidence in the administration of justice.

The accused was charged with two counts of assault against his wife: assault with a weapon and assault causing bodily harm, arising from an incident on August 5, 2013, where he threw a ceramic coffee mug that struck her arm, causing a fracture.

The Crown alleged the accused intentionally threw the cup at his wife as she exited the kitchen.

The trial judge found that the accused could not see his wife when he threw the cup, did not know she would be exiting the kitchen at that moment, and threw the cup as an act of frustration to get her attention during an argument about her whereabouts over the weekend.

The court found no intentional application of force under section 265(1)(a) and no threat to apply force with present ability under section 265(1)(b) of the Criminal Code.

The charges were dismissed.

The accused was charged with operating a motor vehicle with an excessive blood-alcohol concentration contrary to section 253(1)(b) of the Criminal Code.

The sole issue at trial was whether the demand for a breath sample into an approved screening device was made "forthwith" in accordance with section 254(2)(b) of the Criminal Code.

The defence argued that the officer failed to make the demand promptly upon acquiring sufficient information to give rise to reasonable suspicion, thereby breaching the accused's Charter rights.

The court found that the officer reasonably did not form the requisite reasonable suspicion until after the accused was placed in the police cruiser, at which point the demand was made promptly.

The Charter applications were dismissed and the accused was found guilty.

The defendant was charged with three offences arising from incidents on Woodbine Beach in Toronto: voyeurism, mischief, and criminal harassment.

The Crown presented evidence of similar conduct in 2010 and 2013, involving surreptitious filming of women's buttocks using a concealed camera with zoom capability.

The court admitted similar fact evidence to establish identity.

The voyeurism charge was dismissed because the Crown failed to prove the essential element of "for a sexual purpose" beyond a reasonable doubt.

The criminal harassment charge was dismissed due to insufficient evidence that the defendant's actions caused the complainant to reasonably fear for her safety and concerns regarding the "watching or besetting" element.

The mischief charge resulted in a conviction, as the court found the defendant willfully interfered with the lawful enjoyment of public property.

At a preliminary inquiry into a charge of second-degree murder, the court determined whether sufficient evidence existed to commit the accused for trial.

The accused was charged with causing the death of a five-month-old infant through head injury while babysitting.

The Crown argued that medical evidence of severe brain injury, combined with evidence of animus and post-offence conduct, supported committal on second-degree murder.

The defence conceded sufficient evidence for manslaughter but argued the medical evidence alone was insufficient to establish the subjective intent required for murder.

The court found that a jury could reasonably infer from the medical evidence of severe repetitive mechanical assault, the ruling out of accident, evidence of animus, and post-offence conduct that the accused possessed the requisite subjective intent for second-degree murder.

The accused pleaded guilty to multiple offences arising from two separate incidents.

The first incident on November 9, 2014 involved uttering threats to his mother, breaching a probation order, threatening to damage property, and committing mischief by kicking and damaging a door.

The second incident on November 17, 2014 involved assaulting a police officer by spitting on him while in custody.

The officer was exposed to the accused's saliva, raising concerns about potential transmission of Hepatitis C. The court imposed a sentence of 24 months less a day in a provincial institution with a recommendation for placement at St. Lawrence Valley Correctional Treatment Centre, along with a three-year probation order with multiple conditions.

The defendant was charged with assaulting his pregnant wife by punching her in the stomach during her ninth month of pregnancy.

The Crown called the complainant who testified that the defendant punched her after an argument over car keys and delayed departure.

The defendant denied the assault, claiming he left to find alternative transportation due to frustration with the complainant's delaying tactics.

The court found the complainant's evidence credible and reliable, noting that most of her testimony was unchallenged by the defendant.

The court rejected the defendant's evidence as internally inconsistent, finding that his conduct on the day in question—leaving late on a holiday to find public transit, abandoning his pregnant wife, and departing without discussion—was unreasonable and indicative of guilt.

The defendant was found guilty of assault.

The applicant mother brought a motion seeking orders to restrict the respondent father's contact with the child's dentist and attendance at the child's school.

The respondent father brought a cross-motion seeking custody, increased access, appointment of the Office of the Children's Lawyer, a non-removal order, and addition to the birth certificate.

The court granted the mother's motion regarding dental care and school attendance, restricting the father's contact with the dentist and limiting his school attendance to parent-teacher interviews scheduled separately from the mother's.

The court denied the father's request for custody but granted increased access, including extended weekend access, midweek visits, and summer holiday access.

The court declined to appoint the OCL and noted that adding the father to the birth certificate is a matter for vital statistics.

The Crown sought reconsideration of a preliminary inquiry judge's ruling denying a section 540(7) application to file transcripts of witness statements.

The initial judge had rejected the application as inadequately presented and lacking sufficient grounding.

The Crown subsequently renewed the application with a fuller record.

The presiding judge ruled that reconsideration was permissible, finding that the initial ruling was not a final determination on the merits of section 540(7) admissibility but rather a rejection of the application as presented.

The judge held that interlocutory evidentiary rulings can be reconsidered where there is no prejudice to the defence and where the interests of justice support reconsideration, particularly in preliminary inquiries where evidentiary errors cannot be appealed.

This is a preliminary hearing ruling on committal following charges of sexual offences against a minor.

The accused, a volunteer driver for a foster care agency, was charged with multiple counts of sexual abuse involving a 15-year-old foster child under his care.

The central issue was whether the accused was in a position of trust toward the complainant.

The court found sufficient evidence to commit the accused to trial on all charges, determining that the accused held a position of trust based on the age difference, the evolution of the relationship, the vulnerable status of the complainant as a foster child, and the circumstances of their contact through the accused's employment.