ONCJ 2019

The Office of the Children's Lawyer brought a motion seeking permission to file a late Answer and Plan of Care on behalf of three children in a status review proceeding.

The Children's Aid Society opposed the motion, arguing that children do not have the right to file an Answer in child protection proceedings and that permitting such filing would circumvent established jurisprudence regarding counsel's ability to articulate children's views and wishes.

The court granted the motion, finding that children with legal representation have participatory rights that include the right to file an Answer and Plan of Care, and that it was in the children's best interests to permit late filing given the age-appropriate maturity of the children and the significant lifetime consequences of the proceeding.

The respondent M.R. brought a motion to transfer a family law proceeding from Sault Ste.

Marie to Thunder Bay, arguing that the child's ordinary residence had changed to Marathon (near Thunder Bay) following the child's removal from the applicant's care in October 2018.

The applicant C.B., the paternal grandmother, opposed the transfer.

The court found that the child's ordinary residence remained in Sault Ste.

Marie where the child had been residing with C.B. since June 2018 pursuant to a customary care arrangement.

The court held that a unilateral removal of a child by a parent does not change the child's ordinary residence without consent or acquiescence of the person who had established that residence.

The motion to transfer was dismissed.

This is a ten-day trial involving a status review application for three children and a protection application for a fourth child.

The court determined that all four children should be placed in the custody of the mother under section 102 of the Child, Youth and Family Services Act.

The father's access was ordered to be supervised, occurring every other week for two hours at a Supervised Access Centre.

The court found that the children were at risk of harm while in the father's care, that the father had engaged in a campaign to undermine the mother's relationship with the children, that the children had thrived in the mother's care since March 2018, and that the father lacked insight into his shortcomings and was ungovernable by court orders or the child protection agency.

This is a costs decision following a motion to change child support orders.

The respondent father brought a motion to change support provisions of two child support orders made in 2011 and 2012.

The mother successfully opposed the motion.

The court found the father engaged in egregious conduct including repeated failures to comply with disclosure orders, providing incomplete and misleading financial information, and demonstrating a long-term, wilful disregard for court orders and his child support obligations.

The mother was awarded full recovery costs of $12,161.96 all included.

The court emphasized that ability to pay is not a bar to costs awards when a party has acted unreasonably, and that costs serve important functions including sanctioning inappropriate behaviour and ensuring the integrity of the justice system.

The accused was convicted of criminal negligence causing death and impaired operation of a vessel causing death following the death of an eight-year-old child during a canoeing incident on the Muskoka River during spring run-off.

The accused had consumed alcohol and cannabis before taking the child canoeing toward a waterfall to retrieve a barrel, resulting in the canoe capsizing and the child drowning.

The court imposed a six-year penitentiary sentence and a ten-year prohibition on operating a vessel, finding the accused's conduct demonstrated wanton and reckless disregard for the child's life and safety.

A young person was convicted of a home invasion involving assault, forcible confinement, and robbery of an elderly victim, as well as two subsequent convenience store robberies and theft of a motor vehicle.

The Crown sought an additional 6-month custodial sentence following approximately 16.5 months of pre-trial custody.

The defence sought a time-served sentence with probation.

The court imposed a 14-month probation order with strict conditions, including curfew, counselling, community service, and continued involvement with youth outreach programs, finding that the substantial pre-trial custody already served (approximately 21.9 months when properly credited) was sufficient to hold the young person accountable while prioritizing rehabilitation and reintegration in accordance with the Youth Criminal Justice Act.

The defendant was charged with possession of cocaine and fentanyl for the purpose of trafficking, simple possession of hydromorphone, and possession of proceeds of crime following a search warrant execution at an apartment.

The court found that the search warrant lacked sufficient grounds for issuance due to the Crown's failure to disclose the confidential informant tearaway (Appendix E) and inadequate corroborating surveillance.

Although the defendant lacked standing to challenge the apartment search, the court found his arrest and personal search unlawful under section 8 of the Charter.

The evidence seized from the defendant's person was excluded under section 24(2) of the Charter, resulting in insufficient evidence to proceed on the trafficking and proceeds of crime charges.

The simple possession charge also failed due to insufficient evidence of the defendant's knowledge and control.

The accused was charged with operating a motor vehicle while her blood alcohol level exceeded 80 mg of alcohol in 100 ml of blood.

The defence raised two arguments: first, that the arresting officer failed to copy his scratch notes, resulting in lost evidence that should trigger a stay or exclusion of evidence; and second, that the absence of scratch notes rendered the officer's testimony unreliable regarding grounds for arrest.

The court found that while the failure to copy scratch notes constituted a breach of section 7 of the Charter, the officer's testimony was sufficiently detailed and reliable to establish that the notes were transcribed accurately.

The court found no remedy was warranted in a judge-alone trial and convicted the accused.

This is a costs endorsement following cross-motions concerning the temporary primary residence and schooling of a 13-year-old child.

The court ordered that the child have temporary primary residence with the mother and attend school in the mother's neighbourhood, granting generous temporary access to the father.

The mother sought costs of $3,824.20, while the father requested no costs be ordered.

The court found that the mother's offer to settle was more favourable than the trial result and that the father acted unreasonably by being unresponsive to settlement discussions.

Costs were fixed at $3,000, payable at $150 per month commencing November 1, 2019.

The accused was charged with dangerous driving, failing to stop for police, driving while disqualified, and failing to comply with a probation order arising from an incident on February 3, 2016.

The central issue was whether the Crown had proven beyond a reasonable doubt that the accused was the driver of a vehicle involved in a dangerous pursuit in Brampton.

The court found the eyewitness identification evidence of a police officer, based on a single photograph viewed two days after a ten-second observation, was unreliable and insufficient to support a conviction.

The court also found the circumstantial evidence, while suspicious, did not compel the only reasonable inference of guilt.

Additionally, the Crown failed to prove the accused's knowledge of the terms of the probation order and driving prohibition.

All charges were dismissed.

The applicant mother sought an order requiring the respondent father to disclose unredacted U.S. income tax returns for 2017 and 2018, including his current wife's income information.

The father opposed disclosure, citing his wife's privacy interests.

The court balanced the privacy interests of the third-party spouse against the mother's need for accurate income information to calculate child support, particularly regarding tax rate differentials under the Child Support Guidelines.

The court found that disclosure of the wife's income was necessary to accurately determine the father's effective tax rate for gross-up calculations, as the father and wife filed joint returns with a blended tax rate.

The Crown brought an application seeking to vacate a preliminary hearing date scheduled for October 29, 2019, and to remand the accused to Superior Court unless he re-elected to be tried in Ontario Court of Justice.

The application arose from amendments to sections 535 and 536 of the Criminal Code (Bill C-75) that came into force on September 19, 2019, limiting preliminary inquiries to cases where the accused faces a maximum penalty of 14 years or more.

The Crown argued the amendments should apply retrospectively to all pending cases, including the accused's case where the maximum penalty was less than 14 years.

The court dismissed the application, finding that while the amendments are purely procedural, they cannot be adapted to pending cases where an accused has already elected trial in Superior Court and requested a preliminary hearing.

The defendants, as registered owners of a residential property in Brampton, were charged with two offences: (1) using or permitting the use of lands for purposes not permitted by the City of Brampton Zoning By-law by establishing an illegal second dwelling unit in their basement, contrary to the Planning Act; and (2) failing to register their two-unit house with the City of Brampton as required by the Second Unit Registration By-law.

The court found that the defendants had established a self-contained basement apartment with separate kitchen, bathroom, and sleeping areas, which constituted a second unit.

The prosecution was not required to prove the existence of a tenant or a stove in the basement kitchen to establish the existence of a second unit.

The defendants were convicted on both counts.

The accused was charged with three child luring offences arising from a police sting operation involving an online escort advertisement.

The Crown relied on circumstantial evidence to prove the accused was the person exchanging text messages with an undercover officer.

The court found the circumstantial evidence insufficient to prove identity beyond a reasonable doubt, as there were other plausible theories inconsistent with guilt.

Furthermore, applying *R. v. Morrison*, the court held that even if identity were proven, the conflicting information about age in the advertisement and text messages was insufficient to prove beyond a reasonable doubt that the accused believed the person was under 18 or was wilfully blind to that fact.

The accused was acquitted on all counts.

The accused pleaded guilty to aggravated assault and assault causing bodily harm following an unprovoked attack on two strangers outside a Tim Hortons coffee shop in Richmond Hill.

The offender stabbed both victims with a blade, causing serious injuries including stab wounds to vital organs.

The court imposed an 18-month custodial sentence for aggravated assault and a concurrent 6-month sentence for assault causing bodily harm, with credit for pretrial custody, lockdowns, and restrictive bail conditions.

The court also imposed a lifetime weapons prohibition, DNA order, and non-communication order.

The accused was charged with sexual assault and sexual interference against a six-year-old child.

The sole evidence of the allegations came from the child's testimony.

The accused brought an application under the Edgar exception to admit his videotaped statement to police made upon arrest, arguing it demonstrated his immediate reaction to the accusation rather than the truth of the statement.

The court conducted a voir dire to determine admissibility under the three-part Edgar test: whether the accused testified, whether the statement was made upon arrest or first accusation, and whether the statement was spontaneous.

The court found all three requirements satisfied and admitted the statement for the limited purpose of demonstrating the accused's reaction to the charges and his consistency with trial testimony.

This is a ruling on committal for three accused charged with a brazen daytime shooting in Regent Park on May 28, 2018, allegedly in retaliation for a shooting in Vanauley Walk the previous day.

The Crown alleges the accused are members of Menace Gang, a junior gang associated with the Project Originals criminal organization.

The accused are charged with numerous offences including possession and discharge of firearms, dangerous driving, and committing these offences for the benefit of a criminal organization.

The court examined party liability under sections 21(1) and 21(2) of the Criminal Code, the admissibility of rap music videos as evidence of criminal organization status, and the distinction between acts that have the effect of benefitting a criminal organization versus acts done for that purpose.

The accused was charged with two counts of assault with a weapon and two counts of assault causing bodily harm arising from an incident on July 30, 2016, at Caribana Day in Toronto.

The Crown relied on eyewitness identification evidence from the two victims, forensic evidence of blood on the accused's clothing, and prior identification evidence.

The court found significant frailties and inconsistencies in the eyewitness evidence, including poor memory, intoxication, stress during the incident, and discrepancies between witness accounts and other evidence.

The court determined that the eyewitness identifications were unreliable and that the forensic evidence, while establishing the accused's presence at the scene, did not establish his involvement in the assaults beyond a reasonable doubt.

The accused was acquitted on all counts.

The applicant mother sought sole custody, no access for the respondent father, imputed income for child support, and a restraining order following a separation marked by allegations of domestic violence.

The father sought joint custody, unsupervised access, and rescission of child support arrears, claiming the mother had alienated the children.

The court found the father's evidence lacking credibility and noted his failure to cooperate with the Office of the Children's Lawyer.

Given the history of abuse and the children's refusal to see the father during supervised access attempts, the court granted sole custody to the mother and limited the father's access to sending letters and gifts.

The court also imputed income to the father at minimum wage due to intentional underemployment, ordered child support, refused to rescind arrears, and granted a restraining order against the father.

A temporary care and custody hearing under the Child, Youth and Family Services Act regarding interim placement of two children.

The Children's Aid Society sought protection due to domestic violence, substance abuse, emotional harm, and questionable parental decision-making.

The father sought placement of the children in his care with supervision; the mother conceded she was not ready for return of the children.

The court determined that the least intrusive order was for the children to remain with the maternal grandparents under supervision, with the father's access discretionary to the Society and the mother's access structured but with supervision at the Society's discretion.