ONCJ 2019

This is a ruling on a voir dire regarding the admissibility of child hearsay evidence consisting of statements made by an eight-year-old child to his foster mother regarding being locked in his bedroom and having the light bulb removed.

The Children's Aid Society sought to introduce these statements through the foster mother's testimony under the principled approach to hearsay admissibility.

The court rejected the application, finding that the society failed to establish sufficient necessity for the hearsay evidence, as the child was capable of testifying viva voce at age twelve.

The court noted that while threshold reliability was satisfied, the necessity requirement was not met, particularly given that the statements were made to a foster mother rather than to investigators or police, and were explanatory rather than responsive to interrogation.

This is a voir dire ruling on the admissibility of hearsay evidence consisting of statements made by a child during a police interview.

The child's statements were recorded by a society worker and sought to be introduced at trial through that worker's testimony.

The court ruled that while the statements were hearsay, they met the twin requirements of necessity and threshold reliability under the principled exception to the hearsay rule.

The court admitted the evidence as trial evidence, noting that the child could not be expected to recall events from years prior and that the handwritten notes and their verbatim transfer to case notes provided sufficient reliability.

This is a voir dire ruling on the admissibility of hearsay evidence consisting of statements made by a child during a school interview by child protection workers.

The court considered whether the statements met the twin requirements of necessity and threshold reliability under the principled approach to hearsay admissibility.

The court found that threshold reliability had not been met due to multiple weaknesses in the interview process, including lack of recording, absence of specific questions, unclear temporal information, and the child's behavioral difficulties.

The hearsay statements were excluded from trial evidence.

This is a ruling on two voir dires concerning the admissibility of hearsay evidence consisting of statements made by a child (M.) during interviews conducted on November 28, 2014.

The child was interviewed first at her school by child protection workers, and subsequently at the Ontario Provincial Police station by a constable.

The Children's Aid Society sought to introduce these statements through the testimony of a society worker to establish the truth of their contents.

The court applied the principled approach to child hearsay admissibility, requiring both necessity and threshold reliability.

The court found that neither requirement was satisfied and ruled the hearsay statements inadmissible.

This is a ruling on a voir dire concerning the admissibility of hearsay evidence consisting of statements made by a child during a school interview by child protection workers.

The court applied the principled exception to the hearsay rule, examining whether the evidence met the twin requirements of necessity and threshold reliability.

The court found that the statements were admissible as trial evidence, noting that the dangers associated with hearsay could be attenuated and that admission would permit valuable comparisons between accounts from multiple interviewers and interviews.

The accused pleaded guilty to three firearms offences: possession of restricted firearms (contrary to s. 95), careless storage of a firearm (contrary to s. 86), and occupant of a motor vehicle with knowledge of a firearm (contrary to s. 94).

The accused inherited his father's firearms collection following his parents' deaths and unlawfully possessed handguns for approximately eight months.

The accused accidentally shot himself with one of the handguns, leading to police discovery of the weapons.

The court imposed a 12-month conditional sentence with electronic monitoring and home confinement for the first six months, finding that while firearms offences are serious, the accused's lack of criminal record, remorse, prosocial character, and the context of his parents' recent deaths warranted a conditional sentence rather than incarceration.

The accused, a 44-year-old first-time offender with no prior criminal record, pleaded guilty to trafficking carfentanyl.

He had provided what he believed to be fentanyl to his friend Evan Hoegler, who died from carfentanyl poisoning.

The court found that the accused facilitated access to fentanyl on multiple occasions (approximately 20 times) through a pattern of mutual drug-seeking behaviour with Hoegler, but made no profit or material gain.

The accused was on methadone maintenance therapy and demonstrated genuine remorse and capacity for rehabilitation.

The court imposed a two-year penitentiary sentence, finding it near the bottom of the sentencing range given the mitigating factors, while acknowledging the seriousness of trafficking in lethal substances and the death that resulted.

The accused was charged with assault causing bodily harm.

The Crown presented evidence from the complainant, witnesses, and police officers documenting injuries to the complainant's eye and other abrasions.

The defence argued self-defence.

The trial judge found the complainant credible and reliable in his testimony, noting his emotional demeanor and consistency with observations by police.

The defendant's testimony was found less credible and appeared rehearsed.

However, the judge identified a critical contradiction: the defendant's post-incident statement that "no one talks about our family like that" suggested provocative words were spoken in the bedroom, contradicting the complainant's denial.

This contradiction created reasonable doubt as to what occurred in the bedroom.

The accused was acquitted.

The defendant was charged with exceed 80 (impaired driving) following a traffic stop on November 14, 2015.

The defence raised two Charter violations: (1) that the police stop was racially motivated and unlawful under section 9, and (2) that the defendant was denied his right to counsel under section 10 by being denied access to his cell phone to contact a lawyer of choice.

This was the second trial following reversal of an acquittal on summary conviction appeal.

The court found no racial profiling but upheld the section 10 Charter violation regarding denial of access to counsel of choice.

The breath test evidence was excluded under section 24(2) and the charge was dismissed.

A mother sought to vary an order placing her son in extended society care by obtaining increased and unsupervised access.

The child, who sustained an acquired brain injury resulting in physical and cognitive impairment, severe attention deficit, and behavioral challenges, had been made a Crown Ward in 2015.

The mother proposed expanded access for rehabilitation purposes, claiming the foster parents were not adequately addressing the child's physical rehabilitation needs.

The court dismissed the motion, finding the mother had not demonstrated a change in circumstances sufficient to warrant variation.

The mother continued to lack insight into the child's behavioral needs, focused exclusively on physical impairments while dismissing the child's own preferences, and had not demonstrated the ability to work cooperatively with the child's caregivers or recognize the risks posed by unsupervised access.

The respondent brought a motion to change a final custody and access order made in 2014 that provided for joint custody and a shared parenting schedule.

The applicant had unilaterally moved from Scarborough to Markham, enrolled the child in a new school, and removed the child from daycare without the respondent's consent.

The applicant sought to vary the parenting schedule to accommodate the move.

The court found that the applicant's self-help tactics breached the joint custody order and failed to respect its spirit and letter.

The court restored the status quo, ordering that the child reside primarily with the respondent and attend school in Scarborough, with the applicant having access three out of four weekends per month.

The accused was charged with impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml of blood, arising from a traffic stop on July 13, 2018 in downtown Toronto.

The defence brought a Charter application alleging breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that the police failed to obtain breath samples "as soon as practicable" as required by section 254(3) of the Criminal Code, resulting in a 35-minute unexplained delay at the police station.

The court also found a breach of the accused's right to counsel without delay.

However, the court exercised its discretion under section 24(2) of the Charter and admitted the breath test evidence, finding that exclusion would not be necessary to maintain public confidence in the administration of justice.

The court rejected the defence argument that the Crown was required to prove all prerequisites under section 320.31(1) of the Criminal Code and found the breath test results admissible and reliable based on common law principles.

The court convicted the accused on both counts.

The accused was arrested outside a target apartment building on suspicion of possession for the purpose of trafficking crystal methamphetamine and GHB.

The court found that the arrest was unlawful, lacking reasonable and probable grounds.

The detectives relied on mere suspicion based on the accused's presence outside the building and a "hard stare," without evidence connecting him to the target unit or any drug activity.

The court found multiple Charter breaches including violations of sections 7, 8, 9, and 10(b), stemming from an unlawful arrest effected through excessive force, an unlawful search, and a three-and-a-half-hour delay in providing access to counsel.

The court excluded the evidence and dismissed all charges.

The accused pleaded guilty to robbery with an imitation firearm, breach of recognizance, and related offences.

The court imposed a sentence of one year imprisonment on the firearm offence and a consecutive three months on the robbery offence, with a suspended sentence on the breach.

A three-year probation order was imposed with extensive conditions including curfew, non-association orders, weapons prohibition, community service, and mandatory counselling and rehabilitative programs.

The court balanced the seriousness of the offence and general deterrence against the accused's vulnerabilities, youth, and supportive family circumstances.

The Crown sought to admit a third videotaped statement of a complainant made pursuant to section 715.1 of the Criminal Code.

The statement was taken over 14 months after the alleged offence and just over a week before trial.

Defence counsel challenged admissibility on the grounds that the statement was not made within a reasonable time following the alleged offence.

The court admitted the statement, finding that the delay did not significantly impact the complainant's ability to accurately recall events, particularly given her age at the time of the hearing and the fact that the third statement was tethered to earlier statements made shortly after the alleged offence.

This is a costs decision following a motion to change custody and access arrangements for a child.

The applicant sought variation of a joint custody order and sole custody, along with a defined access schedule.

The applicant was substantially successful, obtaining 11 of 12 requested relief items.

The respondent acted unreasonably throughout the proceedings, including non-compliance with court orders, refusal to pay child support, and abusive conduct.

The court awarded costs to the applicant as the successful party, considering the respondent's egregious behaviour and the need to sanction inappropriate litigation conduct.

The applicant sought to vary a 2016 consent order regarding custody and access of a four-year-old child.

The applicant sought a fixed access schedule for the respondent, arguing that the existing flexible arrangement based on the respondent's work schedule had become unworkable due to ongoing parental conflict and the child's entry into school.

The respondent opposed the variation and sought a 50:50 parenting arrangement.

The court found a material change in circumstances based on escalating conflict between the parties, the child's school attendance, and the respondent's non-compliance with the existing order.

The court granted the applicant's request for a structured access schedule with alternate weekends and midweek access, rejecting the respondent's proposal for equal parenting time due to the high level of conflict and the respondent's demonstrated inability to cooperate.

A young person charged with sexual interference and sexual assault sought production of records held by the Durham Children's Aid Society pursuant to section 278.3 of the Criminal Code.

The court applied the two-stage Mills analysis to determine whether third-party records containing statements by the complainant and her mother regarding the criminal allegations and circumstances of disclosure should be produced.

The court found the records relevant to issues of credibility and narrative but balanced this against the high expectation of privacy attaching to child protection agency records.

The court ordered partial disclosure of specific portions of the records with strict conditions limiting further dissemination and use.

A police officer employed with the City of Kawartha Lakes Police Service pleaded guilty to breach of trust contrary to section 122 of the Criminal Code.

The officer, who had been diagnosed with post-traumatic stress disorder and developed an opioid addiction following traumatic incidents during his policing career, stole drugs from an evidence locker and siphoned prescription pills from a pharmacy investigation.

His criminal conduct resulted in eight active drug prosecutions being stayed.

The court rejected the defence submission for a conditional discharge and a suspended sentence, finding that while the officer's addiction and PTSD constituted exceptional mitigating circumstances, a jail sentence was warranted.

However, the court imposed a conditional sentence order to be served in the community rather than incarceration, recognizing the officer's rehabilitation efforts and the need to balance denunciation and deterrence with individualized sentencing principles.

The defendant, aged 19 at the time of the alleged offences, was charged with seven counts of sexual offences against a 13-year-old complainant over a period from April 1 to May 3, 2018.

The Crown proceeded by summary conviction.

The defendant was arraigned on charges of sexual assault, sexual interference, invitation to sexual touching, exposing genital organs, accessing child pornography, and two counts of communicating with a minor to facilitate sexual offences.

The Crown conceded insufficient evidence on two counts.

Following a trial involving videotaped evidence from child witnesses and extensive cross-examination, the court found the defendant guilty on five counts after rejecting his denials based on substantive credibility problems and corroborating evidence from multiple witnesses.