ONCJ 2019

The applicant mother sought an order terminating the respondent father's access to their two-year-old child, citing his past drug use, abusive behavior, and inconsistent attendance at supervised visits.

The father sought to continue supervised access.

The court found that while the father's inconsistent attendance was concerning, the mother had unilaterally terminated access contrary to an interim order.

Applying the best interests of the child test, the court held that the circumstances did not meet the high threshold required to terminate the parent-child relationship and ordered continued supervised access.

A motion to change custody and access arrangements where the respondent sought to establish contact with his son after seven years of no contact.

The applicant opposed the motion and sought no access, child support, and a restraining order.

The court found a material change in circumstances based on the child's age, strong preferences against contact, and the respondent's ongoing pattern of harassing and threatening behaviour.

The court ordered no access, imputed income for child support purposes, and issued a restraining order prohibiting direct and indirect contact.

This is a costs decision following a two-day family law trial concerning custody and child support of a child born in 2012.

The parents separated in November 2017.

The applicant sought joint custody with shared residential arrangements and opposed child support, while the respondent sought primary residence and child support retroactive to separation.

The court found the respondent largely successful, ordering primary residence with the respondent, joint custody with final decision-making authority to the respondent, one additional overnight per week for the applicant, and child support on an imputed income of $35,000 retroactive to separation.

The respondent sought full recovery of costs in the amount of $14,252.13 inclusive.

The court awarded partial costs of $7,500.00 inclusive to the respondent, considering her success at trial, her reasonable offer to settle, the applicant's unreasonable behaviour regarding financial disclosure and his position on child support, and the applicant's limited financial means.

The accused was charged with sexually assaulting his co-worker over a period from July 2016 to June 2017 at their workplace.

The complainant testified that the accused touched her breast and crotch area on more than 30 occasions without consent.

The accused denied the allegations, claiming the complainant fabricated them to obtain a layoff or money through the Human Rights Tribunal.

The central issue was credibility and reliability of the parties.

The court found the complainant's evidence consistent and credible despite vigorous cross-examination, and rejected the accused's denials and alternative explanations.

The court convicted the accused of sexual assault.

The defendant pleaded guilty to communicating via computer system with a person he believed to be under 16 years of age for the purpose of facilitating sexual touching, contrary to s. 172.1(1)(b) of the Criminal Code.

The defendant engaged in extensive online grooming of an undercover officer posing as a 13-year-old girl, including explicit sexual conversations and arranging to meet the purported child.

A forensic psychological assessment diagnosed the defendant with pedophilia, non-exclusive, sexually attracted to girls, though he denied such attraction.

The court imposed a 15-month custodial sentence followed by three years probation, a 20-year SOIRA order, and a 10-year s. 161 order prohibiting computer and internet use to communicate with minors.

A child welfare agency brought a protection application seeking to have two children declared in need of protection based on allegations of physical harm, sexual abuse, and failure to provide treatment.

The respondent father brought a motion for summary judgment seeking dismissal.

The court found that the agency failed to meet the mandatory five-day deadline under s. 88 of the Child, Youth and Family Services Act to bring the matter before the court following apprehension, resulting in loss of jurisdiction.

In the alternative, the court found insufficient evidence to support any of the three grounds alleged by the agency.

The motion was granted and the children were ordered returned to the respondent father.

The accused was charged with impaired driving, refusing to provide a breath sample, obstructing police, failing to comply with recognizance conditions, simple possession of cocaine, possession of cocaine for trafficking, possession of fentanyl for trafficking, and possession of proceeds of crime.

The Crown proved impaired driving, refusal to provide breath sample, obstruction, and recognizance breaches beyond a reasonable doubt.

However, the court found that police breached the accused's right to counsel under s. 10(b) of the Charter by failing to provide a reasonable opportunity to contact counsel immediately upon arrest for the trafficking charges and by ignoring a request to contact a friend with a lawyer.

The court excluded evidence of drugs found under the police cruiser seat under s. 24(2) of the Charter, resulting in acquittals on the trafficking and proceeds charges.

The accused was convicted of impaired driving and the admitted charges.

Three young persons were convicted of assault causing bodily harm following a five-day trial.

The Crown sought a custodial sentence of six months (four months secure custody, two months supervision, followed by 12 months probation), along with firearms prohibition and a DNA order.

The defence counsel argued for probation-based sentences.

The court imposed a custodial sentence of four months followed by two months community supervision and 15 months probation for each offender.

The court found the offence involved a pre-planned, brutal swarming attack on a father who attempted to prevent a fight, resulting in serious injuries including permanent scarring and ongoing physical and psychological harm to the victim and his family.

Restitution was awarded to one victim for damaged clothing in the amount of $220.00 (divided equally among the three offenders at $75.00 each).

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

The Crown's case relied entirely on the testimony of the child complainant, whose allegations were disclosed to her mother following a "good touch/bad touch" discussion initiated by the mother in the context of a highly toxic and volatile relationship between the mother and accused.

The court found significant credibility and reliability concerns regarding the child's testimony, including internal and external inconsistencies, susceptibility to leading questions, and the problematic circumstances of the initial disclosure.

The court concluded that the Crown failed to prove its case beyond a reasonable doubt and entered a verdict of not guilty.

The Crown applied to have Derek Fellows declared a dangerous offender pursuant to section 753(1) of the Criminal Code.

The offender pleaded guilty to sexually assaulting a 10-year-old boy by luring him into a forest and attempting forced anal intercourse, possessing child pornography, and breaching two court orders prohibiting contact with children.

The offender had a prior conviction in 2005 for repeatedly sexually assaulting a 7-year-old boy and multiple convictions for possessing child pornography.

The court found that all statutory criteria for dangerous offender designation were satisfied and imposed an indeterminate sentence of imprisonment.

The court dismissed an application by three individuals (two environmentalists and a former Volkswagen vehicle owner) seeking to participate as parties in the criminal prosecution of Volkswagen Aktiengesellschaft for violations of the Canadian Environmental Protection Act.

The applicants sought to present victim impact statements and make submissions regarding restitution, fines, and sentencing.

The court held that the applicants lacked standing to participate as parties, as the Public Prosecution Service of Canada has carriage of the prosecution and speaks on behalf of the public.

The court noted that while victim impact statements are permitted under the Criminal Code, there is no statutory foundation for victims to become quasi-parties to criminal proceedings.

The applicant brought a motion to stay proceedings for violation of section 11(b) of the Canadian Charter of Rights and Freedoms due to delay.

The total delay from the laying of the information on August 28, 2018 to the scheduled end of trial on May 15, 2020 was 20 months and 17 days, exceeding the presumptive ceiling of 18 months under the Jordan framework.

The Crown argued that a 93-day delay between two judicial pre-trial dates should be characterized as a discrete event beyond its control due to technological issues from a Microsoft Office 365 software update.

The court rejected this argument, finding that the assigned Crown Attorney's failure to attend was due to forgetfulness rather than an exceptional circumstance.

The court also found significant delays in disclosure, particularly the 7.5-month delay in providing the Information to Obtain the search warrant and missing officers' notes.

The court concluded that no exceptional circumstances justified the delay and granted the stay of proceedings.

The accused was charged with sexually assaulting his younger sister between January 1, 2006 and December 31, 2006, when she was approximately 6 years old and he was approximately 15 years old.

The charges included sexual assault, touching for a sexual purpose contrary to s. 151 of the Criminal Code, and invitation to touch for a sexual purpose contrary to s. 152.

The trial turned on the credibility and reliability of the complainant's evidence.

The court found that while the complainant may have experienced trauma and repressed memories, her recollection was seriously impaired with significant inconsistencies between her trial testimony, her statement to Brampton police, and her earlier statement to Niagara police.

The accused testified that he never engaged in any sexual activity with his sister.

Applying the W.(D.) test, the court found that the accused had raised a reasonable doubt and acquitted him of all charges.

The accused was charged with firearms and drug trafficking offences following a search of his apartment.

The trial proceeded as a Charter application to exclude evidence under section 24(2) of the Canadian Charter of Rights and Freedoms.

Three primary issues were raised: (1) whether the search warrant was validly issued based on confidential informant information; (2) whether covert pre-warrant entries into the apartment building constituted unlawful trespasses and section 8 violations; and (3) whether the accused's section 10(b) rights to counsel were violated when police failed to facilitate access to counsel following arrest.

The court found that while the warrant was validly issued and the pre-warrant entries constituted only minor section 8 breaches, the failure to facilitate access to counsel was a serious and gross violation of the accused's Charter rights.

The evidence was excluded under section 24(2).

The defendant was charged with driving with excess alcohol following a RIDE check on April 21, 2016.

The Crown sought to rely on breath test results showing blood alcohol levels of 168 and 145 milligrams per 100 millilitres of blood.

The defendant challenged the admissibility of the breath samples on multiple Charter grounds, including allegations that the officer failed to properly calibrate the ASD device, failed to make the demand forthwith, failed to administer the test as soon as practicable, and failed to document reasons for rejecting an intermediate sample.

The court rejected all Charter challenges and found the defendant guilty of operating a motor vehicle with a blood alcohol level of 140 milligrams per 100 millilitres of blood.

The applicant challenged the validity of search warrants under s. 8 of the Charter at a Garofoli hearing (Step 6).

The Crown sought to defend warrants for searches at three locations based on information from confidential informants.

The court applied the "three Cs" test from R. v. Debot (compelling, credible, corroborated) to assess the reliability of the informant information.

The court found that the informant's detailed, first-hand information about the accused's drug dealing activities, combined with the informant's credibility and police corroboration, met the requisite standard for warrant issuance.

The warrants were upheld as valid.

The defendant was charged with failing to comply with a Property Standards Order issued by the City of Pickering under the Building Code Act, 1992.

The order required the defendant to remedy violations on his residential property, including removing inoperative vehicles, garbage, and debris from the yard by May 17, 2018.

When the defendant failed to comply, the municipality attended the property with contractors and removed items from the yard.

The defendant challenged the conviction on Charter grounds, arguing violations of sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

The court rejected both Charter applications and convicted the defendant.

The Crown charged Proformance Group Insurance Solutions Inc. with failing to comply with an Employment Standards Order to pay $4,867.72 in unpaid wages, contrary to section 132 of the Employment Standards Act, 2000.

The defendant did not appeal or seek judicial review of the Order.

The defendant's director testified that the corporation had ceased operations in May 2016, before the Order was issued in October 2016, and that the corporation lacked financial resources to comply.

The court found that the defendant failed to establish a due diligence defence, as it took no reasonable steps to attempt compliance and made no efforts to obtain financing.

The court convicted the defendant.

A motion to change regarding child support and section 7 expenses for two children from a marriage that ended in 2013.

The applicant father sought to vary the terms of a prior separation agreement and court order, proposing either a fixed monthly sum or a proportionate payment structure for extracurricular expenses.

The respondent mother sought a fixed monthly amount for extracurricular activities.

The court found that the children's extracurricular activities at an elite competitive level constituted extraordinary expenses within the meaning of the Child Support Guidelines.

The court fixed annual section 7 expenses at $16,000 and ordered the father to pay $400 per child per month, with arrears to be repaid at $200 monthly.

The court also ordered the mother to provide annual accounting of expenses.

A family law trial concerning custody, parenting time, religious upbringing, transportation arrangements, and child support for three children.

The applicant mother sought to maintain the status quo parenting arrangement and obtain child support in accordance with the respondent father's income.

The respondent father sought a week-about parenting schedule, permission for the children to be baptized in The Church of Jesus Christ of Latter Day Saints, shared transportation responsibilities, and a reduction in child support below the set-off amount.

The court, applying the best interests of the child test and considering the Office of the Children's Lawyer's recommendations, ordered a modified parenting schedule with mid-week contact, permitted baptism at age eight, established shared transportation responsibilities, and fixed child support at the set-off amount with proportionate sharing of daycare expenses.