ONCJ 2019

An application under section 74 of the Firearms Act to review the Chief Firearms Officer's decision to revoke the applicant's firearms licence.

The applicant, a retired military officer with PTSD and a history of alcohol abuse, had his licence revoked following several incidents involving mental health crises and impaired driving between October 2017 and September 2018.

The applicant sought to overturn the revocation, presenting new medical evidence from specialized treatment providers indicating significant improvement in his condition, abstinence from alcohol, and minimal risk regarding firearm possession.

The court found the original decision reasonable but determined that the new medical evidence was substantial enough to undermine the factual assumptions underlying the revocation decision and granted the application.

The Catholic Children's Aid Society of Toronto brought a motion seeking a non-removal order to prevent the deportation of a mother and one of her two children to St. Lucia, where a removal order had been issued by the Minister of Public Safety and Emergency Preparedness.

The mother and one child lacked legal residency status in Canada, while the other child was a Canadian citizen.

The society had commenced child protection proceedings in 2013 and obtained multiple supervision orders based on ongoing protection concerns.

The court found that a genuine lis existed in the child protection proceeding, that the supervision order would be directly contravened by enforcement of the removal order, and that the Minister had been given full opportunity to make submissions.

The court granted the non-removal order, finding that the supervision order acts as an automatic stay of the removal order under paragraph 50(a) of the Immigration and Refugee Protection Act.

A motion to change custody and access arrangements in a high-conflict family law case involving two young children.

The mother sought sole custody and to vary the father's mid-week overnight access, while the father sought sole custody with the mother having alternate weekend access.

The court found a material change in circumstances since the last order and conducted a fresh inquiry into the children's best interests.

Despite the Office of the Children's Lawyer recommending that the father have sole custody, the court ordered that the children remain in the primary care of the mother with substantially expanded access to the father, including three weekends per month during the school year and equal time sharing during summer and holidays.

The court imposed a joint custody arrangement structured as parallel parenting to preserve the balance of power between the parties and prevent further marginalization of the father's role.

The defendant was charged with driving while holding a handheld communication device contrary to section 78.1(1) of the Highway Traffic Act.

During a traffic stop, the officer seized one of the defendant's two driver's licences and returned it to the Ministry of Transportation.

The defendant brought a constitutional motion alleging a breach of section 8 of the Charter and seeking a remedy under section 24(2).

The court denied the motion, finding that while the officer's conduct in seizing the licence may have been questionable, the nexus between the alleged breach and the evidence for the charge was too tenuous and remote to warrant a judicial stay.

The court emphasized that a judicial stay is only appropriate in the clearest of cases and that the societal interest in hearing the merits of the case outweighed the alleged breach.

The accused, a police officer, pleaded guilty to impaired driving and dangerous driving.

The court imposed a $3,000 fine, an 18-month driving prohibition, and 18 months probation with conditions including mandatory attendance at counselling and rehabilitative programs.

The sentencing emphasized the seriousness of impaired driving, the aggravating factors (police officer status, prior suspended sentence, accident involvement), and the mitigating factors (guilty plea, 169 days sobriety, participation in AA, genuine remorse, and steps taken toward rehabilitation).

Applicants challenged environmental charges under the Ontario Environmental Protection Act, arguing that provincial environmental legislation should not apply to stevedoring activities on federal Crown property at the St. Lawrence Seaway.

The applicants invoked doctrines of interjurisdictional immunity and federal paramountcy, contending that the provincial provisions impaired federal jurisdiction over navigation and shipping and frustrated the purposes of the Canada Marine Act and Seaway Property Regulations.

The court dismissed the application, finding that neither doctrine applied.

The court held that stevedoring is integral to shipping but that environmental protection requirements do not impair the core federal power.

The court also found that provincial and federal environmental regimes can operate harmoniously without conflict.

The court issued a costs endorsement following a motion hearing on custody, access, and child support.

The mother sought temporary custody and child support; the father sought joint custody and unsupervised access.

The parties agreed on child support and primary residence with the mother.

The court granted the mother temporary custody with supervised access to the father.

The mother sought costs of $4,746; the father sought no costs or minimal costs.

The court found the mother was the successful party on custody and parenting time issues and awarded costs of $2,000, payable at $125 per month starting March 1, 2020.

The court declined to enforce the costs order through the Family Responsibility Office as the costs were attributable to parenting issues, not support.

Applicants charged with Controlled Drugs and Substances Act offences related to possession and sale of cannabis brought a joint application challenging the constitutionality of sections 5(2) and 4 of the CDSA in combination with the Access to Cannabis for Medical Purposes Regulations.

The applicants argued the provisions violated sections 7, 15, and 2(b) of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding no violations of the Charter.

The court held that the ACMPR regime provided reasonable access to medical cannabis through multiple avenues and did not arbitrarily deprive applicants of liberty, discriminate against disabled persons or homeless individuals, or infringe freedom of expression.

The accused pleaded guilty to sexual interference, making child pornography, and accessing child pornography involving two young persons.

The Crown sought a nine-year penitentiary sentence with ancillary orders including DNA, SOIRA, and section 161 prohibition orders.

The defence sought three to four years with a ten-year section 161 order.

The court imposed a six-year global sentence (five years for sexual interference and one year consecutive for child pornography offences), finding that the accused's conduct involved grooming, breach of trust, multiple victims, and significant harm.

The court was particularly concerned about the accused's lack of insight, blame-shifting, and moderate risk of re-offending.

A child protection agency sought summary judgment on a motion to establish that a child was in need of protection and to grant custody to the paternal grandparents.

The respondent mother opposed the custody order but took no position on the identification order.

The respondent father supported the motion.

The court granted summary judgment on custody to the paternal grandparents and supervised access to the father, but declined to grant summary judgment on the mother's access, finding that genuine issues remained regarding the accommodation of the mother's work schedule and exploration of third-party supervisors.

The court ordered a focused one-day hearing on the mother's access issue.

The accused was charged with multiple firearm offences following the seizure of a loaded 9mm handgun from her vehicle.

She brought a Charter application challenging the lawfulness of police conduct, including a warrantless entry into a condominium unit, the warrantless seizure of her vehicle, and the manner of execution of a search warrant on the vehicle.

The court found that while the initial entry into the unit and seizure of the vehicle were lawful, the officer's opening of the glove box to search for vehicle documentation (rather than the bullet authorized by the warrant) constituted an unreasonable search.

However, applying the s. 24(2) Grant test, the court admitted the evidence, finding the breach was minor, the privacy interest in a vehicle is diluted, and society has a strong interest in adjudication on the merits given the serious nature of illegal firearms.

Father sought return of two children (ages 10 and 14) under the Hague Convention on the Civil Aspects of International Child Abduction.

The children were habitually resident in Michigan with the father and were retained in Ontario by the mother during a summer access visit.

The mother and counsel for the children opposed return, citing the children's objections and grave risk of harm.

The court found that the older child's objection was substantial and based on serious psychological and educational factors related to being a transgender youth in Michigan, meeting the Article 13 exception to mandatory return.

The younger child's objection was found to be a mere preference and did not meet the threshold.

The court ordered the younger child returned to Michigan and dismissed the application with respect to the older child.

The defendant, a member of the Royal Canadian Legion, organized and promoted two vacation packages without being registered as a travel agent under the Travel Industry Act.

The Bahamas cruise package resulted in $25,089.91 in losses to 104 victims, and the Hawaii vacation package resulted in $45,500.00 in losses with no value delivered.

The defendant was convicted of two counts of acting as a travel agent without registration.

At sentencing, the court found aggravated moral wrongdoing, including misappropriation of funds, continued promotion of trips while unable to deliver, and deliberate deception of victims.

The court imposed intermittent jail sentences totaling 75 days on the primary count and 45 days concurrent on the secondary count, rejecting arguments for a non-custodial sentence despite the defendant's lack of prior record and extensive volunteer history.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code for conduct that allegedly occurred on July 7, 2017, during a camping trip to Algonquin Park.

The Crown alleged that the accused sexually assaulted the complainant while she was sleeping in a tent.

The accused denied the allegations, claiming nothing of a sexual nature occurred while the complainant was sleeping.

The trial judge found the complainant's evidence credible and reliable, and rejected the accused's denials.

The judge was particularly influenced by the accused's text messages to the complainant's father, which demonstrated consciousness of guilt.

The judge found that the accused penetrated the complainant's vagina without consent while she was unconscious, constituting sexual assault.

The accused was charged with numerous weapons offences following a police search of an apartment at 16 McAdam Avenue, Toronto, where officers discovered two locked suitcases containing 12 firearms, ammunition, and a grenade.

The Crown's case relied on circumstantial evidence, including fingerprint evidence linking the accused to the suitcases and items within them, surveillance footage showing the accused's presence at the apartment, and his association with the primary target of the investigation.

The accused testified that he had handled the blue suitcase during a trip to London with the apartment's lessee, that his fingerprints on the ammunition bag resulted from incidental contact during packing, and that he was unaware of the weapons stored in the locked suitcases in the bedroom closet.

The court found that while the accused's explanation regarding the food sealer was not credible, the totality of the circumstantial evidence, when examined holistically, left a reasonable doubt as to whether the accused had knowledge of and control over the weapons.

The accused pleaded guilty to criminal negligence causing death of her 20-month-old daughter.

The child ingested carfentanil from a baggie the accused kept in her sweater pocket while the accused was using opioids and fell asleep.

The court imposed a sentence of 4 years custody, less pre-sentence custody of 441 days, resulting in 2 years and 289 days remaining to be served.

The sentencing emphasized denunciation and general deterrence while considering the accused's addiction, remorse, and rehabilitation potential.

The accused was charged with breach of trust by a public officer and attempt to obstruct, pervert, or defeat the course of justice.

The accused applied to exclude her statement to police on the basis that her Charter rights were infringed.

The court found multiple breaches of section 10(b) rights (right to counsel) and section 8 rights (protection against unreasonable search and seizure).

The police failed to immediately inform the accused of her right to counsel, delayed providing access to counsel without reasonable justification, and obtained the accused's phone password before she had an opportunity to speak with counsel.

The court excluded the statement under section 24(2) of the Charter, finding that all three Grant factors favored exclusion.

This is a costs decision following a three-day trial in a motion to change a custody and access order.

The mother sought to relocate with the five-year-old child to Mongolia.

The mother was successful at trial and claimed costs on a full recovery basis of $54,575.20.

The father opposed the costs claim, arguing either no costs should be awarded or costs should be fixed at an amount within reach of either party.

The court awarded costs to the mother, finding she was the successful party and that the father's conduct, particularly his unreasonable claim for joint custody and related child support reduction claims, warranted a costs award.

The court fixed costs at $25,000 all-in (fees plus HST and disbursements plus HST), enforceable as support.

A costs decision in a family law application involving custody, access, and child support.

The application was resolved through three case conferences resulting in a final settlement.

Both parents claimed costs, but the court found the mother was the more successful party.

The father was ordered to pay the mother's costs in the amount of $10,000 all-inclusive, representing a fair and reasonable amount proportionate to the issues involved.

The applicant brought a motion to strike the respondent's answer and obtain a final order on her claims for custody, child support (retroactive and ongoing), and access.

The respondent opposed the motion.

The court considered whether the respondent's conduct—including failure to attend court appearances and failure to comply with court orders—warranted striking his pleadings.

The court declined to strike the pleadings, finding that while the respondent had engaged in non-compliance, the threshold for this drastic remedy had not been met, particularly given that the interests of a child were at issue and both parties' participation was necessary for a fair determination.