ONCJ 2020

The applicant society brought a 14B motion seeking final orders within an Amended Status Review Application, requesting custody of a child for the mother and fully supervised access for the father at a professional access centre.

The society sought to proceed on an uncontested basis without the father's consent, despite the father being served during a period when time limitations under Ontario legislation were suspended due to the COVID-19 pandemic.

The court declined to exercise its discretion to lift the suspension of the time limitation period applicable to the father, finding it inappropriate to proceed without the father's participation given the circumstances, including the closure of supervised access centres and the lack of information regarding the father's recent contact with the child.

A child protection society brought a motion to place four children in the care of their paternal grandparents, subject to society supervision.

The mother opposed the motion and sought return of the children to her custody.

The court found that the mother had proactively addressed the addiction issues that originally prompted the society's intervention, had completed treatment, and was meaningfully engaged in ongoing services.

The court determined that the protection concerns could be adequately mitigated through a supervision order and that returning the children to the mother's care was consistent with Anishinaabe cultural traditions and the remedial purposes of the Child, Youth and Family Services Act.

The court ordered the children placed in the mother's custody subject to supervision and specific conditions.

The accused was charged with aggravated assault, assault with a weapon, and assault against his father, assault with a weapon against his sister, and two counts of failure to comply with probation orders.

The offences arose from a violent incident in the family home in the early morning hours of October 17, 2019.

The Crown called two witnesses—the father and sister—whose testimony was corroborated by security footage, a 911 recording, and photographs of injuries.

The accused did not testify or call evidence.

The court found the accused guilty of assault and assault with a weapon but rejected the aggravated assault charge, finding instead the lesser included offence of assault causing bodily harm.

The court acquitted on the failure to comply charges based on the de minimus principle.

The accused was charged with six counts of refusing to comply with a boundary condition of a probation order contrary to s. 733.1(1) of the Criminal Code, and one count of failing to attend court on September 26, 2016, contrary to s. 145(2)(a) of the Criminal Code.

The Crown proceeded summarily on all counts.

The matter proceeded as a blended Charter application and trial.

The accused raised Charter arguments under ss. 7, 8, 9, and 11(d), arguing violations of his rights.

The court found one s. 9 violation but dismissed the Charter application, finding no basis for exclusion of evidence or stay of proceedings.

On the trial proper, the court found the accused guilty on all seven counts after determining that the Crown had proven all essential elements beyond a reasonable doubt, including the requisite mens rea for each offence.

The accused was charged with assault with a weapon and criminal harassment arising from the dissolution of an intimate relationship.

The Crown proceeded on six counts, later withdrawing two counts of possession of cocaine.

At trial, the Crown further withdrew a charge of forcible confinement and a charge of criminal harassment dated March 18, 2019.

The court found the accused not guilty of assault with a weapon (thrown bar stool on March 14, 2019) and criminal harassment (repeated communications on March 29-30, 2019).

The court found insufficient evidence of mens rea for the assault charge and reasonable doubt regarding the accused's knowledge that his communications constituted harassment.

The Crown brought a dangerous offender application following the defendant's conviction for two counts of aggravated assault, two counts of weapons dangerous, and one count of breach of recognizance.

The defendant attacked two victims with a knife in an unprovoked manner, causing serious injuries that could have been fatal.

The court found the defendant met the criteria for dangerous offender designation under section 753(1)(a)(ii) based on a pattern of persistent aggressive behaviour showing substantial indifference to consequences.

Despite evidence that the defendant's schizoaffective disorder and polysubstance use disorder were theoretically treatable, the court concluded his violent conduct was intractable due to his consistent failure to seek and follow psychiatric treatment, lack of insight into his illness, and resistance to treatment.

The court imposed an indeterminate sentence, finding that neither a determinate sentence nor a determinate sentence with a long-term supervision order would adequately protect the public.

The Crown charged the defendant with assault causing bodily harm, breach of probation (failure to keep the peace and be of good behaviour), and possession of prohibited incendiary devices.

The defendant pleaded not guilty and represented himself.

The Crown initially raised a not criminally responsible (NCR) defence but abandoned it after a psychiatric assessment concluded the defendant did not qualify.

However, after receiving additional material including prior court transcripts, the Crown renewed the NCR application.

The trial judge found the defendant NCR for the assault and related breach of probation based on the totality of evidence, despite the psychiatrist's opinion to the contrary.

The defendant was convicted of the lighter possession charge and sentenced to one day in jail, with disposition to be determined by the Ontario Review Board.

Two young offenders were convicted of aggravated assault on two unprovoked victims and various breach offences.

The Crown sought four years custody for each.

The court imposed differentiated sentences of 695 days for Hussein and 669 days for Sahal, accounting for pre-sentence custody, restrictive bail conditions, and pandemic-related hardship.

The court considered Hussein's significant mental health issues and remorse as mitigating factors, while noting Sahal's prior criminal record, lack of remorse, and failure to heed prior judicial warnings.

Both received two years probation with conditions including weapons prohibitions and DNA orders.

The applicant mother brought a motion to vary a temporary shared parenting arrangement (2-2-3 schedule) and to obtain decision-making authority regarding the child's school attendance (in-person versus online).

The respondent father opposed the variation and sought to maintain the shared schedule while requiring online schooling.

The court found that the father had emotionally abused the child by coercing her to make false allegations of physical abuse against the mother and her family.

The court granted the mother primary residence, restricted the father's parenting time to alternate weekends, granted the mother exclusive decision-making authority over school attendance and medical/counselling decisions, and imposed a police enforcement clause due to the father's history of breaching court orders.

The accused brought a motion alleging a violation of the right to trial within a reasonable time under the Charter.

The information was sworn on July 31, 2017, and trial was scheduled to conclude on July 10, 2020, representing a total elapsed time of two years, eleven months, and eleven days.

The Crown argued that the defence caused significant delays, including the accused's failure to return to Toronto (approximately 18 months) and the defence's refusal to attend a pre-trial meeting due to incomplete disclosure (seven months).

The court found that the police made reasonable efforts to locate the accused and rejected the Crown's characterization of the accused as having fled.

The court also found that the defence's insistence on complete disclosure was justified based on the trial judge's notes.

After deducting the time attributable to police efforts to locate the accused, the remaining delay was one year, seven months, and eleven days, which falls below the presumptive ceiling of 18 months.

The court found that the defence had taken useful steps demonstrating sustained effort to expedite the proceedings, but was not satisfied that the trial took substantially longer than it reasonably should have.

The motion was dismissed.

A temporary motion concerning parenting arrangements and relocation of a child.

The applicant, the child's step-grandmother, sought custody and permission to relocate with the child from Toronto to Fonthill, Ontario.

The respondent, the child's biological mother, opposed the relocation and sought expanded access.

The court granted the applicant temporary custody and permission to relocate, finding that the applicant had provided stable care for two years and that the move would not necessarily disrupt the mother's relationship with the child.

The court ordered supervised parenting time for the mother with specific access arrangements adapted to the new location.

The applicant challenged the legality of the process by which he was charged with impaired driving.

The Crown had reviewed the initial "Over 80" charge during case management and recommended that an impaired driving charge also be laid.

The applicant argued that the Crown's direction to police violated police independence and principles of fundamental justice under section 7 of the Charter.

The applicant also argued that the officer who swore the new information lacked subjective grounds and that the Justice of the Peace failed to establish a prima facie case before issuing process.

The court found that the Crown's email constituted a recommendation rather than a direction, and that police independence was not violated.

However, the court found that insufficient grounds were presented to the Justice of the Peace to establish a prima facie case of impaired driving, constituting a Charter violation.

The court declined to quash the information as a remedy, finding the liberty intrusion to be minimal.

This is a costs endorsement following a motion to change child custody and parenting arrangements.

The father sought costs on a full indemnity basis of $18,826.65 after the mother's motion to change was settled on terms substantially mirroring his offer to settle.

The mother initially failed to file responding costs submissions, claiming court staff told her she could not file.

The court set aside the initial costs order to allow the mother to respond.

After reviewing both parties' submissions, the court upheld the original costs award of $8,644.00, finding the mother acted unreasonably in commencing and continuing ill-conceived litigation without establishing a material change in circumstances, while the father acted reasonably throughout and served a timely offer to settle.

This is a child protection matter under Part V of the Child, Youth and Family Services Act, 2017.

Following an appeal that remitted the issue of access back to trial, the court determined whether the respondent father should be granted access to two children in the extended care of the Children's Aid Society.

The respondent father withdrew his claim for access mid-trial after hearing evidence from the Society.

The court applied the new best interests test established in recent Court of Appeal decisions and determined that access was not in the children's best interests, considering their trauma histories, emotional development, stability in their prospective adoptive placement, and the absence of a meaningful relationship with the respondent father.

The accused was discharged on all counts following reconsideration of a committal for trial order.

The original committal was based on evidence that the accused was found alone in an apartment where drugs and a firearm were discovered.

The Court of Appeal quashed the original committal order because the judge had misapprehended key evidence—specifically, a baseball hat that was thought to link the accused to the firearm was not, in fact, the same hat the accused had been seen wearing previously.

On reconsideration, the judge found that without this evidence, the Crown's case rested on impermissible speculation and inferential leaps.

The evidence was insufficient to establish the accused's knowledge and control of the contraband, as multiple other individuals had access to the apartment and forensic evidence linked others to the drugs.

A temporary care and custody motion under the Child, Youth and Family Services Act, 2017 concerning three children.

The Children's Aid Society sought placement of the children with their father, citing protection concerns related to the mother's partner's history of sexual offences against children and the mother's failure to protect the children from this risk.

The mother opposed the motion and sought return of the children to her care.

The court found reasonable grounds to believe the children were at risk of harm and that they could not be adequately protected through supervision orders while in the mother's care.

The court ordered temporary placement with the father, subject to Society supervision, with supervised access to the mother.

The mother brought a summary judgment motion seeking final custody of two children (ages 10 and 5), the ability to obtain government documentation and travel with the children outside Canada without the father's consent, and a prohibition on the father applying for or renewing government documentation.

The father, who had moved to Nigeria to work as a professor, opposed the custody motion seeking joint custody.

The mother also sought temporary orders for supervised access and child support.

The court granted final custody to the mother and made temporary orders for supervised access with passport deposit requirements and child support based on the father's stated income of $54,936 annually.

The court dismissed the mother's summary judgment motion regarding government documentation and international travel, finding genuine issues requiring trial on those issues.

Volkswagen Aktiengesellschaft pleaded guilty to 60 charges under the Canadian Environmental Protection Act, 1999, including 58 counts of unlawfully importing vehicles that did not conform to prescribed vehicle emissions standards and two counts of providing misleading information.

The company admitted to installing defeat devices in approximately 128,000 diesel vehicles imported into Canada between 2008 and 2015, which allowed the vehicles to pass emissions testing while emitting substantially higher nitrogen oxide levels during normal driving conditions.

The court imposed a fine of $196,500,000, the largest environmental fine in Canadian history at that time, reflecting the severity of the deliberate deception, the environmental and health risks created, and the need for deterrence and denunciation.

The Crown sought to permit a police officer to refresh his memory using both handwritten memo book notes and a typed General Report created through an automated voicemail transcription system.

The defence objected to reliance on the General Report.

The court granted the Crown's motion, finding that the General Report was admissible as a stimulus to refresh the witness's memory because the original audio voicemail was made contemporaneously with the events, and subsequent verification did not render it impermissible for use in refreshing memory.

This is a costs decision arising from a ten-day custody and access trial.

The respondent mother was successful in obtaining sole custody with sole decision-making authority on all parenting issues except vaccinations, which was awarded to the applicant father.

The mother sought costs of $59,085.72 at a 50% scale of recovery.

The court fixed costs at $25,000.00 inclusive of disbursements and HST, finding the mother was the successful party entitled to costs but adjusting the award to account for divided success on the vaccination issue and applying principles of reasonableness and proportionality.