ONCJ 2020

The mother brought a motion to strike the father's amended Answer/Claim due to his deliberate breach of multiple court orders, including orders to pay child support, pay two costs orders, and provide financial disclosure.

The father did not attend the motion hearing.

The court found that the father had deliberately breached the orders and had not provided reasonable excuse for non-compliance.

The court struck the father's amended Answer/Claim but permitted him to restore it upon satisfaction of conditions, including payment of $3,000 and provision of updated financial disclosure within 45 days.

The court emphasized that striking pleadings in family law cases involving children should only occur in exceptional circumstances, but found such circumstances existed given the father's open defiance of court orders and the settled nature of the parenting arrangements.

The defendant was charged with operating a conveyance while impaired by alcohol and having a blood alcohol level of 80 mg or more within two hours of operating a conveyance.

The trial proceeded as a blended voir dire.

The defendant challenged the admissibility of breath test evidence on multiple grounds: that the approved screening device demand was not made immediately; that his s. 10(b) right to counsel was breached by an eight-minute delay in informing him of that right; and that the Intoxlyzer test was not administered as soon as practicable.

The court found a breach of s. 10(b) rights and excluded the breath test evidence under s. 24(2) due to a pattern of systemic failures by the Ottawa Police Service to immediately advise detainees of their right to counsel.

However, the defendant was found guilty of impaired operation of a conveyance based on evidence of his driving pattern, physical observations, and the presence of alcohol in the vehicle.

The accused was charged with seven firearm-related offences.

The Crown withdrew three counts during closing submissions.

The remaining charges involved possession of a .40 calibre semi-automatic handgun seized from a residence and discharging that firearm at another location.

The Crown's case relied entirely on circumstantial evidence, including documents bearing the accused's name found in a bedroom, a cartridge compatible with the handgun, DNA evidence from the handgun, and ballistics evidence matching shell casings to the seized firearm.

The defence called the accused's sister, who testified that the accused did not live at the residence but visited occasionally, that he was staying in a guest bedroom on the night in question, and that he did not leave the residence during the relevant time period.

The court found that the Crown failed to prove possession of the handgun beyond a reasonable doubt and therefore acquitted on all remaining charges.

The applicant was charged with seven firearm-related offences and brought a motion to exclude evidence seized during the execution of a search warrant on a residence.

The applicant argued that the information to obtain (ITO) for the search warrant lacked sufficient grounds, contained inaccurate statements and improper generalizations, and that the affiant was not truthful about independently confirming information regarding the confidential informer's reliability.

The court applied the narrow Garofoli review standard and found that despite deficiencies in the ITO, there remained a sufficient basis on which the issuing justice could have issued the warrant.

The application was dismissed.

The Children's Aid Society of Toronto brought a motion for summary judgment seeking an order that a child be placed in interim care and custody of the society for six months, with access to the half-brother and his partner at the society's discretion.

The half-brother opposed the motion.

The court found that there was no genuine issue requiring a trial.

The child had been removed from the half-brother's care following allegations of physical abuse and subsequent criminal charges.

The half-brother's bail conditions prohibited contact with the child.

The child had expressed a clear desire not to return to the half-brother's care and had formed strong emotional attachments to her current foster placement.

The court granted the society's motion for summary judgment, placing the child in interim care and custody of the society with access at the society's discretion.

The accused was charged with theft, threatening death, assault with a weapon, and robbery following an incident at a Home Depot store.

Loss prevention officers observed the accused allegedly hiding two Milwaukee tool batteries under his sweater and exiting without paying.

When they attempted a citizen's arrest, the accused resisted, brandished a box cutter, threatened to kill one officer, and fled.

The court found the accused guilty of assault with a weapon and threatening death, but acquitted him of theft and robbery due to reasonable doubt regarding whether he actually left the store with the merchandise.

The court upheld the lawfulness of the citizen's arrest under section 494 of the Criminal Code.

A motion brought by the Catholic Children's Aid Society of Toronto seeking a temporary order placing a 13-year-old child in the society's care pending final adjudication of a Status Review Application.

The child had been returned to the care of her father and step-mother in January 2020 following a protection application.

The society alleged deterioration in the child's circumstances, including concerning behaviours, lack of parental engagement in services, and risk of emotional harm.

The father and step-mother opposed the motion, arguing they were engaged in appropriate services and the child wished to remain in their care.

The Office of the Children's Lawyer also opposed the motion.

The court dismissed the society's motion, finding no change in circumstances requiring a temporary change in placement.

The applicant father sought to prohibit the respondent mother from relocating with their two young children from Woodstock to Port Stanley, or alternatively sought custody.

The respondent mother sought permission to relocate and sought sole custody with access to the father.

The court considered the principles established in Plumley v. Plumley and Gordon v. Goertz regarding temporary relocation of children.

The court found that the mother had compelling reasons for the move, including a significant reduction in her commute to work and reduced childcare needs.

The court determined that the proposed relocation would not materially interfere with the father's access arrangements as outlined in the parties' separation agreement, and that the benefits to the children outweighed any risks.

The court granted the mother permission to relocate on an interim basis while maintaining the father's parenting time.

Constable Travis Buckle was charged with assault causing bodily harm after attempting to arrest Dale Delaney on outstanding warrants at Victoria Hospital's emergency department.

During the arrest, Delaney landed face-first on the floor, suffering serious facial injuries.

The Crown argued the arrest was unlawful due to failure to announce the reason for arrest, and alternatively that excessive force was used.

The court found the arrest was lawful, the officer reasonably believed Delaney was attempting to flee, and the force used was justified under section 25(1) of the Criminal Code.

The officer was acquitted.

The accused pleaded guilty to three trafficking-related charges involving significant quantities of carfentanil, fentanyl, heroin, and cocaine.

The court denied the accused's application for bail pending sentence, finding that he posed a substantial likelihood of reoffending and that detention was necessary to maintain public confidence in the administration of justice.

The court imposed a global sentence of 12 years, with concurrent sentences on remaining counts, after considering mitigating factors including the accused's youth, family support, and employment history, as well as aggravating factors including his prior trafficking conviction, the dangerous nature of the drugs, and the large quantities involved.

The court also granted presentence custody credit, lockdown credit, and COVID-19 related credit.

The applicant brought a motion to change a child support order dated November 22, 2000, seeking to reduce arrears, terminate support, and adjust section 7 expenses.

The respondent opposed the motion and sought costs.

The court found a material change in circumstances but dismissed the applicant's request for retroactive income reassessment from 2017.

The court credited the applicant $6,000 for direct and in-kind payments, terminated monthly child support as of December 31, 2019, and ordered the applicant to pay a proportionate share of certain section 7 expenses.

Interest was reduced from 7% to 3.52% annually.

The respondent father brought a motion seeking three orders: (1) to set aside the default judgment and striking of his Motion to Change; (2) to set aside the order allowing the applicant mother's Response to proceed as an uncontested trial; and (3) to set aside ex parte temporary orders restricting his access to his son and imposing a restraining order.

The father had a history of missed court appearances and procedural non-compliance spanning several years.

The court set aside the default judgment and striking order, finding that the interests of justice favored allowing the father to be heard on the mother's newly sought relief in her trial materials, despite his poor procedural conduct.

The court restored the 50-50 residence arrangement but maintained the restraining order and imposed conditions on the father's conduct, including restrictions on alcohol and drug use during the child's residence with him and prohibition on personal use of the child's electronic devices.

This is a costs endorsement following a two-day trial concerning parenting and child support arrangements for a four-year-old child.

The respondent (mother) sought costs of $14,226.35, while the applicant (father) sought no costs award.

The court found that the mother was the successful party on the dominant issues (primary residence and parenting time) and was entitled to costs.

The mother had made two offers to settle, the second of which was severable and more favourable to the father on custody and support issues.

The court awarded costs of $10,000 inclusive of fees, disbursements, and HST, payable at $275 per month commencing October 1, 2020.

The offender pleaded guilty to assault causing bodily harm, unnecessary injury to a dog, and two counts of assault against his former girlfriend over a period spanning April 2017 to August 2018.

The offences occurred in the context of a domestic relationship characterized by escalating violence, control, humiliation, and threats.

The offender failed to attend multiple sentencing dates and did not cooperate with the presentence report process.

The court imposed a custodial sentence of 16 months less presentence custody, apportioned consecutively across the four counts, along with an 18-month probation order with conditions including no contact with the victim, participation in domestic violence programming, and prohibition on animal ownership.

The accused was charged with driving with over .80 milligrams of alcohol in 100 millilitres of blood and impaired operation of a motor vehicle following a motor vehicle collision on October 28, 2018.

The defence raised multiple Charter challenges including allegations of lost evidence (911 calls and cell video), breaches of the "forthwith" requirement under section 254(2) of the Criminal Code, breaches of the "as soon as practicable" requirement under section 254(3), and violations of the right to counsel.

The court rejected all Charter arguments and found the accused guilty on both counts based on breath test results showing readings of .225 and .215, expert toxicology evidence, and the circumstances of the collision.

Two young persons pleaded guilty to multiple planned and sophisticated bank robberies.

The court considered the principles of the Youth Criminal Justice Act, including accountability, rehabilitation, and the requirement that custody be a last resort.

Given the seriousness of the offences, the significant amounts of money stolen, and the traumatic impact on the victims, the court found that non-custodial sentences were not appropriate.

The first young person was sentenced to 15 months (open custody and community supervision) and the second to 12 months and 12 days (open custody and community supervision), both followed by 12 months of probation.

Two young persons pleaded guilty to multiple counts of robbery of financial institutions committed over a planned and sophisticated spree in February and March 2019.

Q.W. pleaded guilty to four robberies; T.C. pleaded guilty to two robberies.

The robberies targeted Scotiabank and CIBC branches across multiple jurisdictions, involved stolen vehicles, and resulted in significant financial losses.

The court imposed custodial sentences with community supervision and probation, balancing the serious nature of the offences and the significant trauma to victims against the young persons' youth, lack of prior records, guilty pleas, remorse, and rehabilitation potential.

The accused brought a motion for a finding that his right to trial within a reasonable time under s. 11(b) of the Charter was breached, and sought a stay of proceedings.

The accused was charged with sexual assault.

The total delay from the swearing of the information to the anticipated end of trial was 608 days (19 months and 29 days).

After deducting defence delay of 42 days and a discrete event of 12 days, the net delay was 554 days, exceeding the 18-month presumptive ceiling by 7 days.

The court found no exceptional circumstances to justify the delay and granted the motion for a stay of proceedings.

The accused sought judicial interim release (bail) following charges including discharging a firearm with intent to wound/endanger life, possession of a loaded prohibited firearm, and careless use of a firearm.

The Crown sought detention on both secondary and tertiary grounds.

The accused was captured on video surveillance discharging a firearm toward Highway 401 during a shooting incident at a restaurant.

He subsequently attended hospital with a gunshot wound.

The court found the accused failed to meet his onus on the secondary ground due to his criminal history involving firearms, the seriousness of the current allegations, and concerns about the reliability of the proposed sureties.

The court also found detention necessary on the tertiary ground to maintain public confidence in the administration of justice, given the gravity of the offence, strength of the Crown's case, and the accused's disregard for previous court orders and weapons prohibitions.

The accused pleaded guilty to two counts of possession of child pornography in the form of text messages sent on December 25, 2017, contrary to s. 163.1(4) of the Criminal Code.

The messages were sent to a woman with three pre-pubescent children, whom the accused had met online.

The accused explicitly described sexual acts he wished to perform on the children and attempted to persuade the recipient to allow him to babysit and engage in such conduct.

The Crown sought six months custody plus probation and ancillary orders.

The defence sought a conditional sentence or, alternatively, an intermittent sentence.

The court imposed 90 days jail plus time served (23 days credited at 1.5:1), 36 months probation, and ancillary orders including a lifetime sex offender information registration order, a s. 161 order restricting access to children, and a s. 109 firearms prohibition order.