ONCJ 2020

The accused brought a Charter application challenging the lawfulness of his detention.

In an addendum to a previous ruling, the court reconsidered its conclusion regarding arbitrary detention under section 9 of the Canadian Charter of Rights and Freedoms.

The court found that although the officer was a trespasser at the point of detention, rendering the detention unlawful and thus arbitrary, the evidence would not be excluded under section 24(2) as admission would not bring the administration of justice into disrepute.

The trial proceeded.

The defendant was convicted of eight regulatory offences under three Ontario professional accounting statutes for unlawfully using foreign professional accounting designations and holding himself out as a member of professional accounting bodies without being a member.

The offences occurred between March 1, 2017 and June 30, 2018.

The court imposed fines totalling $16,000, a two-year probation order with statutory conditions, and ordered the defendant to pay $10,000 in reasonable legal costs to the Chartered Professional Accountants of Ontario.

The court found the defendant had the ability to pay despite his claims of financial hardship, noting his employment income of approximately $90,000 annually and home ownership.

The court also considered the defendant's improper conduct during proceedings, including frivolous adjournment applications and unmeritorious Charter claims, which prolonged the litigation and increased costs.

The father brought an urgent motion to enforce a final custody and access order dated December 2, 2019, after the mother unilaterally suspended his parenting time for approximately three months citing COVID-19 pandemic concerns.

The mother brought a cross-motion seeking to reduce the father's overnight parenting time to two non-consecutive overnights per week and impose various conditions including COVID-19 testing and financial disclosure.

The court found no material change in circumstances warranting modification of the final order.

The court determined the mother was using the pandemic as a pretext to adjust a parenting schedule she had opposed since settlement.

The court reinstated the father's full parenting time effective July 1, 2020, with ten days of make-up parenting time and modifications to address COVID-19 health protocols by requiring compliance with government directives.

A motion to change an existing access order for a mother's contact with her five-year-old child during a status review application.

The mother sought unsupervised access twice weekly, including overnight visits.

The maternal grandfather, who had custody of the child, opposed the motion and sought to restrict access to virtual contact due to COVID-19 concerns.

The court found that the mother had made significant gains since the original order, that the existing order was no longer in the child's best interests, and that unsupervised in-person access should be restored with specified terms and conditions.

The court rejected the maternal grandfather's concerns as lacking reliable evidentiary foundation and found that the pandemic alone did not justify suspending in-person contact where appropriate safety protocols were in place.

The accused was charged with two counts of sexual assault and two counts of sexual touching of a person under 16 years of age.

The Crown alleged that between December 2018 and April 2019, the accused engaged in oral sex with a 14-year-old girl, and on July 5, 2019, was found in bed with the same girl who was then 15 years old and pregnant.

The accused claimed he believed the complainant was 17 years old and that his conduct on July 5, 2019 was motivated by concern for her pregnancy.

The court found the accused guilty on all counts, determining that he did not take all reasonable steps to ascertain the complainant's age and that his evidence was not credible.

Both parents brought urgent motions during the COVID-19 pandemic seeking sole custody of their two children.

The respondent father withheld the children from the applicant mother following his access time on May 4, 2020, contrary to an interim order dated December 23, 2019.

The father alleged various concerns including the mother's alleged drug use, housing instability, poor school attendance, and the presence of a potentially dangerous individual in the mother's sister's home.

The court found that urgency was established based on the father's breach of the court order and the need for a structured arrangement to prevent further upheaval.

However, the court determined that the father failed to establish sufficient evidence of immediate risk to the children's safety to justify the change in custody.

The court ordered the children returned to the mother's primary care with an expanded and structured access schedule for the father.

The Children's Aid Society brought a motion without notice seeking approval of irregular service of an amended protection application on the mother and an order noting the mother in default for failing to file an answer/plan of care within 30 days.

The court approved irregular service as of May 13, 2020, when the mother acknowledged receipt of the amended application by email.

However, the court dismissed the request to note the mother in default, finding that due to the COVID-19 pandemic and Ontario Regulation 73/20, which suspended time periods for steps in proceedings retroactively to March 16, 2020, the mother was not in default.

The court noted that if the society wished to seek an exception to the suspension, it would need to bring a motion on notice to the parents.

A family law trial concerning access, safety protocols, and section 7 expenses for a child born to unmarried parents who separated in 2013.

The applicant sought orders regarding timely access exchanges, safety protocols for farm access, reunification therapy, and contribution to section 7 expenses.

The respondent, a veterinarian living on a farm, sought removal of penalty clauses and an order for the applicant to attend counselling for alleged interference with access.

The court imposed limited terms for access resumption, rejected the proposed safety protocols, declined to order counselling for the applicant, and awarded partial contribution to counselling expenses.

The accused brought an application for review of his detention order on secondary ground concerns while on trial for human trafficking, living off the avails, cruelty to animals, criminal harassment, and failure to comply with probation.

The accused had been in custody since June 12, 2019.

The trial judge considered whether there had been a substantial change in circumstances material to the detention order.

Despite material changes including the weakness of the Crown's case, the unpredictability of the complainant, an offer of house arrest with electronic monitoring, and COVID-19 risks, the court found the accused had not met the Prete test and had not satisfied his onus that he would comply with terms of release.

The application for release was denied.

This is a status review application under the Child, Youth and Family Services Act, 2017 concerning three sibling children in the care of the Children's Aid Society of Algoma.

The children have been in society care for over five years following apprehension in November 2014 based on allegations of inappropriate discipline.

The court conducted a contested trial to determine whether the children should be returned to their mother, placed with their maternal grandmother, or remain in extended society care.

The judgment addresses complex evidentiary issues regarding hearsay statements of children, the credibility of witnesses, and the application of the best interests test under the CYFSA.

The defendant was charged with possession of fentanyl and methamphetamine after police seized drugs and paraphernalia from her vehicle following a 911 call reporting her unconscious in her car.

The defendant challenged the warrantless search and seizure as violating section 8 of the Canadian Charter of Rights and Freedoms.

The court found the seizure lawful under both the plain view doctrine and as incident to arrest.

The court held that the officer was lawfully positioned, the contraband was immediately apparent as criminal evidence, and the discovery was legally inadvertent despite the officer's expectation that drugs might be present.

The defendant was found guilty on both counts.

A 25-year-old offender with a history of addiction and post-traumatic stress disorder from childhood sexual abuse pleaded guilty to multiple charges including breaches of probation, assault on a police officer, and sexual assault.

The sentencing judge imposed 30 days jail time (time served) without additional probation, rejecting the Crown's request for a two-year probation order.

The decision critically examines the criminalization of probation breaches for vulnerable individuals and the concept of "system-generated offences," drawing on the Supreme Court's recent decision in R. v. Zora regarding disproportionate impacts on marginalized populations.

The accused was charged with failing to stop after an accident resulting in bodily harm under s. 320.16(2) of the Criminal Code.

After his vehicle collided with a bicycle, the cyclist punched the accused in the face, prompting the accused to drive away out of fear.

The court found the accused had a reasonable excuse for failing to stop at the scene.

The Crown argued that the accused had a continuing obligation to report the accident once it was safe to do so.

The court rejected this argument, holding that s. 320.16 does not create a continuing offence, and a reasonable excuse at the time of the failure to stop is a complete defence.

The accused was acquitted.

This is a costs decision following a motion regarding temporary parenting arrangements for three children.

The court ordered on June 5, 2020 that the applicant (mother) have temporary custody of the children with defined parenting time for the respondent (father).

The mother sought costs of $3,390 while the father requested costs be limited to $1,200.

The court awarded costs of $2,500 to the mother, payable at $250 per month starting July 1, 2020, taking into account the father's limited financial circumstances and his unreasonable conduct during the proceedings.

A child protection motion concerning the placement of a newborn infant in the temporary care and custody of the mother, subject to a supervision order.

The Society sought an order requiring the mother to reside at Rosalie Hall Maternity Home as a condition of the child remaining in her care, or alternatively, that the child be placed in the Society's care.

The mother opposed this requirement and proposed an alternative plan involving residence in the father's apartment with support from paternal family members.

The court found that the mother lacked adequate parenting skills, had an inconsistent history with her older child, and did not have a solid support plan.

The court ordered that the child remain with the mother on condition that she reside at Rosalie Hall, with the alternative being placement in the Society's care.

A motion review and new motion concerning child access during the COVID-19 pandemic.

The applicant sought to continue virtual video access only, citing the respondent's criminal charges and the enhanced health risks to one child who has Alpha-1 Antitrypsin Deficiency.

The respondent opposed the suspension of face-to-face access and sought modification of other restrictions.

The court found that the child's serious genetic condition placed her at enhanced risk from COVID-19 exposure and that the respondent's recent criminal charges and ongoing drug dependency issues, combined with his dismissal of the child's medical vulnerability, undermined his ability to adequately protect the child.

The court suspended face-to-face access temporarily in favour of virtual contact pending further order or written agreement of the parties.

This is a costs decision following supplementary submissions regarding section 7 child support expenses and costs of multiple motions.

The applicant mother had brought three motions commencing in November 2018, approximately 19 months after the parties settled most issues by Final Minutes of Settlement dated March 29, 2017.

The court found that the mother was unsuccessful on substantially all claims, with only a small credit for certain section 7 expenses.

The respondent father was awarded costs of $7,500 inclusive of HST and disbursements, enforceable through the Family Responsibility Office as an incident of support.

The mother was also ordered to pay $3,257.00 in net section 7 expenses to the father.

The accused was convicted of uttering threats and mischief for making a bomb threat to the London Abused Women's Centre.

The Crown sought a jail sentence of 4-6 months plus 36 months probation, arguing the offence was a hate crime targeting vulnerable women.

The accused sought an absolute discharge.

The court imposed a suspended sentence with 36 months probation, finding that while the offence was serious and required denunciation, the accused's 60+ year crime-free history, lack of clear hate motivation, and possible mental health issues warranted a non-custodial sentence.

A DNA order and 10-year firearms prohibition were also imposed.

Paternal grandparents sought leave to bring an urgent motion for joint custody and primary care of two children (ages 5 and 3).

The children's father had wrongfully removed them to Turkey in breach of a 2017 custody order.

The mother obtained a Hague Convention order for their return in May 2019 and subsequently obtained temporary custody.

The court dismissed the grandparents' request for an urgent motion, finding no evidence of abduction or threat of harm by the mother, no immediate concern that could not await resolution, and noting the grandparents' delay in seeking court intervention.

Instead, the court ordered a priority case conference to be held by teleconference.

The defendant was convicted of two counts of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood and causing bodily harm, contrary to section 255(2.1) of the Criminal Code.

The defendant was acquitted on two counts of impaired driving causing bodily harm.

The defendant challenged the constitutionality of section 255(2.1), arguing it lacks sufficient fault requirement and is overbroad.

The court upheld the constitutionality of the section, finding it contains adequate fault requirements and is not saved by section 1 of the Charter, as it pursues the important objective of deterring drinking and driving and employs proportionate means.