ONCJ 2020

The applicants, who are Indigenous caregivers, sought custody of a child under the Children's Law Reform Act.

The respondent agency sought to strike the application, arguing that the child was subject to an out-of-court customary care agreement under the Child, Youth and Family Services Act and that the applicants were foster parents prohibited from bringing such an action.

The court held that out-of-court customary care agreements operate outside the statutory framework and lack procedural safeguards, that the applicants are customary caregivers rather than foster parents, and that deference cannot be given to the agency's placement decision due to procedural fairness concerns and the application of principles other than the best interests of the child.

The motion to strike was dismissed and the applicants were granted interim custody.

Following trial, the defendant was convicted of breach of trust by a public officer contrary to section 122 of the Criminal Code and attempt to obstruct, pervert, or defeat the course of justice contrary to section 139(2) of the Criminal Code.

The Crown sought a conditional sentence of nine months, while defence counsel sought a conditional discharge with six months probation.

The court imposed a conditional sentence of three months to be served in the community, finding that a conditional discharge would be contrary to the public interest and that a suspended sentence would be insufficient, while a conditional sentence was consistent with the fundamental purpose and principles of sentencing.

The accused pleaded guilty to robbery using a firearm and discharging a firearm at a motor vehicle with recklessness as to life or safety.

The offences occurred on July 11, 2017, in Burlington, Ontario.

The accused responded to an online advertisement for sexual services, and after a dispute with the service provider, returned to the motel armed with a firearm.

He robbed the motel clerk at gunpoint and later returned to shoot at a vehicle carrying the service provider and her driver.

The sentencing judge imposed a global sentence of eight years imprisonment, with credit for 735 days of pre-sentence custody at a 1.5:1 ratio.

The court rejected the defence submission for a provincial sentence at St. Lawrence Valley Correctional and Treatment Centre, finding insufficient evidence that such placement would better serve the principles of sentencing.

The offender was convicted of five counts of impaired driving causing bodily harm and one count each of impaired driving and driving with excess blood alcohol.

On July 22, 2018, while driving at excessive speed (157-159 km/h) on the QEW with a blood alcohol concentration between 100-155 mg/100mL, the offender struck a vehicle containing five occupants, causing serious and lasting injuries to all victims.

The Crown sought a three-year penitentiary sentence, while the defence sought a 90-day intermittent sentence.

The court imposed a two-year penitentiary sentence, finding that while the offender had mitigating factors including genuine remorse and rehabilitation prospects, the gravity of the offence, the severity of victims' injuries, and the paramount sentencing objectives of deterrence and denunciation required a substantial custodial sentence.

The respondent brought a motion to change a child support order, seeking retroactive adjustment of support and rescission of arrears.

The original order, made in 2014, imputed income of $130,000 per annum to the respondent based on his default in the original proceedings.

The respondent claimed a material change in circumstances due to a 2013 kidnapping that allegedly affected his income-earning capacity.

The court found that the respondent failed to establish a material change in circumstances, provided insufficient and unreliable evidence of his current income, failed to comply with disclosure obligations, and did not demonstrate that the children remained dependents.

The motion was dismissed, and support was terminated effective March 1, 2020.

The City of Toronto appealed fourteen separate sentencing decisions where a Justice of the Peace reduced or suspended minimum fines prescribed under the Highway Traffic Act and Provincial Offences Act.

The appellants were charged with various traffic offences including red light camera violations and handheld device offences.

The Justice of the Peace invoked section 59(2) of the Provincial Offences Act to reduce fines below the statutory minimums, citing factors such as early guilty pleas, age, employment status, and financial circumstances.

The appellate court found that the Justice of the Peace erred in applying section 59(2) by treating exceptional circumstances too routinely and by considering immaterial factors such as guilty pleas.

The court allowed the appeal but did not increase the fines as requested by the City.

The defendant was charged with attempt murder and firearms-related offences arising from a shooting incident at Yonge Street and Elm Street in Toronto on July 28, 2019.

The Crown's case relied on video surveillance evidence and forensic examination of the scene.

The court found that while a firearm was discharged during a confrontation between the defendant and Keshawn Bell at a McDonald's restaurant entrance, the evidence did not establish beyond a reasonable doubt that the defendant possessed or discharged a firearm.

The court noted that the forensic evidence of spent ammunition from two different manufacturers did not necessarily indicate two firearms were used, and the video evidence at the corner of Yonge and Elm was too unclear to identify the defendant.

The defendant was acquitted of all charges.

A youth was charged with sexual assault and sexual interference of his sister spanning from approximately age twelve until September 2018.

The complainant provided detailed allegations in a first video statement, then recanted entirely in a second video statement, claiming she had fabricated the allegations based on a television show storyline.

At trial, the complainant retracted her recantation and reasserted the abuse allegations.

The defendant denied all charges.

The trial judge found that while the complainant's testimony was subjectively persuasive, the complete retraction of allegations—forcefully asserted during the second interview—created a reasonable doubt that could not be overcome.

The defendant was acquitted on all charges.

The mother brought a motion for temporary child and spousal support.

The father, a former personal injury lawyer, claimed he had no income after his law license was revoked for professional misconduct involving misappropriation of trust funds.

The court found the father intentionally unemployed due to his own reckless behavior and drew an adverse inference from his failure to provide financial disclosure.

The court imputed the father's income at $150,000 until March 31, 2020, and $100,000 thereafter, ordering temporary child support, section 7 expenses, and spousal support accordingly.

The applicant mother sought temporary child support and spousal support from the respondent father.

The father, a personal injury lawyer whose licence was revoked by the Law Society of Ontario in August 2019 for professional misconduct involving misappropriation of trust funds, claimed he had no income and could not afford to pay support.

The court found the father was deliberately unemployed due to his own misconduct and imputed income to him at $150,000 for the period October 1, 2019 to March 31, 2020, and $100,000 thereafter.

The court ordered child support, spousal support, and special expense contributions based on the imputed income.

This is a status review application concerning a child in the care of the Children's Aid Society of Toronto.

The child was apprehended at birth due to the mother's history of substance abuse and failure to engage in prenatal care.

The mother sought return of the child to her care, while the Society sought an order for extended Society wardship with a view to adoption by the child's foster mother.

The court found that while the mother had made significant progress in maintaining sobriety and demonstrating parenting capacity during supervised visits, she had not yet demonstrated the ability to parent the child full-time without supervision.

The court ordered extended Society wardship but granted the mother monthly unsupervised access to maintain the relationship.

The accused was convicted of sexual assault following a trial.

The Crown sought a 90-day jail sentence with 18 months probation, a SOIRA order, a DNA order, and a section 110 weapons prohibition.

The defence sought a conditional discharge with probation.

The court imposed a suspended sentence with 12 months probation, including conditions requiring the accused to stay away from the victim, attend counselling, and comply with SOIRA for 10 years.

The court rejected both the Crown's custodial sentence and the defence's discharge request, finding that while incarceration was not warranted, a discharge would be contrary to the public interest due to the need for general deterrence in workplace sexual assault cases.

A custody and access dispute between separated parents of two children.

The applicant father sought joint custody and alternate week access, while the respondent mother sought sole custody and continuation of the existing limited access schedule.

The court found that the parties separated in May 2013 and that the father unilaterally implemented an alternate week arrangement in January 2015 without the mother's agreement.

The Office of the Children's Lawyer conducted two investigations recommending increased access for the father but not a full 50/50 arrangement.

The court found evidence of the father's physical abuse toward his former partners and adult daughter, though not toward the children in question.

The court ordered sole custody to the mother with an enhanced access schedule for the father based on the OCL's first report recommendations, rejecting the father's demand for equal time sharing.

The court also ordered retroactive child support and arrears payments.

In a family law matter involving three children from a common law relationship, the court determined custody and access arrangements following separation.

The applicant father sought to make permanent the existing temporary orders providing him with primary residence of the two youngest children and week-about shared residency for the oldest child.

The respondent mother sought week-about shared residency for all three children or, alternatively, primary residence of the oldest child with access to the two youngest.

The court found both parents capable and loving, but determined that a week-about shared residency arrangement for all three children best served the children's interests, allowing maximum contact with both parents and siblings.

The court also adjusted child support obligations based on the new shared parenting arrangement and the parties' current incomes.

A private prosecution was brought against the defendants for erecting a fence that violated height restrictions under the Township of South Stormont Fence By-Law.

The defendants claimed the fence replaced a pre-existing hedge under section 9.2 of the by-law or was exempt under section 9.3 by council resolution.

The court found neither exemption applied.

The defendants were convicted of four counts relating to fence height violations in sections 3.1 and 3.2 of the by-law.

Two counts were dismissed.

The court rejected defenses of officially-induced error and due diligence, finding the defendants had clear notice of non-compliance and failed to take reasonable steps to remedy the situation despite numerous warnings and opportunities to comply.

The defendant brought a section 8 Charter application challenging the police seizure of his vehicle's Event Data Recorder (EDR) without prior judicial authorization or consent following a serious motor vehicle collision.

The Crown alleged dangerous operation of a motor vehicle causing bodily harm based on speed data extracted from the EDR.

The court found that the defendant had a reasonable expectation of privacy in the EDR and its contents, and that the warrantless seizure and extraction of the data constituted an unreasonable search and seizure in violation of section 8 of the Charter.

The court excluded the evidence under section 24(2), finding that the police acted in bad faith by deliberately ignoring established Ontario jurisprudence requiring either a search warrant or owner consent before accessing an EDR.

The defendant was charged with "over 80" (operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood) following a failed approved screening device test.

The sole issue was whether the arresting officer's belief that the screening device was accurate was objectively reasonable.

The court found that the officer's reliance on the device's lock-out feature, which prevents operation if calibration or accuracy checks are not current, provided a sufficient and reasonable basis for believing the device was functioning properly.

The defendant was convicted.

The accused pleaded guilty to possession of oxycodone for the purpose of trafficking, possession of fentanyl for the purpose of trafficking, and possession of proceeds of crime.

The accused was arrested following a police investigation into fentanyl distribution in Eastern Ontario.

Police recovered 146 fentanyl patches, 350 oxycodone tablets, approximately $30,000 in cash, and drug trafficking paraphernalia from two residences.

The court imposed a five-year penitentiary sentence, emphasizing the dangers of fentanyl and the need for denunciation and general deterrence in response to the opioid crisis.

The accused was found asleep in a vehicle parked on the side of Highway 400 with the engine running.

A police officer detected an odour of alcohol and conducted an Approved Screening Device (ASD) test at the roadside, which led to further testing and charges of Over 80 and Impaired care or control.

The impaired count was dismissed.

The defence challenged the ASD demand as lacking reasonable suspicion and argued the demand was not made forthwith, constituting a breach of section 8 of the Charter.

The court found the demand was based on reasonable suspicion and was made in a timely manner.

The Charter application was dismissed and the accused was found guilty of care or control with blood alcohol concentration over 80 mg.

The accused was charged with eight firearms offences following the discovery of a loaded prohibited firearm during a search warrant execution at an apartment.

The Crown's case relied entirely on two statements allegedly made by the accused: one in which he claimed ownership of the firearm while detained with other occupants, and another to police regarding the firearm's location and colour.

The court found that the first statement was involuntary, having been induced by police threats that all detainees would be jailed unless someone admitted ownership.

The court also found reasonable doubt regarding whether the second statement was made at all.

With no evidence linking the accused to the firearm beyond these statements, the court acquitted on all charges.