P. Andras Schreck

Following a judge-alone trial on a charge of sexual assault, the court addressed a credibility contest in which both parties agreed that initial sexual touching and oral sex were consensual, but disagreed about whether intercourse was consensual.

Applying the W.(D.) framework, the court rejected the accused's evidence because his admitted blackout-level intoxication undermined both reliability and credibility, and because his detailed recollection was inconsistent with his level of impairment.

The court accepted the complainant's evidence as plausible, consistent, and supported by post-incident demeanour evidence.

The court found beyond a reasonable doubt that the accused forcibly penetrated the complainant after she clearly and repeatedly refused consent.

Siobhan O’Shea, suffering from mental illness, was arrested for impaired driving and refusing a breath sample.

The trial judge acquitted her, finding Charter breaches (s. 10(b)) for police failing to facilitate counsel contact.

The Crown appealed.

The Superior Court found the police erred in not advising O'Shea of her right to contact another lawyer after her chosen counsel was unreachable, especially given her vulnerable mental state.

This constituted a s. 10(b) breach.

The court excluded the evidence of refusal under s. 24(2) but found roadside observations were not obtained in a manner infringing the Charter.

The appeal for impaired driving was allowed, and a new trial ordered.

The appeal for refusing a breath sample was dismissed.

The appellant appealed his convictions for two counts of assault, arguing that the trial was unfair due to numerous judicial interventions, that the trial judge failed to provide adequate reasons, and that the trial judge subjected his evidence to a greater degree of scrutiny than that of the complainant.

The court dismissed the appeal, finding that the trial judge's interventions were necessary for clarity and did not indicate bias, that the reasons were sufficiently detailed for appellate review, and that there was no evidence of uneven scrutiny of the appellant's and complainant's evidence.

The Crown appealed a sentence imposed on the respondent for sexual interference.

The trial judge had found that the 90-day mandatory minimum sentence under s. 151(b) of the Criminal Code violated s. 12 of the Charter and imposed a 45-day conditional sentence.

On appeal, the Superior Court of Justice upheld the trial judge's finding, concluding that the mandatory minimum sentence could result in grossly disproportionate sentences in reasonably foreseeable hypothetical scenarios, such as an unwanted kiss by an 18-year-old on a 15-year-old.

The court also found that the violation was not saved by s. 1 of the Charter.

The appeal was dismissed.

The accused was charged with four counts of possession of controlled substances for the purpose of trafficking after police found cocaine, heroin, fentanyl, and marijuana in a condominium she rented.

She admitted the essential actus reus but relied on duress arising from a prolonged, violent, coercive relationship marked by threats to kill her and her family, and supported by expert evidence regarding PTSD associated with ongoing domestic violence.

Applying the common law duress framework, the court held the Crown failed to prove a safe avenue of escape or a disqualifying voluntary criminal association, and failed to disprove duress on the cocaine, fentanyl, and heroin counts.

The defence failed on the marijuana count because the accused admitted she possessed it partly for personal use and resale to clients, so the threats were not the sole reason for that offence under binding appellate authority.

During her trial for drug trafficking, the accused sought to introduce expert psychiatric evidence regarding battered woman syndrome to support her defence of duress.

The Crown opposed the admission, arguing the evidence was unreliable and unnecessary.

The court applied the White Burgess framework and found the evidence relevant to whether the accused had a safe avenue of escape.

The court rejected the Crown's arguments, holding that the evidence was sufficiently reliable and remained necessary to dispel myths and stereotypes about domestic violence.

The expert evidence was ruled admissible.

The appellant, Gilberto Montoya, appealed his convictions for assault with a weapon, assault causing bodily harm, and failing to comply with a recognizance.

The sole issue at trial was whether the Crown had disproven self-defence beyond a reasonable doubt.

The trial judge found the appellant's response, using a belt buckle as a weapon, was disproportionate and unreasonable.

On appeal, the appellant argued the trial judge erred by finding he was acting in concert, failing to consider all factors under s. 34(2) of the Criminal Code, and applying an unrealistically stringent proportionality test.

The Superior Court dismissed the appeal, finding no error in the trial judge's assessment of the evidence or application of the self-defence principles.

Following a jury conviction for aggravated assault arising from the discharge of a loaded handgun in an apartment, the court was required to resolve disputed sentencing facts.

Applying the post-verdict fact-finding framework, the court rejected the Crown's theory of an intentional shooting and found that the accused produced the gun to scare others and that it discharged unintentionally while being removed from a bag.

The court held that the Bellissimo range for intentional gun violence did not apply and fixed the appropriate range for serious injury caused by the unintentional discharge of an illegally possessed firearm at three to seven years.

Considering catastrophic injuries to the victim, the accused's youth, lack of record, remorse, rehabilitation prospects, collateral immigration consequences, and concurrency with an earlier firearm sentence, the court imposed 21 months' imprisonment after credit, followed by 12 months' probation and ancillary orders.

The applicant, a non-profit housing co-operative, sought a writ of possession to evict two respondents who had lived in a unit with their deceased mother.

The respondents, who were not members, had applied for membership but faced arrears in membership fees and an uninvestigated altercation allegation.

The court dismissed the application for a writ of possession, finding it would be unfair to evict the respondents without a proper and fair consideration of their membership application, especially given their lifelong residency, family ties within the co-operative, and the fact that all arrears had been paid.

The offender, a 24-year-old first offender, was convicted of possessing a loaded restricted firearm and possessing heroin and cocaine for the purpose of trafficking.

The court considered the aggravating factors of the firearm and drugs, and mitigating factors including the offender's youth, lack of record, remorse, and the impact of systemic anti-Black racism.

The court imposed a total sentence of two years less a day imprisonment, after accounting for pre-sentence custody and totality, followed by 24 months of probation.

Yolanda Meecham sought to exclude evidence seized under a search warrant, arguing a violation of her s. 8 Charter rights due to insufficient grounds in the Information to Obtain (ITO).

The court applied the R. v. Garofoli "step six" procedure for redacted ITOs and the R. v. Debot "three Cs" criteria (credibility, compelling, corroboration) for confidential informant information.

Despite acknowledging the ITO's poor drafting and inaccuracies, including a withdrawn charge, the court found that, after excisions and amplification, the ITO met the low threshold for reasonable and probable grounds to issue the warrant.

The application was dismissed.

The court ruled on a defence application for a mistrial and the probative value of after-the-fact conduct in an aggravated assault jury trial.

The defence sought a mistrial due to alleged improprieties in Crown counsel's closing address, specifically regarding the credibility of a Crown witness.

The defence also requested a "no probative value" instruction for the accused's flight and disposal of the firearm, arguing it was equally consistent with illegal firearm possession as with the aggravated assault.

The court dismissed the mistrial application, finding the Crown's comments on witness credibility, while concerning, could be remedied by jury instruction and did not impact the accused's credibility.

The court also denied the "no probative value" instruction for after-the-fact conduct, distinguishing the case from *R. v. Chambers* and finding the accused's flight disproportionate to the admitted firearm possession, thus allowing the jury to infer guilt regarding the shooting.

The accused, Nerville Ferdinand, was charged with aggravated assault.

During his jury trial, the Crown sought to advance an alternative theory of liability based on transferred intent, arguing that Ferdinand intended to shoot a third person ("Jimbo") but accidentally hit the victim, Tristan Kelly.

The defence objected, arguing there was no evidentiary basis for this theory.

The court applied the "air of reality" test for theories of liability, similar to that for defences, which requires a limited weighing of evidence to determine if a properly instructed jury could reasonably convict based on the theory.

The court found no direct evidence of intent to shoot Jimbo and concluded that the circumstantial evidence, even viewed most favorably to the Crown, did not reasonably support an inference of transferred intent, as it would require speculation and contradiction of witness testimony regarding aiming direction.

The Crown was therefore prohibited from advancing this alternative theory to the jury.

The plaintiff sought substantial indemnity costs after successfully resisting the defendants' motion for summary judgment in a property line dispute.

The defendants argued for no costs or partial indemnity.

The court found that the defendants did not act unreasonably in bringing their summary judgment motion, despite its ultimate failure, and therefore declined to award substantial indemnity costs under Rule 20.06.

The court awarded the plaintiff partial indemnity costs of $25,000, inclusive of taxes and disbursements, noting that much of the work would have been necessary for trial regardless.

The Crown applied for certiorari to set aside a preliminary inquiry judge's decision to discharge two respondents, Justin McGregor and Herve Kalonji, on various drug trafficking and criminal organization charges.

The Superior Court dismissed the application, affirming the narrow scope of jurisdictional review for preliminary inquiry decisions.

The court reiterated that such decisions are reviewable only for jurisdictional errors (e.g., failing to consider all evidence, impermissible weighing), not for errors of law or sufficiency of evidence.

The judge found that the preliminary inquiry judge properly exercised her jurisdiction in concluding there was insufficient evidence for committal, despite some potential errors in her reasoning regarding the evidence.

The applicants sought certiorari to quash witness summonses issued under the Provincial Offences Act, alleging abuse of process due to city officials misleading them into providing information.

The court dismissed the application, finding that the applicants could not demonstrate sufficient personal prejudice, that the trial court was the appropriate forum to address abuse of process arguments (which primarily protect accused persons), and that interlocutory prerogative relief should be granted only rarely to prevent delay and fragmentation of quasi-criminal proceedings, especially in light of R. v. Jordan.

The applicant, Play For Fun Studios Inc., sought a declaration that its game "GotSkill" is a game of skill, not a game of chance or mixed skill and chance, as defined under s. 197(1) of the Criminal Code.

The respondent, the Registrar of Alcohol, Gaming and Racing, argued that considering multiple plays, the potential next win for subsequent rounds introduced an element of chance, making it a game of mixed skill and chance.

The court found that while the potential next win for subsequent rounds involved an element of chance from the player's perspective, a sufficiently skilled player could consistently "beat" the machine by achieving a 110% score on the skill task, thereby winning more than wagered over time.

This distinguished "GotSkill" from older "gum dispenser" cases where players were entirely at the mercy of the machine.

The application was granted, declaring GotSkill to be a game of skill.

The plaintiff, Parbattie Poonwasee, sought costs after a successful negligence action against the defendant, Cecilia Plaza, following a motor vehicle accident.

A jury awarded the plaintiff $43,014.93 after deductions.

The plaintiff had made a Rule 49 offer to settle for $50,000, which the defendant rejected.

The court, applying Rule 57.01 principles, found the plaintiff entitled to partial indemnity costs, noting the defendant's "hardball" litigation strategy and lack of a settlement offer.

The court rejected arguments for denying costs based on simplified procedure limits or "divided success." While acknowledging proportionality, the court reduced the plaintiff's requested costs of $201,479.37 to $120,000, inclusive of disbursements and HST, due to duplicative, inappropriate, or excessive billing, including secretarial work billed by law clerks.

The plaintiff, Musab Saeed, sought specific performance and declarations after a property transaction failed and the vendors sold to other purchasers.

The vendor defendants moved for partial summary judgment to dismiss the specific performance claim, arguing the property was not unique and damages were an adequate remedy.

The purchaser defendants moved for summary judgment to dismiss the entire claim against them, relying on the Land Titles Act and the mirror principle.

The court found the property was not unique, damages were an adequate remedy, and the plaintiff's claim of intending to reside there was not credible.

The court also found that only actual notice of a defect in title, not constructive knowledge or wilful blindness, would be an exception to the mirror principle under the Land Titles Act, and the purchasers did not have actual notice.

Both motions were granted, dismissing the specific performance claim and the action against the purchaser defendants.

The plaintiff, Drake Holdings Ltd., brought a motion seeking a declaration that four inadvertently disclosed documents were solicitor-client privileged and an order removing the defendant's counsel, Lerners LLP.

The defendant, Chubb Insurance Company of Canada, argued that the documents were not privileged, or that privilege was waived, and opposed counsel's removal.

The court found the documents were privileged and that privilege was not waived or lost.

While acknowledging a presumption of prejudice, the court determined that remedies short of removing counsel were sufficient to protect the privilege, including orders for the return/deletion of documents, an undertaking from counsel not to relay information, and a prohibition on counsel conducting examinations of the plaintiff's witnesses.