Paul Alfred Bailey

The decision addresses motions by the Attorney General of Canada and the Corporation of the City of Kenora to dismiss the Plaintiffs’ claim as statute-barred under Rule 21.01(1)(a) of the Rules of Civil Procedure.

The Plaintiffs, three Anishinaabe Nations, seek the return of or a declaration of trust over lands known as Anicinabe Park, alleging breaches of statutory, fiduciary, and constitutional duties by Canada and Kenora.

The Court finds that it is not plain and obvious, on the pleadings, that the lands were not reserve lands or that the claim does not arise from a treaty right.

As such, the Real Property Limitations Act does not clearly bar the claim, and the motions are dismissed.

The appellants appealed their summary convictions and sentences for various regulatory offences under the Fish Inspection Act and Food and Drugs Act relating to the commercial importation of fish products.

The appellants argued the trial judge misapprehended evidence, permitted an abuse of process, failed to assist the self-represented accused, and that their right to be tried within a reasonable time was violated.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, that the trial judge provided reasonable assistance, and that the delay was largely attributable to the appellants themselves.

The applicant, Sean Walters, charged with possession of cocaine for trafficking, sought to exclude evidence obtained during his detention and arrest.

Walters argued that he was illegally searched, arbitrarily detained, and denied his right to counsel, contrary to sections 8, 9, and 10(b) of the Charter.

The court found multiple Charter breaches, including unlawful investigative detention, unconstitutional searches (pat-down, identification/CPIC, and two subsequent physical searches), and delayed facilitation of the right to counsel.

Despite the reliability and importance of the drug evidence to the prosecution, the court concluded that the seriousness and pattern of police misconduct, approaching recklessness, and the significant impact on the accused's Charter-protected interests, necessitated the exclusion of the evidence to maintain the administration of justice's repute.

The applicant, found guilty of drug trafficking and possession of proceeds, sought a stay of proceedings based on entrapment.

The court examined whether the undercover officer had reasonable suspicion to offer an opportunity to commit the offence or if the police conduct constituted random virtue testing.

The court found that the police had reasonable suspicion based on information from a known citizen and that the investigative steps taken were legitimate, not inducing the crime.

The entrapment defence failed, and the application for a stay was dismissed.

During a trial for possession of fentanyl for the purpose of trafficking, the Crown sought to qualify a police officer as an expert witness on the consumption and distribution of fentanyl.

The defence challenged the officer's admissibility, arguing a lack of necessity, qualifications, and independence due to his involvement in the execution of a search warrant in the case.

Applying the Mohan and White Burgess frameworks, the court found the officer was qualified and capable of fulfilling his duty to the court, given his minor role in the investigation.

The officer was accepted as an expert, but prohibited from opining on the ultimate issue of whether the accused possessed the drugs for the purpose of trafficking.

During a criminal trial for trafficking in a controlled substance and possession of property obtained by crime, the Crown sought to qualify a police officer as an expert in street drug slang.

The defence challenged the admissibility of the proposed expert evidence on the basis of lack of independence and inadequate expertise linking slang terms to specific controlled substances.

Applying the Mohan framework and the Supreme Court’s guidance in White Burgess, the court found that although the officer possessed experience with drug slang, his substantial involvement in the investigation created a realistic concern about his ability to act as an independent and impartial expert.

The court concluded that the Crown failed to establish the independence requirement on a balance of probabilities.

The proposed expert evidence was therefore excluded.

The applicants, charged with production of marijuana and possession for the purpose of trafficking, brought an application for a stay of proceedings, alleging their right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

The case had a complex history spanning over five years, including two mistrials.

The court applied the Morin framework to assess the delay.

For one applicant, the court found the institutional delay exceeded the guidelines and he suffered significant prejudice, resulting in a stay of proceedings.

For the other applicant, the court found no violation due to his express waiver of a substantial period of delay, his counsel's scheduling conflicts, and lesser prejudice, dismissing his application.

The applicants, an accused and his common-law wife, brought an application for the return of funds held in trust following the sale of their matrimonial home.

The Crown had placed a lien on the property to protect a potential bail estreatment claim.

The Crown brought a preliminary motion to remove the applicants' counsel, arguing she was in a conflict of interest because she represented both the accused and the wife, and had a personal interest in recovering her legal fees from the funds.

The court dismissed the motion, finding no disqualifying conflict of interest.

The wife had received independent legal advice, understood the potential conflict, and maintained that the funds were jointly owned.

The accused was charged with conspiracy to commit trafficking in cocaine.

An undercover police officer testified that he met the accused at a bar, requested cocaine, and the accused made a phone call and arranged for a co-conspirator to deliver the drug.

The defence argued insufficient evidence of an agreement.

The court found that while there was no direct evidence of an agreement, the circumstantial evidence—including the accused's statement that "nothing comes through this place without me knowing" his phone call to arrange the delivery, and his approach to the vehicle before the transaction—established beyond a reasonable doubt that the accused and the co-conspirator had agreed to traffic in cocaine.

The accused was convicted.

The applicants, charged with drug offences following a warrantless search of their residence, brought an application for a stay of proceedings alleging breaches of their s. 7, s. 8, and s. 11(b) Charter rights.

The s. 7 claim arose from the principal police witness failing to disclose that his personal counsel was also representing one of the applicants at the preliminary inquiry.

The court found a s. 7 breach but held it did not warrant a stay of proceedings.

However, the court found that the applicants' s. 11(b) rights were violated due to an unreasonable delay of 28 months, largely stemming from the conflict of interest issue and institutional delay.

The court granted a stay of proceedings under s. 24(1) of the Charter.

At a pre-hearing conference, the Financial Services Tribunal considered applications for party status and a motion by the unrepresented applicant to convert the proceeding from an oral to a written hearing.

The Tribunal granted limited party status to two organizations but dismissed the other applications.

The Tribunal also dismissed the applicant's motion for a written hearing, finding that the presence of contested expert evidence constituted good reason to maintain an oral hearing to allow for cross-examination, despite the applicant's concerns about being unrepresented.

The appellant police officer appealed his conviction for damage to equipment under the Police Act after losing control of his cruiser during a high-speed pursuit and striking a hydro pole.

He argued that the evidence did not support a finding of carelessness and that the charge was void because no written complaint was proven at trial.

The Ontario Civilian Police Commission dismissed the appeal, finding that the facts of the accident alone were sufficient to establish carelessness in the absence of an explanation at trial.

The Commission also held that the appellant's failure to demand production of the written complaint at the inception of the trial constituted an acceptance of the trial officer's jurisdiction.