P.J. Monahan

The appellant was convicted of conspiring to import narcotics in association with a criminal organization.

On appeal, he argued the trial judge erred in his jury instructions regarding the co-conspirator's exception to the hearsay rule (the Carter analysis) and that the conspiracy conviction was inconsistent with his acquittal on a related trafficking charge.

The Court of Appeal dismissed the appeal, finding the jury instructions were functional and not confusing, and that the disparate verdicts were intelligible given the distinct evidence and theories for each charge.

The Crown brought an application under s. 715(1)(a) of the Criminal Code to admit the preliminary inquiry testimony of a deceased witness at the accused's trial for historical sexual offences.

The accused argued the evidence should be excluded under the trial judge's residual discretion, claiming its prejudicial effect outweighed its probative value and that the witness suffered from dementia.

The court found the evidence had probative value as it could corroborate the complainant's testimony, and its admission would not result in moral or reasoning prejudice.

The court also rejected the unsworn expert opinion regarding the witness's dementia.

The application was granted.

Following a finding that the parties were validly divorced in Bangladesh in 2017, the court determined the cost consequences of the litigation.

The court found that the responding party commenced and conducted the family law proceeding in bad faith by advancing baseless allegations of fraud and forgery against the moving party, his counsel, and third parties.

Applying Rule 24(8) of the Family Law Rules, the court ordered costs on a full recovery basis.

The responding party was ordered to pay $298,292.34 in costs, reflecting a fair and reasonable amount given the egregious conduct and the extensive court resources consumed.

The accused was charged with sexual assault causing bodily harm and choking following a sexual encounter with the complainant.

The complainant alleged the accused violently grabbed, bit, and choked her without consent, while the accused maintained the encounter was consensual 'rough sex' and denied biting or choking her.

The court admitted expert evidence from a forensic pathologist who testified the complainant's injuries were inconsistent with bite marks.

Applying the W.(D.) framework, the court found the Crown failed to prove the charges beyond a reasonable doubt due to inconsistencies in the complainant's evidence and corroboration of the accused's account by the expert.

The appellant appealed his summary conviction for assault and failing to comply with a probation order, arising from an incident where he spat on a security guard while being escorted out of a building.

He argued the trial judge erred in applying the W. (D) framework and impermissibly relied on a witness's lack of exaggeration to bolster credibility.

The Superior Court of Justice dismissed the appeal, finding the trial judge properly applied the W. (D) principles by providing a reasoned basis for accepting the strong Crown evidence, which included independent witness testimony and video surveillance.

The court also held the trial judge did not err in noting the absence of exaggeration in the security guard's testimony, as it was a responsive observation to the defence's theory.

The moving party (husband) sought to set aside consent orders regarding the validity of a 2017 Bangladeshi divorce, arguing his consent was vitiated by the responding party's (wife's) misrepresentation that she had not remarried.

The court set aside the consent orders, finding the wife had misrepresented her marital status.

Upon reviewing the evidence de novo, the court found that the 2017 Bangladeshi divorce was valid, not obtained by fraud, and should be recognized in Canada.

Consequently, the wife's claims for spousal support were dismissed, and her claim for equalization of net family property was barred by the limitation period.

The accused was tried for aggravated assault and weapons offences following a stabbing at a sports bar.

The incident was captured on surveillance video, showing a man wearing a Nirvana baseball cap striking the victim in the face with a knife-like object.

The victim, who was unavailable for trial, had testified at the preliminary inquiry that he was stabbed by a different person on the stairs.

The court admitted the victim's preliminary inquiry evidence but rejected it as implausible and contradicted by the video.

The court also admitted prior acquaintance recognition evidence from a police officer who identified the accused as the man in the video.

The court found the Crown proved beyond a reasonable doubt that the accused was the attacker and found him guilty on all counts.

The applicant, charged with aggravated assault and weapons offences, brought an application under s. 11(b) of the Charter alleging unreasonable delay.

The total delay was 43 months, exceeding the 30-month presumptive ceiling.

The Crown argued that the COVID-19 pandemic and the assigned Crown's illness were exceptional circumstances.

The court deducted 14.5 months for pandemic-related delays and 2 months for the Crown's illness, bringing the net delay to 26.5 months.

As the remaining delay fell below the presumptive ceiling and this was not a clear case for a stay, the application was dismissed.

The accused was tried for robbery, aggravated assault, and weapons offences following a violent attack on a man who had arranged to purchase sexual services from a 15-year-old girl.

The victim was stabbed and robbed in his car.

The Crown's case on identity was entirely circumstantial, relying on the accused's relationship with the girl and his presence near the scene.

The trial judge rejected the exculpatory evidence of the accused and the girl due to significant credibility concerns.

However, due to inconsistencies in the victim's evidence regarding how the assailant entered the vehicle, the court found the Crown failed to prove identity beyond a reasonable doubt.

The accused was acquitted on all counts.

Following a jury verdict finding the accused guilty of sexual interference and related offences, the accused applied for a mistrial based on a note from the jury complaining about transportation difficulties during deliberations.

The trial judge dismissed the application, holding that a trial judge is functus officio and lacks jurisdiction to declare a mistrial after the jury has been discharged, except to correct an error in recording the verdict.

Furthermore, even if jurisdiction existed, the accused failed to establish a real danger of prejudice or a miscarriage of justice, as there was no evidence the transportation issues affected the jury's deliberations.

The applicant sought certiorari to quash his committal for trial on charges of fraud, possession of proceeds of crime, and money laundering.

He argued that the court lacked territorial jurisdiction over the transnational fraud and that there was insufficient evidence of the actus reus and mens rea of the offences.

The court dismissed the application, finding a real and substantial link to Canada because the fraudulent scheme used Ontario corporations and bank accounts to receive the proceeds.

The court also found sufficient evidence upon which a properly instructed jury could infer the occurrence of fraud, the applicant's knowledge or willful blindness, and his intent to convert or conceal the proceeds.

The respondent brought a motion within a family law proceeding seeking a declaration that the applicant had married a third party in Bangladesh in May 2020, which would impact her claims for spousal support and equalization.

The applicant denied the marriage and alleged the respondent was orchestrating a massive fraudulent conspiracy involving forged documents and perjured testimony.

After a detailed assessment of the evidence, including testimony from third-party affiants, hospital records, and handwritten letters, the court rejected the applicant's fraud allegations as baseless and found that she had indeed married the third party on May 24, 2020.

The parties separated in 2016 and have one child.

The respondent mother moved to British Columbia in 2020, leaving the child in the primary care of the applicant father in Toronto.

The respondent sought to relocate the child to British Columbia, while the applicant sought an order that the child remain in Toronto with him.

The court applied the relocation provisions of the Children's Law Reform Act and found that it was in the child's best interest to remain in Toronto, given the child's need for stability, the applicant's ability to meet her needs, and the respondent's history of unilateral decision-making and non-compliance with court orders.

The applicant was granted final decision-making authority, and the respondent was granted specified parenting time.

The respondent sought leave to amend her Answer to claim retroactive and ongoing child support for her adult daughter from a previous relationship.

The applicant opposed the motion, arguing the claim was legally untenable because the daughter was no longer a 'child of the marriage' under the Divorce Act.

The court granted the motion, finding that the proposed amendment pleaded facts that could support a finding that the daughter remained a child of the marriage at the material time, and that recent Supreme Court jurisprudence has called into question the strict jurisdictional bar on retroactive support for adult children.

The applicant sought full indemnity costs of $160,862 following motions for interim child and spousal support.

The court found that while success on the motions was divided, the respondent and co-respondents had behaved unreasonably, justifying a costs award in favour of the applicant.

However, the court found the applicant's claimed costs to be excessive, disproportionate, and manifestly unreasonable, noting the unnecessary duplication of effort by two counsel.

The court reduced the costs award significantly, ordering the respondent to pay $40,500 and the co-respondents to pay $5,000.

The respondent father brought a motion to stay new orders issued by an Ontario Court of Justice judge pending appeal.

The motions judge had initially ordered the child to attend the father's preferred school, but later issued new orders changing the school to the mother's preference after realizing she had not considered all the evidence.

The motions judge also engaged in ex parte communications with the mother's counsel.

The Superior Court granted the stay, finding a strong likelihood of success on appeal due to jurisdictional errors, breach of natural justice, and reasonable apprehension of bias, and ordered the child to return to the father's preferred school pending the appeal.

Following a successful motion by the applicant to have the parties' children attend school in-person in Etobicoke, the parties made written submissions on costs.

The applicant sought $22,404 on a full recovery basis from the date of his offer to settle.

The respondent argued costs should be reserved or limited to $9,000.

The court found the applicant was presumptively entitled to costs and had met the terms of his offer to settle.

Applying principles of proportionality and reasonableness, the court awarded the applicant $15,000 in costs, payable in installments.

The applicant father brought a motion to change his child support obligations, seeking to terminate support for his three adult children and rescind accumulated arrears.

The court found a material change in circumstances due to the children becoming independent adults and the bankruptcy of the applicant's business.

Applying the Colucci framework, the court terminated ongoing support, retroactively reduced the arrears from $102,431.91 to $23,713, and established a repayment plan.

The respondent mother's cross-claims for retroactive support from 2009-2011 and relief regarding a 2009 computer privacy breach were dismissed.

The applicant father brought an urgent motion seeking an order that the parties' two children, both of whom have special needs, attend in-person schooling at their current schools in Etobicoke.

The respondent mother opposed, seeking to enroll the children in schools in Meaford where she had temporarily relocated, or alternatively, that they continue virtual learning.

The court found that the mother's proposed change of schools amounted to a relocation under the Divorce Act, which she had not properly initiated.

The court held that the mother failed to demonstrate that the proposed new schools would better meet the children's special needs than their current schools, and ordered that the children attend their Etobicoke schools in person.

The applicant brought a motion for interim child and spousal support.

The respondent claimed he was laid off and had no income, despite a history of funding a lavish lifestyle through unreported cash from his family's tax-preparation business.

The court found the respondent intentionally under-employed, imputed his income at $209,355, and ordered interim child support of $2,789 per month and spousal support of $2,769 per month.

Claims for retroactive support were deferred to trial.