R. Cary Boswell

The Crown sought to admit a confession made by the accused to undercover police officers during a 'Mr. Big' operation.

The accused applied to exclude the evidence, arguing that the surreptitious recording authorizations were invalid, that his right to silence under s. 7 of the Charter was violated, and that the confession should be excluded under common law principles of abuse of process and prejudicial effect.

The court dismissed the application, finding that the accused was not in the functional control of the state, the police conduct was not abusive, the confession was highly reliable, and the wiretap authorizations were validly issued.

The plaintiff brought a motion relating to outstanding undertakings and refusals arising from extensive examinations for discovery of a defendant.

The court reviewed numerous undertakings and determined that several had been satisfactorily answered, while others required reproduction of documents in an organized format to properly address the undertakings.

The court also ordered disclosure of certain financial documents relevant to claims for accounting and disgorgement.

However, the court declined to compel any further examinations, finding that five days of discovery and thousands of questions already rendered the process disproportionate under the Rules of Civil Procedure.

The defendant brought a motion seeking an order compelling the plaintiff to attend further defence medical examinations with a vascular surgeon and an ophthalmologist in a motor vehicle personal injury action.

The court considered the discretionary authority under s. 105(2) of the Courts of Justice Act and Rule 33.02(2) of the Rules of Civil Procedure governing additional medical examinations.

The plaintiff had not pleaded vision loss and existing expert evidence suggested the visual impairment was unrelated to the accident, making an ophthalmological examination unnecessary and disproportionate.

However, causation of the plaintiff’s significant leg injuries remained a central issue and an orthopaedic expert had raised the possibility of vascular disease, recommending assessment by a vascular surgeon.

The court held that fairness required allowing the vascular examination but not the ophthalmological assessment.

The accused, charged with first degree murder, brought a constitutional challenge to s. 184.2 of the Criminal Code, arguing that the provision permitting one‑party consent wiretap interceptions with prior judicial authorization is unconstitutional because it lacks an after‑the‑fact notice requirement.

Relying on R. v. Tse, the accused argued that accountability and reviewability require notice to persons whose private communications have been intercepted.

The Crown argued that the provision remains constitutional because it requires prior judicial authorization based on reasonable grounds.

The court held that the Charter’s s. 8 requirements are satisfied by prior judicial authorization and that the absence of a notice provision does not render s. 184.2 unconstitutional.

The constitutional application was dismissed.

Following a three-day family law trial, the court addressed costs where the applicant sought to set aside a separation agreement and obtain increased spousal support.

The agreement was upheld, but the court ordered spousal support on terms differing from the agreement.

Both parties claimed overall success.

Applying Rule 24 of the Family Law Rules and principles of fairness, proportionality, and divided success, the court found the applicant partially successful.

Modest costs were awarded to reflect success on spousal support but failure on the claim to set aside the agreement.

The plaintiff and other lien claimants sought a determination of the basic holdback amount under the Construction Lien Act following the sale of a partially completed retirement home project by the defendant mortgagee.

The mortgagee argued the holdback was reduced by payments made to sub-trades during construction.

The court found that the owner violated section 25 of the Act by releasing holdback funds before certificates of completion were issued, and that such a breach could not be cured retroactively.

The court fixed the basic holdback at the full 10% of the value of services and materials provided, plus applicable GST.

The accused was charged with aggravated assault after punching the complainant in the face during a late-night street altercation, causing the complainant to fall and suffer a head injury.

The accused testified that the complainant and his group were aggressive, took off their shirts, and that the complainant flinched first.

The court applied the W.(D.) framework and found the accused's evidence credible.

The court concluded that both parties consented to a physical fight and that the accused did not intend to cause serious bodily harm.

As the fight was consensual, the application of force was not unlawful, and the accused was acquitted.

The applicant sought to set aside a separation agreement following a 26‑year marriage, alleging non‑disclosure, misrepresentation of property value, unconscionability, and undue influence under s. 56(4) of the Family Law Act.

The court found both parties had similar information about the value of a jointly owned cottage and that there was no failure of financial disclosure, misrepresentation, or undue influence sufficient to invalidate the agreement.

The property division provisions were found to be broadly consistent with the statutory equalization regime and were upheld.

However, the spousal support provision providing $443 monthly for only 18 months failed to meet the objectives of the Divorce Act in a long‑term traditional marriage with ongoing caregiving responsibilities.

The court ordered ongoing spousal support consistent with the Spousal Support Advisory Guidelines and required life insurance security while support remained payable.

The accused was charged with possession of cocaine for the purpose of trafficking after police found 252 grams of cocaine hidden under the passenger seat of a vehicle he was driving.

The vehicle belonged to a friend, and the accused had only been driving it for a short time.

The Crown relied on circumstantial evidence and the testimony of the accused's former girlfriend, who claimed she found the drugs and confronted him about them shortly before the traffic stop.

The court found the girlfriend's evidence unreliable and concluded the Crown failed to prove beyond a reasonable doubt that the accused had knowledge and control of the hidden cocaine.

The accused was acquitted.

The accused was charged with possession of cocaine for the purpose of trafficking after police executed a search warrant at his residence and located 505 grams of cocaine hidden in a Kleenex tissue box.

The Crown relied primarily on circumstantial evidence to establish knowledge and control, including the accused’s admitted involvement in marijuana trafficking, drug paraphernalia found in the residence, and his association with a known cocaine trafficker.

The accused testified that he had no knowledge of the cocaine and suggested that a third party with access to the residence may have hidden it there shortly before the search.

The court rejected aspects of the accused’s credibility regarding the extent of his drug trafficking but found that the possibility that the third party concealed the cocaine in the residence raised a reasonable doubt about the accused’s knowledge.

As knowledge was not proven beyond a reasonable doubt, the essential element of possession was not established.

The accused brought a s. 8 Charter application challenging the manner in which police executed a search warrant at his residence using a dynamic entry.

The accused argued that the failure to comply with the knock notice rule and the alleged ransacking of the home rendered the search unreasonable and required exclusion of cocaine discovered during the search.

The court reviewed the governing principles from recent jurisprudence concerning dynamic entries and exigent circumstances.

It held that police had reasonable grounds to conduct a dynamic entry based on risks of destruction of cocaine and the possible presence of firearms connected to the drug investigation.

The court further found insufficient evidence that the search itself was conducted in an unreasonably destructive or disorderly manner.

The application was dismissed.

The accused, charged with possession of cocaine for the purpose of trafficking, sought leave to adduce third party suspect evidence suggesting another individual was responsible for the drugs discovered during execution of a search warrant.

The proposed evidence connected the third party to cocaine trafficking and placed him at the residence shortly before police located the drugs, along with evidence of suspicious driving, possession of a large sum of cash, and cocaine discovered at his own residence.

Applying the governing test from Supreme Court jurisprudence, the court held that the accused met the evidentiary burden of demonstrating a sufficient connection between the third party and the offence.

The evidence was capable of supporting a reasonable inference that the third party deposited the cocaine at the residence to avoid police detection.

Concerns about the strength of the inference or competing explanations were matters for the trier of fact rather than the threshold admissibility stage.

The accused were charged with importing approximately 30 kilograms of cocaine and possession for the purpose of trafficking.

They brought pre‑trial applications seeking exclusion of statements, cell phone evidence, and evidence obtained during a residential search, alleging multiple Charter breaches including violations of ss. 10(b) and 8.

The court found serious breaches including delays in implementing the right to counsel, police questioning prior to consultation with counsel, failure to ensure the accused understood their rights due to language barriers, and unlawful warrantless searches of a cell phone.

The unlawfully obtained phone evidence formed a central basis for a search warrant; once excised from the Information to Obtain, the warrant could not stand.

Applying the framework from R v Grant, the court excluded the accused’s statements and the cell phone evidence, resulting in exclusion of all derivative evidence from the residential search.

Following the settlement of a motion seeking to determine and fix the owner’s statutory holdback under the Construction Lien Act, the court was required to determine the appropriate costs award.

The moving subcontractor argued that the owner delayed addressing the holdback issue, necessitating the motion and increasing litigation costs, and sought enhanced partial indemnity costs.

The responding party argued the motion was over-lawyered and that only minimal costs should be awarded.

The court held that the motion produced a successful result by compelling the owner to fund an interim holdback available for distribution to subcontractors, entitling the moving party to costs.

However, no exceptional circumstances justified enhanced costs, and a fair and proportionate partial indemnity award was fixed.

The plaintiffs brought a motion seeking a Mareva injunction to restrain certain defendants from transferring or dissipating assets pending trial in an action alleging breach of contract, negligence, and negligent misrepresentation arising from a failed financing arrangement.

The court considered the established test for Mareva injunctions, including the requirement of a strong prima facie case and the risk of dissipation of assets.

On the limited interim record, the court found that the plaintiffs had demonstrated a strong prima facie case at least with respect to breach of contract and an existing $80,000 judgment.

However, evidence of assets and risk of dissipation was limited.

The court granted a narrowly tailored interim interim Mareva injunction restraining dealings with specific real property owned by a corporate defendant and funds in a bank account held by an individual defendant pending a full hearing.

The defendant municipality moved for summary judgment dismissing a claim arising from a municipal tax sale in which the plaintiff’s tender bids were unsuccessful.

The plaintiff alleged that higher bids were invalid because the envelopes did not contain the words “tax sale”, the tenders used an outdated form number, and the municipality altered the prescribed tender form.

The court held that the envelopes sufficiently indicated a tax sale, the use of “Form 8” rather than “Form 7” was an insignificant irregularity where the substance of the form was identical, and added headings did not affect the substance of the prescribed form.

Applying the summary judgment framework and statutory interpretation principles, the court found the tax sale complied with the governing regulation and raised no genuine issue requiring a trial.

Summary judgment was granted dismissing the claim.

The accused, charged with importing cocaine, brought pre-trial motions challenging the admissibility of their statements to police, the lawfulness of a cell phone search incident to arrest, and the validity of a search warrant for a residence.

The court found multiple breaches of the accused's s. 10(b) right to counsel, including delays in facilitating access, eliciting evidence prior to access, and failing to ensure comprehension given language barriers.

The court also held that the warrantless search of the accused's cell phone contents incident to arrest violated s. 8 of the Charter, as cell phones attract a high expectation of privacy requiring prior judicial authorization absent exigent circumstances.

The determination of remedies under s. 24(2) was deferred.

Following dismissal of a claim for payment of an accidental death benefit under a group insurance policy, the successful defendant sought partial indemnity costs exceeding $28,500.

The central issue at trial had been whether the deceased insured’s blood alcohol concentration exceeded the policy exclusion threshold of .08, which the court ultimately found it did based on toxicology evidence.

In determining costs under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered the plaintiff’s reasonable basis for pursuing the claim, limitations in the toxicology evidence before trial, and the plaintiff’s financial circumstances.

Emphasizing fairness, proportionality, and access to justice, the court significantly reduced the costs award despite the defendant’s success and an offer to settle.

The defendant was awarded modest all-inclusive costs.

The Crown brought pre-trial motions to admit hearsay statements made by the deceased to her daughter, and a statement made by the accused to police following his arrest for murder.

The court admitted the deceased's statements under the state of mind and principled exceptions to the hearsay rule, finding they were relevant to her fear of the accused and desire to separate, and possessed sufficient indicia of reliability.

The court also admitted the accused's statement to police; although the officer breached the accused's s. 10(b) Charter right to counsel by questioning him prematurely, the court found the subsequent spontaneous utterance was not tainted by the breach.

The plaintiff sought payment of a $100,000 accidental death benefit under a group life insurance policy after the insured died in a motor vehicle accident.

The insurer paid the basic life benefit but relied on an exclusion denying coverage where an accident occurs while the insured operates a vehicle with a blood alcohol concentration exceeding 80 mg/100 ml.

Expert evidence was called regarding the reliability of post‑mortem toxicology testing and the insured’s blood alcohol level at the time of death.

The court accepted the reliability of the femoral blood sample analysis showing a concentration of 211 mg/100 ml and held the insurer met its burden of proving the exclusion on a balance of probabilities.

The court further held the exclusion did not require proof that alcohol caused the accident, only that the accident occurred while the insured’s BAC exceeded the specified level.