R. Cary Boswell

The accused sought disclosure of operational copies of BitTorrent investigative software, related manuals, source code, and associated materials used in a child pornography investigation.

The court held that operational copies of the software were relevant to anticipated Charter and Garofoli applications and to an issue at trial, but nevertheless refused production after balancing the accused’s interests against the public interest in preserving investigative technique privilege.

The court found that certain narrow categories of private information, including peer identification data and methods by which the software identified itself on the network, were not relevant and were privileged.

Most Crown redactions to manuals, logs, transcripts, and validation materials were upheld, although some were ordered removed where the information was relevant and non-privileged.

The accused, charged with manslaughter and drug trafficking, brought an O'Connor application seeking production of a key Crown witness's psychiatric hospital records.

The Crown had previously applied under s. 715 of the Criminal Code to admit the witness's preliminary hearing testimony, arguing she was presently too mentally ill to testify at trial.

The defence argued the hospital records were likely relevant to assessing her mental health before the preliminary hearing.

The court dismissed the application at the first stage, finding the records from early 2020 were too remote to be likely relevant to her present state of health or to whether the preliminary hearing triggered her recent mental health decline.

During a trial for drug trafficking and manslaughter, the Crown brought an O'Connor application to disclose the medical records of a fragile witness.

The Crown sought to adduce the witness's preliminary hearing transcript in lieu of oral testimony.

The court applied the two-stage O'Connor procedure to the second tranche of subpoenaed medical records.

Finding the records relevant to the witness's ability to testify, the court ordered the disclosure of the psychiatric assessment portions with appropriate redactions to protect the witness's privacy.

The Crown brought an O'Connor application to obtain the medical records of a key witness who claimed she was medically unstable to testify at the accused's trial for drug trafficking and manslaughter.

The court found the stage one threshold was easily met, as the records were likely relevant to the witness's mental health and ability to testify.

After reviewing the first tranche of records at stage two, the court ordered the release of relevant portions to counsel, subject to redactions for non-relevant personal and medical information, balancing the public interest in the search for truth against the witness's privacy interests.

The defendant, a 31-year-old Indigenous male, was convicted of two counts of sexual interference against his two step-sisters.

The court applied the principles from Friesen regarding the gravity of sexual offences against children, while also considering the Gladue factors related to the defendant's Indigenous background and intergenerational trauma.

The court sentenced the defendant to a global term of 7 years in custody (1.5 years for one victim, 5.5 years for the other), along with ancillary orders including a DNA order, weapons prohibition, SOIRA order, and a section 161 prohibition order.

The accused, facing drug trafficking charges, brought a Garofoli application to challenge the validity of a search warrant executed at his motel room.

The warrant was based on tips from three confidential informants and police surveillance of a suspected drug transaction at a nearby drive-thru.

The court granted the accused limited leave to cross-examine the police affiant.

Ultimately, the court dismissed the application, finding that the totality of the circumstances, including the informant tips and corroborating police surveillance, provided a reasonable basis for the issuing justice to authorize the warrant.

Following a procedural motion where the moving defendants successfully obtained an order for a further and better affidavit of documents and written interrogatories, the parties could not agree on costs.

The moving defendants sought $14,217.87 on a substantial indemnity basis, while the plaintiffs argued for no costs due to divided success, or alternatively $3,500.

The court found the moving defendants were largely successful and awarded them costs fixed at $7,500 on a partial indemnity basis, noting the motion was straightforward and did not warrant substantial indemnity costs.

Following a successful summary judgment motion discharging a mortgage as statute-barred, the plaintiff sought costs of $33,557.18, arguing for substantial indemnity costs based on a $100 offer to settle.

The court found the offer contained no real element of compromise and applied an exception to Rule 49.10.

Applying principles of fairness, reasonableness, and proportionality, the court awarded the plaintiff partial indemnity costs fixed at $20,394.32.

The accused, an inmate at a correctional centre, faced a 16-count indictment involving allegations of sexual assault, assault, and threatening against seven fellow inmates.

The accused brought an application to sever the counts into three separate trials, arguing that a joint trial would result in impermissible propensity reasoning and prejudice.

The Crown opposed the application, arguing that the counts shared a strong factual nexus and that it intended to adduce count-to-count similar act evidence.

The court applied the factors from R. v. Last and concluded that the truth-seeking function of the process would be best served by a joint trial, as the Crown's anticipated similar act evidence application was reasonably viable and there was a strong factual nexus across all counts.

The severance application was dismissed.

The Crown sought a ruling on the admissibility of a statement made by the accused to police following his arrest for drug trafficking and manslaughter.

The defence argued the statement was involuntary because police failed to record their interactions with the accused from the time of his arrest until the formal interview, relying on R. v. Moore-McFarlane.

The court distinguished Moore-McFarlane, finding the uncontradicted testimony of the police officers credible and reliable.

The court concluded there were no threats, promises, or oppressive circumstances, and the accused's minor injury during arrest did not affect his operating mind.

The statement was ruled voluntary and admissible.

The Crown sought to qualify an OPP officer as an expert witness to interpret coded text messages and provide context on the illicit drug trade in a trial for drug trafficking and manslaughter.

The defence did not contest the admissibility of the evidence but reserved the right to cross-examine on potential bias.

The court applied the Mohan and White Burgess frameworks, finding the proposed evidence logically relevant, necessary, and the officer properly qualified.

The officer was qualified to provide opinion evidence on the indicia of trafficking, street values of drugs, and the interpretation of coded language.

The applicant landlord applied to enforce Minutes of Settlement resolving a commercial lease dispute with the respondent tenant.

The settlement provided for a rent reduction contingent on the tenant's revenues, requiring the tenant to provide monthly HST returns.

The tenant failed to file or provide the returns for several months.

The court found the tenant in breach of the settlement and the duty of good faith performance, ordering the release of $16,155.77 held in trust to the landlord to offset outstanding rent.

The moving defendants in a $3.5 million debt collection action brought a motion to compel the plaintiffs to produce a further and better Affidavit of Documents and to produce the elderly plaintiff for oral discovery.

The court found the plaintiffs' initial Affidavit of Documents deficient for failing to list relevant banking and loan records, ordering a further and better affidavit.

However, relying on medical evidence of the plaintiff's frail health, the court declined to order her attendance at oral discovery, directing instead that discovery proceed via written interrogatories.

The plaintiff bank brought a motion for summary judgment against the defendant corporation and its principal for the outstanding balances on two commercial loans.

The defendants argued that the loan agreements were frustrated by the COVID-19 pandemic and the resulting government-mandated lockdowns, which severely impacted their restaurant business.

The court granted summary judgment, finding that while the pandemic made performance more difficult, it did not render the contractual obligations radically different from what was agreed upon.

The doctrine of frustration did not apply to relieve the defendants of their repayment obligations.

The accused, charged with manslaughter and trafficking following a fatal drug overdose, brought an O'Connor application seeking third-party records, including cell phone records and mental health treatment records of the deceased and a key Crown witness.

The court found that the mental health records did not meet the likely relevance threshold, as the request relied on stereotypical assumptions about drug users and mental illness rather than case-specific evidence.

The application for the cell phone records of the witness's mother was granted to proceed to the second stage of the O'Connor analysis, while the remaining requests were dismissed.

The appellant, convicted of sexual interference and invitation to sexual touching involving a 14-year-old complainant, applied for bail pending his summary conviction appeal.

The court applied the criteria for bail pending appeal, finding that while the appeal grounds were weak, they were not frivolous.

The court further held that the appellant's detention was not necessary in the public interest, noting his low-moderate risk of re-offence and his compliance with previous release conditions.

Bail pending appeal was granted on strict terms, including a surety.

The plaintiff brought a motion for summary judgment to discharge a collateral mortgage, arguing that the defendant's enforcement action was statute-barred under the Real Property Limitations Act.

The defendant claimed a $4,000 payment was made in May 2010, which would have reset the 10-year limitation period.

Applying the Hryniak framework, the court found the defendant's evidence of the payment—a single ambiguous bank book entry—insufficient to meet her onus of proving the claim was brought within the limitation period.

The plaintiff's motion was granted and the defendant's counterclaim was dismissed.

The plaintiff subcontractor brought an action against the defendant general contractor to enforce a construction lien and for breach of contract regarding structural steel and miscellaneous metals work on a school project.

The court found that the parties had entered into two separate contracts.

The plaintiff failed to preserve its lien rights for the structural steel contract in a timely manner, but its claim was permitted to proceed as a personal judgment under section 63 of the Construction Lien Act.

The plaintiff's lien for the miscellaneous metals contract was validly preserved.

The court conducted a detailed accounting of the base contract prices, approved extras, and valid charge-backs for deficient or incomplete work performed by third parties.

Ultimately, the court awarded the plaintiff a net judgment of $99,346.83 across both contracts.

The plaintiff brought an action for fraud and misappropriation against a former employee and the operators of a gas station, alleging a scheme to overcharge for fuel.

Both parties brought motions to compel answers to undertakings and refusals from examinations for discovery.

The court ordered both parties to answer specific questions, directed the defendant to re-attend for a brief further examination, and denied the defendants' request to examine a second representative of the plaintiff.

The plaintiff was awarded $3,500 in costs.

Following trial convictions for possession and accessing child pornography, the court sentenced the offender for possessing a large, organized, and highly depraved collection of child sexual abuse material obtained through peer-to-peer networks.

The court held that denunciation and deterrence are the dominant sentencing objectives for child pornography offences, treated pre-Friesen ranges with caution, and rejected the submission that the offending resulted from reckless downloading of adult pornography.

A conditional sentence was found theoretically available but inappropriate absent exceptional circumstances.

The accessing conviction was conditionally stayed under Kienapple, and a net 25-month penitentiary sentence was imposed after modest credit for lengthy bail conditions, together with DNA, lifetime SOIRA, forfeiture, and a 10-year s. 161 order.