Ricchetti

During a trial for sexual interference, the Crown and Defence brought several pre-trial and mid-trial applications regarding the admissibility of evidence.

The court ruled that the accused's statements to police on November 18 and October 26 were voluntary and did not violate his s. 10(b) Charter rights.

However, a statement made on October 28 was excluded because the accused was heavily intoxicated, rendering it involuntary.

The court also ordered redactions to the complainant's police interview to prevent impermissible oath-helping, and made mid-trial rulings allowing some prior consistent statements by the complainant to rebut allegations of recent fabrication.

In a construction lien proceeding involving multiple unconsolidated actions, counsel for one lien claimant sought salvage costs from the trust monies available to all lien claimants.

The court dismissed the claim for salvage costs, finding it lacked jurisdiction to award such costs against non-consenting lien claimants where the actions were not consolidated and the counsel was not appointed carriage counsel.

The court also determined the validity and quantum of the lien claimant's claim, finding it valid for $82,278.69 despite some missing purchaser files and lack of strict compliance with written authorization requirements for extras.

During a lengthy matrimonial trial, the applicant alleged that the respondent's former counsel, SimpsonWigle LLP, breached a Mareva injunction by receiving payments from frozen offshore companies.

The parties agreed to defer the contempt hearing against the law firm until after the trial judgment.

At the commencement of the contempt hearing, the law firm brought a motion to dismiss, arguing the court lacked jurisdiction because the Mareva order was no longer live and operative.

The court dismissed the motion, finding no requirement in law that an order must be live and operative when a contempt motion is brought or a finding is made, particularly where the purpose is to address a deliberate breach rather than to coerce compliance.

The accused was charged with importing cocaine after returning from Jamaica.

During a customs inspection, a positive ion scan led to further questioning and a personal search.

The Crown brought a pre-trial application to admit the accused's statements as voluntary, while the defence sought to exclude the statements and drugs due to alleged breaches of ss. 8, 9, and 10(b) of the Charter.

The court found the statements were voluntary and not the result of oppression.

However, the court held that the accused was detained when the CBSA officer began focused questioning after a second positive ion scan without providing Charter rights.

Applying the Grant framework under s. 24(2), the court excluded the accused's statements regarding a side trip to Panama made during this period of detention, but admitted subsequent statements made after rights were provided.

The accused was acquitted of impaired driving but convicted of refusing to provide a breath sample at trial.

Both the Crown and the accused appealed.

The accused argued the verdicts were inconsistent and the trial judge misapprehended expert evidence regarding the synergistic effects of Ativan and alcohol.

The Crown argued the trial judge erred in law by finding the accused lacked the mens rea for impaired driving due to the unanticipated effects of combining alcohol and prescription medication.

The Superior Court of Justice dismissed both appeals, finding no inconsistency in the verdicts, no material misapprehension of evidence, and holding that the presumption of voluntariness for impaired driving can be rebutted where impairment results from the unforeseeable combined effect of alcohol and drugs.

The applicant brought an ex parte motion to enforce a family law judgment, seeking to pierce the corporate veil of an offshore company, issue garnishments, and obtain a vesting order for the respondent's shares.

The court granted leave to proceed ex parte due to the respondent's history of contempt and asset depletion.

However, the court adjourned the requests to pierce the corporate veil and issue garnishments to allow notice to affected third parties.

The court dismissed the request for a vesting order, finding it was functus officio and lacked jurisdiction under the Family Law Act, Family Law Rules, or Rules of Civil Procedure to grant new substantive relief after the final judgment had been entered.

The appellant appealed his conviction for failing to provide a breath sample into an Approved Screening Device.

He argued his refusal was equivocal because he believed he was not the driver and wanted to speak to counsel first, and that the demand was not made forthwith.

The Superior Court of Justice dismissed the appeal, finding ample evidence to support the trial judge's conclusions that the refusal was unequivocal, the demand was made forthwith, and no Charter breach occurred since the offence was complete before the right to counsel was engaged.

The accused was charged with importing cocaine after CBSA officers found the drug in food cans in his luggage.

The Crown brought a pre-trial application to admit the accused's statements to CBSA and RCMP officers as voluntary, while the accused brought a Charter application seeking to exclude the statements and drugs due to alleged arbitrary detention, an unreasonable strip search, and sleep deprivation.

The court found the statements voluntary, noting that while keeping the accused awake was minor misconduct, it did not induce the statements.

The court also dismissed the Charter application, finding no detention during routine customs questioning and no unreasonableness in the brief strip search.

A mid-trial ruling also admitted a Certificate of Analyst.

Prior to a first-degree murder trial, the defence brought an application to permit the in-custody accused to sit at counsel table rather than in the prisoner's box.

The Crown opposed the application, citing institutional incident reports demonstrating the accused's history of violence and non-compliance while in custody.

The court dismissed the application, finding that the incident reports established a significant risk to courtroom security.

The court also noted that security concerns were heightened due to anticipated hostility between the accused and certain Crown witnesses.

The accused, charged with first-degree murder, brought pre-trial applications to exclude audio files found on his Blackberry cell phone.

The files contained rap lyrics referencing a firearm of the same calibre as the murder weapon.

The accused argued that the seizure of the phone, the search warrant, and the delayed report to a justice violated his s. 8 Charter rights.

The court found no Charter breach in the initial seizure or the type of warrant used.

Although the Crown conceded a breach regarding the delayed report to a justice, the court declined to exclude the evidence under s. 24(2) of the Charter.

The court also upheld the validity of the search warrant and found the probative value of the rap lyrics outweighed any prejudicial effect.

The applications were dismissed.

During a murder trial, the Crown brought a KGB application to admit prior inconsistent statements made by a recanting witness to a police agent in a courthouse holding cell.

The witness had previously been granted leave to be cross-examined under s. 9(2) of the Canada Evidence Act.

The court applied the principled approach to hearsay to assess threshold reliability.

The court admitted the first part of the statements, finding sufficient procedural and substantive reliability as the witness confirmed making them and was available for cross-examination.

The second part of the statements was excluded due to poor audio quality and incomplete utterances, which undermined the jury's ability to assess their truth and accuracy.

The defendants (Smith Defendants) brought a motion to remove the plaintiffs' counsel (McLean) due to an alleged conflict of interest and to prevent the use of allegedly privileged documents.

The plaintiffs (Milicevic/Mazzone) brought cross-motions to remove the defendants' counsel (Rapley), to amend their pleadings, and for orders regarding document production and privilege.

The court dismissed both motions to remove counsel, finding no compelling reason to interfere with the parties' choice of counsel and noting the tactical nature of the motions.

The court also ruled on the privilege of various documents, finding that joint retainer documents were not privileged as between the joint clients, and permitted the plaintiffs to amend their cross-claim in the Toronto action while denying the withdrawal of their indemnity claim in the Brampton action.

The accused, previously found guilty of importing heroin and awaiting sentencing, was arrested on new charges of importing heroin while on bail.

The Crown sought to revoke his bail under s. 524 of the Criminal Code.

The accused proposed a release plan involving two sureties and a surveillance system, while also relying on an outstanding mistrial application based on alleged ineffective assistance of counsel.

The court found the proposed release plan weak and the sureties unsuitable.

The court held that the accused failed to meet his onus under both the secondary and tertiary grounds of s. 515(10), concluding there was a substantial likelihood he would commit further offences and that his release would undermine confidence in the administration of justice.

The accused's detention was ordered to continue.

The appellant appealed his summary convictions for impaired driving, driving over 80, and driving while prohibited.

The convictions were based on circumstantial evidence that the appellant drove his vehicle to a fast food restaurant and retained care and control of it while inside.

The appellant argued that the trial judge erred in finding care and control was the only reasonable inference.

The Superior Court of Justice dismissed the appeal, finding the trial judge's factual findings were fully supportable and there was no other reasonable inference available on the evidence.

The Crown brought an application for mandamus with certiorari in aid to seek the committal of the respondents on charges relating to a tractor trailer robbery.

The preliminary inquiry judge had discharged the respondents, finding insufficient evidence to commit them to trial.

The Superior Court of Justice found that the preliminary inquiry judge committed a jurisdictional error by failing to consider the whole of the evidence, specifically the similar fact evidence linking the respondents to other similar robberies.

The court concluded that the similar fact evidence, combined with cell phone location evidence, provided sufficient evidence upon which a properly instructed jury could reasonably conclude the respondents were parties to the robbery.

The application was granted and the matter was directed back to the preliminary justice to commit the respondents.

The parties separated in 2012 and maintained a cooperative parenting arrangement for their two children until early 2015.

Conflict escalated, culminating in the respondent withholding the children from the applicant's scheduled parenting time and threatening to call the police.

The applicant brought an urgent motion for interim custody and access, and the respondent brought a counter-motion seeking primary residence.

The court rejected the respondent's unsubstantiated allegations of abuse and alienation, finding her actions were designed to gain an advantage in the proceeding.

The court granted joint interim custody and ordered a 50/50 week-about parenting schedule, finding it to be in the best interests of the children.

The plaintiff brought a motion for summary judgment seeking the dismissal of the defendant's counterclaim in a construction lien action.

The defendant had repeatedly failed to produce financial documentation relevant to its delay counterclaim, despite multiple requests and a court order, resulting in the adjournment of four scheduled trial dates.

The court found that the defendant's actions were deliberate and calculated to delay the trial on the merits.

Applying Rule 60.12 of the Rules of Civil Procedure, the court concluded that this was an exceptional case where striking the pleading was warranted to protect the administration of justice.

The defendant's counterclaim was dismissed.

In a high-net-worth matrimonial dispute, the court addressed equalization, spousal support, a related corporate application, and a bankruptcy annulment.

The husband, who founded a highly successful international Halloween products business, engaged in extensive efforts to hide his income and assets in offshore companies, breached a Mareva injunction, and made a strategic assignment into bankruptcy to defeat his wife's claims.

The court imputed the husband's income at $1,400,000 per year, ordered an equalization payment of over $3.5 million, and awarded lump sum spousal support of nearly $6 million due to his history of non-compliance.

The court also annulled the husband's bankruptcy as an abuse of process and dismissed a related application by one of his offshore companies claiming beneficial ownership of an Ontario property.

The father appealed a settlement conference order regarding custody and access, arguing he did not understand the agreement, was under duress, and the judge was biased.

The court rejected the claims of duress and bias but found that the order terminated certain access provisions from a previous order that were not discussed or agreed upon by the parties.

Because the order did not accurately reflect the parties' agreement and resulted in unintended changes to access, the appeal was allowed and the matter was remitted to a different judge.

The plaintiff brought a motion to remove the defendant as the estate trustee of her late husband's estate.

The plaintiff alleged the defendant breached his fiduciary duties, ignored preservation orders, and deliberately prejudiced her family law and trust claims by liquidating estate assets.

Although the court found sufficient facts to justify removal, it declined to exercise its discretion to do so because all estate assets had already been sold, the estate had no money to pay a new trustee, and replacing the trustee would delay the impending trial where the defendant's actions would be scrutinized.