Russell M. Raikes

The accused was tried for assaulting a peace officer and uttering a death threat following an interaction where the officer shot the accused.

The officer testified that the accused grabbed his radio antenna and threatened to kill him while reaching into a backpack containing a sawed-off shotgun.

Two civilian witnesses testified they did not see a physical altercation, and one testified she did not hear the threat.

Applying the W.(D.) framework, the court found the civilian witnesses credible and reliable, raising a reasonable doubt about the officer's recollection.

The accused was acquitted of both charges, though he had previously pleaded guilty to weapons offences.

The defendant, Heather Vanessa Leith, challenged the validity of a search warrant issued under the Controlled Drugs and Substances Act, asserting a violation of her s. 8 Charter rights due to insufficient reasonable and probable grounds in the Information to Obtain (ITO).

She sought a declaration of a Charter breach and exclusion of evidence under s. 24(2).

The court reviewed the ITO, including confidential informant information, and found that the issuing justice had a reasonable and objective basis to issue the warrant.

Consequently, the s. 8 Charter rights were not violated, and the application to exclude evidence was dismissed.

This endorsement addresses costs arising from several contentious family law proceedings, including a motion to reinstate counsel, a motion to change a final order, and a 10-day trial.

The court applied Rule 24 of the Family Law Rules, considering the success of each party, their litigation conduct, and the importance and complexity of the issues.

The applicant was largely successful across the various stages, although his conduct was noted as unreasonable in some instances.

The respondent's counsel was held personally liable for costs due to a missed court appearance.

The court fixed specific cost awards for each stage, emphasizing proportionality and reasonableness.

The applicant brought a motion seeking, among other things, an extension of time to file an election under the Family Law Act.

The court, acting as a triage judge during the COVID-19 pandemic, determined that an emergency order issued under the Emergency Management and Civil Protection Act had already suspended limitation periods retroactively to March 16, 2020.

This order effectively tolled the time for the applicant's election, rendering that portion of the motion non-urgent.

The balance of the motion, concerning chattels and asset preservation, was adjourned for further discussions between counsel.

The respondent brought a motion to change final orders concerning child support and Section 7 expenses.

The court determined that the respondent had overpaid child support due to changes in the children's living arrangements and post-secondary attendance, and that the applicant had underpaid child support for one child.

The court also adjudicated numerous Section 7 expense claims from both parties, disallowing claims incurred prior to a previous full and final settlement, and clarifying which expenses qualified as special or extraordinary under the Federal Child Support Guidelines, emphasizing the need for proper documentation and adherence to prior orders regarding child contributions.

The plaintiffs brought two motions: one alleging Ford's non-compliance with an approved class action settlement regarding exhaust odours in 2011-2015 Ford Explorers, and another seeking additional class counsel fees.

The court dismissed the non-compliance motion, finding no evidence that Ford breached its good faith obligations or that class members were deprived of proper repairs.

For the fees motion, the court awarded a modest additional amount of $75,000 plus HST, finding the initial request for $1.2 million excessive given the limited actual financial benefits to the class members from the settlement's reimbursement program.

The accused was charged with possession of cocaine for the purpose of trafficking after police found drugs in a locked tool box at a business unit he frequented.

The Crown's case was entirely circumstantial, relying on the accused's access to the unit, a hidden compartment in his vehicle, and surveillance evidence suggesting drug dealing.

The court found that while it was highly likely the accused was trafficking drugs, the evidence was insufficient to prove beyond a reasonable doubt that he had knowledge and control of the specific cocaine found in the tool box, as others also had access to the unit.

The accused was acquitted.

The plaintiffs sought to introduce participant expert evidence from a lawyer, David Murray, regarding the standard of care applicable to the defendant lawyer in a solicitor's negligence claim.

The court, applying the Westerhof and Mohan/White Burgess criteria, ruled that while Mr. Murray was qualified, his proposed opinion on the objective standard of care was not formed as part of his ordinary participation in the events at issue and thus did not qualify as participant expert evidence under Rule 53.03.

The court declined to permit the opinion evidence.

The defendant brought an application under s. 8 of the Charter challenging the facial validity of three search warrants and seeking to exclude evidence under s. 24(2).

The court found that certain information in the Information to Obtain (ITO) regarding a 2016 apartment lab investigation was misleading and should be excised.

However, the remaining evidence, including corroborated confidential informant information, physical surveillance, and electronic tracking data, provided sufficient reasonable grounds for the warrants to be issued for the defendant's residence, business, and vehicle.

The application was dismissed.

The offender pleaded guilty to two counts of dangerous operation of a motor vehicle causing bodily harm and one count of simple assault.

After crashing his vehicle into a gate at high speed, injuring two passengers, the offender panicked, moved a passenger with a broken back against his wishes, and attempted to hide from a passing motorist.

The court weighed the serious aggravating factors of his post-accident conduct against his youthful first-offender status, strong community support, and positive pre-sentence report.

The court imposed a suspended sentence with two years of probation and a two-year driving prohibition.

The plaintiff brought motions to discontinue the action against an individual defendant, to certify the action as a class proceeding, and for partial summary judgment.

The court approved the discontinuance as it did not prejudice the class and secured the corporate defendant's consent to certification.

The court certified the class action against the remaining defendants, finding that the pleadings disclosed causes of action under the Consumer Protection Act and Competition Act, and that a class proceeding was the preferable procedure.

However, the court dismissed the plaintiff's motion for partial summary judgment, concluding that the nature of the relationship between the defendants and the interpretation of the statutory provisions raised genuine issues requiring a full trial.

The defendant brought a constitutional motion seeking a declaration that the accused-records regime in ss. 278.92 to 278.94 of the Criminal Code was of no force and effect.

In a prosecution including one sexual offence count among numerous non-sexual counts, the defendant argued that requiring advance application, disclosure of detailed particulars, and complainant participation infringed the rights to full answer and defence and a fair trial, and that the scheme was overbroad when the records related only to non-sexual allegations.

The court held that the provisions did not impair effective cross-examination or trial fairness in a manner contrary to ss. 7 or 11(d) of the Charter, and that the scheme rationally advanced complainant privacy, dignity, and confidence in the administration of justice.

The overbreadth challenge also failed, and no s. 1 analysis was required.

The defendant applied under sections 7 and 24 of the Charter to exclude the testimony of his former girlfriend, arguing that police violated her s. 10(b) right to counsel during an interrogation, which amounted to an abuse of process.

The court found that while the witness's rights may have been breached, the defendant's fair trial rights were not violated.

The court held that the police conduct did not undermine society's expectations of fairness in the administration of justice, and excluding the evidence would be more likely to bring the administration of justice into disrepute.

The application was dismissed.

The accused was charged with multiple offences, including break and enter, assault, unlawful confinement, and theft, following a home invasion of a 76-year-old woman.

The victim was tied to a chair while her home was ransacked and her vehicle and wallet were stolen.

Although the victim could not identify the intruder, the accused was found in possession of her stolen credit cards within two hours of the offence.

Applying the doctrine of recent possession, the court inferred that the accused was the intruder and found him guilty on all counts.

The appellant mother appealed a summary judgment order finding her child in need of protection and placing the child in extended society care without access.

The Divisional Court allowed the appeal, finding that the motion judge erred in concluding there were no material facts in dispute regarding the mother's parenting capabilities and exposure to domestic violence.

The Court also noted that the motion judge applied an outdated test for access, which was subsequently overturned by the Court of Appeal.

The judgment was set aside and the matter remitted for an expedited trial.

The appellant appealed an order granting interim without prejudice spousal support as a term of adjourning a settlement conference.

The appellant argued the judge lacked authority under Rule 17(8) of the Family Law Rules to make a substantive support order without a motion or sworn income evidence.

The Divisional Court dismissed the appeal, finding the judge had broad discretion to impose terms on an adjournment, particularly given the appellant's failure to provide financial disclosure and his delay tactics.

The appellant appealed a decision upholding a fee levied against him by the municipality for fire department services.

The municipality had invoiced the appellant's home insurer through a third-party billing agent, and when the insurer declined to pay, added the fee to the appellant's tax bill.

The Divisional Court allowed the appeal, finding that the municipal bylaw, properly interpreted, did not authorize charging the fee to the homeowner personally when the insurer declined to pay.

The municipality was ordered to reimburse the fee and penalties.

The appellant appealed an order requiring the demolition or removal of a shed built without a permit and other property cleanup orders.

The Divisional Court upheld the demolition order under the Building Code Act, noting the appellant admitted to building without a permit.

The court declined to transfer the appeal of the remaining orders under the Municipal Act to the Court of Appeal, finding the issues were largely moot as the municipality had already demolished the shed and removed derelict items.

The appeal was dismissed.

The applicant physician sought judicial review of an interlocutory decision by the Health Professions Appeal and Review Board (HPARB) refusing to remove the respondent hospital's counsel for an alleged conflict of interest.

The hospital moved to quash the judicial review application as premature, while the applicant moved to convert the application into an appeal and stay the HPARB proceedings.

The Divisional Court quashed the judicial review application, finding no exceptional circumstances justified interfering with the ongoing administrative process.

The court also refused to convert the application to an appeal, as the HPARB decision was interlocutory, and dismissed the motion for a stay.

The parties separated after a 23-year marriage.

The respondent husband, who was the primary breadwinner during the marriage, lost his job post-separation due to alcohol abuse and sought interim spousal support from the applicant wife, whose income had increased.

The respondent also sought co-signing authority over the children's RESP account.

The court dismissed the respondent's motion for spousal support, finding no compensatory or non-compensatory entitlement, and imputed an income of $85,000 to him due to intentional unemployment.

The court also denied the respondent co-signing authority for the RESP, granting sole signing authority to the applicant with an obligation to provide accounting.