SCJ 2012

A self-represented applicant sought costs against a provincial court judge personally after successfully obtaining relief relating to the judge’s refusal to remove him as counsel during a criminal trial.

The Superior Court considered whether costs could be awarded against the judge and whether the Crown should receive costs against the applicant.

The court held that judges enjoy absolute immunity from civil liability for acts performed in their judicial capacity under s. 82 of the Courts of Justice Act, barring any costs award against the judge.

The court also declined to award costs to the Crown against the applicant despite concerns about the merit of the motion.

Both costs requests were dismissed.

The accused was charged with two counts of sexual assault against a cognitively delayed adult complainant.

The incidents allegedly occurred in the bathroom and kitchen of an apartment where both were guests.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's testimony as implausible and inconsistent.

Despite some inconsistencies in the complainant's evidence, the court found the core allegations corroborated by a witness and the accused's own admissions of uninvited touching.

The accused was found guilty on both counts.

A court-appointed forensic accountant brought a motion seeking payment of a final invoice for investigative work performed in complex estate and trust litigation following the death of a family patriarch.

The expert had previously estimated that completion of the mandate would cost approximately $100,000 but later submitted a substantially larger final invoice.

The court held that the expert bore the onus of justifying the amount and found the explanation for the dramatic increase unpersuasive.

In the circumstances, the expert was required to abide by the prior representation to the court and the motion for payment of the additional amount was dismissed.

Requests for production of the expert’s working papers were found premature, and a request by other professionals for reimbursement of costs was deferred to the next case management judge.

The appellant appealed her conviction for operating a motor vehicle with a blood alcohol content over 80 milligrams.

She argued the trial judge erred in dismissing her section 11(b) Charter application for unreasonable delay and in finding that her breath samples were not taken as soon as practicable.

The summary conviction appeal court found no palpable and overriding error in the trial judge's characterization of the delay periods or his conclusion that the prejudice was minimal.

The court also upheld the finding that the breath samples, taken one hour and 36 minutes after the vehicle was stopped, were obtained within a reasonably prompt timeframe.

The appeal was dismissed.

Following a judgment declaring the respondent a vexatious litigant, the applicant sought costs of $36,868.25.

The respondent opposed the costs submissions, characterizing them as an abuse of process.

The court found the applicant's claim for partial indemnity costs to be fair and reasonable, noting the substantial preparation required to review the respondent's extensive litigation history.

The court discounted the amount sought for pleadings and fixed total costs payable by the respondent at $29,951.49.

The offender was convicted after trial of conspiracy to export MDMA and possession of MDMA for the purpose of exportation under the Controlled Drugs and Substances Act.

The evidence established participation as a principal intermediary in a large-scale scheme exporting tens of thousands of ecstasy pills from Canada to the United States.

The court emphasized the scale of the operation, the substantial potential profits, and the need for general deterrence in commercial drug trafficking involving international exportation.

Although the offender had no prior criminal record and had supportive personal circumstances, the court found that only a custodial sentence would be proportionate.

Concurrent six-year penitentiary terms were imposed along with firearms prohibition and DNA orders.

The Crown brought an application to admit a videotaped statement made by the accused to police.

The accused argued the statement was involuntary due to a missing minute of the video recording, an unrecorded cell block visit, and a failure to comply with a remand warrant.

The accused also argued that a previous ruling in a separate proceeding excluding the same statement should bar its admission based on issue estoppel.

The court held that issue estoppel does not apply to voluntariness rulings.

The court further found that the Crown proved beyond a reasonable doubt that the statement was voluntary, as the missing recording and technical warrant violation did not overbear the accused's will.

The accused pleaded guilty to possession of child pornography involving a substantial collection of images and videos depicting very young children in explicit sexual acts.

The court emphasized that denunciation and general deterrence are the dominant sentencing principles for child pornography offences, noting the continuing victimization caused by the possession and circulation of such material.

While the accused was a first offender with positive personal circumstances and a supportive family, aggravating factors included the disturbing nature of the material, the young age of the victims, the duration of offending, and the absence of evidence that the accused had sought specialized treatment.

The court rejected a defence proposal for a significantly lower custodial sentence and imposed a custodial term within the established range.

Ancillary orders included probation, sex offender registration, a prohibition order relating to contact with minors, DNA collection, and forfeiture of computer equipment.

The accused was charged with theft of a motor vehicle over $5,000 after failing to return a rented vehicle.

The Crown argued that the accused’s explanation—that he asked an acquaintance to return the vehicle—was implausible and riddled with inconsistencies, including discrepancies about phone calls and the identity of the alleged intermediary.

The defence maintained the case amounted only to suspicion and highlighted evidence that a person identifying himself as the intermediary had spoken with the rental company.

The court held that the Crown failed to adequately investigate key leads, including telephone records linked to the alleged intermediary.

Given the evidentiary gaps and credibility issues, the court found that the Crown had not proven guilt beyond a reasonable doubt.

The accused, charged with multiple firearms offences, brought a motion seeking disclosure of police records relating to a third party whom he alleged had coerced him to possess the firearms.

The defence argued the records were relevant to a defence of duress because they would demonstrate the third party’s reputation for violence, firearms, and drug activity.

Applying the two‑stage test for third‑party record disclosure from R. v. McNeil and R. v. O’Connor, the court first found the requested materials were likely relevant.

After reviewing the records, the court held that police occurrence reports involving allegations of violence, firearms, drugs, and confirmation of the third party’s nickname were necessary to permit full answer and defence.

Disclosure of those records was ordered, with identifying information of complainants redacted to protect privacy.

The accused applied for a directed verdict at the close of the Crown’s case on several firearms trafficking-related counts.

The motion argued that the Crown had failed to adduce evidence establishing the essential elements of transferring or offering to transfer a firearm and possession for the purpose of trafficking under ss. 99 and 100 of the Criminal Code.

The court reviewed the legal test for directed verdicts, including the requirement that the Crown present some evidence of culpability on each essential element and the limited weighing permitted when relying on circumstantial evidence.

Considering police observations of the accused displaying an object later identified as a prohibited firearm to two individuals, along with the seizure of firearms and money at the scene, the court held that a reasonable jury properly instructed could infer an offer to transfer.

The application for a directed verdict on the impugned counts was dismissed.

The plaintiff brought a motion to amend the Statement of Claim to replace the fictitious name 'John Doe' with the name of the defendant insurer's employee, Maria Diolanda.

The defendant opposed the motion, arguing it was an attempt to add a new party after the expiry of the limitation period.

The court found that the original pleading clearly pointed the 'litigation finger' at the person who sold the insurance policy, making this a case of misnomer rather than adding a new party.

The motion to correct the misnomer was granted.

The applicant Children's Aid Society brought an application to extend a secure treatment order for a 15-year-old Crown ward for a period of 180 days.

The youth suffered from schizophrenia and substance abuse issues, and had a history of high-risk behaviours including going AWOL and acting aggressively.

The court found that all five criteria under section 120(5) of the Child and Family Services Act were met, including that the youth suffered from a mental disorder, the treatment would prevent serious bodily harm, no less restrictive method was appropriate, and there was an appropriate plan for care upon release.

The application was granted and the secure treatment order was extended for 180 days.

The accused was charged with importation of cocaine into Canada and possession of cocaine for the purpose of trafficking.

The Crown relied primarily on intercepted telephone communications, surveillance evidence, and seizure of drug packaging and cocaine to establish participation in a common criminal design to import cocaine from Panama.

The defence argued that the Crown failed to prove the identity of the accused’s voice in the intercepted calls and failed to prove knowledge of the package contents.

The court accepted voice identification evidence, found the co‑conspirators’ exception to the hearsay rule applied, and concluded that the intercepted calls, surveillance observations, and surrounding circumstantial evidence established the accused’s knowledge and participation.

The court found beyond a reasonable doubt that the accused knowingly participated in the importation and trafficking scheme.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol level exceeding the legal limit, arguing ineffective assistance of trial counsel.

The alleged deficiencies included failure to allow the appellant to testify, inadequate note-taking, failure to seek severance of charges, failure to provide disclosure, and inadequate cross-examination.

The court applied the test for ineffective assistance requiring proof that counsel’s performance fell below reasonable competence and resulted in a miscarriage of justice.

The court found trial counsel was experienced, met with the client multiple times, considered strategic decisions carefully, and conducted a substantial cross-examination.

Any error in not providing a copy of the disclosure caused no prejudice because its contents were reviewed with the appellant.

The appellant failed to demonstrate either incompetence or resulting unfairness in the trial process.

The offender pleaded guilty to manslaughter after fatally stabbing his friend during a fist fight while intoxicated.

The Crown sought a sentence of 8 to 10 years, while the defence sought 6 to 8 years.

The court weighed aggravating factors, including the offender's use of a knife, his prior conviction for violence, and being on probation, against mitigating factors such as his guilty plea, remorse, and youth.

The court sentenced the offender to 8 years in the penitentiary, less 16 months credit for pre-sentence custody, resulting in a net sentence of 6 years and 8 months.

The offender pleaded guilty to possession of cocaine for the purpose of trafficking after being caught transporting 253 grams of cocaine, along with marijuana and oxycodone.

He was acting as a courier for financial gain and had no prior criminal record.

The court emphasized general deterrence and denunciation but also considered the offender's rehabilitative prospects.

The offender was sentenced to 14 months in custody, less credit for pre-sentence custody, followed by two years of probation.

The accused brought a motion seeking leave to cross-examine the affiant of a wiretap authorization.

The accused argued that the affidavit contained misleading information regarding blood found on a saw.

The court dismissed the motion, finding that cross-examination was unnecessary because the missing forensic information was already apparent on the record before the court.

The court noted that the affiant had relied on an investigative meeting and there was no suggestion of fabricated evidence.

A preliminary issue arose on a summary judgment motion regarding whether a party could reference the opinion and recommendations of an evaluator retained by the parties during a dispute resolution process connected to a construction project.

The moving party argued that the communications were protected by mediation confidentiality under the Rules of Civil Procedure.

The court held that regardless of the label applied to the process, the communications formed part of settlement discussions intended to resolve a litigious dispute and were therefore subject to settlement privilege.

The evaluator’s reports and recommendations, and any related documentation, were found to be privileged and inadmissible.

Portions of an affidavit referencing those materials were ordered struck.

The defendants brought a motion to strike affidavits filed by counsel for the plaintiff after cross-examination on an earlier affidavit.

The court held that the subsequent affidavit constituted an improper attempt to repair or explain earlier evidence following cross-examination, effectively amounting to a belated re‑examination contrary to subrule 34.11(3) of the Rules of Civil Procedure.

The court emphasized that re‑examination must occur immediately following cross‑examination and declined to dispense with the rule under Rule 2.03 because no justification was provided.

The June affidavit was struck, while a second affidavit from another lawyer was disregarded as unnecessary and duplicative of an existing transcript.