SCJ 2013

Sentencing following a jury conviction for importing heroin into Canada and possessing heroin for the purpose of trafficking.

The offences involved approximately 398 grams of heroin imported through a parcel shipment and an additional quantity of heroin located at the offender’s residence.

The court considered aggravating factors including the quantity and purity of the drug, the offender’s role as an organizer rather than a courier, and the sophistication of the importation scheme.

Mitigating factors included the offender’s lack of criminal record, family circumstances, and employment history.

Applying the proportionality principle, the court imposed consecutive sentences totalling twelve years’ imprisonment with credit for pre-trial custody, along with DNA and weapons prohibition orders.

The offender was sentenced after being convicted at trial of introducing counterfeit currency into Canada and possessing counterfeit money.

She was discovered at an international airport carrying 1,990 counterfeit US $100 bills concealed in luggage after returning from Peru.

The court emphasized the seriousness of large-scale counterfeit currency offences and the importance of denunciation and general deterrence, particularly where the counterfeit bills were of high quality and the offence involved planning and cross-border importation.

Although the offender was a first offender, acted as a courier, and had difficult personal circumstances including sole support of three children, these mitigating factors did not outweigh the gravity of the offence.

A custodial sentence of 15 months' imprisonment, less credit for pre-sentence custody, was imposed.

Police conducted surveillance on a residence linked through confidential informants to a suspected large‑scale cocaine trafficker.

Officers observed an individual leave the residence carrying a shoebox, meet briefly with the accused in a vehicle, and transfer the box before the accused drove away.

The accused was arrested shortly afterward and police discovered a kilogram of cocaine in the shoebox during a vehicle search.

The accused argued the arrest lacked reasonable and probable grounds and that the search violated ss. 8 and 9 of the Charter.

The court held that the informant information, combined with police surveillance and the officer’s experience in drug investigations, established objectively reasonable grounds for arrest and justified the search incident to arrest.

The Charter application was dismissed and the seized cocaine was admitted as evidence.

The accused brought a pre‑trial application seeking exclusion of evidence relating to firing‑pin indentations on three cartridges recovered from the scene of an alleged robbery and attempted murder.

Police had test‑fired two of the cartridges during the investigation, which obliterated the original firing‑pin impressions and prevented later forensic comparison with a handgun recovered a year later.

The accused argued that the loss of the original impressions constituted unacceptable negligence and breached their right to make full answer and defence under s. 7 of the Charter, warranting exclusion of the evidence.

The court found that the police conduct amounted to unacceptable negligence and therefore constituted a breach of s. 7.

However, the court held that exclusion of the evidence was not an appropriate remedy because the potential prejudice was speculative and could be addressed through cross‑examination and a jury instruction regarding the Crown’s failure to preserve evidence.

The plaintiffs sought partial summary judgment declaring that no binding contract existed for a nationwide roll‑out of a stored value “Tim Card” payment system and that they had not misused confidential information obtained during a pilot program.

The defendants alleged that a binding agreement had been reached or, alternatively, that the plaintiffs breached confidentiality obligations and a duty to negotiate in good faith after abandoning negotiations and conducting an RFP process.

The court held that the evidence showed only an agreement in principle and ongoing negotiations, not a finalized contract, as material terms remained unresolved and the parties’ conduct did not demonstrate a binding commitment.

The court also found no misuse of confidential information, concluding that the operational data from the pilot project belonged to the restaurant chain and did not constitute protectable confidential information of the technology vendor.

However, genuine issues remained regarding whether the plaintiffs breached a contractual obligation to negotiate in good faith.

A tenant applied for repayment of $7,500 characterized as a security deposit and sought reimbursement of prepaid rent totaling $90,000 for a one‑year residential lease.

The court considered whether the Residential Tenancies Act prohibits demanding or accepting prepaid rent and whether a tenant may voluntarily prepay rent.

The court held that while ss.105 and 106 of the Act prohibit landlords from demanding prepaid rent or unlawful security deposits, they do not prohibit a tenant from voluntarily offering prepaid rent nor prevent a landlord from accepting it.

Based on the evidence, including communications between the parties’ real estate agents, the court found the tenant voluntarily offered to prepay the annual rent.

However, the $7,500 security deposit for damages contravened the Act and had to be returned.

The accused, an anesthesiologist, was charged with 21 counts of sexual assault against female patients under his care during surgeries.

The Crown alleged that the accused used the cover of surgical draping and the patients' state of conscious sedation to commit the assaults undetected.

The defence argued that the assaults were physically impossible, could not have occurred without detection, and that the patients' memories were unreliable due to drug-induced hallucinations.

The court rejected the defence arguments, finding that the accused had the opportunity to commit the offences and that the drugs administered do not cause sexual hallucinations.

Relying on the objective improbability of coincidence as similar fact evidence, the court found the accused guilty on all 21 counts.

The offender was convicted of second-degree murder and assault causing bodily harm in relation to the death of his common-law partner's two-year-old son.

The child suffered extensive, repeated blunt force trauma while in the offender's care, culminating in fatal abdominal injuries.

The court sentenced the offender to life imprisonment for second-degree murder with a 15-year period of parole ineligibility, emphasizing denunciation and deterrence for the brutal breach of trust against a vulnerable infant.

A concurrent sentence of five years was imposed for the assault causing bodily harm.

In a will validity application under the Succession Law Reform Act, the respondents moved for a non-suit alleging that the propounders had failed to prove formal execution because one attesting witness did not actually see the testator sign the will.

The court considered whether the statutory requirement that the testator sign or acknowledge the signature in the presence of two witnesses was satisfied.

Applying the civil standard of proof and principles governing suspicious circumstances, the court held that the evidence supported a finding that the signature was made in the presence of both witnesses or, alternatively, acknowledged in the presence of the second witness when he was asked to sign as a witness.

The court rejected the argument that strict non-compliance invalidated the will and concluded that the statutory requirements had been met on the evidence.

The moving party sought reconsideration of a costs order arising from a garnishment motion related to enforcement of a judgment exceeding $400,000.

The court reviewed its earlier endorsement under Rule 59.06(1) of the Rules of Civil Procedure, which allows amendment of an order containing an accidental slip or omission.

The court found that it had inadvertently failed to address relief sought in an amended notice of motion requiring a numbered corporation and an individual to disgorge funds received from a third party for the judgment debtor’s services.

Concluding the omission resulted from an accidental oversight, the court amended its prior endorsement to require payment of the amounts received, with interest, to the sheriff pursuant to the garnishment.

The motion to set aside the earlier costs order was dismissed.

The offender was convicted following trial of sexual exploitation of a young person in a position of trust and of mischief for interfering with a motor vehicle.

The sexual relationship began when the complainant was 15 and continued for approximately two years, involving numerous acts of intercourse and a significant age disparity.

The court considered aggravating factors including prolonged abuse of trust, repeated sexual acts, lack of insight or remorse, and the lasting psychological harm described in victim impact statements.

Mitigating factors included the offender’s lack of prior criminal record, stable employment history, and a psychiatric assessment indicating a low risk of reoffending.

Emphasizing denunciation and deterrence, the court rejected a conditional sentence and imposed a custodial sentence.

A family law motion concerning parenting time over the Christmas holiday period.

The parties consented to a schedule granting the respondent specified holiday access with the children on three defined periods between December 2013 and January 2014.

The court ordered the schedule on consent and adjourned the balance of the motion to a later date for further consideration.

The parties were granted leave to file additional materials before the adjourned hearing and costs were reserved.

The applicant, charged with child pornography offences, brought an application for a stay of proceedings alleging breaches of his rights under ss. 7, 8, 9, and 10 of the Charter.

The court found no breach of ss. 8 or 10, as the police questioning at his home did not constitute a search or psychological detention.

However, the court found breaches of s. 9, due to an arbitrary three-day detention based on faulty police information, and s. 7, due to mistreatment in custody including the denial of medication for his obsessive-compulsive disorder.

Despite these breaches, the court dismissed the application for a stay, concluding that the prejudice could be adequately addressed through other remedies, such as a sentence reduction if convicted.

The applicant brought a motion to vary a 2005 child support order, alleging the respondent’s income had increased and seeking an increase in support retroactive to 2010 along with reimbursement of special and extraordinary expenses.

The respondent disputed the claims and argued that some expenses had already been offset through tax credits and that he had paid certain costs directly.

The court determined the respondent’s income to be $39,900 annually and considered the factors governing retroactive child support.

While the court found some misconduct in the respondent’s failure to provide financial disclosure, it concluded the applicant had not justified delaying the motion for several years.

Child support was increased and made retroactive only to January 1, 2012, and the respondent was ordered to reimburse a portion of special and extraordinary expenses.

The accused pleaded guilty to assault causing bodily harm, assault with a weapon, and assaulting a peace officer.

The accused attacked the victim with a knife and bit him, causing bodily harm, and later spat at a police officer.

The court considered the accused's extensive criminal history and the viciousness of the attack as aggravating factors, and the guilty pleas and alcohol issues as mitigating factors.

The court imposed a total sentence of 15 months imprisonment, reduced to 283 days after credit for pre-sentence custody, along with a two-year probation order and a 10-year weapons prohibition.

A client brought a motion opposing confirmation of a solicitor–client Certificate of Assessment and seeking reimbursement of fees and disbursements paid to the solicitor in a matrimonial proceeding.

The client argued that he was unable to attend the continuation of the assessment hearing due to circumstances beyond his control and raised multiple allegations regarding the solicitor’s billing practices and services.

The court held that the client failed to provide a satisfactory explanation for his absence and that his attempts to notify the court were inadequate.

On the merits, the court found the solicitor’s accounts to be supported by documentation and reasonable given the scope of the matrimonial litigation.

The client failed to establish valid grounds to reopen the assessment.

In a defamation action brought by a municipal councillor concerning a statement published by town council and later republished by a newspaper, the plaintiff sought to introduce similar fact evidence relating to a separate defamation action previously commenced and later discontinued by one of the defendants.

The plaintiff argued that the earlier litigation had been characterized as SLAPP litigation and was relevant to establish malice.

The court held that the prior action had minimal probative value in determining whether the impugned statement was defamatory or whether available defences applied.

The court further concluded that admitting the evidence risked sidetracking the jury trial into collateral issues unrelated to the pleadings.

The motion to admit the similar fact evidence was therefore dismissed.

The applicant father brought a motion for temporary sole custody of the parties' 11-year-old child, seeking to supersede an existing New York custody order that granted physical custody to the respondent mother.

The child had resided in New York with the mother for over a year prior to the application.

The court determined that sections 42 and 43 of the Children's Law Reform Act applied to the jurisdictional analysis.

Finding that the child's habitual residence had reverted to New York and that the balance of convenience favoured New York as the forum with the most substantial evidence, the court declined jurisdiction and dismissed the application.

The defendant brought a motion under Rule 25.11 to strike paragraph 23 of the plaintiff’s reply and defence to counterclaim, arguing the pleading was improper and unsupported.

The court held that the impugned paragraph contained material allegations capable of proof relating to defects in workmanship, materials, and installation services connected to a log home construction system.

The plaintiff was entitled to advance an alternative theory that any alleged defects were caused or contributed to by the defendant rather than by the plaintiff.

At the pleadings stage, striking the allegation would improperly resolve disputed facts.

The motion was dismissed as the defendant failed to show the pleading was clearly futile, frivolous, vexatious, or an abuse of process.

Media organizations applied for access to and the ability to publish the contents of an Information to Obtain supporting a search warrant in a major police investigation.

The Provincial Crown and an accused sought a publication ban on references to non-consensual intercepted private communications, arguing protection of the wiretap regime and fair trial rights.

Applying the Dagenais/Mentuck test, the court held that generalized concerns about the wiretap regime and speculative risks to a future jury trial were insufficient to justify restricting openness.

The court emphasized the strong presumption of open courts and the public interest in scrutiny of judicial authorizations and police investigations.

Balancing the competing interests, the court concluded that the salutary effects of a publication ban did not outweigh the significant deleterious effects on freedom of expression and public accountability.