SCJ 2015

The accused was charged with sexual assault following an incident at a party.

The Crown alleged the accused engaged in non-consensual intercourse with the complainant while she was highly intoxicated and incapable of consenting.

The defence argued the sexual activity was consensual and occurred later in the accused's van.

The court found the complainant's evidence credible and supported by toxicology and forensic evidence, while rejecting the accused's version of events due to significant inconsistencies.

The court concluded the complainant was incapable of consent due to intoxication and found the accused guilty of sexual assault.

The appellant appealed a summary conviction for impaired care or control of a motor vehicle under s. 253(1)(a) of the Criminal Code.

The trial judge convicted after finding the accused impaired while seated in the driver’s seat of a vehicle with the engine running, relying on the statutory presumption of care or control.

On appeal, the court held the trial judge failed to analyze whether the presumption of care or control under s. 258(1)(a) had been rebutted by the accused’s evidence that he did not intend to drive.

The trial judge also failed to conduct a proper risk-of-danger analysis required where the Crown seeks to establish actual care or control.

Because the reasons did not reveal the necessary analytical steps, appellate review was impossible and the conviction could not stand.

The respondents brought a motion for summary judgment seeking dismissal of the applicant grandfather’s claim for access to his grandchildren under s. 21 of the Children's Law Reform Act.

The court considered Rule 16 of the Family Law Rules and the summary judgment principles articulated in Hryniak v. Mauldin.

Applying the grandparent access framework from Chapman v. Chapman, the court found there was no meaningful existing relationship between the grandfather and the children and no evidence that the parents acted arbitrarily in restricting contact.

The parents were demonstrably attentive to the children’s best interests and had previously allowed limited contact before concerns arose about the grandfather’s behaviour.

The evidentiary record disclosed no genuine issue requiring a trial, and the application for access was dismissed.

The litigation guardian for a plaintiff previously declared a person under disability brought a motion under Rule 7.08 of the Rules of Civil Procedure seeking court approval of a settlement dismissing the action without costs.

The plaintiff opposed the settlement and sought removal of the litigation guardian, asserting he was no longer under disability.

The court reviewed psychiatric evidence and the plaintiff’s conduct during the proceedings and found he remained incapable of appreciating the reasonably foreseeable consequences of litigation decisions.

The court further concluded the proposed settlement was in the plaintiff’s best interests given limitation issues, weak evidentiary support, and significant litigation risk.

The motion to remove the litigation guardian was denied and the settlement was approved.

The appellant appealed a sentence imposed after pleading guilty mid-trial to assaulting his spouse with a weapon by forcing her onto a heated stove element.

At sentencing the trial judge refused the appellant’s request for a conditional discharge and instead entered a conviction, suspended the passing of sentence, and imposed one year of probation.

On appeal, the appellant argued that the trial judge failed to properly consider mitigating factors including pre-sentence custody, rehabilitation efforts, and the severe immigration consequences of conviction.

The court held that even considering the matter afresh, a conditional discharge would be contrary to the public interest given the seriousness of the domestic violence offence and the need for denunciation and deterrence.

The appeal against sentence was dismissed.

The plaintiff sought leave under s. 138.8 of the Securities Act to pursue a secondary market misrepresentation class action arising from a mining company’s public restatement of prior financial statements related to “bill and hold” revenue recognition.

The court held that the explicit restatement acknowledging prior errors and internal control weaknesses created a reasonable possibility that the claim against the issuer could succeed at trial.

However, the individual officers and directors demonstrated a reasonable investigation defence through detailed evidence of their reliance on professional auditors and careful review of revenue recognition practices.

As a result, the statutory leave requirement was satisfied only as against the issuer company.

Leave was refused against the individual defendants.

During a trial for attempted murder, the Crown brought an application to admit evidence of the accused's prior discreditable conduct, specifically his alleged membership in a street gang called the 'Clean Up Crew'.

The Crown argued this evidence was necessary to establish motive and animus, as the shooting was allegedly ordered by a gang leader.

The court dismissed the application, finding that while the evidence was highly probative of motive, its prejudicial effect—the risk that the jury would convict based on gang membership alone—outweighed its probative value.

The Crown was permitted to lead evidence of the relationship between the parties without referencing gang affiliations.

The accused brought a Charter application seeking a stay of proceedings on the basis that the delay to trial violated his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total time from charge to anticipated trial was nearly two years.

Applying the framework from R. v. Morin, the court analyzed the length of delay, reasons for delay, waiver, and prejudice.

Although the court found approximately 15.5 months of Crown and institutional delay, this remained within the 16–18 month guideline for matters proceeding through two levels of court.

While the accused experienced some prejudice due to bail conditions and separation from family, the court concluded the prejudice attributable to delay was not significant enough to outweigh society’s interest in trying a serious drug importation offence.

The Crown brought applications under s. 486(2) of the Criminal Code to permit child complainants to testify by closed‑circuit television and under s. 715.1 to admit their video‑recorded statements.

The complainants were between nine and eleven years old and their statements had been recorded shortly after the alleged incidents.

The defence did not oppose the legal basis for the applications but sought procedural safeguards regarding the functioning of the technology and guidance regarding the witnesses’ obligation to tell the truth.

The court confirmed the presumption of testimonial capacity for witnesses under 14 under s. 16.1 of the Canada Evidence Act and directed that the children promise to tell the truth without questioning about their understanding of the promise.

The court granted the Crown’s requests and ordered the procedure to proceed accordingly.

Following reasons on a motion to change involving a mobility dispute, the court determined the issue of costs.

The responding party had been clearly successful on the motion, particularly on the central mobility issue, triggering the presumption under Family Law Rule 24 that a successful party is entitled to costs.

The court rejected allegations that the moving party acted in bad faith, finding no sinister motive despite vigorous litigation conduct.

Considering the importance and complexity of the issues, the volume of the record, and the overall circumstances, the court awarded costs on a substantial indemnity basis.

The Crown appealed an acquittal on a charge of excess blood alcohol where the trial judge excluded breathalyzer readings after finding a breach of the accused’s s. 10(b) Charter right to counsel.

The summary conviction appeal court held that the trial judge’s reasons for excluding the evidence were inadequate and prevented meaningful appellate review.

The trial judge also erred in law by failing to apply the tripartite framework under s. 24(2) of the Charter established in Grant.

While the finding of a s. 10(b) breach was open on the evidence, the exclusion analysis was legally deficient.

The acquittal was set aside and a new trial ordered.

Les demandeurs sollicitent l’autorisation d’interjeter appel du refus d’une injonction Mareva visant les biens de la défenderesse.

Ils soutiennent que le juge de motion a appliqué le critère erroné de la « forte apparence de droit » plutôt que celui d’une « simple apparence de droit ».

Le tribunal conclut qu’il existe des décisions incompatibles concernant le critère applicable aux injonctions Mareva et que la question revêt une importance suffisante pour justifier l’autorisation d’appel.

Le tribunal accorde donc l’autorisation d’interjeter appel et rend une ordonnance provisoire restreignant certains transferts d’actifs afin de préserver l’objet de l’appel.

La demande de sursis est toutefois refusée puisque l’injonction Mareva initiale avait été refusée.

The appellant appealed a summary conviction for impaired driving (care and control) arising from being found asleep in a parked vehicle with the engine running.

The appellant argued the trial judge failed to find that the evidence raised a reasonable doubt regarding impairment and failed to adequately explain the rejection of the defence evidence that the behaviour observed by police was caused by fatigue rather than alcohol consumption.

The court held that the trial judge’s credibility findings and factual determinations were supported by the evidence and entitled to significant appellate deference.

The reasons, read as a whole, sufficiently explained the rejection of the defence theory and the application of the W.D. framework.

No error of law, misapprehension of evidence, or miscarriage of justice was established.

The applicants, who were sought for extradition to the United States for telemarketing fraud, sought to adduce a cell phone video during their committal hearing.

They alleged the video showed a police officer intimidating them into relinquishing seized property and discouraging them from fighting extradition.

The court viewed the video and found it did not support the applicants' allegations of coercion.

The court concluded the video was not relevant to the committal hearing and dismissed the application to adduce it.

The defendant moved to set aside the power of sale of his partially-built cottage and to set aside a default judgment arising from mortgage enforcement proceedings.

The court considered the statutory right of redemption under the Mortgages Act and the defendant’s claim that the property was sold below market value.

The court found that the right of redemption had expired when the agreement of purchase and sale was entered into and that the defendant lacked the ability to redeem the mortgage in any event.

Evidence from the listing agent and appraisals demonstrated that the property received reasonable market exposure and that the sale price was not improvident.

The court also declined to set aside the default judgment, finding the defendant had been personally served, provided no explanation for failing to defend, and had no plausible defence to the mortgage default.

Following the release of a family law judgment, the applicant requested corrections relating to spousal support arrears and the valuation and division of a federal pension.

The court convened a hearing to address the parties’ correspondence and clarify the issues.

Based on updated information and the parties’ agreement, the court amended the earlier judgment to revise the amount of retroactive spousal support owing and corrected the pension division to reflect the maximum transferable amount under the Public Service Superannuation Act pension regime.

The revised order required the applicant to apply for pension division rather than make an immediate lump‑sum payment.

The court also clarified the distribution of proceeds from the sale of the matrimonial home.

The Crown brought an application for a ruling on the voluntariness of statements made by the accused at Primary and Secondary Inspection at Pearson International Airport, and during an RCMP interview following his arrest for importing marijuana.

The court found that the accused was not detained during routine questioning at Secondary Inspection prior to the discovery of the drugs.

The court also found that the accused's subsequent statements to the RCMP were the product of an operating mind and made voluntarily, without fear, oppression, threat, or inducement.

The statements were ruled admissible.

Sentencing decision for trafficking in a controlled substance and possession of proceeds of crime arising from the transfer of large quantities of steroid pills and cash between vehicles.

Police seized approximately 220,000 steroid pills and $14,000 in currency.

The court considered the purposes and principles of sentencing under the Criminal Code and the Controlled Drugs and Substances Act, including denunciation and deterrence.

While the offence involved a substantial commercial quantity of drugs, the offender was a first-time offender with positive community support and no aggravating factors under the CDSA.

The court imposed a conditional sentence rather than incarceration.

Following a jury trial concerning a motor vehicle collision in which liability had been admitted, the jury found that the accident did not cause or contribute to the injuries alleged by the deceased plaintiff.

The defendant transit authority sought costs.

The court held that the successful defendant was entitled to costs on a partial indemnity scale but reduced the fees claimed after finding aspects of the bill excessive.

The court further held that the estate trustee should not be personally liable for costs where she merely continued litigation commenced by the deceased.

However, due to counsel’s fundamental misunderstandings in presenting the damages case, the court ordered that a portion of the costs be paid personally by plaintiff’s counsel under Rule 57.07.

High-conflict custody dispute where each parent had primary care of one child following separation.

The court found that the parties were incapable of effective communication, rendering joint or parallel parenting unworkable.

Relying on expert evidence from the Office of the Children’s Lawyer and Children’s Aid Society, the court emphasized the importance of siblings being raised together and determined that the mother was the more suitable custodial parent despite flaws in both parties’ conduct.

Sole custody of both children was granted to the mother with structured access to the father.

The court also addressed child support, retroactive support, spousal support, and equalization of net family property, ultimately declining spousal support and equalization while establishing prospective child support and a credit mechanism for retroactive support.