Sharon L. Murphy

The Crown appealed the acquittal of the respondent on four counts of uttering death threats.

The trial judge had dismissed the charges, finding that the Crown had not established the actus reus or mens rea, concluding that the statements were "crazy talk" or "blowing off steam" given the respondent's physical injuries and mental state.

The appellate court dismissed the Crown's appeal, upholding the trial judge's findings, emphasizing the deference owed to a trial judge's factual assessments and application of legal standards to facts, and finding no palpable and overriding error.

The accused was charged with multiple offences, including aggravated assault against a three-month-old infant and assault with a weapon against his girlfriend, following a domestic dispute.

The Crown relied heavily on the girlfriend's videotaped police statement, which she recanted at trial.

Applying the W.D. framework, the court found the accused guilty of simple assault for intentionally dropping the infant's bassinette and for placing a pillow over his girlfriend's face.

However, the court acquitted the accused of aggravated assault and uttering threats, finding reasonable doubt regarding the cause of the infant's severe head injuries and the exact words spoken during the pillow incident.

In a child protection status review application, the respondent father sought an order granting access to the child for himself and for non-parties (the paternal aunt and paternal uncle).

The maternal grandparents, who had been granted custody of the child, opposed the access order for the non-parties, arguing the court lacked jurisdiction to grant access to persons who were not parties to the proceeding.

The court determined that it had jurisdiction to make access orders under section 58 of the Child and Family Services Act within the ongoing status review application, and that it was not a prerequisite for granting access that a person be a party to the proceeding.

The court found no unfairness to the maternal grandparents, as they had full notice of the paternal relatives' claims through active case management and disclosure.

The Crown applied to remove defence counsel due to a conflict of interest after the same lawyer had represented both an accused and a key Crown witness who later provided incriminating statements.

The accused sought a stay of proceedings or exclusion of the witness’s evidence under ss. 7 and 11(d) of the Charter, arguing police inducements and delayed disclosure compromised their fair trial rights.

The court found that while police comments undermining the witness’s confidence in her lawyer were inappropriate, the accused could not rely on alleged Charter breaches affecting the witness, and no actual prejudice to their ability to make full answer and defence was established.

The court declined to grant a stay or exclude the witness’s evidence but held the conflict required removal of counsel.

The accused would need to obtain new counsel and a new trial date.

The respondent mother brought a motion to remove Mark Hurley as counsel of record for the Windsor-Essex Children's Aid Society in a pending status review proceeding involving four children.

The motion was based on a conflict of interest arising from the fact that Hurley's law partner, Frank Philcox, had previously represented the respondent mother in protection proceedings involving the same children.

The court found that a solicitor-and-client relationship existed between the mother and Philcox, that confidential information was shared, and that insufficient safeguards were in place to protect the mother's solicitor-client privilege.

The court granted the motion and ordered Hurley's removal from the file.