Sharon Sabourin

This decision addresses the admissibility of evidence and the applicability of solicitor-client privilege in the context of a Gardiner hearing at sentencing for fraud.

The accused, Stephenie Chevis, pleaded guilty to fraud involving misappropriation of funds from a law firm's trust and general accounts.

The court considered whether evidence relating to certain transactions involving other clients of the law firm, potentially protected by solicitor-client privilege, could be admitted.

The judge analyzed the scope of privilege, distinguishing between protected communications and public legal instruments such as wills and mortgages once acted upon.

The court also considered the "innocence at stake" exception to privilege but found no need to pierce privilege at this stage, as the accused was not seeking to elicit privileged communications.

The Applicants (grandparents) brought a motion to enforce an interim contact order for their two grandchildren, alleging the Respondent mother had failed to comply with the previous order.

The court denied the Respondent's adjournment request, deeming it a delay tactic contrary to the children's best interests.

The court found the Respondent was actively preventing contact and influencing the children against their grandparents.

The motion for enforcement was granted, with the court ordering a new, detailed contact schedule, involvement of the Office of the Children's Lawyer, and a police enforcement clause as a last resort.

Costs were awarded to the Applicants.

The applicant father sought expanded parenting time and decision-making responsibility for his two children, and reconciliation counselling for the older child.

The court considered the best interests of the children, including the impact of historical family violence and the mother's potential alienation.

The court ordered increased unsupervised parenting time for the younger child, and immediate commencement of therapeutic reconciliation counselling for the older child.

The court declined to order joint decision-making at this stage and denied the applicant's request for security for costs, while emphasizing that prior cost orders must be paid.

S.S. was convicted of multiple offences, including sexual assault, and the Crown sought a dangerous offender designation.

S.S. applied to re-open the trial and for habeas corpus based on a recanting affidavit from the complainant.

The court applied the rigorous test for re-opening a defence case after conviction, focusing on the cogency of the new evidence.

The complainant testified that she signed the affidavit under pressure and that its contents were largely untrue, reaffirming her trial evidence.

The court found the recantation lacked sufficient cogency to warrant re-opening the trial, as the complainant's credibility was already thoroughly assessed at trial and there was corroborating evidence.

The applications were dismissed.

The Crown sought an order of certiorari to quash discharge orders made by a preliminary inquiry judge on two counts: possession of cocaine for the purposes of trafficking and possession of proceeds of crime.

The preliminary inquiry judge had discharged the accused due to a lack of evidence, specifically the absence of a certificate of analysis for the suspected cocaine and insufficient evidence linking seized money to criminal activity.

The Superior Court dismissed the Crown's application, finding no jurisdictional error in the preliminary inquiry judge's decision.

The court reiterated that an erroneous conclusion on the sufficiency of evidence, even if a reviewing court would differ, does not constitute a jurisdictional error, provided the judge considered the whole of the evidence.

It also highlighted the difficulty in inferring the nature of an unremarkable white powder as cocaine without scientific analysis, distinguishing it from more easily identifiable substances like marijuana.

Mr. Shultz applied under s. 520 of the Criminal Code for a review of a detention order.

The original detention was based on the secondary ground (public safety) due to a lengthy criminal record with violent offences.

A new release plan was proposed with a childhood friend as surety.

The court found the new plan inadequate, citing the proposed surety's lack of awareness of the accused's record and the unreliability of a third party involved in the employment plan.

The court also found detention necessary on the tertiary ground (public confidence in justice administration) due to the gravity of the offences (aggravated assault, attempted drowning) and the Crown's intention to seek a dangerous offender designation, which could lead to indefinite imprisonment.

The application for review was dismissed.

The accused brought an application for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

Applying the R. v. Jordan framework, the court calculated a total delay of approximately 90 months from charge to anticipated trial end.

After subtracting 25 months (750 days) attributed to defence delay and 36 days for exceptional circumstances, the net delay remained 65 months, significantly exceeding the 30-month presumptive ceiling for Superior Court cases.

The Crown failed to rebut the presumption of unreasonable delay, leading to a finding that the accused's s. 11(b) right was infringed and a stay of proceedings was entered.

Following guilty pleas to criminal negligence causing death and trafficking in drugs, the court conducted a Gardiner hearing to determine aggravating and mitigating factors for sentencing.

The evidence established that the accused possessed and crushed opioid capsules at a gathering, leaving the drugs accessible for others to ingest.

A guest consumed the drugs and later died from an overdose.

The court found that the accused knowingly made the drugs available and failed to prevent their consumption despite knowledge of the deceased’s substance abuse history.

These circumstances were proven beyond a reasonable doubt as aggravating factors to be considered at sentencing.

Following the wife's unsuccessful appeal of a temporary family law order, the husband sought partial indemnity costs of $13,369.72.

The court declined to award costs against the wife's former counsel personally, finding the conduct did not meet the required threshold.

Considering the wife's limited financial means and the overriding principle of reasonableness, the court fixed costs at $5,000 and deferred payment until the parties equalize their net family property.

The mother appealed a temporary order requiring her to return the children to Timmins from Toronto.

She had unilaterally moved the children to Toronto pending a mobility motion.

The appeal judge found that the motion judge did not err in principle, did not fail to apply the best interests of the child test, and did not give undue weight to the mother's conduct in unilaterally moving the children.

The appeal was dismissed.