Stacy Jo Haner

This decision addresses a "focused hearing" within a child protection proceeding to determine if two children (ages 13 and 9) are in need of protection under the Child, Youth and Family Services Act (CYFSA).

The court found that the children were in need of protection under sections 74(2)(b)(i) and (ii) of the CYFSA, primarily due to the mother's mental health issues and associated unpredictable, harmful behaviours, which created a risk of physical and emotional harm.

The court emphasized the utility of focused hearings as a judge-driven procedural tool to streamline child protection cases and achieve the objectives of a just hearing, noting that such hearings are trials requiring trial-worthy evidence.

The appellant appealed a motion judge's decision staying her application for sole custody of an Indigenous child under the Children's Law Reform Act.

The child was placed with the appellant pursuant to a Customary Care Agreement under the Child, Youth and Family Services Act.

The motion judge stayed the custody application under section 103 of the CYFSA, finding that the customary care agreement ousted the custody application.

The Superior Court dismissed the appeal, holding that while section 103 may not strictly apply to customary care agreements, the legislative intent of the CYFSA prioritizes customary care for Indigenous children, and the court's inherent jurisdiction under section 106 of the Courts of Justice Act properly supported the stay.

A child protection society brought a motion to place four children in the care of their paternal grandparents, subject to society supervision.

The mother opposed the motion and sought return of the children to her custody.

The court found that the mother had proactively addressed the addiction issues that originally prompted the society's intervention, had completed treatment, and was meaningfully engaged in ongoing services.

The court determined that the protection concerns could be adequately mitigated through a supervision order and that returning the children to the mother's care was consistent with Anishinaabe cultural traditions and the remedial purposes of the Child, Youth and Family Services Act.

The court ordered the children placed in the mother's custody subject to supervision and specific conditions.

The applicants (maternal grandparents) brought a motion seeking an order that police records from the Greater Sudbury Police Service and records from the Children's Aid Society of the Districts of Sudbury and Manitoulin be declared admissible as evidence for the truth of their content in a custody and access dispute.

The respondents (biological parents) opposed the motion on the grounds that the documents contained inadmissible hearsay and opinion evidence.

The court granted the motion in part, holding that the documents qualify as business records under section 35 of the Ontario Evidence Act and are admissible for the truth of their content, subject to specific limitations regarding hearsay and opinion evidence.

The applicants (maternal grandparents) brought a motion requesting an order pursuant to sections 89 and 112 of the Courts of Justice Act that the Office of the Children's Lawyer be requested to investigate the circumstances of claims for custody and/or access to the child.

The respondents (biological parents) opposed the motion.

The court granted the motion, finding that the involvement of the Office of the Children's Lawyer would be helpful in determining the child's best interests given the complex factual disputes, the child's age and ability to express herself, and the child protection overtones in the case.

The Crown charged Brian Jordan Ense and Joseph Bernard Edward Ense with sexual assault contrary to section 271 of the Criminal Code.

The charges arose from an alleged incident on November 5, 2016, at a house party on Manitoulin Island.

The complainant, a 16-year-old girl, testified that she was sexually assaulted by both men while intoxicated.

Joseph Ense's charges were withdrawn after his death during the trial.

The court found Brian Jordan Ense guilty of sexual assault based on the complainant's testimony, DNA evidence linking him to the complainant, and corroborating evidence from other witnesses.

The court rejected arguments regarding continuity of DNA evidence and credibility challenges to the complainant's testimony, finding her evidence credible and reliable despite inconsistencies between her police statement, 911 call, and trial testimony.

The accused pleaded guilty to aggravated assault and stood trial for aggravated sexual assault.

The complainant, who was highly intoxicated, was violently beaten and choked into unconsciousness by the accused.

While the court found the complainant's evidence of vaginal penetration insufficiently reliable due to her intoxication and head injuries, the court convicted the accused of aggravated sexual assault based on his actions of unfastening and lowering the unconscious complainant's pants with sexual intent.

The applicant sought a dismissal of sexual assault charges under s. 11(b) of the Canadian Charter of Rights and Freedoms due to alleged unreasonable delay.

The court calculated the total delay from the laying of the information to the projected trial completion, deducting periods attributable to the defense, including delays in retaining counsel, medical issues of counsel, and counsel's unavailability for trial dates.

The court found the net delay to be 29.75 months, which is below the 30-month presumptive ceiling for Superior Court cases.

The applicant failed to demonstrate that the delay was unreasonable, and the application for dismissal was denied.

The accused was charged with assault contrary to section 266 of the Criminal Code for an incident occurring on May 6, 2016, in Wikwemikong.

The complainant, the mother of the accused's grandchild, attended the accused's residence to retrieve her young daughter after receiving information that the accused was intoxicated.

A physical altercation ensued between the accused and the complainant.

The accused raised defences of self-defence and defence of property.

The court found the accused guilty of assault, rejecting both defences on the basis that the accused was not acting reasonably in the circumstances and that the complainant was attempting to leave the property with her child when attacked.

The accused pleaded guilty to multiple offences including assault causing bodily harm against his former partner, mischief, theft under $5,000, failure to comply with a probation order, and failure to appear in court.

The sentencing involved consideration of Gladue factors as the accused is a member of the M'Chigeeng First Nation.

The court imposed an 8-month conditional sentence with strict conditions including house arrest for the first four months, followed by a curfew, and 16 months of probation.

The sentence emphasized denunciation and deterrence while considering the accused's rehabilitative potential and Aboriginal heritage.

The applicants, charged with murder, sought to change the trial venue from Gore Bay to Sudbury, citing pre-trial publicity, a small potential jury pool, and logistical inconveniences.

The court dismissed the application, finding that the applicants failed to demonstrate, on a balance of probabilities, that a fair trial could not be achieved in Gore Bay despite the alleged prejudice, which could be mitigated by jury selection safeguards.

The court also noted the potential for the application to cause undue delay and ordered two jury panels to be summoned for jury selection.

The accused, charged with second degree murder, brought applications under s. 8 of the Charter to exclude evidence derived from the warrantless seizure of his pants, shoes, and sweater.

The court found that the accused had a reasonable expectation of privacy in the clothing and that the warrantless seizures violated his s. 8 rights, as there were no exigent circumstances.

Applying the Grant framework under s. 24(2) of the Charter, the court excluded the evidence derived from the pants due to a lack of evidence regarding their seizure, but admitted the evidence derived from the shoes and sweater, finding that their admission would not bring the administration of justice into disrepute.

The Crown brought an application to admit the hearsay statements of a deceased victim in a second-degree murder trial under the principled exception to the hearsay rule.

The victim had made statements to police, medical staff, and family members before dying from his injuries.

The court applied the test for threshold reliability, noting concerns about the victim's perception due to intoxication, medical condition, and language barriers.

Furthermore, the victim's statements identifying the attacker as a woman contradicted the Crown's theory that the male accused was the attacker.

The court found the statements lacked sufficient threshold reliability and dismissed the application.

During a jury trial for sexual assault, the accused brought a motion for a directed verdict of acquittal on one count, arguing there was no evidence he was awake during the alleged touching and therefore no proof of the required intent.

The complainant testified that she awoke to find a hand under her clothing but could not say whether the accused was awake.

Applying the test from Monteleone, the court held that where there is any admissible evidence that could support a conviction if believed by a properly instructed jury, a directed verdict is inappropriate.

The conflicting evidence regarding whether the accused was awake raised a factual issue for the jury to resolve.

The motion for a directed verdict was therefore dismissed.

During a jury trial for sexual offences, the Crown sought an order permitting the complainant to testify outside the courtroom using a screen or CCTV pursuant to s. 486.2(2) of the Criminal Code.

The complainant, who had recently turned 18, stated she felt uncomfortable testifying in the presence of the accused and defence counsel and believed remote testimony would allow her to speak more freely.

The court assessed whether the requested accommodation would facilitate a full and candid account while ensuring fairness to the accused and avoiding prejudice before the jury.

The judge concluded the complainant’s fears were not well-founded but determined that use of a screen in the courtroom would balance privacy interests and trial fairness.

The complainant was permitted to testify using a screen, accompanied by jury instructions that the procedure was not indicative of guilt.

The accused applied for bail after being charged with first degree murder arising from a group assault that culminated in the fatal stabbing of the deceased by a co‑accused.

The court considered the primary, secondary, and tertiary grounds for detention under s. 515(10) of the Criminal Code.

Although the Crown argued the evidence was overwhelming and that detention was necessary to maintain public confidence, the court found the accused’s role in the fatal act was uncertain and that a strict release plan with multiple sureties, house arrest, and extensive conditions sufficiently mitigated risks.

The proposed sureties were found credible and capable of supervising the accused.

The court concluded detention was not justified and ordered release on stringent conditions.

The accused was charged with sexually assaulting his daughter on April 29, 2012.

The complainant testified that the accused came to her basement bedroom early in the morning after picking her up from an all-night party, and sexually touched her without consent.

The accused denied the allegations, claiming he lacked the physical ability to commit the offence due to arthritis, rheumatism, and previous injuries.

The court found the complainant's evidence credible and rejected the accused's testimony as evasive.

The court noted that while the complainant had made threats to falsely accuse the accused of rape to obtain money for drugs, these threats were characterized as impudent adolescent remarks lacking serious intent.

The court found that the Crown proved beyond a reasonable doubt that the accused sexually assaulted his daughter.

The Crown applied to the Superior Court for a review of a judicial interim release order that granted bail to the accused with two parental sureties.

The accused faced multiple assault charges against an intimate partner and an alleged breach of a conditional sentence order.

The Crown argued that the justice of the peace erred in approving the parents as sureties because they had previously been aware of the accused’s drug use and had provided medication during withdrawal.

The reviewing judge held that the proper standard was whether the justice of the peace made an error in law, not whether another decision-maker might have reached a different conclusion.

Finding that the justice of the peace carefully assessed the evidence, including a Gladue report and the suitability of the sureties, the court concluded that no legal error occurred and declined to interfere with the bail order.

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.

The appellant appealed a conviction for impaired operation after pleading guilty, arguing the plea was involuntary and constituted a miscarriage of justice.

He asserted his judgment was impaired by alcohol, lack of sleep, anxiety, and pressure arising from being held in custody pending bail.

Fresh evidence was heard from duty counsel, Crown counsel, a toxicologist, and the appellant.

The court held that the appellant understood the nature and consequences of the plea, received competent legal advice, and voluntarily chose to plead guilty despite advice not to do so.

Stress and desire for immediate release did not render the plea involuntary.

The appeal was dismissed and the conviction upheld.