Susan Von Achten

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching against an 11-year-old complainant.

The sole ground of appeal was ineffective assistance of trial counsel, alleging that counsel focused excessively on the complainant's gender identification, failed to cross-examine on lack of opportunity, failed to bring a section 276 application, and failed to obtain an updated psychological report.

The Superior Court of Justice dismissed the appeal, finding that trial counsel's tactical decisions were reasonable and professional, and that the appellant failed to establish incompetence or a miscarriage of justice.

Following findings of guilt for uttering threats, the accused sought to bring an application for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The court previously declined to hear the application because it was not brought proactively before the end of the trial.

The accused requested a reconsideration based on a recent appellate decision confirming that a trial judge is not functus officio to hear such applications before sentencing.

The court dismissed the request, holding that while it had jurisdiction, the application was properly declined due to the accused's failure to raise the delay issue in a timely manner as required by the Jordan framework.

The moving defendants brought a motion to remove the plaintiffs' counsel of record due to her repeated failure to comply with court orders and attend case conferences over a two-and-a-half-year period.

The court found that counsel's conduct caused inordinate delay, prejudicing both the defendants and the plaintiffs, and brought the administration of justice into disrepute.

Applying the principles from MacDonald Estate v. Martin, the court concluded that the removal of counsel was necessary for the proper administration of justice.

The motion was granted.

Following a traffic stop for expired registration, police extended the detention and purported to rely on the Cannabis Control Act to question the accused about marijuana in the vehicle and to search the occupants and vehicle.

The court held that the continued detention was arbitrary, that police used the Cannabis Control Act as a pretext for a broader criminal investigation, and that they breached ss. 10(a) and 10(b) by failing to promptly explain the reason for the continued detention and advise of the right to counsel before eliciting incriminating information.

Because the search grounds were obtained through those breaches, the warrantless searches also violated s. 8.

Applying Grant, the court excluded all statements and physical evidence obtained during the stop.

The separate application alleging ss. 7 and 12 breaches arising from custodial treatment was dismissed, and the accused was acquitted on all counts.

The accused was charged with uttering threats to cause bodily harm to her son and threatening to burn her daughter-in-law's business property.

Both threats arose from a single voicemail message left on August 25, 2023, following the accused's exclusion from her other son's funeral.

The accused admitted leaving the voicemail.

The defence argued the language was figurative, referring to civil litigation rather than literal threats.

The court found that a reasonable person would perceive the voicemail as containing threats of physical harm and property damage, and that the accused subjectively intended to intimidate and be taken seriously.

The accused was found guilty on both counts.

The applicant, Seyedali Salar, sought an order for the sale of the matrimonial home and exclusive possession in the interim.

The respondent, Mahnaz Salari, did not object to the sale but requested $2 million to purchase a new home, interim spousal support, and exclusive possession.

The court found that spousal support was not properly before it on this motion and granted the applicant’s motion in part, allowing the sale of the home, granting exclusive possession to the applicant in 45 days, and ordering that the proceeds be held in trust.

The respondent was awarded a $30,000 uncharacterized payment.

The decision reviews the relevant provisions of the Family Law Act and the Family Law Rules, and applies recent case law on the sale and possession of matrimonial homes.

The respondent, Serafim Beites, moved for an order granting him exclusive possession of real property jointly owned with the applicant, Kimberly Ann Beites, in Texas, and for an order restraining the applicant from attending that property.

The court dismissed the motion, finding that a preservation or restraining order under section 12 of the Family Law Act was not necessary to protect an equalization payment, and that the value of the Texas property was insignificant compared to the parties' other assets.

The court also questioned its jurisdiction to grant exclusive possession of foreign-owned real property and declined to exercise exceptional in personam jurisdiction in the circumstances.

This decision addresses competing applications for a change of venue in a first-degree murder trial.

The Crown sought to transfer the trial from Gore Bay to Sudbury, while the accused sought a transfer to Toronto, or alternatively, North Bay.

The court determined that a change of venue from Gore Bay was expedient due to the lengthy trial, daily travel for the in-custody accused, and winter travel conditions.

The court granted the Crown's application, ordering the trial to proceed in Sudbury, finding it to be the most appropriate venue given its proximity to the original community, adjacent jail facilities, and available courtroom.

The accused's arguments regarding jail conditions and proximity to counsel and family were not sufficiently supported by evidence or did not outweigh the principle of local trials.

Following the offender's convictions for firearms and breach offences, the Crown applied for forfeiture of $4,900 CAD and $325 USD seized during his arrest.

The court dismissed the application under the offence-related property regime, noting that drug trafficking is a CDSA offence, not a Criminal Code offence.

However, relying on expert evidence regarding indicia of drug trafficking and the offender's criminal history, the court found beyond a reasonable doubt that the seized funds were proceeds of crime.

The forfeiture application was granted.

The offender was convicted of possessing a loaded prohibited firearm and pleaded guilty to multiple breaches of court orders, including a weapons prohibition, recognizance, and probation.

The firearm was thrown from an 11th-floor window during a police raid and was found loaded and ready to fire.

The court found the firearm was possessed as a tool for drug trafficking, given the presence of scales, cash, and multiple cell phones.

As a recidivist firearms offender, the offender was sentenced to a total of 7 years' imprisonment, emphasizing denunciation and deterrence.

Three family members appealed their convictions and sentences arising from a scheme to steal lottery tickets from customers at their family convenience store, one of which won a $12.5 million prize.

The Court of Appeal dismissed the conviction appeals, finding all verdicts were reasonable.

On sentence, the court reduced one appellant's custodial sentence from four to three years and reduced her restitution obligation, but otherwise upheld the sentences.

The court upheld the constitutionality of the mandatory minimum imprisonment provisions under s. 462.37(4) of the Criminal Code, distinguishing Boudreault on the basis that the fine in lieu of forfeiture regime targets offenders who possessed proceeds of crime, unlike the indiscriminate victim surcharge.

The s. 11(b) application was dismissed under the transitional exceptional circumstance provision from Jordan.

On the Crown's appeal, the court entered convictions against the acquitted co-accused on theft and possession counts and ordered a new trial on fraud and possession of proceeds counts.

The accused was tried for unlawful possession of a prohibited firearm and unlawful possession of a loaded prohibited firearm.

During the execution of a search warrant by the Emergency Task Force at an 11th-floor apartment, an officer stationed outside observed a loaded Glock handgun being thrown from a bedroom window.

The accused and his girlfriend were found in the bedroom.

The court rejected the defence's arguments that the officer could not have seen the gun fall or that it was planted, and found the girlfriend's testimony that she did not throw the gun credible.

The court concluded beyond a reasonable doubt that the accused threw the loaded firearm out the window upon hearing the police breach the door, and found him guilty on both counts.

The accused was charged with trafficking cocaine.

The court applied the co-actor's exception to the hearsay rule (Carter test) to admit intercepted communications.

The court found a common unlawful design to traffic cocaine and that the accused was a participant based on direct and inferential evidence, including surveillance and phone communications.

The accused's arguments regarding the necessity of calling a co-actor witness and the credibility of a police agent were rejected.

The court found the accused guilty on both counts.

Following convictions for lottery fraud, the Crown sought restitution, forfeiture, and fines in lieu of forfeiture against the accused.

The court ordered restitution of $12.5 million jointly and severally against the two primary offenders, declining to add interest.

The court also ordered forfeiture of approximately $7.5 million in seized funds, after returning specific amounts to innocent third parties.

Finally, the court imposed fines in lieu of forfeiture of $2.3 million each on the two primary offenders, with a six-year term of imprisonment in default of payment.

The appellant sought an extension of time to appeal a school board's decision to expel his son.

The appeal was filed two and a half months after the statutory 30-day deadline.

The appellant argued the delay was justified because the school board failed to provide adequate reasons for the expulsion.

The Child and Family Services Review Board dismissed the appeal, finding that the adequacy of the school board's reasons was irrelevant to the de novo appeal process and that the delay prejudiced the school board's need for certainty and stability.

The accused were charged with multiple offences relating to the theft and fraudulent claiming of a $12.5 million winning Super 7 lottery ticket.

The Crown alleged that a convenience store clerk stole the winning free play ticket from a customer and subsequently had his daughter claim the prize.

Relying on circumstantial evidence, including lottery terminal data, cellphone records, and banking records, the court found the father guilty of theft, fraud, and possession of stolen property.

The daughter was found guilty of fraud and possession of stolen property.

The son was found guilty of stealing other lottery tickets but acquitted of the charges relating to the $12.5 million ticket.

All accused were acquitted of money laundering.

The applicants, charged with first degree murder, brought a motion to adduce evidence at trial of a known third party as an alternate suspect.

The Crown alleged the applicants conspired to kill the deceased for insurance proceeds.

The applicants sought to introduce evidence that the deceased's former common-law partner had motive and opportunity to commit the murder.

The court applied the test for third-party suspect evidence, requiring a sufficient connection between the third party and the crime.

The court found the proposed evidence lacked direct connection, relied on hearsay, and failed to establish motive, means, or propensity.

The motion to adduce the alternate suspect evidence was dismissed.

In a first-degree murder prosecution, the defence brought a pre-trial application to remove Crown counsel, alleging prosecutorial misconduct, suppression of evidence, and collusion with police.

The Crown brought an application under Rule 34.02 of the Criminal Proceedings Rules to summarily dismiss the defence's application.

The court found that the defence's allegations were based entirely on suspicion, conjecture, and speculation, lacking any evidentiary foundation.

Applying the principles from R. v. Cody, the court concluded there was no reasonable prospect the defence application could succeed and summarily dismissed it without an evidentiary hearing.

Sentencing decision following convictions for sexual assault of a 16-year-old complainant who was intoxicated and incapable of consenting after being supplied alcohol during a camping trip.

The court treated denunciation and deterrence as primary objectives and found multiple aggravating factors, including the complainant's age, intoxication, breach of trust, unprotected sexual activity, and the predatory conduct of the offenders.

The absence of prior records was mitigating, but the offenders' refusal to accept responsibility and lack of remorse significantly undermined rehabilitation.

Sentences of 3 years and 3.5 years' imprisonment were imposed, together with DNA, weapons prohibition, sex offender registration, and victim surcharge orders.

Two co-accused, charged with first-degree murder, sought an order permitting their joint representation by a single counsel, Ms. von Achten, following a prior order removing her as counsel for one accused due to conflict.

The court considered the accused's right to counsel of choice, the potential for tactical disadvantages, and the public interest.

Despite acknowledging potential future conflicts and the risk of proceeding unrepresented, the accused, having received independent legal advice, were adamant about their choice.

The court granted the application, emphasizing the accused's constitutional right to choose counsel, provided they confirm their understanding of the risks on the record.