Bonnie J. Wein

Following a mistrial caused by an unforeseen disruption, the court addressed whether prior evidentiary rulings would apply to the new trial.

The judge held that the earlier rulings would cross-apply, consistent with the governing legislation.

The court noted that the admissibility ruling concerning a bankrupt’s statement might require reconsideration depending on the outcome of the pending Supreme Court of Canada decision in R. v. Nedelcu.

The judge also indicated that the trial judge at the new trial should review the Crown’s proposed questions regarding prior discreditable conduct and post‑offence conduct to ensure the rulings are applied efficiently and do not disrupt the flow of evidence before the jury.

The Crown appealed a summary conviction decision dismissing a charge of assault with a weapon after the trial judge granted a directed verdict at the close of the Crown’s case.

The trial judge applied the standard of proof beyond a reasonable doubt rather than the proper test for a directed verdict.

Applying the test from U.S.A. v. Shephard, the appeal court held that the correct inquiry was whether there was any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.

The record contained substantial circumstantial evidence identifying the respondent as the assailant, including possession of a knife with the victim’s blood and injuries consistent with the fight.

The appeal was allowed and a new trial ordered before a different justice.

The accused was sentenced following a jury conviction for trafficking nearly three kilograms of cocaine and possession of proceeds of crime exceeding $54,000.

Wiretap evidence demonstrated the accused’s ongoing and significant role in a multi‑kilogram cocaine distribution network, including negotiating price, quantity, and delivery.

Although the accused had no relevant criminal record and presented numerous mitigating personal circumstances, the court emphasized the seriousness of multi‑kilogram cocaine trafficking and the need for general deterrence.

Relying on Ontario appellate authorities establishing higher sentencing ranges for large‑scale cocaine trafficking, the court concluded that a penitentiary term within the 8–10 year range was appropriate.

The self-represented plaintiff brought a motion for summary judgment alleging Charter breaches and slander arising from a private peace bond complaint under s. 810 of the Criminal Code.

The defendant effectively brought a cross-motion for summary judgment dismissing the action.

The court held that statements made in court proceedings are privileged and cannot ground a slander claim, and that the plaintiff’s Charter claims were legally unfounded because he had appeared by summons and was never detained or imprisoned.

The court further held that legal fees incurred in the prior criminal peace bond proceeding could not be recovered through a separate civil action and that costs should have been addressed by the judge presiding over the original matter.

Summary judgment was granted dismissing the action.

In a criminal fraud prosecution, the Crown sought to introduce statements the accused made under oath during an examination in bankruptcy proceedings under s. 161 of the Bankruptcy and Insolvency Act.

The court considered the scope of s. 13 of the Charter and the Supreme Court of Canada’s decision in R. v. Henry governing the use of prior testimony.

The court held that testimony given in a prior proceeding cannot be used by the Crown as part of its case in chief where it constitutes prior testimony protected by s. 13.

However, because the bankruptcy was voluntarily initiated and the statements were not legally compelled, the prior testimony could be used to cross-examine the accused if she chose to testify at trial.

Pre‑trial evidentiary ruling in a fraud prosecution concerning whether the Crown could introduce evidence of prior dealings between the accused and a financial brokerage, as well as alleged post‑offence conduct.

The Crown sought to admit background facts relating to the accused’s business relationship with the brokerage, evidence of financial difficulties suggesting motive, and alleged threatening conduct.

The court applied the probative value versus prejudicial effect analysis governing prior discreditable conduct and narrative evidence.

Background evidence concerning the accused’s relationship with the brokerage and events surrounding a promotional dinner attended by the complainant was admitted, as it was relevant to the complainant’s understanding of the accused’s representations.

Evidence of a prior debt, certain customer complaints, and an alleged threat was excluded or restricted due to limited probative value and significant risk of moral prejudice.

The accused applied to challenge prospective jurors for cause under s. 638(1)(f) of the Criminal Code on the basis of potential lack of language competency in the language of trial.

The defence argued that the right to challenge jurors on language grounds exists independently of an order under s. 530 governing the language of trial and forms part of constitutional language rights.

The court held that juror language competency is primarily a component of the right to a fair trial and that s. 638(1)(f) operates in conjunction with a prior order under s. 530.

In the absence of such an order and without evidentiary foundation demonstrating an air of reality for the concern, the court found that the standard jury vetting process sufficiently ensures linguistic competency.

The application to challenge jurors for cause was therefore denied.

Following the defendant’s successful motion for summary judgment dismissing the action, the defendant sought partial indemnity costs totaling $27,176.08.

The plaintiff argued that each party should bear their own costs, citing the public interest nature of the claim concerning the rights of a disabled employee, her modest means, and proportionality concerns relative to the value of the claim.

The court held that the case did not raise issues of sufficient public policy importance to justify denying costs to the successful party.

However, the court found duplication of effort and excessive billing rates for work that could have been performed by junior counsel.

Costs were therefore reduced and fixed at $13,000 inclusive of disbursements and HST, payable within 12 months without interest.

The plaintiff filed a very late factum in a leave application, necessitating an adjournment.

The defendant requested that the leave application be dismissed due to the unreasonable delay.

The court declined to dismiss the application, noting the severe consequence of losing the right to litigate on the merits, but awarded $2,000 in costs to the defendant payable forthwith for the wasted court time.

The applicants moved to set aside two orders regarding their claimed beneficial interest in their son and daughter-in-law's matrimonial home.

The first order converted their application into an action, and the second ex parte order vested exclusive title in the daughter-in-law after the applicants failed to comply with the first order's filing deadlines.

The Divisional Court set aside the ex parte order under Rule 37.14(1)(a) because the applicants had indicated an intention to appeal, but affirmed the initial order as the motion to set it aside was not brought forthwith.

The respondent on an appeal from the Small Claims Court brought a motion before a judge of the Divisional Court to dismiss the appeal for delay.

The appellant argued that the court lacked primary jurisdiction to hear the motion.

The court agreed, finding that under Rule 61.13(1) of the Rules of Civil Procedure, a motion to dismiss an appeal for delay must be brought before the Registrar of the Divisional Court.

The court ordered the matter to be set down before the Registrar on an expedited basis and awarded costs of the motion to the respondent.