W. Mark Wallace

Sentencing decision following a guilty plea to internet luring arising from a two-and-a-half-month relationship between an adult police officer and a vulnerable 15-year-old girl.

The court found the communications, gifts, rides, and provision of alcohol amounted to grooming and exploitative conduct aimed at achieving a sexual relationship, despite the absence of sexual touching.

Emphasizing denunciation and deterrence in child exploitation cases, the court treated the offender's status as a police officer and breach of trust as powerful aggravating factors.

A sentence of one year imprisonment followed by three years' probation, together with SOIRA, DNA, and s. 161 orders, was imposed.

The appellant police officer was found guilty of misconduct under the Police Services Act.

The hearing officer, the Ontario Civilian Police Commission, and the Divisional Court all applied a balance of probabilities standard of proof.

On appeal, the Court of Appeal held that it was bound by the Supreme Court of Canada's decision in Penner, which established that the standard of proof in PSA hearings is a higher standard of 'clear and convincing evidence', not a balance of probabilities.

The appeal was granted and the matter remitted to the Commission.

The respondent public complainant sought partial indemnity costs of $9,316.87 from the applicant police officer following a proceeding.

The applicant did not dispute the quantum but argued no costs should be ordered because the matter was a test case concerning the standard of proof in police disciplinary cases.

The Divisional Court rejected this argument, finding that while the co-respondent police service did not seek costs, the proceeding was not a test case for the public complainant, who was maintaining a civil claim against the applicant.

The court awarded the requested costs to the respondent public complainant.

The applicant police officer sought judicial review of a decision by the Ontario Civilian Police Commission (OCPC) upholding his conviction for unnecessary exercise of authority.

The applicant argued that the hearing officer erred by applying the civil standard of proof (balance of probabilities) rather than a higher standard of 'clear and convincing evidence' under s. 84(1) of the Police Services Act.

The Divisional Court dismissed the application, holding that the Supreme Court of Canada's decision in F.H. v. McDougall established that there is only one civil standard of proof, and that police discipline hearings remain civil proceedings governed by the balance of probabilities.

The accused was charged with failing to provide a sample into an Approved Screening Device (ASD) on June 12, 2011.

The central issue was whether the failure by police to provide a "last chance" warning before the final attempt raised a reasonable doubt as to whether the refusal was unequivocal.

The accused made four unsuccessful attempts to provide a suitable breath sample over approximately seven minutes.

After arrest, he immediately requested another opportunity, which was refused.

The court found that the refusal was not unequivocal because the accused was not warned that his fourth attempt would be his last chance, the officer had been coaching and encouraging him throughout, and his subsequent offer was genuine and made immediately after arrest.

The court concluded that the accused should have been given the opportunity to comply and acquitted him.

The appellants appealed a Divisional Court decision dismissing their application to direct the Commissioner of the Cornwall Public Inquiry to state a case regarding his jurisdiction to hear certain evidence.

The Commissioner had ruled he had jurisdiction to hear evidence from a complainant regarding a recent sexual assault by teenagers and the subsequent police investigation.

The Court of Appeal allowed the appeal, finding that the Commissioner committed a jurisdictional error by misconstruing the Order in Council that established his mandate.

The Court held that the inquiry's subject matter was limited to historical sexual abuse of young people by persons in authority or positions of trust, and the proposed evidence fell outside this scope and was not reasonably relevant.

The appellants were convicted of second-degree murder and manslaughter in a gang-related shooting.

At trial, the francophone co-accused requested trials in different official languages, leading the trial judge to conduct a bilingual trial.

The trial judge also admitted out-of-court statements made by the deceased victim before his death under the principled exception to the hearsay rule.

On appeal, the Court of Appeal held that the bilingual trial was permissible under the Criminal Code and did not violate the appellants' language rights.

However, the Court found that the trial judge erred in admitting the deceased's statements by improperly relying on extrinsic evidence and mere consistencies to establish threshold reliability.

The Court also found a significant error in the jury instructions regarding reasonable doubt and the absence of evidence (the 'Miller' error).

The appeal was allowed and a new trial ordered.